Townsend v. Ross Record
Public Court Documents
February 8, 1966 - November 8, 1967
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Brief Collection, LDF Court Filings. Townsend v. Ross Record, 1966. f07b8935-c69a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/07482229-3c1b-490b-ac1d-ed39052ab2d6/townsend-v-ross-record. Accessed July 09, 2025.
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R E C O R D
la tte mate (tort nf Appeals
F or the E ighth Circuit
No. 19065
Civil
Charles T ownsend,
v.
Appellant,
R oy B. R oss,
Chief of Police of Helena, Arkansas, et al.,
Appellees.
APPEAL FROM DECISION OP THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS, HELENA DIVISION
Norman C. A maker
Jack Greenberg
10 Columbus Circle
New York, New York 10019
George H oward, J r.
329% Main Street
Pine Bluff, Arkansas
Attorneys for Appellant
I N D E X
Supplemental Docket E ntry............................................. 4
Complaint ........................................................................... 5
Answer of Ross, Nicholls and Davis .............................. 10
Answer of F in ley .............. 12
Answer of Home Indemnity Company .......................... 14
Motion to Quash Jury Roll, Jury List and Names in
Jury Box ....................................................................... 16
Answers of Cole, Clerk of U.S.D.C. to Interrogatories
Propounded by Plaintiff, Townsend .......................... 21
Answers of White, Jury Commissioner to Interroga
tories Propounded by Plaintiff, Townsend ............ . 29
Order Denying Motion to Quash ................. ................. 36
Judgment on Jury Verdict ............................................ 37
Motion for Judgment Notwithstanding Verdict.......... 38
Response to Motion for Judgment................................. 41
Order Denying Motion for Judgment, etc. .................. 44
Notice of Appeal .............. ........ ...................................... 45
Designation of Record on Appeal ................................. 46
PAGE
Relevant Docket Entries ................................................... 1
11
Pre-Trial Conference May 23, 1966 ............................. 47
Transcript of Pre-Trial Proceedings May 29, 1967 ..... 67
Transcript of Trial Proceedings June 13, 14, 1967 ....... 93
Motion for a Directed Verdict .................. 202, 279, 284
Verdict ............................................................................... 291
T estimony
Plaintiff’s Witnesses:
Rosetta House—
Direct ...........................................................116, 280
Cross ................................................................... 122
Redirect .............................................................. 129
Mattie Butcher—
Direct ................................................................. 130
Cross ................................................................... 131
Charles Townsend—
Direct ...........................................................135, 282
Cross ......................................................... 148
Redirect .............................................................. 166
Dollie Grilerest—
Direct ......................................... 168
Cross ................................................................... 171
Redirect .................................:........................... 177
Ann Morris—
Direct ................................. 178
Cross - .............................. 180
Dr. W. A. E llis -
Direct ................................................................. 184
Cross ................................. 185
PAGE
Ill
Dr. Daniel Tonyman—
Direct ................................................................. 187
Cross ................................................................... 188
Connie Straub—
Direct ............................ 189
Donald Wm. Moreland—
Direct ................................................................. 194
Willie Olloway—
Direct ................................................................. 195
Beulah Olloway—
Direct ................................................................. 200
Defendants’ Witnesses :
Royce Wm. Finley—
Direct .......... 205
Cross ................................................................... 212
Redirect ........................... 215
William A. Stewart—
Direct ................................................................. 217
Cross ................................................................... 221
Redirect .............................................................. 224
Sidney Carvill—
Direct .................................. 225
Cross ................................................................ 228
Redirect .............................................................. 231
Preston Bottoroff—
Direct ................ 231
Cross ................................................................... 234
Harold NicholLs—
Direct ............................... 238
Cross ................................................................... 244
PAGE
LeRoy Davis—
Direct .................................................................. 250
Cross ................................................................... 257
Jim Bogle—
Direct ................................................................. 259
Cross ................................................................... 264
Roy R o s s -
Direct ................................................................. 265
Cross ...... 274
Redirect .............................................................. 277
Recross ................................................... 278
E xhibits*
Offered
Page
Plaintiff’s Exhibits
1—Article of Clothing.................. 147
2 for Ident.—Emergency Report ....................... 179
3 for Ident.—Check ..... 191
4 for Ident.—Sheet .......................... 193
Defendants’ Exhibit
1—Document .................. 237
iv
PAGE
* Omitted from Record.
Hnttefr iiBtrtrt Court
E astern D istrict op A rkansas
E astern D ivision
Civil Action No. H 66 C-6
Charles T ownsend,
v.
Plaintiff,
B oy B. R oss, Chief of Police o f Helena, Arkansas, H arold
Nicholls, Policeman of the Helena, Arkansas Police
Department, J ohn D oe, Store Detective-Policeman of
the Helena, Arkansas Police Department and T ile H ome
I ndemnity Company, a corporation,
Defendants.
Relevant Docket Entries
2- 8-66 Complaint filed.
2-26-66 Answer of Boyce William Finley.
2-26-66 Answer of Boy B. Ross, Harold Nicholls and
Leroy Davis.
2-26-66 Answer of Home Indemnity Company.
5-16-66 Motion to quash jury roll, jury list, and names
in the jury box filed by plaintiff.
5-23-66 Hearing on motion to quash jury list, etc., before
Harris, J. in Helena at 2 p.m. Plaintiff’s counsel
to submit written interrogatories to Clerk and
Jury Commissioner; stipulation may then be
entered into, and matter set for hearing.
2
7- 20-66
8- 3-66
8- 22-66
9- 8-66
5-29-67
6- 1-67
6-13-67
6-14-67
Interrogatories to Charles F. Cole, Clerk, U. S.
District Court.
Answer of Charles F. Cole, Clerk, to inter
rogatories propounded by plaintiff.
Interrogatories to Mr. J. J. White.
Answers of J. J. White, Jury Commissioner for
the Eastern District of Arkansas, Helena Divi
sion, to the interrogatories propounded by
plaintiff.
Pre-trial before Judge Harris in Helena, 3 p.m.
On motion of plaintiff’s counsel, Norman C.
Amaker of New York Bar permitted to partic
ipate in this case. After argument of counsel
on plaintiff’s motion to quash jury roll, etc.,
the motion was denied by the Court. The Court
to advise counsel as to defendants’ motion to
dismiss The Home Indemnity Co., copies of
policy to be supplied to the Court and plaintiff’s
counsel. To be set for jury trial during week
of June 12th.
Order by Harris, J. denying motion to quash
jury roll, jury list and names in jury box.
Jury trial begun before Judge Harris in Helena,
9 :30 a.m. Not having been concluded at 5 :40
p.m., continued until 9:00 a.m., June 14th.
Jury trial resumed 9 :00 a.m. At the conclusion
of testimony, argument of counsel, and the
Court’s instructions, the jury returned a verdict
for defendants.
Relevant Docket Entries
3
6-14-67 Verdict filed. Judgment entered.
6-14-67 Judgment on jury verdict filed.
6- 23-67 Motion for judgment notwithstanding verdict
filed by plaintiff.
7- 11-67 Response to motion for judgment notwithstand
ing verdict filed by defendants.
8- 24-67 Order by Harris, J. denying motion of plaintiff
for judgment notwithstanding the verdict and
in the alternative a motion for a new trial, and
that judgment entered on June 14, 1967 be
allowed to stand, filed.
9- 23-67 Notice of appeal filed by plaintiff.
9-23-67 Designation of record on appeal filed by
plaintiff.
10-16-67 Bond for cost on appeal.
10-16-67 Reporter’s transcript of pre-trial conference on
May 23, 1966 filed.
10-23-67 Reporter’s transcript of trial, June 13th and
14th, 1967 filed.
A Tbue Copy op R elevant Docket
E ntries, I Certify
L ouise A. R ohan, Acting Clerk
B y : / s / H elen McGuire
Helen McGuire, D. C.
Relevant Rochet Entries
4
Supplemental Docket Entry
11- 8-67 Copy of transcript of pretrial conference in
Helena, Arkansas on May 29, 1967 filed.
A T rue Copy op S upplemental D ocket
E ntry, I Certify :
L ouise A. R ohan, Acting Clerk
By: / s / H elen McGuire
Helen McGuire, D. C.
5
IN THE UNITED STATES DISTRICT COURT
E astern D istrict of A rkansas
Helena D ivision
No. H 66-C-6
C om p lain t
Charles T ownsend,
—vs.
Plaintiff,
R oy B. R oss, Chief of Police of Helena, Arkansas, H arold
Nioholls, Policeman of the Helena, Arkansas Police
Department, L eroy Davis, Policeman of the Helena,
Arkansas Police Department, J ohn Doe, Store Detec
tive-Policeman of the Helena, Arkansas Police Depart
ment and T he H ome I ndemnity Company, a Corpora
tion,
Defendants.
Complaint
(Filed February 8, 1966)
1. (a) Jurisdiction of this Court is invoked under Title
28, United States Code, Section 1331, this being a civil
action that arises under the Constitution and laws of the
United States wherein the matter in controversy exceeds
the sum of Ten Thousand ($10,000.00) Dollars, exclusive
of interest and costs.
(b) Jurisdiction is also invoked under Title 28, United
States Code, Section 1343. This is an action to redress
6
the deprivation, under color of any State law, statute,
ordinance, regulation, custom or usage, of any right, privi
lege or immunity secured by the Constitution of the
United States or by any act of Congress providing for
equal rights of citizens or of all persons within the juris
diction of the United States.
(c) Jurisdiction is further invoked under Title 42, United
States Code, Section 1983, this being an action for damages
which a citizen of the United States contends that he has
been deprived of rights, privileges and immunities secured
by the Constitution and laws of the United States by a
person acting under color of a State statute, ordinance,
regulation, custom or usage.
F acts
2. Plaintiff alleges that he is an adult citizen of the
United States and of the State of Arkansas, Phillips
County.
3. Plaintiff alleges that defendant, Roy B. Ross, is the
duly qualified and acting Chief of Police of the Helena,
Arkansas Police Department, and was such on the date
hereinafter referred to, and is in charge of the police
force of the City of Helena.
4. Plaintiff alleges that defendant, Harold Nicholls, is
the duly qualified and acting police officer of the Helena,
Arkansas Police Department and was such on the date
hereinafter referred to.
5. Plaintiff alleges that defendant, Leroy Davis, is the
duly qualified and acting police officer of the Helena, Ar
Complaint
7
kansas Police Department and was such on the date here
inafter referred to,
6. That plaintiff alleges that defendant, John Doe, store
detective-policeman of the Helena Police Department, is
a person unknown to plaintiff but on the date hereinafter
designated and at the time of the incident hereinafter
referred to, said John Doe, store detective-policeman of
the Helena Police Department, was acting within the scope
of his official capacity conferred upon him by the Chief of
Police of the Helena Police Department as a policeman of
Helena, Arkansas.
7. Plaintiff further alleges that defendant, The Home
Indemnity Company, is a corporation organized under
the laws of the State of New York, but is authorized to
do business in the State of Arkansas; that said defendant
is the surety on the official bond of defendant, Eoy B.
Boss, and was surety on said bond on the date hereinafter
referred to; that said bond is conditioned that defendant,
Roy B. Ross, shall well and faithfully perform the duties
of his office as Chief of police; that said bond is in the sum
of $3,000.00.
8. Plaintiff further alleges that on December 24, 1965,
in the afternoon, while plaintiff was sitting in his auto
mobile in downtown Helena, Arkansas, that John Doe,
store detective-policeman, who, plaintiff alleges, was em
powered with authority by defendant, Roy B. Ross, Chief
of Police of Helena, Arkansas, to perform the duties as a
policeman, approached the plaintiff and placed plaintiff
under arrest; that plaintiff demanded an explanation of
his arrest; that plaintiff was struck by the said store
Complaint
8
detective and handcuffed and was later carried to the city
jail of Helena, Arkansas and confined; that while plaintiff
was in said jail and while being handcuffed, defendants,
Roy B. Ross, Harold Nicholls and Leroy Davis, struck
and beat the plaintiff and rendered plaintiff unconscious
and inflicting bruises, abrasions and contusions about the
face, head and body of this plaintiff and left plaintiff in a
bloody condition; that plaintiff was later confined to the
Helena Hospital from Friday, December 24, 1965, to Tues
day December 28, 1965; that medical treatment and atten
tion were required and that 16 sutures were placed on
plaintiff’s head; that plaintiff was later accused of shop
lifting, but was actually charged with being drunk, dis
turbing the peace, resisting arrest and assaulting an officer;
that plaintiff unequivocally denies that there is any truth
or substance to the shoplifting accusation and to the
charges lodged in the Municipal Court of Helena, Arkansas,
namely, resisting arrest, assaulting an officer, drunk and
disturbing the peace.
9. That plaintiff was taken into custody without a war
rant having been issued and plaintiff was not carried be
fore a Judge, Court or Magistrate; that defendants placed
plaintiff in a jail cell with members of the opposite sex
and that plaintiff further alleges that it is the custom and
practice of defendant, Roy B. Ross, to mix the sexes in the
Helena jail.
10. Plaintiff further asserts that all of the foregoing
acts on the part of the defendants constituted a deprivation
of plaintiff’s rights, privileges, or immunities as secured
by the Constitution and laws of the United States; plaintiff
Complaint
9
further asserts that the treatment accorded to him by de
fendants violated those requirements of decency, fairness
and liberty secured to plaintiff by the due process clause
and the equal protection clause of the Fourteenth Amend
ment to the Constitution of the United States.
11. That as a direct and proximate result of the afore
said acts of the defendants, and each of them, the plaintiff
suffered great bodily pain and injury, mental anguish,
blackouts and severe and extreme headaches and will con
tinue to suffer in the future and therefore has been dam
aged in the sum of $75,000.00; that prior to the incident
referred to herein, plaintiff was gainfully employed and
lost and will lose large sums of money by reason of the
afore said acts of the defendants; that plaintiff should
recover punitive damages in the sum of $75,000.00.
W herefore, plaintiff, Charles Townsend, prays judgment
against the defendants, and each of them, jointly and
severally, in the sum of $150,000.00, plus the costs of this
action and for such other and further relief as to this
Court seems just, proper and equitable.
/ s / Charles T ownsend
Plaintiff
George Howard, Jr.
329% Main Street
Pine Bluff, Arkansas
Attorney for Plaintiff
Complaint
10
Answer of Roy B. Ross, Harold Nicholls,
and Leroy Davis
(Filed February 26, 1966)
Come the defendants, Roy B. Ross, Harold Nicholls and
Leroy Davis, and for their answer to the Complaint here
tofore filed against them by the plaintiff, state as follows:
1) They deny that the jurisdiction of this court can be
invoked against them on the grounds as set out in para
graph I of the Complaint.
2) They neither admit nor deny that the plaintiff is a
citizen of Phillips County and the State of Arkansas.
3) They admit the allegations contained in paragraphs
3, 4 and 5 of the Complaint.
4) They allege that the John Doe designated in para
graph 6 of the Complaint is Bill Finley, but they deny all
the other allegations contained in paragraph 6 of the
Complaint.
5) They neither admit nor deny the allegations con
tained in paragraph 7 of the Complaint.
6) They deny paragraphs 8, 9, 10 and 11 of the Com
plaint.
7) For further answer, the defendants allege that the
plaintiff was lawfully arrested by policemen of the City
of Helena acting in the performance of their duty. While
attempting to place the plaintiff in the City Jail, the plain
tiff assaulted the defendants, Harold Nicholls, Roy B. Ross
and Leroy Davis, and in attempting to avoid confinement
endeavored to escape from custody.
8) The defendants further allege that the plaintiff was
properly charged with resisting arrest, assaulting an officer
11
Answer of Roy B. Ross, Harold Nicholls,
and Leroy Davis
and drunk and disturbing the peace which charges were
duly presented to the Municipal Court of the City of Helena,
Phillips County, Arkansas, where the plaintiff was ably
represented by counsel of his own choice. The charges
were found to be true by the Judge of the Municipal Court
having jurisdiction thereof.
9) The defendants further state and allege that any in
juries sustained by the plaintiff resulted from his own
intentional and wrongful acts in attempting to escape after
being lawfully placed under arrest by a proper officer of
the law in illegally resisting arrest and assaulting an officer
of the law.
10) The issues having been joined and being based partly
upon questions of fact in dispute, the defendants request
a jury trial.
Now, therefore, premises considered, the defendants,
Roy B. Ross, Harold Nicholls and Leroy Davis pray that
the cause be dismissed.
W. G-. Dinning, Jr.
538 Rightor Street
Helena, Arkansas
David Solomon
215 Cherry Street
Helena, Arkansas
Roscopf & Raff
Helena Nat’l. Bank Bldg.
Helena, Arkansas
By : / s/ W. Gr. D inning, Je.
Attorneys for Defendants,
Roy B. Ross, Harold Nicholls
and Leroy Davis
12
(Filed February 26, 1966)
The Defendant, Royce William Finley, being the person
referred to as John Doe in the Complaint, for his separate
answer to the Complaint states:
1. This Defendant denies that this Court has jurisdic
tion of this matter under Title 28 United States Code,
Section 1331, under Title 28 United States Code, Section
1343, under Title 42 United States Code, Section 1983, or
any other section of United States Code.
2. Defendant is without knowledge and therefore denies
paragraph 2 of the Complaint.
3. Defendant admits paragraphs 3, 4 and 5 of the Com
plaint.
4. Defendant specifically denies the allegations of para
graph 6 of the Complaint.
5. Defendant is without knowledge and therefore denies
the allegations of paragraph 7 of the Complaint.
6. Defendant specifically denies the allegation of para
graph 8 of the Complaint.
7. Defendant is without knowledge and therefore denies
the allegations of paragraph 9 of the Complaint.
8. Defendant specifically denies the allegations of para
graph 10 of the Complaint.
A n sw er o f R o y ce W illia m F in le y
13
9. Defendant specifically denies the allegations of para
graph 11 of the Complaint, and by way of further answer
states that any injuries sustained by Plaintiff were as a
result of his own intentional and wrongful acts in attempt
ing to escape after being lawfully placed under arrest
by a proper officer of the law, in illegally resisting arrest
and assaulting an officer of the law.
W h e r e f o r e , have fully answered, this Defendant prays
that the Complaint be dismissed, for his costs herein ex
pended, and for all further and proper relief.
David Solomon
215 Cherry Street
Helena, Arkansas
Dinning & Dinning
538 Rightor Street
Helena, Arkansas
Roscopf & Raff
Helena National Bank Bldg.
Helena, Arkansas
B y / s/ David Solomon
A ttorneys for Defendant,
Boyce William Finley
Trial by jury on the issues in this case is requested by
Defendant, William Royce Finley.
/ s / David Solomon
Attorney for Defendant
Answer of Boyce William Finley
14
(Filed February 26, 1966)
Comes the defendant, Home Indemnity Company, a cor
poration, and for its answer to the Complaint heretofore
filed against it by the plaintiff, states as follows:
1) It denies that the jurisdiction of this court can be
invoked against it on the grounds as set out in paragraph I
of the Complaint.
2) It neither denies nor admits the allegations con
tained in paragraphs 2, 3, 4, 5 and 6 of the Complaint.
3) It admits that it is a corporation organized under
the laws of the State of New York and is authorized to do
business in the State of Arkansas, and it admits that it is
a joint obligee with the defendant, Roy B. Ross, on a cer
tain idemnifying bond in favor of the City of Helena,
Arkansas, in the amount of $3,000.00 which indemnifying
bond was in force on the date referred to in the Complaint,
and to that extent admits the allegations of paragraph 7
of the Complaint.
4) It denies the allegations contained in paragraphs 8,
9, 10 and 11 of the Complaint.
5) It alleges that the indemnifying bond referred to in
paragraph 7 of the Complaint is for the benefit of the City
of Helena, and is not a public liability policy as contem
plated by Sec. 66-3240, Ark. Stat. Annot. 1947, which per
mits direct suits against insurers carrying liability in
surance for tort feasors who are immune to suit.
A n sw er o f th e H o m e In d e m n ity C o m p a n y
15
6) It alleges that the indemnifying bond is for the use
and benefit of the City of Helena and not the public gen
erally, and is issued by the insurance company as a joint
obligee with the defendant, Roy B. Ross, Chief of Police,
as required by Sec. 19-1702, Ark Stat. Annot. 1947, for the
faithful performance of his duties as Chief of Police.
7) It denies that it is responsible to the plaintiff for
damages alleged to have been caused in deprivation of
plaintiff’s rights, privileges or immunities as secured by
the Constitution and Laws of the United States or that
the damages resulted from any treatment accorded to him
in violating the requirements of decency, fairness and
liberty secured to the plaintiff by the due process clause
and the equal protection clause of the Fourteenth Amend
ment to the Constitution of the United States.
Therefore, premises considered, the Home Indemnity
Company prays that the cause be dismissed.
W. O. Dinning, Jr.
538 Rightor Street
Helena, Arkansas
David Solomon
215 Cherry Street
Helena, Arkansas
Roscopf & Raff
Helena National Bank Building
Helena, Arkansas
By : / s / W. Gr. Dinning, Je.
Attorneys for Defendant
The Home Indemnity Company
Answer of the Home Indemnity Company
16
(Filed May 16, 1966)
Comes the plaintiff, Charles Townsend, by and through
one of his attorneys, George Howard, Jr., and moves the
Court for an Order quashing the names of any persons
heretofore selected for inclusion on the jury roll, jury
list and in the jury box and the names of any persons
on the jury roll, jury list or in the jury box as presently
constituted for the purpose of summoning petit jurors
for service on the jury venire and panel in The United
States District Court, Eastern District of Arkansas, Helena
or Eastern Division and eliminating the use of said jury
list, roll or jury box in any manner whatsoever, and for
cause states:
1. Plaintiff alleges that according to the 17th Decennial
Census of the United States for 1960, published by the
United States Department of Commerce, Bureau of Census,
of which the Courts of the United States take judicial
notice, the white population of the Helena or Eastern
Division of the Eastern District of Arkansas which is
composed of Cross, Lye, Monroe, Phillips, Saint Francis
and Woodruff Counties, twenty-one (21) years of age
and over is 40,484 and the Negro population of said Helena
or Eastern Division, twenty-one (21) years of age and
over is 35,448.
2. Though members of plaintiff’s race, the Negro race,
are totally qualified under federal law to serve on juries
in the United States District Court, Eastern District of
Arkansas, Helena or Eastern Division, their names have
not been placed for service on the jury roll or lists or
been put in the jury box by the Clerk of the Court, or his
deputy and the jury commissioner or commissioners, or
M o tio n to Q u a sh Jury R o ll , Jury L ist and
N am es in th e Jury B o x
17
only a very small number in relation to the total number
qualified have had their names placed on such roll or list
or in the jury box. The failure of the Clerk of the Court,
or his deputy and the jury commissioner or commissioners
to enroll the names of Negroes on the jury roll or lists
or to put their names in the jury box for service on juries
within the Helena or Eastern Division of the Eastern
District of Arkansas of the United States District Court
is the result of (1) the deliberate and systematic exclusion
by the Clerk of the Court, or his deputy and the jury
commissioner or commissioners of all Negro citizens resi
dent within the Helena or Eastern Division of the Eastern
District of Arkansas from service on juries or (2) the
deliberate and systematic limitation by Clerk of the Court,
or his deputy and the jury commissioner or commissioners
of the number of Negro citizens resident in the Helena
or Eastern Division of the Eastern District of Arkansas
who are called for service on juries so as to assure to only
a token number of such persons appearance on the jury
rolls or lists and in the jury box or (3) the failure by
the Clerk of the Court, or his deputy and the jury com
missioner or commissioners to acquaint themselves with
Negro citizens resident in the Helena or Eastern Division
of the Eastern District of Arkansas to the same extent
and in the same manner in which they normally and
regularly acquaint themselves with white citizens in the
Helena or Eastern Division of the Eastern District of
Arkansas, or (4) the failure of said Clerk or his deputy
and the jury commissioner or commissioners to apply the
same methods and procedures to secure the names of quali
fied Negro citizens resident in the Helena or Eastern Divi
sion of the Eastern District of Arkansas, used with respect
to securing the names of white citizens resident in said
Motion to Quash Jury Roll, Jury List and
Names in the Jury Box
18
District and Division, even though said Clerk or his deputy
and commissioner or commissioners do not regularly make
an attempt to secure the names of all citizens resident
within the Helena or Eastern Division of the Eastern
District of Arkansas, who are qualified by law for service
on juries.
3. As a consequence of the conduct of the Clerk of the
Court, or his deputy and the jury commissioner or com
missioners as above alleged, plaintiff has been and will
be further deprived of his right to have his case con
sidered fairly and impartially by a jury truly representa
tive of the whole number of persons in the Helena or
Eastern Division of the Eastern District of Arkansas quali
fied for jury service without discrimination based on race
and to have the numbers of such persons chosen fairly
reflect their proportion of the number of all persons in
the Helena or Eastern Division of the Eastern District of
Arkansas qualified to serve on juries. Moreover, discrim
ination by the Clerk or his deputy and the commissioner
or commissioners, as alleged, permits—where the number
of Negroes is limited or kept to a token figure—selection
from the jury roll or lists or from the jury box on a racial
basis and/or permits those few who are able to get selected
for jury venire or panel to be easily struck or challenged
and prevented from serving on any jury actually trying
a civil or criminal case in the Helena or Eastern Division
of the Eastern District of Arkansas.
4. The discrimination as above alleged violates the equal
protection and due process requirements secured to this
plaintiff and all other Negroes in the Helena or Eastern
Division under the Constitution of the United States and
rights guaranteed under the laws of the United States.
Motion to Quash Jury Boll, Jury List and
Names in the- Jury Box
19
W herefore, plaintiff respectfully prays as follow s:
A. That plaintiff be given time to take the deposition
of persons within the jurisdiction of this Court and of
persons beyond the jurisdiction of this Court for the pur
pose of discovery and for the use as evidence in support
of this motion; and,
B. That plaintiff be accorded a hearing on this motion
and be permitted to offer evidence to sustain the allega
tions contained herein; and,
C. That upon a hearing of this matter, this Court enter
an Order quashing the names of any persons heretofore
selected for inclusion on the jury roll, jury list and in the
jury box and the names of any persons on the jury roll,
jury list or in the jury box as presently constituted for the
purpose of summoning petit jurors for service on the
jury venire and panel in the United States District Court,
Eastern District of Arkansas, Helena or Eastern Division
and eliminating the use of said jury list, roll or jury box
in any manner whatsoever; and,
D. That the Clerk of this Court, or his deputy and
the jury commissioner or commissioners be directed to
compile a new jury roll or list and a new jury box in
such a manner that the list and/or roll and/or box so
compiled will contain (a) the name of every qualified
Negro in the Eastern District of Arkansas, Helena or
Eastern Division if heretofore the name of every quali
fied white person in said District and Division has been
contained in the aforesaid jury list, roll or box; (b) the
names of a sufficient number of Negro citizens resident
in said District and Division so as to fairly reflect the
Motion to Quash Jury Roll, Jury List and
Names in the Jury Box
20
proportion or percentage of such citizens in the said
District and Division if the practice heretofore has been
to include only a portion rather than the whole of all
the qualified white citizens in said District and Division,
thus making the jury list, roll and/or box truly repre
sentative of all the persons qualified for jury service in
the Eastern District of Arkansas, Helena or Eastern Divi
sion; and,
E. That the Clerk of this Court, or his deputy and
the jury commissioner or commissioners be further di
rected to cease deliberately and systematically using proce
dures or methods which result in either no Negroes being
selected from the jury roll, list or box for jury venires
or panels or limiting the number of Negroes so selected
to a small or token number which can easily be struck
when selecting juries for the trial of a civil or criminal
case; and from using any and all other methods which
result in the failure to select Negroes for service on jury
venires and panels because of their race or which deprive
them of the right to be fairly chosen for such service; and,
F. And for any and all other proper and appropriate
relief that plaintiff may be entitled to.
George H owaed, Jr.
329% Main Street
Pine Bluff, Arkansas
Norman C. A maker and
Jack G r e e n b e r g
10 Columbus Circle
New York, New- York 10019
Attorneys for Plaintiff
Motion to Quash Jury Roll, Jury List and
Names in the Jury Box
21
Answers of Charles F. Cole,
Clerk, United States District Court, to the
Interrogatories Propounded by the Plaintiff,
Charles Townsend
(Filed August 3, 1966)
Comes Charles F. Cole, Clerk, United States District
Court for the Eastern District of Arkansas, being first
duly sworn, and for his answers to the Interrogatories
propounded by the Plaintiff, Charles Townsend, states:
I nterrogatory No, 1: State your name, address and
occupation.
A nswer: Charles F. Cole, United States District Clerk
for the Eastern District of Arkansas.
I nterrogatory No. 2: How long have you held this
position?
A nswer: Since January 4, 1960.
I nterrogatory No. 3: On what date, if you recall, were
you appointed to your present position? If you do not
recall the exact date, state the closest approximation that
you can recall.
A nswer: See answer above.
I nterrogatory No. 4 : State the name of your predeces
sor, if known.
A nswer: Grady Miller.
I nterrogatory No. 5 : If in answer to question 4, you
have stated the name of your predecessor, state whether
you know his present address and if so what is that address
or where that address may be obtained.
A nswer: 514 Gaines St., Little Rock, Arkansas.
22
I nterrogatory No. 6: Describe the precise role played
by you in compiling the jury list or roll containing the
names of persons deemed qualified for grand and petit
jury service in the Eastern District of Arkansas. In this
description, state what sources of names you consult.
A nswer: Names are secured by the Clerk and Jury
Commissioner for each of the five Divisions from personal
knowledge and acquaintance. Also, the Clerk and Jury
Commissioner request recommendations from “Key Men”
in each county in the several divisions of the Eastern
District of Arkansas. These “Key Men” are personally
known to the Clerk or Jury Commissioner and are persons
who are recognized for their wide acquaintance in their
areas and are men and women of good character, recog
nized integrity and sound judgment.
I nterrogatory No. 7: Describe the nature of the as
sistance you have in carrying out your function as indi
cated in the answer to question 6. State the names and
addresses of the persons who assist you and describe their
activities in detail.
A nswer: A s stated above, the respective Jury Com
missioners secure names of prospective jurors. It is as
sumed that they are assisted in securing their list of names,
by their secretaries. The U. S. Clerk is assisted by the
deputy clerks of this office, and principally by Mrs. Frances
Wright, Deputy Clerk, Post Office Box 869, Little Rock,
Arkansas. Such assistance consists of writing letters to
“Key Men,” checking over lists received from “Key Men”
to determine if those recommended are legally qualified;
whether they have served as jurors within one year; and,
Answers of Charles F. Cole,
Clerk, United States District Court, etc.
23
whether exempt from jury service; also, preparing in
dividual slips for each name; being present when a venire
is drawn from pool of names; listing names so drawn;
preparing summons for jurors; checking attendance of
jurors appearing for jury service; and, preparing payroll
for payment of jury service.
I nterrogatory No. 8: State the precise manner in which
the jury box for the Eastern District of Arkansas is filled.
If separate jury boxes are maintained for some or all of
the various divisions of the Eastern District, describe in
detail the manner in which each of these boxes is filled.
A nswer : Separate jury boxes are maintained for each
Division of the Eastern District of Arkansas, with the
exception that at the present time the Western Division,
(Little Rock) and Pine Bluff divisions are combined.
Names are placed in the box alternately by the jury com
missioner of each Division and by the Clerk. After all
names are placed in the box, the jury Commissioner and
Clerk draw names alternately from the box by lot until
the number of names directed by the Court to be drawn
for the venire is obtained. Each name is listed in chrono
logical order as drawn, and jurors are then summoned
from such list, upon order of the Court, in the order drawn.
I nterrogatory No. 9 : Give the total number of names
in the jury box or in each jury box if more than one is
maintained.
A nswer: Exact number not known; no record is kept
of the exact number in box, except that it is determined
that the box contains a minimum of 300 names. A box may
contain 800-1000 names at times.
Answers of Charles F. Cole,
Clerk, United States District Court, etc.
24
I nterrogatory No. 10: State the total number of names
of Negroes in the jury box or in each jury box if more
than one is maintained.
A nswer: Impossible to answer as no record is kept
which would indicate the race or color of prospective
jurors.
I nterrogatory No. 11: In whose custody is the jury
box or boxes as the case may be.
A nswer: The box itself is in the custody of the Clerk;
the names of prospective jurors are kept by both the
Clerk and the Jury Commissioner.
I nterrogatory No. 12: I f the jury box or boxes is/are
locked, state what individual or individuals have keys to
the box or boxes. Name all individuals if more than one
has a key to each box.
A nswer: The box is not kept locked.
I nterrogatory No. 13: When was the jury box or if
there is more than one, the jury boxes, last refilled?
A nswer: The lists of names are continually being re
plenished and names deleted due to death, illness, etc.
No name is retained over three years.
I nterrogatory No. 14: State the number of names used
in refilling the box or each of the boxes if there is more
than one, when the box or boxes was/were last refilled.
A nswer: No particular number so long as there are
at least 300 names in the jury lists. As stated above, the
lists, or boxes, are continually revised by addition of new
names and deletion of names because of death, illness, etc.
I nterrogatory No. 15: For each number given in an
swer to question 14, state the number of Negro names
included in the total.
Answers of Charles F. Cole,
Clerk, United States District Court, etc.
25
A nswer: As above stated, it is impossible to determine
the race or color of any person whose name is in the box
or on the lists, as the Courts have repeatedly held that
jury selection should be made without reference to race
or color.
I nterrogatory No. 16: State the precise method used
in drawing the names of jurors from the jury box or from
each box if more than one is maintained.
A nswer: This has been explained in answer to Ques
tion 8, supra.
I nterrogatory No. 17: State what happens to the names
that are drawn from the jury box or boxes if there is more
than one.
A nswer: A s the names are drawn, a list of them is
made in chronological order and the jury summoned by
the Clerk’s Office. After the jury has served the names
are listed on index cards so that a juror will not be re
called within the time prescribed by statute, and the in
dividual slip having the name and address of the juror is
destroyed.
I nterrogatory No. 18: What happens to the jury box
(or boxes) after the names of jurors are drawn?
A nswer: The box or venire is retained by the Clerk.
Upon expiration of the Court term the lists are made a
part of the permanent record.
I nterrogatory No. 19: If in answer to question 17, you
have indicated that the names drawn from the jury box
or boxes are placed on a venire list, state:
a) the number of venires drawm each calendar year or if
the number varies, the average or typical number drawn.
Answers of Charles F. Cole,
Clerk, United States District Court, etc.
26
A nswer: A venire is drawn for each, term of court.
Since there are usually two terms per year, two venires
are drawn annually. In some instances when no jury cases
are to be tried, no venire is drawn. The average number
drawn depends entirely upon the Order of the Court.
b) the number of venires drawn for each term of court
or if the number varies, the average or typical number
drawn.
A n s w e r : See above.
c) The number of names on each venire list or if the
number varies, the average or typical number of names.
A n s w e r : See above.
d) Whether there are separate venire lists for the grand
and petit jui’ies.
A n s w e r : The venire for the Grand Jury is drawn from
all lists from the Eastern District of Arkansas; the venire
for petit juries is drawn from the lists for the particular
division where the jury is to serve.
e) Whether there are separate venire lists for civil and
criminal cases.
A n s w e r : N o .
f) where venire lists are kept on file and for what prior
years venire lists are available for inspection.
A n s w e r : See Answer to Interrogatory No. 18.
g) whether the names of Negroes on these lists are
identified as such and if so, by what means.
Answers of Charles F. Cole,
Clerk, United States District Court, etc.
27
A nswer : There is no way to determine the race or color
of jurors from the records of this office.
I nterrogatory No. 20: State how many terms of court
there are each year for: (a) civil cases, (b) criminal cases.
A nswer: Two terms annually in each division for both
Civil and Criminal cases.
I nterrogatory No. 21: State how’ many grand juries
are constituted each year.
A nswer: Grand Juries are called in session approxi
mately once every six months, and are subject to call at
anytime if necessary. Grand jurors serve for eighteen
months.
I nterrogatory No. 22: State the precise method used
for summoning jurors after their names are drawn from
the jury box.
A nswer: After prospective jurors have been selected,
summons are prepared for such jurors and delivered to the
United States Marshal for service.
I nterrogatory' No. 23: What is the procedure followed
for assembling jurors for the trial of particular cases after
they are summoned for jury duty?
A nswer: When jurors report for jury service, they are
referred to the judge or judges holding trials and after
being properly qualified and sworn as jurors, names are
selected by lot, and those so selected are questioned by
the Court who excuses any person who may be disqualified
to set on the particular case being tried. After sufficient
jurors have been qualified to permit each side to exercise
their peremptory challenges, and leave 12 jurors, a list of
Answers of Charles F. Cole,
Cleric, United States District Court, etc.
28
the qualified jurors is given to each side, and the attorneys
exercise their peremptory challenges by deleting the num
ber of names on the lists they may challenge. The first
twelve names remaining on the list is seated as the jury
and is sworn to try the case.
I nterrogatory No. 24: What is the usual number of
persons on the grand jury?
A nswer : Twenty-three.
/ s / Chas. F. Cole
Chas. F. Cole, Clerk
U. S. District Court
Eastern District of Arkansas
State of A rkansas,
County of P ulaski, ss. :
Subscribed and sworn to before me this 3rd day of
August, 1966.
Answers of Charles F. Cole,
Clerk, United States District Court, etc.
/ s / Jean Martin
Notary Public
My Commission expires:
October 11, 1966
29
Answers of J. J. White, Jury Commissioner for the
Eastern District o f Arkansas, Helena Division, to the
Interrogatories Propounded by the Plaintiff,
Charles Townsend
(Filed September 8, 1966)
Comes J. J. White, Jury Commissioner for the Eastern
District of Arkansas, Helena Division, first being duly
sworn, and for his answers to the Interrogatories pro
pounded by the Plaintiff, Charles Townsend, states:
I nterrogatory No. 1: State your name, address and
occupation.
A nswer : J. J. White, Waverly Wood, Helena, Arkansas,
and I am the Jury Commissioner for the Eastern District
of Arkansas, Helena Division.
I nterrogatory No. 2: How long have you held this
position?
A nswer: Approximately 2 years.
I nterrogatory No. 3 : On what date, if you recall, were
you appointed to your present position? If you do not
recall the exact date, state the closest approximation that
you can recall.
A nswer: I do not recall the date, but it was approxi
mately 2 years ago.
I nterrogatory No. 4: State the name o f your predeces
sor, if known.
A nswer: J. B. Lambert, Helena National Bank Build
ing, Helena, Arkansas.
I nterrogatory No. 5: If in answer to question 4, you
have stated the name of your predecessor, state whether
30
you know his present address and if so what is that address
or where that address may be obtained.
A nswer: See answer to Interrogatory No. 4.
I nterrogatory No. 6: Describe in detail the duties per
formed by you within the scope of your occupation.
A nswer : I am notified by the Clerk of the Court, either
by letter or in person, that the jury list needs adding to
or revising. At that time I contact i outstanding citizens! in
each county of this District which I refer to as “key men”
and request of them names of [substantial citizens! to be
included on the jury list. From this list submitted by these
“key men” and the ones compiled by me, I select the names
to be submitted to the Clerk. The Clerk and I then meet
and place all such names in a hat and alternately draw
names from such hat until the requirements of the jury
panel are met.
I nterrogatory No. 7 : State what assistance you have
in performing the duties described in the answer to ques
tion 6 and give the names and addresses, if known, and
the race of the person or persons who assist you.
A nswer: I do not recall the names or addresses of the
so-called “Key men” for I call different ones each time.
I am additionally assisted by my secretary, Mrs. Barkley
J. Bullard, who types the list and helps me keep a record
of the names.
I nterrogatory No. 8: State in detail the methods and
procedures employed by you and your assistants, if any, in
selecting the names of persons within the Eastern District
of Arkansas for inclusion on the jury list or roll con
taining the names of persons deemed qualified for grand
Answers of J. J. White, Jury Commissioner for the
Eastern District of Arkansas, etc.
31
and petit jury service in the Eastern District of Arkansas;
state all sources of names that you use and the manner in
which you derive names from these sources.
A nswer : See answer to Interrogatory No. 6, and No. 7.
I nterrogatory No. 9: If in answer to question 8, yon
have indicated that you use “key men” as a source of
names, state for each of the five divisions of the Eastern
District of Arkansas and for each of the counties within
these divisions the following:
a—the name, address, occupation and race of the key
man or men;
b—the length of time that each key man or men has
acted in that capacity;
c—the names of persons on the present jury list or roll
supplied to you by each key man or men and the race of
those persons. w
A n s w e r : a—I have no record of the name, address, oc
cupation or race of the key man that I use for I use dif
ferent ones each time and call or contact highly responsible
citizens in each county.
b—No person serves any length of time for I contact
different ones each time.
c—I have no knowledge of the number of names on the
present jury list supplied by me and cannot identify them
by race.
I nterrogatory No. 10: State the total number of names
on the present jury list or roll maintained for the Eastern
District of Arkansas.
Answers of J. J. White, Jury Commissioner for the
Eastern District of Arkansas, etc.
32
A nswer: I do not know the exact number and I do not
think any record is kept of the exact number in any box
except that the Clerk informs me that he needs to maintain
a minimum of 300 names and it is my impression that a box
may contain over 600 or 700 names at times.
I nterrogatory No. 11: How many of the total number
of names on the present jury list or roll maintained for
the Eastern District of Arkansas are the names of Negro
persons (give an exact number)!
A nswer: I have no knowledge of the number and am
unable to identify them by race.
I nterrogatory No. 12: When was the present jury list
or roll maintained for the Eastern District of Arkansas
compiled!
A nswer: It is my impression that the last addition to
such list was made in the Spring of 1966.
I nterrogatory No. 13: Where is the present jury list
or roll maintained for the Eastern District of Arkansas
located!
A nswer: The Clerk of the Court maintains the jury
list and I have a list of names that I maintain which are
eligible for recommendation as jurors.
I nterrogatory No. 14: How often is the jury list or roll
maintained for the Eastern District of Arkansas recom
piled!
A nswer: Once or twice a year as needed by the Clerk.
I nterrogatory No. 15: Are some or all of the lists or
rolls for previous years kept on file!
Answers of J. J. White, Jury Commissioner for the
Eastern District of Arkansas, etc.
33
A nswer: I have no knowledge of the records kept by
the Clerk, and, I do not keep any records of names which
have been used.
I nterrogatory No. 16: If your answer to question 15
is that some or all of the lists or rolls for previous years
are kept on file, state for what years you have the previous
lists and where each list is located.
A nswer: See answer to Interrogatory No. 15.
I nterrogatory No. 17: If your answer to question 15
is that none of the jury lists or rolls have been preserved,
state in what form, if any, the names of persons whose
names appeared on these lists or rolls in prior years have
been preserved and where these names may be found.
A nswer: I restate that I have no knowledge of the
records preserved by the Clerk and I have none.
I nterrogatory No. 18: Are separate jury lists or rolls
maintained in the District for grand and petit jurors?
A nswer: Names are supplied by me for both grand
and petit jurors and it is my impression that the Clerk
maintains separate lists.
I nterrogatory No. 19: Is there any difference in the
procedure used for selecting names of persons qualified for
grand as opposed to petit jury service. If so, describe the
difference.
A nswer: There is no difference.
Interrogatory No. 20: Are separate jury boxes main
tained for some or all of the divisions of the Eastern Dis
trict of Arkansas.
A nswer: I have no knowledge of this, but assume that
separate boxes are maintained.
Answers of J. J. White, Jury Commissioner for the
Eastern District of Arkansas, etc.
34
I nterrogatory No. 21 : I f the answer to question 20 is
yes, state the following:
a—the divisions for which separate boxes are main
tained ;
b—the total number of names in each of these boxes;
c—the total number of the names of Negroes in each of
these boxes;
d—the location of each of these boxes.
A nswer: a— I have no knowledge o f this.
b—I have no knowledge of this.
c—I have no way of knowing for no designation is made
as to the race of any juror.
d—The location of the boxes is in the Clerk’s Office,
I assume.
I nterrogatory No. 22: If the answer to question 20 is
no, then give the information requested in 21b, 21c, and
21d for the single jury box that is maintained.
A n s w e r : See answers to above.
/ s / J. J. W h ite
J. J. W h ite
Jury Commission
U. S. District Court Eastern District
of Arkansas, Helena Division
Answers of J. J. White, Jury Commissioner for the
Eastern District of Arkansas, etc.
35
State of A rkansas,
County o f P hillips, ss .:
Subscribed and sworn to before me, this the 7th day o f
September, 1966.
Answers of J. J. White, Jury Commissioner for the
Eastern District of Arkansas, etc.
/ s / B arkley J. B ullard
Notary Public
My Commission E xpires:
May 2, 1967
36
Order Denying Motion to Quash
(Filed June 1, 1967)
On May 29, 1967, this cause came before the Court for
hearing on the plaintiff’s motion to quash jury roll, jury
list and names in the jury box.
The plaintiff appeared by his attorneys, George Howard,
Jr., and Norman Amaker, and the defendants by their
attorneys, W. G. Dinning, Jr., David Solomon, and Eugene
Raff, Jr.
After hearing the arguments of counsel and on con
sideration of the entire record herein, the Court finds said
motion to be without merit.
It is, T herefore, Considered, Ordered and A djudged,
that said Motion be and the same is hereby denied.
Dated: May 31, 1967.
/ s / Oren H arris
United States District Judge
37
(Filed June 14, 1967)
This action came on for trial before the Court and a
jury, Honorable Oren Harris, United States District Judge,
presiding, and the issues having been duly tried and the
jury having duly rendered its verdict,
“We, the Jury, find in favor of the defendants, Roy B.
Ross, Harold Nicholls, Leroy Davis, Rovce William
Finley, and The Home Indemnity Company, and
against the plaintiff, Charles Townsend.
/ s / John P. (Jack) Dozier”
J u d gm en t o n Jury V erd ict
Dated: June 14, 1967
It is Ordered and Adjudged that the complaint be dis
missed at the cost of plaintiff.
Dated at Helena, Arkansas, this 14th day of June, 1967.
/ s / C h as F . C ole
Clerk of Court
38
(Filed June 23, 1967)
Comes the plaintiff, Charles Townsend, by and through
one of his attorneys, George Howard, Jr., and moves the
Court to set aside the verdict entered in the above cause
on June 14, 1967, and the judgment entered thereon on
the 14th day of June, 1967, and to enter judgment in ac
cordance with plaintiff’s motion for directed verdict at
the close of defendants’ case and then renewed at the close
of all the evidence. Plaintiff’s motion for directed verdict
should have been granted because:
1. The facts and inferences therefrom in this case did
not produce controverted issues upon which reasonable
men could differ as to plaintiff’s claim.
(a) Defendants’ own witnesses contradicted each other
in many areas of their testimony and the evidence offered
by defendant William Finley to the effect that plaintiff
was “very drunk and that he was so drunk he was limber
and could not stand on his feet” shows conclusively that
plaintiff was incapable of physically o& resorting to the
physical conduct claimed by defendants Roy B. Ross,
Harold Nicholls and Leroy Davis, namely, that plaintiff
knocked defendant Harold Nicholls down with his fist—
the evidence shows that defendant Harold Nicholls weighs
200 pounds and stands six feet—and disarmed or nearly
disarmed Roy B. Ross who weighs 210 pounds and stands
six feet and one inch and assaulting defendant Leroy
Davis who weighs 180 pounds and stands five feet and
eleven inches.
(b) Moreover, testimony offered by plaintiff to the effect
that plaintiff and other males were confined to a jail cell
M o tio n fo r Ju d gm en t N otw ith stan d in g V e rd ict
39
with members of the opposite sex was not denied or con
troverted by defendants and thus remains unchallenged.
(c) Evidence given by witnesses for plaintiff that ini
tially plaintiff was accused of shoplifting by defendant
William Finley, which was the basis of the plaintiff’s
arrest as alleged by plaintiff, but was proved to be ground
less was not denied or controverted by the testimony of
fered by defendants
Motion for Judgment Notwithstanding Verdict
II
In the alternative, plaintiff moves the Court to set aside
the verdict and judgment entered thereon and grant plain
tiff a new trial on the following grounds:
1. The Court erred in not allowing plaintiff the oppor
tunity to show that over the years the clerk and the jury
commissioner have included only a token number of Ne
groes on the jury roll, jury list and in the jury box, thus
limiting the number of Negroes called for jury duty.
2. The Court erred in overruling plaintiff’s motion to
squash the jury roll, jury list and the names in the jury box.
3. The Court erred in overruling plaintiff’s motion on
the day of trial renewing plaintiff’s motion to squash the
jury roll, jury list and the names in the jury box.
4. The Court erred in refusing, on voir dire examination
of the jurors, to interrogate the Negro persons on the
panel, at the request of counsel for plaintiff, as follows:
I f selected to serve as jurors, whether, during the delibera:
tion of the jury, they or either one of them should find them
40
selves or either one of them of one opinion and the rest
of the members of the jury of another opinion whether
the fact that they or either one of them were in the minority
would that alone cause them or either one of them to
change their or his opinion or view!
5. The Court erred in refusing to give plaintiff’s written
requested instruction number four on the law of arrest in
the state of Arkansas.
6. The Court erred in refusing to give plaintiff’s written
requested instruction number two regarding applicable
Constitutional and statutory provisions of the United
States.
7. The verdict of the jury is contrary to the law.
8. The verdict of the jury is contrary to the evidence.
George H oward, Jr.
329% Main Street
Pine Bluff, Arkansas
Norman C. A maker and
J ack Greenberg
10 Columbus Circle
New York, New York 10019
Attorneys for Plaintiff
By / s / George H oward, Jr.
Motion for Judgment Notwithstanding Verdict
41
(Filed July 11, 1967)
Come the Defendants, and in response to Plaintiff’s
Motion for Judgment Notwithstanding Verdict, state:
I
Plaintiff’s Motion for directed verdict should not have
been granted and that the allegations contained in Plain
tiff’s Motion for Judgment Notwithstanding Verdict con
tain no new matter and were properly ruled on by the
Court at the time of trial, and should be denied.
II
By way of further response, Defendants state that the
Court should not set aside the verdict and judgment entered
in this cause and grant Plaintiff a new trial as requested
in the alternative pleading, for the following reasons:
(a) The Court allowed the Plaintiff ample opportunity
to discover and offer proof of Plaintiff’s allegation that the
Clerk and Jury Commissioner have included only a token
number of Negroes on the jury roll, jury list and in the
jury box. After extensive discovery, the Plaintiff failed
to offer any substantial evidence upon which this Court
would be permitted to grant Plaintiff’s Motion to Quash
the jury roll, jury list, and the names in the jury box.
(b) The Court did not err in refusing to propound to
the jury the Plaintiff’s question as contained in Item II (4)
for the reason that said question was covered by other
questions propounded to the jury on voir dire examination
R e sp o n se to M o tio n fo r J u d gm en t
N otw ithstan d ing V erd ict
42
by the Court and said question would have been merely
repetitive.
(c) The Court did not err in refusing to give Plaintiff’s
written requested instruction number 4 on the law of arrest
in the State of Arkansas because the law of arrest in the
State of Arkansas as applied to the proof introduced at
the trial was sufficiently covered by the Court in other
instructions.
(d) The Court did not err in refusing to give Plaintiff’s
written requested instruction number 2 regarding appli
cable constitutional and statutory provisions of the United
States for the reason that the Court did instruct the jury
as to all applicable constitutional and statutory provisions
of the United States in other instructions to the jury.
(e) The verdict of the jury was not contrary to the law.
(f) The verdict of the jury was not contrary to the evi
dence.
Ill
For further response to Plaintiff’s Motion for Judgment
Notwithstanding Verdict, the Defendants state that the
facts conclusively show that the Clerk and Jury Commis
sioner have not limited the number of Negroes called for
jury duty, said facts are as follows:
(a) That by Order of this Court, sixty (60) jurors were
drawn by the Clerk and the Jury Commissioner for the
term in which the above captioned case was tried, and that
thirty-seven per cent (37%) of said jurors were Negroes.
(b) That on June 12, 1967, a jury was empaneled, con
sisting of eighteen (18) Negroes out of a total of forty-four
Response to Motion for Judgment
Notwithstanding Verdict
43
(44) who reported. That on June 13, 1967, forty-one (41)
jurors reported for jury duty, of which seventeen (17)
were Negroes. That on said date the jury of twelve (12)
men which tried this case consisted of four (4) Negroes.
W h e r e f o r e , having fully responded, the Defendants pray
that the Plaintiff’s Motion for Judgment Notwithstanding
Verdict be denied, and for any and all other relief to which
it may he entitled in the premises.
Respectfully submitted,
W . G. D inning, J r.
D inning & D inning
538 Rightor Street
Helena, Arkansas
David Solomon
215 Cherry Street
Helena, Arkansas
R oscopf & R aff
Helena National Bank Building
Helena, Arkansas
/ s / By: Gene R aff
Gene Raff
Response to Motion for Judgment
Notwithstanding Verdict
44
Order Denying Motion for Judgment, etc.
(Filed August 24, 1967)
This matter comes on for consideration on a motion
filed by the plaintiff June 23, 1967, for judgment notwith
standing the verdict and in the alternative a motion for
a new trial, pursuant to a jury verdict following a trial
on the merits of the case June 14, 1967. On a timely
response by the defendant, and after consideration of the
entire record, the Court finds said motion to be without
merit.
It is, T hebefobe, by the Coubt, Considered, Obdebed
and Adjudged that said motion be and the same is hereby
denied and that the judgment entered herein on June 14,
1967, be allowed to stand.
Dated: August 23, 1967.
/ s / Ob e y H abris
United States District Judge
45
Notice of Appeal
(Filed September 23, 1967)
Notice is hereby given that the above named plaintiff
hereby appeals to the United States Court of Appeals for
the Eighth Circuit from the final judgment entered in this
action on August 24, 1967.
George H oward, J r .
329% Main Street
Pine Bluff, Arkansas
N orman C. A m a k e r and
J ack G reenberg
10 Columbus Circle
New York, New York 10019
Attorneys for Plaintiff
By / s / George H oward, J r .
46
Designation of Record on Appeal
(Filed September 23, 1967)
Pursuant to Rule 75 of the Federal Rules of Civil Proce
dure, plaintiff hereby designates the entire record of all
proceedings and evidence in the District Court to consti
tute the record on appeal.
G eorge H oward, J b .
329% Main Street
Pine Bluff, Arkansas
N orman C. A m a k e r and
J ack G reenberg
10 Columbus Circle
New York, New York 10019
Attorneys for Plaintiff
By / s / G eorge H oward, J r .
47
Pre-Trial Conference, May 23 , 1966—
Transcript of Proceedings
Be It R emembered, that a pre-trial hearing was had in
the above entitled and numbered cause before the Honor
able Oren Harris, United States District Judge, in the
Federal Courtroom, Federal Building, Helena, Arkansas,
on Monday, May 23, 1966.
There were present at said time and place for the plain
tiff Honorable George Howard, Jr., Pine Bluff, Arkansas;
and for the defendants Honorable David Solomon, Helena,
Arkansas.
* * # * #
T hereupon, the following proceedings were had in open
court, as follows:
P roceedings
—2—
The Court: The next case on the calendar for today is
No. H 66 C-6, Charles Townsend vs. Roy B. Ross, Chief
of Police of Helena, et al. Mr. Howard, are you ready for
this matter to be taken up f
Mr. Howard: If your Honor please, a few days ago,
to be exact about one week ago today, the plaintiff filed a
motion to quash the names that are presently contained in
the jury box, also any names that may well be in the pos
session of the Clerk, Jury Commissioner or Commissioners,
be included in the box, and of course in this motion plain
tiff did request this Court for time to take discovery depo
sitions of persons who reside within the jurisdiction and
of individuals who are presently outside of the jurisdiction
of this court, and also depositions for the purpose of sub
mitting the same for evidence in order to support the con
tentions of the plaintiff in this motion. Additionally, we
requested a hearing on the motion itself.
48
The Court: Well, the Court is aware of the motion filed
and has had some occasion to review and to some extent
analyze it. I am fully aware of the fact that this puts a
little different picture on the matter, as far as the present
— 3 —
status of it is concerned. Under the Rule of Discovery
Evidence for a case filed such as this is permitted—how
ever, I am not at all sure at this moment that a motion to
quash the jury panel and the array or the panel itself,
which I assume you are attacking here, is a part of the
case as alleged in the complaint. Do I correctly understand
that you have a complaint filed in which you are bringing
suit against the officers and others in the City of Helena,
together with some indemnity company, I believe, The
Home Indemnity Company, in which you make certain alle
gations and as a result there were damages sustained and
you are seeking to be compensated. Now, that is what your
lawsuit is about?
Mr. Howard: That is true.
The Court: Now, that is one thing at issue. I observe
that your complaint has been filed and the response to it,
and there is an Answer of Roy B. Ross, Chief of Police of
Helena, and there is an Answer of Royce William Finley,
who says he is the John Doe in the complaint. There is an
Answer of Harold Nicholls and Leroy Davis, and there is
an Answer filed on behalf of the Home Indemnity Com
pany. It appears that insofar as the complaint is con-
— 4—
cerned, the allegations here, and answers filed, that the
issues are joined. In addition thereto, or in response to the
pre-trial conference scheduled on this calendar, the defend
Pre-Trial Conference, May 23, 1966
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49
ants have made a pre-trial report, which was filed on the
19th of this month. I assume you have a copy of it!
Mr. Howard: Yes, your Honor.
The Court: That seems to be about the pleadings in the
matter until your motion to quash. Now, it appears to me
that the complaint and the allegations and damages alleged
are one thing, and now you have filed a motion to quash
the jury roll, jury list and the names in the jury box. That
appears to me to be a completely separate contention in
connection with this lawsuit. Am I correct about that? —-■*
Mr. Howard: Well, if your Honor please, in the response
by the defendants, defendants did request a jury trial to
hear the issues in this case. The defendants have requested
a jury trial.
The Court: Yes, that is true.
Mr. Howard: So we take the position, or we have set out-
in our motion here, that it is the desire and wish of the
plaintiff to have a jury that is representative of this divi
sion, and that heretofore it has been a practice for only
—5—
a few or a token number of Negroes to be selected, in spite
of the fact that the United States Census Report for 1960
shows that the population ratio for the five or six counties
contained in this division of persons 21 years of age and
older, persons who are eligible to serve as jurors, we have
roughly 40,000 whites and 35,000 negroes. We also allege
that these Negroes are absolutely qualified to serve as jur
ors, but either through the lack of diligence or effort on
the part of the Clerk, or the lack of his acquaintance with
Negroes, or the systematic exclusion or the systematic limi
tation, or the failure of the Clerk and/or his Deputy and
the Jury Commissioner to avail themselves of the same
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50
procedures in selecting persons to serve as prospective
jurors have more or less amounted to racial discrimination
against the Negroes, and what we want and what we have
requested the Court to do is to allow the plaintiff time
to take discovery depositions of persons who are within
the jurisdiction of this court and grant us a hearing on
this motion, in order to sustain our allegations. We have
also filed a brief memorandum in our support and cited
one or two cases. I have also a very recent case decided
in the Fifth Circuit, where a three judge federal court
threw out a jury box and set up the requirements that the
—6—
Clerk and his jury commissioner or commissioners are to
follow in order to arrive at a fair and equitable jury panel,
representing a cross-section of the particular area involved.
The defendants themselves asked for a jury trial, so what
the plaintiff is asking is that his trial be heard by a fair
and impartial jury and a jury selected from a cross-section
of the persons in the district or the division.
The Court: The Court is aware of the allegations made
in the motion to quash. The Court read with interest also
your memorandum. The Court is in thorough agreement
with your contention that you are entitled to a jury repre
sentative of all the people within the district. As such,
what I am not clear on at this time is the matter of pro
cedure. I assume insofar as the litigation itself at this
time, that there is nothing that is to be done either in this
pre-trial or at some later time until and unless the motion
which you have filed is disposed of. Do I understand cor
rectly that is what is desired in this matter?
Mr. Howard: That is correct.
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51
The Court: As far as the lawsuit itself is concerned,
there is no disposition to try to do anything about it or
bring it to a trial at this time?
-7 -—
Mr. Howard: That is right, sir.
The Court: Now, the question I further raise at this
moment which I would want to explore into is your request
for what you refer to as discovery testimony. Well, it seems
to me that discovery testimony, insofar as this litigation is
concerned, is one thing, and depositions or interrogatories,
as it might be, on the motion is something else. Are you
contending at this time—I am asking for information of
course—are you contending that under the Rule depositions
or interrogatories may be permitted by a motion of this
kind, with all the power, authority, and so forth that goes
with it, and that he considered as discovery testimony so
far as the motion is concerned? We are talking about the
motion now—we are not talking about the litigation. I am
trying to find out with you what would be the procedure
in this matter. Is it something that we should approach
on the basis of depositions to be taken in the manner you
suggested, or is it a matter the Court will have to set
down and have your witnesses and a hearing in order for
the Court to be in a position to make a decision and pass
on your motion?
Mr. Howard: No, sir. If your Honor please, we have
stated in the motion time to take discovery depositions and
—8—
depositions used as evidence at a hearing on the motion.
We are not asking the Court to conduct a hearing on our
discovery evidence or depositions. Let the plaintiff pursue,
either by way of certain admissions submitted to certain
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Colloquy
officials, or permit the plaintiff to have a reasonable period
of time in which to take testimony by written interroga
tories or designate a place and a time and service on the
defendants where this testimony may well be taken orally.
Then after we have completed the discovery phase and/or
the depositions of certain individuals, a hearing conducted
on the motion itself.
The Court: Well, the Rules permit, and we are going to
try to arrive at the best procedure, and I am going to hear
from you, Mr. Solomon, on this matter too. I don’t profess
that we are going to utilize all the time without giving you
a chance to be heard, but what I want to do is to see if there
isn’t some way we could differentiate between discovery
testimony to he taken insofar as the litigation is concerned,
which the Rules provide, as against what you refer to as
discovery testimony insofar as the motion to, quash is con
cerned—-that is the point to me or is the question right at
this time. You have a motion here. Do the Rules permit
—9—
discovery testimony by depositions, etc. under the Rules of
Civil Procedure, the same as discovery testimony insofar
as the trial of the allegations in the complaint is concerned.
This is not a matter right now which you are asking me to
pass on which would be passed on by a jury. I have got to
decide that and it has to be decided on the basis of fact.
You have set up certain allegations which in my judgment
require testimony before a decision can be arrived at, and
I am wondering what is the rule applicable in this matter
and what is the better procedure to develop the information
as to the motion itself so that this Court would be in a better
position to pass on.
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53
Mr. Howard: It is the position of the plaintiff that the
plaintiff does have under the Rules an opportunity to take
discovery depositions and depositions to be used as evi
dence at the hearing on the motion itself.
The Court: Mr. Solomon, do you care to comment at
this point?
Mr. Solomon: Well, we have a situation here that is a
little unique in that we represent the defendants in this
litigation and the motion addresses itself to the Court it-
_ 10-
self and officers of the court in the selection of jurors. We
don’t know quite what function we have in this motion, other
than as officers of the court rather than participants in this
litigation. I don’t believe that discovery depositions, as
such, are permitted in a matter of this kind, and if they are
permitted, it would put an undue burden on the defendants
if they do have an obligation to the Court in this matter.
It seems to be that since this does involve the officers of
this court in the method of the selection of the jurors in
this court, it would be more proper to set this down for a
definite hearing where the testimony could be presented on
both sides or by the plaintiff, and then the Court could de
termine whether the present procedure in the selection of
the jury is correct or not. I don’t think that discovery
depositions are permitted in a procedure such as this, be
cause the defendants in this case have no knowledge as to
the selection of the jury other than a general knowledge
by their counsel. They are definitely not parties to the
motion, and yet, as defendants, are interested in it.
The Court: In representing the defendants, are you ask
ing for a jury?
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54
Mr. Solomon: Yes, sir, we have done so.
The Court: Are you asking that the matter be heard or
brought to trial within a reasonable time?
Mr. Solomon: It is a little hard on the part of the de
fendants to insist upon a trial. We are not in a hurry, but
we will try it when the Court directs us to.
The Court: Well, that is one of the problems which the
Court sees is involved here. The plaintiff is asking in his
motion that the jury roll, the jury list and the jury bos and
the names of any persons on the jury roll, jury list or in
the jury box as presently constituted, and so forth. I as
sume that the jury roll and the jury list are one and the
same, is that—
Mr. Howard: It may well be, your Honor. It may well
be that the jury roll and the jury list would be one and the
same. We just simply used the term in the event it was
referred to as a list or as a roll.
The Court: Well, my problem at this particular point
is the timing of your motion and how we go at it. I came
over here and we had about fifteen cases in which the issues
joined and we put them down for the purpose of determin
ing if we could complete the discovery work and narrow the
issues and see what cases we would have for a jury trial,
— 12—
as well as non-jury, at this session of court which under
the statute is to begin on the week of June 13th. Well, we
set these pre-trial hearings for today and tomorrow, and
it appeared that we had half a dozen or eight cases any
way that were noted for a jury trial. Now we have found
ourselves with a pre-trial conference which is not unusual
at all and it is exceedingly doubtful that we will have any
Pre-Trial Conference, May 23, 1966
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— 11—
jury trial at all that is ready or is going to be ready. That
depends, of course, on what happens tomorrow. Now, I
have not instructed the Clerk of this court and the Jury
Commissioner to select a jury for this session yet, so from
that standpoint, the present jury for this district was
selected I assume in December, or at the beginning of the
last session, and it will not be used at the beginning of the
new session which starts on June 13th and neither will we
use that same jury during the next session, so, from that
standpoint, we do not have a jury roll or jury list to quash.
You can’t act on a motion to quash something you don’t
have. Should there be a necessity for a jury, I will instruct
the Jury Commissioner and the Clerk then to proceed ac
cording to the statute and the usual way provided by law
—13—
for the selection of a jury for whatever business we have.
What is bothering me right now is developing something
toward quashing something that doesn’t actually exist. I
am trying to get from you gentlemen some idea of what
your intention is with reference to this litigation itself.
Mr. Howard: If your Honor please, I think in the intro
ductory paragraph of our motion at least ŵe tried to make
it clear that any names that had been selected, either by the
Clerk or Jury Commissioner, to be included on the jury
list or roll or to be included in the jury box and any names
presently contained in the jury box. As I understand the
federal statute regarding the jury or the selection of the
jury, the Clerk or his Deputy and the Jury Commissioner
must select at least 300 names and include these names in
a box. There is no ceiling on the number.
The Court: When a panel is needed, the panel is to be
drawn out of that box.
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56
Mr. Howard: That is right, sir. Now, we want that box
quashed.
The Court: I haven’t gone into this with the Clerk and
I don’t know whether they use the list and make up a box
each time in this jurisdiction, and others use other methods,
—Im
probably as you have just indicated here, I don’t know. I
haven’t gone into it to find out from the Clerk just what is
their method. I know they use some such mechanization as
this. I assume we now at this particular point would have
to limit our consideration to this part of the motion to what
is referred to as the box itself. We do not have a list and
we do not have a roll yet.
Mr. Howard: Any names, your Honor, that may well be
in the possession of the Clerk or the Jury Commissioner to
be included in the box.
The Court: Yes, yes, I know that, but I am sure there
must be the usual procedure and the law followed and I am
sure the Jury Commissioner and the Clerk have good in
tentions to follow the law and I would assume there would
be X number of names that they presently do not even have
and which they probably would have with the transition of
one jury going out and another one coming in of additional
names to go in the box when the time comes.
Mr. Howard: We have so phrased our allegations in the
motion to cover those names which they have started ac
cumulating to be placed in the box or on the jury roll.
— 15—
The Court: I think this is the most important matter
that the Court has to consider.
Mr. Solomon: Certainly we don’t want to have to try
this and then re-try it. Once is enough. Your Honor, we
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57
would like to point out for the Court’s consideration, might
it not be best to make certain that the issue here is prop
erly before the Court and let the Clerk and the Jury Com
missioner select the jury in their normal fashion and then
consider the motion filed arid then we will set it down for
a hearing on the motion in which testimony is given to the
Court and in that way the issues would be clear cut.
The Court: Until a jury is selected—and I appreciate
the allegations you have in your complaint, allegations that
will require testimony to determine—but until the jury is
actually selected, it appears to me that there is no way
you can actually tell whether or not there is any substance
to your allegations or not. In other words, I don’t think
you can right off say that everything you have said is an
actual fact until it is developed and proven. It may be
that your contention is well taken and is a fact, but it will
take evidence to develop it. In view of the record on this,
thinking out loud on the subject, this is a subject matter
— 16—
that is going to have to be fully developed. I don’t want
to go to the expense of drawing a jury and having the jury
come here if we haven’t got any business for them.
Mr. Howard: Tour Honor—
Mr. Solomon: I didn’t mean that, your Honor. My sug
gestion was that the Clerk and the Commissioner select
the jury and then you would have for your—
The Court: That would be perfectly all right if the Clerk
and the Commissioner would know whether or not A, B or
X or Y, or whoever it would be, would be white or colored.
What I am talking about is that sometimes you can’t- find
out until you see the jurors themselves.
Mr. Solomon: That hasn’t occurred to me.
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58
The Court: And before I pass on an important motion
of this kind, I want to make it clear to all sides that I want
to know all of the facts. It seems to me that since this is
going to have to he developed and it is rather a far-reaching
and certainly a highly important matter—as I understand,
you are not questioning the system itself as provided by
law?
Mr. Howard: We are not challenging the statutory re
quirements or qualifications. I think the statute makes it
—17—
quite clear that race may not enter into consideration or
Negroes may not be discriminated against. We are saying,
your Honor, that procedure and the manner in which the
Clerk—
The Court: The procedure and carrying it into effect,
that is all you are attacking.
Mr. Howard: Over the years have served to limit the
Negro participation on juries and they have not acquainted
themselves with the qualification of Negroes, and what we
are asking is time to prove these allegations, and if there
is a box with X number of names in it now or 300 and then
the Clerk goes ahead and puts 100 in there, we say that
that 100, regardless of where he got them from, would be
tainted by the fact that the 300 presently constituting the
number of qualified jurors in the box were selected not in
accordance with our contention, and that this man is en
titled to a jury that is representative of the entire com
munity.
The Court: Well, I don’t believe even Mr. Solomon would
contend that a jury should not be selected from a repre
sentative populace of the district. I have a feeling that this
is something that is going to take a good while to develop
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59
and it is going to take a substantial amount of work. The
— 18-
process itself is involved in selecting the jury, and I be
lieve that the better way to start on this is to allow sufficient
time as you have requested here to submit interrogatories
to both the Clerk and the Jury Commissioner. I assume
that they were the only ones involved here at this time.
Now, it may be that we will have to provide some way of
representation so far as that side is concerned. Mr. Solo
mon, I think, appropriately said that he is not here in the
position of representing the officers of the Government,
but is interested, as all attorneys should be. I thought about
trying to bring about a stipulation and it may be, Mr.
Howard, that you, through your diligence and all, and the
Clerk may be in a position to enter into a stipulation about
how these processes work and the mechanism involved here,
and I think the Court is going to suggest that you start
this off undertaking interrogatories in the matter and de
veloping it and giving an opportunity then for a response
to the interrogatories.
Mr. Howard: If your Honor please, if the plaintiff de
cides to examine the Clerk or any other officials orally,
would we also have that opportunity instead of submitting
written interrogatories?
— 19—
The Court: I am not sure that that would be the best
procedure for all concerned to know what was taking place.
Of course, the Court would not know what was being
developed between you and the Clerk in an oral conversa
tion or conference.
Mr. Howard: If your Honor please, we would have
someone to take the testimony of the Clerk.
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60
The Court: That would be a deposition then, and it oc
curred to me and what I would like to suggest is to have
a hearing at that time where you can go into it fully, and
if we could develop through interrogatories the original
procedure here and develop this case in this way, and
then following this method to start with after we see your
interrogatories and response of the parties involved. Under
the circumstances, you would have to start with the Jury
Commissioner—I don’t even know who the Jury Commis
sioner is.
The Clerk: The Jury Commissioner, your Honor, is
Mr. J. J. White, President of the National Bank of Helena,
and a resident here of Helena.
The Court: Then I am sure you would want to start
with interrogatories directed to him.
Mr. Howard: If your Honor please, the plaintiff may
decide also to take the oral deposition of Mr. White and
— 20—
of course the other side would be entitled to notice.
The Court: And the Court would want to know about it,
and I believe it is of sufficient importance that when you
get ready for that, that we set a hearing that will be con
venient to you and all concerned so that everyone having
any interest in the matter could, if desired, be present,
and those entitled to participate. I think this reaches much
farther here than just those of you who are involved in
this particular litigation. Other litigants could very well
be interested in this matter and would want at least to be
advised and know what is taking place. I think the statute
is pretty clear and I know that the Supreme Court deci
sions and other decisions in the matter and a long line
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61
reaching back a hundred years on this matter should make
it fairly easy to see whether or not your allegations have
any merit, and certainly we want to be sure that any jury
in this district or any other district are selected according
to law and are representative according to law, and at the
same time, if allegations are made that are going to the
heart of it and particularly statutory requirements, it de
serves very close scrutiny. The Court would be in a posi
tion I think to suggest to you that you start this through
— 21-
interrogatories and follow it by any stipulation that might
narrow the questions involved, and then after that has
been accomplished, if it is desired, then we will have it set
down for a hearing and have a hearing by which you may
develop in a public and open hearing the facts as you have
indicated insofar as you are able to do to sustain your
allegations, I just believe that would be the best approach
to the problem at this time.
Mr. Solomon: I assume that we would get a copy of the
interrogatories and have an opportunity to submit addi
tional interrogatories—I hesitate to call them cross-inter
rogatories.
The Court: Well, there you go again—I am not sure—
I would have to look into that—I really don’t know who
is representing who around here in a matter of this kind,
but it seems to me that the public will have to be repre
sented by somebody—I might have to appoint some attor-
ney, but I do think that these matters ought to be developed
where everyone who is interested could know what is going
on and I don’t think it can be done by permitting deposi
tions to be taken here and yonder without leaving somebody
out who had a right to be present.
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62
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— 22—
The Clerk: Your Honor, this may he a little irregular—
The Court: As long as you are involved here, I don’t
think so, and we are talking about the best way to resolve
this thing.
The Clerk: I have sat here and listened to the discus
sion by the Court and counsel, and there are two or three
things that have occurred to me that I think ought to be
discussed with the Court in the presence of interested
counsel and probably they do not know the procedure and
for that reason I thought I ought to address myself to the
Court in their presence. I don’t want to be asked on any
interrogatories to give the names of those people who are
in that box. I will tell the Court now that they are in ex-
j cess of 300—I wouldn’t say how many—but there are be
tween 400 and 500 names. I wouldn’t want to be called on
by either side to divulge all of those names—I think that
is a confidential matter—and neither would I want to be
; called on to give the names of the key men or the sugges
tions in the handbook put out by the Administrative Office
'■of the Judicial Council, because I think that is confidential
information for me and the Jury Commissioner and to
divulge those things might subject a number of innocent
—23—
people to pretty severe harassment that occurs to me is
not necessary in this. Now, as to the method used, I am
perfectly willing to do that, but while we are here I didn’t
think it was improper for me to address those remarks so
the Court might give some consideration to those things
that I have said, because I think that they will undoubtedly
arise in any depositions or interrogatories that I am called
upon to answer. Thank you.
63
The Court: Well, those matters of that kind have led
the Court to the viewpoint that it is better by the method
of interrogatories to start developing the case. Now, if
there are interrogatories presented that you feel that you
have a legal right to refrain from answering, that matter
could be determined and that is the reason that beyond
that, other than by stipulation of any other matters that
could be brought together, but beyond that, that is the
reason that I think that depositions here and yonder would
make it difficult for some of the people who could not be
there, but questions like this probably would come up or
some questions would come up that the witness would not
want to respond to and I think the Court should be in a
position to pass on the question, and would be in a much
— 24-
better position then to develop the issues here and the in
formation after the interrogatories that would be appro
priate and after a probable stipulation of fact up to that
point, then I think a hearing would develop everything as
to the method and procedure and that all would be neces
sary before I would want to pass on the matter or a ques
tion as important as this.
The Clerk: Another thing* I didn’t mention, your Honor,
and I speak from experience, the Jury Commissioner and
myself would select a list, and I would take that list and
go back to my office in Little Rock and we would issue
summons to the individuals who we had selected as jurors.
We, as a matter of practice, have never released the list
that has been selected as jurors until after we have heard
from those notices. Very often we encounter men who have
legitimate excuses and are excused by the Court, and we
have men whose illness will prevent them being present, so
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64
consequently the list is never released publicly until after
all of this is thinned out. The reason I raise that point is
that if I should come here and with the Jury Commis
sioner take a list tomorrow, for instance, I couldn’t tell
you then whether they would be the ultimate jury until
—25—
after they had actually been summoned and we had a re
turn from them, and frankly, I couldn’t tell you who would
be alternate jurors until they walked in that door back
there. Now, the trouble with lists is what I am trying to
say here and I wanted it said here in the presence of the
attorneys and interested parties and I think it is a matter
that the Court is going to have to have presented to it.
The Court: Mr. Clerk, Mr. Howard is basically after
the names in that jury box from which the jury is selected.
The Clerk: Is he after the names or the method by which
they are put in there?
The Court: Well, he is asking that those in the jury box
be quashed or set aside, and I assume from that, that you
have in mind that the Jury Commissioner and the Clerk
under the law proceed to an outright new box with names
in it as provided by law for any future jurors?
Mr. Howard: That’s right, sir.
The Court: That is my understanding of his request here
and I think you will have to keep that in mind. I think it
is the names and I don’t ask you about the method and
procedure now—we can do that later on, but I assume
—26—
from this discussion that you must have some box that
you keep as a permanent box with a number of names in it.
The Clerk: They call it a pool, your Honor, a pool is
the name that is generally used.
Pre-Trial Conference, May 23, 1966
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65
The Court: Well, that is what is under attack at this
particular time.
The Clerk: Thank you.
The Court: So if that procedure is agreeable, we will
proceed accordingly. Is that understood by you and is that
agreeable as far as you are concerned!
Mr. Howard: Yes, your Honor. My understanding, if I
may just state it briefly, the Court is going to allow plain
tiff time in which to submit first written interrogatories
and if, instead of submitting written interrogatories, the
plaintiff desires to take depositions, then the plaintiff is
to notify the Court and opposing counsel and then at that
time I suppose the Court would designate a hearing of
some sort to take the Clerk’s deposition.
The Court: I would assume that you would want to start
developing a concrete case and you could do this by inter
rogatories.
Mr. Howard: At the start.
—27—
The Court: Yes, and then after the submission of inter
rogatories, if there is any element of agreement that can
be reached about the method used and so forth to shorten
the matter, then that could be done by stipulation and
then following that and if you get ready for a hearing
and advise the Court, the Court will set a date when it
will be most convenient and you could come and bring the
witnesses that you want and that are to be questioned and
have a hearing and develop all of the facts of this matter.
Is that agreeable to you, Mr. Solomon?
Mr. Solomon: Yes, sir.
The Court: All right, then as far as a pretrial on the
litigation itself, I assume there are no questions here to
day?
Pre-Trial Conference, May 23, 1966
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66
Pre-Trial Conference, May 23, 1966
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Mr. Howard: No, sir.
Mr. Solomon: No, sir.
(The hearing was closed at 4:00 P. M. on Monday, May
23, 1966.)
C e r t if ic a t e oe R e p o r t e r
I, Loukate Dodds, do hereby certify that I was an official
court reporter for the United States District Court, in and
for the Eastern District of Arkansas, at the time hereto
fore mentioned, and that, as such, I reported the proceed
ings in the pre-trial conference in the within named and
numbered cause held at Helena, Arkansas, on Monday, May
23, 1966; and that the foregoing pages of typewritten mat
ter contain an accurate transcript of said proceedings in
full.
Dated this 12th day of October, 1967.
L o u k a t e D odds
Reporter.
67
Transcript of Proceedings of Pre-Trial Hearing,
May 29 , 1967
Be i t R e m e m b e b e d , that the above entitled and numbered
cause came on for pretrial conference in Helena, Arkansas,
on the 29th day of May, 1967, before Honorable Oren E.
Harris, United States District Judge, wherein the following
proceedings were had, to-wit:
# # # * #
A p p e a r a n c e s :
For the Plaintiff:
M r . George H oward, Attorney at Law, Pine Bluff,
Arkansas; and M r . N orman A m a k e r , Attorney at
Law, New York City.
For the Defendants:
M r . D avid S olom on , Attorney at Law, Helena,
Arkansas.
P r o c e e d i n g s
—2—
The Court: Gentlemen, are you ready to proceed in the
matter of Charles Townsend vs. Roy B. Ross, Chief of
Police of Helena, et all
Mr. Solomon: Yes, sir.
Mr. Howard: Your Honor, please, first I do have a pre
liminary matter to submit to the Court, if I may.
The Court: You may be recognized.
Mr. Howard: My associate, Mr. Norman Amaker, is with
me this afternoon and Pd like to move his admission for
participation in this matter. He is a member of the New
York bar and has been qualified to practice before Federal
Courts, including the United States Supreme Court. I am
sure that his name appears on all of the pleadings. This
68
is the first time that he has appeared personally before this
Court and I would like to move his admission for the
purpose of this case.
The Court: Mr. Amaker, we are glad to welcome you to
—3—
the bar of this Court and are very glad to have you partici
pate in the proceedings.
Mr. Amaker: Thank you, Your Honor.
The Court: Gentlemen, this matter has been pending
here for some time. For one reason or another—justifiable
—it has been continued on the basis of discovery depositions
and what have you, and the Court felt that the time has
arrived that we should join the issues in this case so we
can go ahead and dispose of it, try it. And it occurred to
me at this time that I would be glad to hear from the
parties to see what else is to be done with reference to
discovery or other depositions. Mr. Howard, I shall be
glad to hear from you in the matter at this time. Mr.
Amaker?
Mr. Amaker: Your Honor, this is preliminary notice
that I had had. The state of the record to this point is
that two sets of depositions on written interrogatories have
been taken; one of the Jury Commissioner of the district
and the other of the Clerk of the Court, in connection with
the motion to quash the jury list. The answers to those
interrogatories reveal that there is in existence several
sources of the names of the key persons who were respon
sible for submitting names to the jury officials of persons
who were then selected for inclusion in the jury list; and the
—4—
answers also reveal that the jury box for the division of
the Court is in the possession of the Clerk and our intention
Pre-Trial Bearing, May 29, 1967
Colloquy
is, of course, to try to satisfy the convenience of the Court
and the parties and the witnesses involved is to make some
inspection of these materials and the Court could indicate
whether or not you desire to have a formal Rule 34 Motion
to Produce made, or whether this conference can be used
as the occasion for making some agreement as to when and
where these items can he produced for the purpose of in
spection.
The essential thing, of course, that’s missing from the!
information, the fairly limited information that we have1
from the answers to the interrogatories is the racial compo
sition of the venire list and the jury box. And, of course,
no hearing on the motion would be of any utility to the
parties and to the Court in making a decision on the issue
raised without an inspection to try to make a determination
of that racial composition. It is also important to the
plaintiff’s position that we have some further information
with respect to the participation of the key men in the
overall composition of the jury list that has actually been
used and is now being used in the system.
There were a handful of persons that the plaintiffs
thought we might depose after this process has been com
pleted. I don’t anticipate that we need to take more than
one or two depositions and perhaps an additional short
—5—
deposition of both the men whose written interrogatories
were taken, whose answers were taken, but it would seem
that our idea at this time is to try to arrange some con
venient date when we could have produced the jury box
for inspection and the venire list which the answers to the
written interrogatories indicate are also in the custody of
the Clerk. Now, in terms of when that might be: my own
Pre-Trial Hearing, May 29, 1967
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70
schedule—and I can only speak for myself, I don’t know
what the Court’s commitments are, or the commitments
of the opposing counsel—would make a time somewhere
around the end of June or the beginning of July as a date
by which all this could be done. My thought is that
probably if we had a concentrated period of two or three
days, we could finish all the discovery I think we would
need in this case, and shortly thereafter could set a mutu
ally convenient date for trial.
The Court: Well, as the Court understands, you are
asking at this time. As far as I know and as far as the
record is concerned, it is the first notice that has been given.
What you are doing is asking for the jury box and the
key men the Clerk has, and all to be made available . . .
Mr. Amaker: For inspection, yes.
The Court: I want to be sure that it was understood what
you were asking for.
—6—
Mr. Amaker: I could, of course, reduce it to a formal
motion if the Court feels that that is necessary. But, I
just don’t know whether or not we could arrange it in some
other wray.
The Court: Mr. Solomon, do you have any response to
the request!
Mr. Solomon: Judge, no. We are sort of in a position of
having lost sight of why we are here originally, talking
about the jury proposition and officers of the court. We are
relatively willing to do anything the Court directs; we are
ready to try the case on its merits whatever time it is con
venient and it is set.
Now, our feeling is that the answers to the interrogatories
that were taken of Mr. White, the Commissioner, and the
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71
Clerk clearly outline all of the facts in the situation with
reference to how juries are selected. And that I believe
that they both in their interrogatories said that they gave
no—had no list to show race, creed, or color and had no
knowledge of that in their picking. I believe Mr. White,
as I recall, states that he doesn’t remember who the key
men are in the various communities that he uses—or who
they were. I don’t know what good the giving of the box
with the entire list of the jurors for examination—what
good that would do. The answers to the interrogatories
indicate that there is nothing to indicate, as I said, the
— 7—
race, creed, or color of the prospective jurors. I don’t think
that there is any way to show any prejudice or anything
else from the state of the record or how the jurors are
selected.
We are getting far afield from the original issues in this
case in the question of whether the jury is selected properly
or not.
The Court: Well, the Court, of course, will have to dis
pose of the motion, Mr. Solomon, before we can go into
the issues involved of this case. I was very much hoping
that we could dispose of the motion at this setting in
order to complete the pretrial, if there was any further
pretrial necessary on the issues involved in the case itself.
Mr. Solomon: I guess what I ’m saying in effect is that
there is sufficient for the Court to rule on a motion based
on the answers to the interrogatories and that there is no
further need of any further discovery or further procedures
on the part of this plaintiff.
The Court: Mr. Amaker, the Court is in the process of
ordering the Clerk to draw up a jury. There are a number
Pre-Trial Hearing, May 29, 1967
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72
of cases that are to be tried. We have been working np
this present docket, and we are going to begin with the
jury trials on Monday, the 12th, which is the regular date
—8—
for the commencement of this session, a new session, of
this court in June. I would not feel disposed to proceed
with the drawing of the jury and trying cases with a ques
tion pending before this Court as to the legality of the
jury that we are going to impanel—I am now in the process
at the conclusion of this pretrial here of acquiring—by
an order of this Court, the Clerk and the Jury Commissioner
of this division through the established procedures that
have been recognized over many years.
I have given some very close attention and supervision
of this because of the general trend and because the ques
tion has been raised.
I have had the occasion to go over the interrogatories
and also the answers. I am not disposed at this time, Mr.
A maker, to require the Clerk and the Jury Commissioner
to open up this list they have unless there is showing made
that the response to the interrogatories are incorrect insofar
as both the Clerk and the Jury Commissioner is concerned
—and I have no knowledge but that they are true. And
that being true, I cannot see what could be accomplished
by going over a list of some 1500 to 3000 names to see what
their racial complexion might be when they themselves
cannot tell you, according to the interrogatories, of what
the composition is in view of the fact that they do not keep
their records, the part that you speak of, or the list from
which the jury is drawn. So, it is settled in this matter, the
—9—
answers of the interrogatories do not delineate what the
Pre-Trial Hearing, May 29, 1967
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73
racial complexion is. And, the only way that you, this
Court, or anyone else could determine without any doubt
is just to get out a subpoena or to make arrangements
for every one of them to come in. That would be an im
possibility.
Mr. Amaker: There is another way, Your Honor, used
in previous cases.
The Court: As an example.
Mr. Amaker: As an example, the list could be inspected
by persons who could be qualified with respect to their
knowledge of the races in the communities and the counties
which comprise the division.
The Court: Well, we have five divisions of this district.
Mr. Amaker: I would not propose that we would be doing
this for each of the divisions. As I understand from the
answer to the interrogatories, there are five divisions and
with one exception each of the divisions has its own separate
jury box. I agree with the Court that it would be a very
time consuming and tedious job to try to do this for each
of the five divisions because that would, of course, involve
innumerable counties, but I think that it could be done for
the jury box of the division in which this case is situated.
And that is a manageable job.
— 10—
Of course, without discrediting any—as I don’t, I am
not discrediting the answers to the interrogatories; the
point is that the answers are not complete. One example:
the answer to Interrogatory No. 9 of the Jury Commissioner
where we asked for the name, address—asked for three
items: name, address, and occupation, and the race, length
of time. No. 9, the answer is, “ I have no record of this.”
Now, the answer to the Interrogatory No. 7 of the Clerk’s
Pre-Trial. Hearing, May 29, 1967
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74
deposition indicates that there is a record of the letters
that are written to the key men and that there is a record
of the list of names supplied by the key men. The problem
in the case is the problem that there is no way of identify
ing from the records themselves the racial composition
of the jury box or the venire list, and without that informa
tion it is impossible, it is simply impossible, for the plain
tiffs to determine whether or not there is the discrimination
that we allege, and certainly impossible for the Court to
make a judgment without knowing what the racial composi
tion of the box is.
Of course, I cannot control what the Court is going to
do, but if the Court is disposed to limit discovery at this
point, we would take the position that we really have been
cut off from developing proof which would permit us to
have a hearing on these allegations because unless we are
able to make some determination of the racial composition,
and this after all is a motion that challenges the composi-
— 11—
tion of the jury list on the ground that there has been
exclusion because of race. And it seems to us that there is
an essential nexus between the right to have discovery and
the right to have a hearing in order to substantiate the
claim.
The Court: Well, the Court has been trying to give you
a hearing now for over a long period of time.
Mr. Amaker: Quite candidly, Your Honor, my under
standing, and it may be wrong, is that we originally were—
it was agreed that we would serve interrogatories as an
initial step; that subsequent to that a decision would be
made as to what further discovery would be made. I have
not had any communication about this matter for several
Pre-Trial Hearing, May 29, 1967
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75
months until I was informed of the pretrial conference
today, hut I don’t think there has been any dereliction on
the part of anyone according to what I understood the
posture of the case was. And what I am proposing now is
something that it seems that will not involve a tremen
dously long period of time, and which is just absolutely
essential because there is no way, I submit, that the Court
can rule on the motion based upon the answers to these
interrogatories because there is no information here. The
only information that is supplied and the only information
in fact which was sought was information with respect to
the location of the sources from which a record could be
made as to what the facts are and there are no facts here.
—12—
An answer which says, “ I don’t know the names or the
address or the occupation of the key men.” for example,
doesn’t tell you anything about them.
And part of the contention, and part of which the proof
will show, as I ’m sure the fact is, is that all of the key
men who submitted these lists of names were white. That,
I would think, would be one of the factors that the Court
will weigh in the balance as to whether . . .
The Court: I ’ve got the Clerk here, you can find out
whether or not they are.
Mr. Amaker: But that still does not tell me who the list
of names are and this is what the question . . .
The Court: The court is not sure that you are entitled
to that information. I think you are entitled to the informa
tion as to whether or not there is a deliberate, intentional
exclusion. I think you are entitled to find out whether or
not the source of the information from which the Clerk
obtains his list from which the jury is drawn, if there is
Pre-Trial Rearing, May 29, 1967
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76
included in that source of information people from all
classes and including Negroes, Negro people. But, now,
when yon try to single out any one individual and bring
them in as an example, I think that is something else; I
think you’re getting down to class actions and individuals
—13—
at that time instead of the general procedures in which
the juries are impaneled.
Mr. Amaker: Your Honor, it’s beyond the question of
the procedures. Our submission is that no matter what the
procedure is, if the results of that procedure are that you
* have a racially unbalanced list in a community where . . .
The Court: Well, the best results that I know of—the
best answer I know of is to just see what the result is.
Mr. Amaker: That is exactly what I am trying to do,
Your Honor, because I don’t know what the result is.
The Court: Well, we are about to show you what the
result is. I don’t know what the makeup is going to be, but
I have just told you that I am in the process of ordering
a jury. Now, Mr. Amaker, I cannot and will not permit a
situation to go on where we would proceed to trial of
cases, numerous cases, with the question insofar as this
Court is concerned, held in abeyance as to whether or not it
is a legally drawn jury. And I don’t like to be faced with
that kind of a dilemma.
Mr. Amaker: I agree with that perfectly and I think
that this issue needs to be resolved in this case and that
—14—
the plaintiffs are entitled to have that determination made.
I think, otherwise, the Court is going to be confronted with
motions of this kind in case after case . . .
The Court: That will be perfectly all right.
Pre-Trial Hearing, May 29, 1967
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77
Pre-Trial Hearing, May 29, 1967
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Mr. Amaker: . . . until there is some point of resolution
as to whether the list is one that is constitutionally ac
ceptable.
The Court: The Clerk is here. If you want to take any
further evidence, discovery or otherwise, from him, the
Court will permit you to do it. Otherwise, I am going to
have to pass on the motion.
Mr. Amaker: Of course that’s the Court’s choice, Your
Honor. I just wanted to make my position clear for the
record that I don’t think that the plaintiffs are in a position
to gather proof in support of the allegations contained in
their motion by a simple examination of the Clerk; that
there are other discovery methods which are permitted and
permissible under the rules, that in fact have been used in
other cases, and I can cite them to the Court, that are re
quired in order for us to be able to make out our case on
this pending motion; and that if the Court is now limiting
us to merely examining the Clerk, then it’s our position
that we have been denied a hearing in order to substantiate
the allegations of this motion.
—15—
The Court: Well, the Clerk is available for any further
discovery or testimony to inquire into this matter before
I pass on the motion, and the Jury Commissioner lives
within this city and county and I assume would be available.
Mr. Amaker: Sir, is it the Court’s ruling that the only
additional discovery that we are permitted is to take depo
sitions of the Clerk and the Jury Commissioner and no
other ?
The Court: I give you the privilege at this time not to
take depositions, but to call both the clerk and the Jury
Commissioner for any further testimony that yon feel that
78
you would like to have from them in connection with this
matter.
Mr. Amaker: Your Honor, I am simply saying that there
is no testimony that could be of value to the plaintiffs or
to the Court without some identification, some examination
of the racial composition of the jury lists that have been
challenged.
The Court: Well, the Court is giving you that chance
now, to try to determine from both the Clerk and the
Jury Commissioner.
Mr. Amaker: Our position, Your Honor, is that that
determination can only be made by an inspection of the
—1 6 -
lists themselves. As the Fifth Circuit has ruled, the sta
tistics speak louder than the Jury Commissioners, and
unless we are able to get the statistics and to get them in
the record, I take the position that we are not being per
mitted to substantiate the allegations of our Complaint.
The Court: And you do not wish to take the testi
mony . . .
Mr. Amaker: I see no further need without inspecting
the sources that were revealed by the answers to the inter
rogatories. It would be a fruitless exercise.
The Court: Well, the Court is not going to accede to
your request that they be made available for inspection.
And if you do not care to proceed further for testimony to
develop the allegations that you have made in connection
with your petition and since this matter has gone over as
it is, since this is the third session.
Your associate counsel, Mr. Howard, prevailed upon the
Court in December when the matter was scheduled for
hearing that it be continued for justifiable reasons in view
Pre-Trial Hearing, May 29, 1967
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79
of his commitment in an important matter in another
Court, but without arranging or attempting to arrange any
schedule during the regular session in January when we
had it here. I called it to the attention at that time and
now another six months has gone by without anything
further being done toward developing this matter, and now
— 17—
we have come to the point when a jury has got to be im
paneled for the purpose of determining a number of cases
that have been scheduled for jury consideration, some of
which have been set here today. Consequently, I cannot
conscientiously, in carrying out my duty, proceed further
with calling a jury to try cases with a case pending in the
court on a motion to declare the jury illegal and I think, as
you gentlemen well know, that the burden of proof is on
the petitioners who come with a motion at this time to
quash a jury.
As a matter of fact, the motion was made in connection
with the jury that was to be impaneled in the June session
of 1966 and it was not developed and if it were not for the
fact that you direct your motion to the list from which
the Grand Jury and the Petit Jury are drawn, well then
you would not have anything in this proceeding at all.
But, in view of the fact that a jury is coming up again for
this session which will be impaneled here on the 12th of
this month—I mean the 12th of June, then of course it is
necessary for this Court to proceed with the business. I
just cannot continue and continue the matter. So, if you
decline to proceed with any further inquiry into this matter
under the circumstances with either the Clerk or the Jury
Commission, both of whom are available, then the Court
has no alternative except to act on the motion.
Pre-Trial Hearing, May 29, 1967
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80
Mr. Amaker: -I understand that, Your Honor, hut I would
— 18—
not like the record to wrongly reflect the position of the
plaintiffs. It is not that the plaintiffs do not wish to pro
ceed further with the inquiry, and it is that the plaintiffs
would like to be given the opportunity to carry the burden
of proof, which the plaintiff is very well aware is on his
shoulders. It is that in view of the discovery that has thus
far occurred it is our position that without additional dis-
futile exercise to.... the plaintiff to attempt to make this
showing merely by asking additional questions of the
Clerk or the Jury Commissioner because that would not
reveal anything in support of our allegations with respect
to the racial composition of the jury list or the jury box.
And it is for that reason and that reason alone that we are
declining to go forward at this time.
The Court: The Court understands it very well and the
record is very clear on it. In view of the circumstances,
the motion to quash the jury roll, the jury list, and the
names in the jury box will be denied and an order will be
entered accordingly.
Gentlemen, are you ready to proceed with the pretrial
in connection with this matter?
Let the record note the exceptions to the decision of the
Court.
Mr. Howard: We’d like to have about a five minute
recess, please.
— 19—
The Court: Very well, the Court will be in recess for five
or ten minutes.
(Whereupon a short recess was had.)
Pre-Trial Hearing, May 29, 1967
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81
The Court: Gentlemen, are you ready to proceed?
Mr. Howard: If Your Honor, please, before proceeding
with pretrial, I would like to make a statement for the rec
ord with reference to the motion to quash the Petit Jury
panel. In view of the fact that at the initial pretrial con
ference I participated and it was a solo affair and Mr.
Amaker was not present—I believe that was during the
June setting of the court of 1966, or shortly thereafter.
When the Court entered a pretrial order, or an order was
dictated for the record, to the effect that plaintiffs would
initially serve interrogatories as a starter in this discovery
procedure; after this was done, then depositions would be
taken and these depositions would be taken in the presence
and under the auspices of the Court. It is true that in
November of 1966, I received communication from the
Court informing counsel that there would be a pretrial
conference in December for the January session. At that
point I informed the Court that I had a first degree mur
der trial down in Chicot County, Arkansas, and requested
the Court to excuse me from this pretrial conference.
— 20—
It was my understanding from the pretrial, the initial
pretrial conference, that if depositions were desired and of
course we did indicate by communication to the Court that
plaintiffs did desire to take depositions that a period or an
arrangement would be worked out with the Court for that
purpose, for taking the depositions of those individuals
from whom we sought depositions. Today, I and my as
sociate appeared in Court with the understanding that
such an arrangement would be worked out for the purpose
of taking depositions. I wanted to make that statement for
the record. It was my understanding that whenever the
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82
Court held a pretrial conference here that we would get to
gether on setting a time for the depositions of the persons
that we sought.
The Court: Mr. Howard, that is not altogether the un
derstanding that the Court recalls. When we had the pre
trial conference a year ago you wanted to take the deposi
tions of the Clerk and the Jury Commissioner. The Court
suggested that in view of the nature of the matter that it
would be advisable if you would proceed by taking inter
rogatories, with submitting interrogatories. That was
done. You submitted interrogatories to both the Clerk of
this Court and to Mr. White, the Jury Commissioner. The
Clerk filed answers to the interrogatories on August 3,
1966. Mr. J. J. White, the Jury Commissioner, filed an
swers to the interrogatories submitted to him September 8,
1966. And I said to you at that time that after the sub-
— 21—
mitting of interrogatories and you received the answers, if
you found it was necessary then to take the testimony of
the Jury Commissioner and Mr. Cole, the Court would
arrange for that and permit it to be done.
Now, you have had these interrogatories since August or
September of 1966. An additional pretrial has been sched
uled in this court since then; an additional session of court
has been held since then. The Court has had no informa
tion until today that additional testimony would be neces
sary, and then you come with the request that you be per
mitted to have—to take the depositions of the parties, to
include the key men, other sources of information from
which they obtained the list, the list itself, and other in
formation which would obviously require a great deal of
time. Mr. Amaker himself stated that what he was ask
Pre-Trial Hearing, May 29, 1967
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83
Pre-Trial Hearing, May 29, 1967
Colloquy
ing for would require probably until the end of July. Now
you can understand the court’s problem here with having a
jury to be impaneled as a regular jury for this session
which under the statute commences on the 11th—I mean
the 12th; to suspend everything until you had an oppor
tunity to delve into what you have said here today, when
in the judgment of the Court you could get it from both
the Clerk and the Jury Commissioner for the purposes
stated in - — — --------——-------------
I might draw your attention to the fact that Mr. Cole
said he had a complete revision of the list for every divi
sion every three years, so it is a continuing process insofar
as the procedures here are concerned. Matters that Mr.
Amaker mentioned a moment ago and which it was con
tested was the list of 1953 was practically the same list of
1959 and with that time only four new citizens of the col
ored race had been added during all this time. I thir^
have an entirely different situation which is factual
And the Court did not in any way imply, Mr. Ho-
that you were derelict in any way. I want to make that
very clear. As I said in my statement earlier, your request
at the time that we were here before was thoroughly jus
tified. So I want you to understand that the Court was
not questioning your situation at all, the Court is faced
with the proposition now in which you are asking for some
thing that would require the Court to suspend proceedings
altogether that comes up during this session which starts
on the 12th.
Mr. Howard: Now, if Your Honor, please, plaintiffs did
serve a proposed pretrial stipulation on counsel for de
fendants. I believe a copy was also submitted to the Clerk
■22-
84
of the Court and I suppose at this stage the Court would
want some expression with reference to any stipulations,
matters of fact, that we might be able to agree upon.
The Court: I do not believe the Court has had the benefit
of the proposed stipulations, so I am not familiar with it.
—23—
The Clerk has given the Court the benefit of a proposed
pretrial stipulation by the plaintiff and also the defendants’
pretrial report. It appears that the Clerk received the de
fendants’ pretrial report on May 19, 1966. There appears
to be no date on the proposed stipulation of the plaintiff.
Mr. Howard: It was submitted, I suppose, about that
time.
The Court: There was a letter addressed to Mr. Din
ning, Mr. Solomon, and Messrs. Roseopf & Raff. Appar
ently it was May the 18th, 1966, which is about the same
time, and it must obviously have been pursuant to the pre
trial that we held in May of 1966, though I ’m not sure at
this time just what date we had the pretrial. It was May
23rd. So these proposed stipulations were filed, no doubt,
pursuant to the Court’s suggestion to each party prior to
the pretrial conference. Anyway, we have them here now.
Mr. Howard: If Your Honor, please, I would like at
this point to ask what is the Court’s wish with reference
to plaintiff’s position? We have set out a proposed stipula
tion of the facts and what plaintiffs consider the issues in
volved here.
The Court: Well, of course, if the proposed stipulation
of the plaintiff as presented to the defendant is not agreed
to, then it becomes a matter that will have to be developed
—24—
and the issues joined as we go along.
Pre-Trial Hearing, May 29, 1967
Colloquy
85
Mr. Solomon: I might point out, sir, that there is one
thing that is admitted in our answer and that’s “E” that
the defendant, Roy Ross is the duly acting Chief of Police,
that Harold Nicholls and Leroy Davis are duly acting po
lice officers. We admitted those, I believe, in the answer.
The Court: Yes, the defendants requests limited the mat
ters to which they have agreed or included them in the re
sponse, I suppose, or the defendants’ pretrial report. Is
that the intention of it, Mr. Solomon?
Mr. Solomon: Yes, sir. We have one matter that should
be disposed of before we try it and that’s with reference
to the Home Indemnity Company. In effect, our answer in
their behalf is a motion that they be dismissed as a de
fendant. Mr. Howard recognizes that as one of the prob
lems—as he said—of the things to be determined in pre
trial. That should be disposed of prior to trial. We fur
nished in this a list of witnesses; we have an additional
witness. Mr. Howard has not furnished us with a list of
his witnesses, we would like that.
Mr. Howard: We have no objections to supplying coun
sel with a list of witnesses and there may well be—I did
have a list prepared. There may well be an additional wit-
—25—
ness. I can submit it to them in the next day or so.
The Court: Well, you may do that then. If it develops
later, you can advise later on of any additional witness.
Mr. Howard: May I ask counsel for the defendants this
question: Based upon the response filed to the complaint,
jurisdiction was also raised as an issue, am I to understand
now that that is no longer an issue in the judgment and
sight of counsel for the defendant?
Mr. Solomon: I thought the Court had indicated at some
Pre-Trial Hearing, May 29, 1967
Colloquy
86
stage in the proceedings that the Court was ruling that it
had jurisdiction. If it were possible for us to raise it we
would be glad to raise it again. But, I thought the Court
precluded us from that at some other stage.
Mr. Howard: I don’t recall, it may well be that the
Court did.
The Court: I don’t recall that the issue was pressed. I
don’t believe I have anything before me other than the
denial which is contained in the answer. Just because the
answer denies an allegation that is in the complaint doesn’t
necessarily make it so.
— 26—
Mr. Solomon: I ’m sorry, sir, I got the idea when we got
into the various ramifications of the jury that you had let
us know that sometime in those proceedings that you were
assuming jurisdiction, had jurisdiction, were ruling to that
effect, sir.
The Court: I think you properly understood it.
Mr. Solomon: All right, sir.
Mr. Howard: Then, of course, if that’s the only issue
present, whether Home Indemnity Company is liable, we
take the position that it is. There is a policy, I believe,
that is taken out by the City of Helena covering the Chief
of Police in his official capacity and further provides that
he is to carry out his duties and responsibility according
to law. We have had these cases before in Little Rock and
what-have-you and although those cases were settled with
out a trial the insurance company was retained as a party
in the action, so we take the position that the indemnity
company is a proper party in view of the fact that it is
a surety on the chief’s official bond, which is required.
Pre-Trial Hearing, May 29, 1967
Colloquy
87
The Court: I have not seen the policy. I do not believe
the answer has a copy of the policy, does it, Mr. Solomon?
— 27—
Mr. Solomon: I have the original of the policy here, sir,
which I was going to ask leave to submit, and I believe a
copy was filed with the answers.
The Court: Of the insurance company?
Mr. Solomon: Yes, sir, I believe so.
The Court: I do not believe that I have the benefit of
the policy. I do not find that it was included.
Mr. Solomon: I submit it to counsel for inspection, the
original, and after it is inspected, I would like to submit it
to the Court.
Mr. Howard: We would like to be supplied with this, if
Your Honor, please. I don’t believe a copy was served with
the answer. I did have the occasion of inspecting a copy
in the City Clerk’s office, but if it is at all possible, we would
like to have a copy of it.
The Court: Is there any objection?
Mr. Solomon: No, sir. We would like to ask that we be
allowed to withdraw this at the conclusion of these pro-
— 28—
ceedings and substitute copies.
The Court: Yes, if you would do that, I think it would
probably be helpful.
Mr. Solomon: I believe that if the Court will observe
the answer filed on behalf of the Home Indemnity Com
pany, you will see that the execution of this bond was ad
mitted, but it denied that it was a public liability bond, or
in any way inured to the benefit of this plaintiff and that
it was strictly a fidelity bond to the City of Helena for the
Pre-Trial Hearing, May 29, 1967
Colloquy
88
official position for the Chief of Police, Roy Ross, as re
quired by a separate section of the Arkansas Statute.
The Court: The City of Helena is in no way a party to
this proceedings, is it?
Mr. Solomon: No, sir.
Mr. Howard: No, sir, but we take the position, if Your
Honor, please, that this policy covers the action and the
conduct of the Chief of Police and of course, as the policy
indicates, it’s a rather broad, a rather blanket sort of thing,
for the faithful performance of his duties and responsibil
ities. So, we take the position that it is the type of policy
—29—
that covers the sort of conduct that is involved in this law
suit.
The Court: Have you had occasion to go over the pol
icy, Mr. Howard?
Mr. Howard: Not in detail, Your Honor, please. Counsel
indicated that . . .
The Court: I would suggest . . .
Mr. Howard: . . . he would supply us with a copy.
The Court: I would suggest that you read over it.
(The Judge hands policy to Mr. Howard.)
Mr. Amaker: Your Honor, may I add one thing. This is
a Monroe v. Pape type suit and there have been other cases
of this kind decided by other Courts of Appeals, if I ’m not
mistaken. In Brazier v. Cherry of the Fifth Circuit, which
was a suit against police officials of Dawson, Georgia,
Terrell County, Georgia, that was decided in 1961, 293
F. 2d, a New York corporation was insured on a bond for
one of the officials there, and if I’m not mistaken I think
that the right to sue the insurance company as well as in
Pre-Trial Hearing, May 29, 1967
Colloquy
89
dividuals was upheld. And then, of course, in this circuit,
Pritchard v. Smith is one which—I don’t remember the
volume, but it was a similar type suit against public offi
cials because it’s a general . . .
—30—
The Court: Pritchard v. Smithf
Mr. Amaker: Pritchard. Pritchard v. Smith. 1 don’t re
member the cite.
The Court: Do you know the date!
Mr. Amaker: I think Pritchard was around the same
time as Brazier and Cherry, ’61, ’62, ’63, in there. It’s easily
found in the Federal Reports. I would not want to be
held as stating that I am sure an insurer was involved in
that case. I am sure about Brazier v. Cherry because that
is a case that I worked on.
The Court: What was that Cherry citation?
Mr. Amaker: Brazier. It’s a Fifth Circuit case. And
that’s around 293 F. 2d.
The Court: Brazier vs. Cherry.
Mr. Amaker: There is also a case in the Third Circuit
in which I also think there was an insurer involved, that’s
Basista vs. Weir, and that’s around a 1963 or 1964 case.
—31—
The Court: Give me those names.
Mr. Amaker: Basista, Basista vs. Weir.
The Court: And that’s the Third Circuit?
Mr. Amaker: A Third Circuit case, yes.
The Court: Do you have anything further on this?
Mr. Howard: If Your Honor, please, nothing further at
this stage.
The Court: Mr. Solomon, do you have anything further?
Mr. Solomon: No, sir. I believe our answer sets up the
Pre-Trial Hearing, May 29, 1967
Colloquy
90
provision of the Arkansas Statute requiring this bond and
it is running to the City of Helena. There is nothing in its
wording or the like that makes it possible for this plain
tiff to be covered under this bond. We found no cases,
Arkansas cases, having a bond of this type in this situa
tion.
The Court: Are you familiar with these matters men
tioned by Mr. Amaker?
Mr. Solomon: No, sir, but then of course—and I ’m not
— 32—
prepared to say whether our statute calling for this bond
is similar to the statute involved in those cases.
Mr. Amaker: Neither am I, Your Honor, but I’m sug
gesting that the Court should . . . I don’t remember even
in the Brazier case which I was in some years ago, exactly
how the bond read?
The Court: Of course, I would be very much interested
in this Circuit’s decision that you suggested in Pritchard
vs. Smith.
Mr. Amaker: I ’m not sure there was a bond involved in
that, but it was a similar type damage suit.
The Court: Pending the reviewing of this matter, in all,
I just cannot see how an indemnification bond which goes
to the City of Helena for performance and no one else could
be held responsible for a matter of this kind to a third
party. The Court will review these matters to see if there
is any distinguishing between them at all before he de
cides on it. And I will advise you about it in the next two
or three days.
Mr. Solomon: I will get a copy of this suit for you and
also for opposing counsel.
The Court: Yes, you may do that.
Pre-Trial Hearing, May 29, 1967
Colloquy
91
Pre-Trial Hearing, May 29, 1967
Colloquy
—33—
Now, if there is anything further that can be worked out
at this time that either of you think of ?
Mr. Solomon: No.
Mr. Howard: If Your Honor, please, the rule indicates
that a good faith effort should be made towards a settle
ment. I don’t know whether counsel for the other side
would be interested in indulging in that discussion or not.
Mr. Solomon: Our facts are so contrary to what the
plaintiff alleges, there is no possible way that we could
offer any sum in settlement.
The Court: Well, I suppose that question is settled.
Well, then, the question will be to schedule the matter
for trial. In the meantime, the Court will dispose of the . . .
Mr. Howard: If Your Honor, please, may I point out
one thing that I do have coming up in the middle of June.
Judge Colvin, the Circuit Court Judge in Drew County,
has set a Jackson vs. Dingle hearing. The Eighth Circuit
gave him, I think, four months in which to hold a hearing-
on a voluntariness of a confession. This case had been
set, I think, 17 of June. At any rate, there was a conflict.
The court reset it. It may well be the El Dorado case that
the Court has coming up now around the 5th. There was
—34—
a conflict and Judge Colvin reset this case to the 14th and
I don’t believe he will grant another continuance. I think
Mr. Smith indicated that the Court would probably com
mence trial sometime during the week of the 12th, and I
wanted the Court to know that I do have a case now set
for the 14th and I don’t believe Judge Colvin is going to
grant another continuance in that case.
92
The Court: I appreciate your advising me. How long
will it require your presence in that proceeding?
Mr. Howard: I believe, just one day, sir.
The Court: That would be on Wednesday, if I estimate
correctly. Would any other time during that week be sat
isfactory ?
Mr. Howard: Yes, sir, as of the moment, it would be.
The Court: The Court will keep that in mind in trying
to schedule the trial of these cases.
Anything else, gentlemen?
Mr. Solomon: No, sir.
The Court: This case, then, will be scheduled on the
—35—
docket sometime during the week of the 12th, and I will
keep in mind and try to avoid setting it on the 14th in
order that you would not be in a bind with Judge Colvin.
Gentlemen, if there is nothing else, you will be notified.
Mr. Amaker, it’s a pleasure to have you in this court.
. (Whereupon this Pretrial Conference was concluded.)
Pre-Trial Hearing, May 29, 1967
Colloquy
93
Transcript of Trial Proceedings
B e it R emembered , that a hearing was had in the above-
entitled cause on its merits before The Honorable Oren
Harris and a Jury, in the Federal Courtroom, Post Office
Building, Helena, Arkansas, on June 13 and 14, 1967.
—1—
A ppearances :
For the Plaintiff:
Mr. George Howard, Jr.
329% Main Street
Pine Bluff, Arkansas 71601
For the Defendants:
Mr. David Solomon
215 Cherry Street
Helena, Arkansas 72342
Mr. Eugene Raff
Helena National Bank Building
Helena, Arkansas 72342
Mr. W. G. Dinning, Jr.
538 Rightor Street
Helena, Arkansas 72342
P roceedings
(June 12, 1967: Jury impaneled)
—3—
(Whereupon, the trial of this cause commenced on June
13, 1967 at 9:15 a.m. in chambers wherein the following
proceedings occurred:)
I n Chambers
The Court: Gentlemen, before we go into the courtroom
for convening of court this morning, in chambers I wanted
94
to make a further record in the case that we are about to
commence and that is scheduled for today. The plaintiff had
moved to quash the panel, the jury, to quash the jury box
and all other proceedings used by the Clerk and the Jury
Commissioner for the selection of a jury on which a hearing
was held. And I might restate again for the record that
approximately a year ago or more, that the session of the
Court, the plaintiff had asked for the privilege of taking
depositions in connection with their motion to quash the
jury panel and the Court gave the plaintiff the privilege of
submitting Interrogatories to the Clerk and Jury- Com
missioner, and it was understood at that time that addi
tional testimony was required. The Court then would con
duct a hearing on it. The Interrogatories were submitted
pursuant thereto to the Clerk and the Jury Commissioner.
The responses to the Interrogatories were filed in August
and September of 1966. The case was scheduled on pre
trial hearing in December. By request of the parties,
— 4—
I ’m not sure, both parties I think, joined and the Court, as
requested did agree that the matter should be continued for
further discovery as of January during the regular session
of the Court, January, 1967. The matter then was post
poned.
There has been no request by the plaintiff or otherwise
for additional hearing until the pre-trial session in May
of this year getting ready for the docket to be tried at the
beginning of this regular term in June which we are now
in. At the hearing, at the pre-trial conference in May, 1967,
just past, the plaintiff requested that the matter be post
poned on the basis that the plaintiff could take testimony
from various and sundry people including key men used
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
95
by the Clerk and Jury Commissioner and for an opportun
ity to go into the box from which the names were drawn
for the jury panel which would obviously require a great
length of time. At this stage the Court did not feel that
the matter could be continued on and on and particularly
in view of the fact that it was necessary to impanel a jury
for this session of the court; and therefore the Court
could not see it reasonable and appropriate to grant the
request of the plaintiff for that purpose.
The Court did inform the plaintiff that the Clerk and
the Jury Commissioner were here for any of their as
sistance, and they would be made available for any further
testimony at that time. The plaintiff declined to interro-
— 5 —
gate further the Clerk of the Court or the Jury Commis
sioner in connection with the jury panel. Thereupon the
matter was scheduled for trial and scheduled for today.
Pursuant to an order of the Court, the jury was drawn
by the Clerk and Jury Commissioner, they were in due
course summoned. Then on yesterday the Court impaneled
the jury as to their qualifications and as a result there are
forty-one members, I believe, of the jury that have been
drawn and have qualified. There will be one more today.
There were two that did not report yesterday. I excused
one of them last night because Mr. Buck Files had not
been notified by the Marshall. The address seemed to have
been erroneous, and therefore he did not know anything
about it until yesterday after the Marshall went down to
look for him. He had never heard or had had any notice
that he was to serve as a juror; and so in view of the fact
that he had no notice and didn’t know anything about it,
obviously he couldn’t be here yesterday; and so therefore
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
96
he did not deliberately defy the summons because he didn’t
have one. The Court excused him. Mr. Sisk will be here
today and he will be qualified, that is if he is qualified, he
will be sworn in under the regular panel. Therefore that
will make forty-two members of this jury panel that were
drawn from the jury box or boxes by the Clerk and the
Jury Commissioner.
At the time the members of the jury were being qualified
for service, during this time and before they were sworn in
— 6—
to serve, the Court asked publicly if any attorney of this
bar or this division or anyone present wished to challenge
any member of the panel or object to any member of the
panel, whereupon no objection was raised and no challenge
was offered. Now that brings us to this point. Mr. Howard,
you were not here; therefore you did not have an opportun
ity, and the Court before we go in this morning wants to
give you an opportunity for you or either of the attorneys
on the other side who are here today to interpose any
objection or challenge any member of this jury at this time
so the Court, if such were to happen, would have the oppor
tunity of passing on the objection. I do that so the record
will reflect that the parties, either side, has that opportunity
before we go into the trial of the case. If there are any
challenges at this time to any member of this panel for
any reasons the Court will hear it.
Mr. Howard: If Tour Honor, please, I would like to ask
this question before replying to the Court’s observation.
Will Counsel have the opportunity to examine the jurors
individually ?
The Court: No, that isn’t the rule. We will follow the
regular rule and the Court will question the members of the
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
97
panel, the jury, jurors that are called in the regular way as
to their qualifications of this particular case. And as such
I will ask the regular questions, the suggested questions
— 7—
that will be appropriate on either side.
Mr. Howard: In order to intelligently execute the per
emptory challenges allowed by the law to each party
Counsel for plaintiff believes that there should be some
opportunity to find out something about each juror, his
connection with defendants if any, his knowledge about the
case, and what have you.
The Court: The Court will go into all of that with them.
I intend to. The Court will also have each one of them to
identify themselves, where they live, their status, what
their occupation is, whether or not they belong to any
organizations that might be pro or con in connection with
the promotion, or in anyway, of the civil rights program,
and so forth.
Mr. Solomon: Getting a little afield of your original
broad thinking in connection with the voir dire, I do know
that some of the jurors live in the same community as the
plaintiff, in Phillips County. But they might have some
connection with the family which, of course, we would like
have covered too.
The Court: That will be covered with the defendant and
the family of the defendant, with the lawyers on both
sides. We will go into all that. And, of course, I will give
opportunity for either side to suggest anything further to
— 8—
go into.
Mr. Howard: With that understanding then, if Your
Honor please, the only response that plaintiff has at this
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
98
time to the Court’s observation is that we still assert the
same allegations in our motions which the Court has already
ruled on, the observations that were made after the Court
rendered its ruling at the last hearing. We would like to
reassert our position at this time. With that, nothing
further.
The Court: Well, at that time there was no jury trial.
We did not have a jury before us; and therefore, the major
contention of the plaintiff on the quashing of the jury being
based on the fact that there was not sufficient cross-section
of the population, therefore it should be quashed. We had
no information whatsoever as to the sufficiency of a cross-
section from which the jury panel was drawn, cross-section
of the population, as to the make-up of the jury. We have
that now. And out of the forty-two regular members that
have finally been drawn through the regular procedures,
there are sixteen, fifteen or sixteen, of the forty-two that
are of the colored race or non-white race. Is that right Mr.
Clerk ?
Clerk: Your Honor, we are checking, at this moment, I
think that we will actually have forty-one instead of forty-
— 9 —
two. There were sixteen Negroes yesterday and the Court
excused one and we will have fifteen so fifteen of the forty-
one will be non-white.
The Court: Therefore, we do have the complex of the
jury that has been impaneled and we do know the make-up
of it. Having met before us and having the jury here ready
for service in which a jury will be selected to try this
case, I think that each party should have an opportunity to
challenge or state any further objections, and as I under
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
99
stand, there are no objections stated on the part of either
party, further, have heretofore been made.
Mr. Howard: If Your Honor please, just to make the
plaintiff’s position clear, we do reassert the same conten
tions or allegations set forth in our motion to quash hereto
fore filed and heretofore ruled upon by the Court. Other
than that we have nothing further.
The Court: Yes, I understand that is continuing it all
but don’t you think this record should be made clear as to
what we have before us as of today; and consequently, hav
ing knowledge of it, why then we should have some oppor
tunity to pass upon any further objections and that is the
purpose of this session in chambers.
Now the Court will ask the usual questions I have indi
cated before. I do not have to mention to you that this is
— 10—
a rather tedious matter, and I think it would behoove
everyone to recognize the fact, and in doing so avoid any
thing that would make it unusually difficult. Certainly I do
not want anything to get in this record that would endanger
it any more than possible as the Court sees it. I am going
to pass upon the questions as they arise and there are
certain things that are going to develop in this thing that
are going to be rather delicate to judge.
One of them I think that we could certainly expect to be
be raised, but I would prefer that it not be brought to the
attention of the jury or in the presence of the jury, and
that is as a result of the trial of the defendant to the jury
of the case in Municipal Court after it was remanded.
Now that will have no merit on the outcome of this case
whatsoever. I think anything that happened incident to
the litigation before us is permissible and the Court is
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
10 0
going to let that part of it go in. Of course, to the filing of
the charges, and they are docketed, and what those charges
are in connection with the arrest, but trying the case to a
jury and the jury’s verdict in connection with the case, I
do not think goes to the merit of this particular ease and
I would suggest that we not go into that part of it.
Mr. Solomon: I don’t know whether the Court is aware
— 11—
that in the Circuit Court of Phillips County on May 23rd,
1966, the defendant was convicted of drunkeness, disturb
ing the peace, resisting arrest and assaulting an officer by
a jury in the Circuit Court. We had intended to ask the
Court back in chambers to permit us to introduce through
the Clerk, Circuit Clerk, of Phillips County, the records re
flecting this trial. We had no intention of offering anything
in connection with the Municipal Court trial since it was
tried in de novo in the Circuit Court.
The Court: Well, of course the same rule would apply
in the Circuit Court that would be in the Municipal Court.
And I think the filing of the charges and all would be per
missible because it is incident to the events that led to the
allegations and the contentions here. But whatever a jury
did in connection with that case, I do not see would have
any bearing on the merits of this case; and therefore I
would hope that you would refrain from bringing that
matter up in the presence of the jury as to the convictions.
Mr. Solomon: We have no intention of doing that, but
for the purpose of the record I think that we should state
our position. I believe that the plaintiff has alleged that
there is no basis for his arrest or being tried, I forget the
wording in the complaint.
The Court: Well, he denies that he committed any
offenses.
Transcript o f Proceedings, June 13 and 14, 1967
Colloquy
101
— 12—
Mr. Solomon: I think that it would be appropriate to
show that he has been convicted under the processes of the
law.
The Court: Not in this particular case.
Mr. Solomon: (reading) “Plaintiff unequivocally denies
that there is any truth or substance to the charges lodged
in the Municipal Court, namely resisting arrest, assaulting
an officer, disturbing the peace.” I think it is essential on
the charges of punitive damages that it was maliciously
done, that actions were maliciously done, and done to
deprive him of his rights.
The Court: That can all be shown except as to the trial
and the conviction by another jury.
Mr. Solomon: But I understand that it is proper for us
to show that he was tried in the Circuit Court, but not
the results of the trial?
The Court: Well, I believe it would be a lot better—we
are inching closer and closer to it—I believe it would be
a lot better to show the charges were lodged against him,
that he was arrested on these charges which were filed and
docketed against him. In other words, I think that you
should show that the officers did their duty because the
color of State law is involved and that is an integral part
of this thing. I think that it should be shown in the case
— 13—
that these officers were acting under authority invested in
them as officers of the law. And I would assume that there
would be no denial of the fact that they were acting under
color of State law, I don’t know. I don’t think anybody
would deny that they were the policemen, in fact, you admit
that they were the policemen. But I don’t think that you
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
102
would indicate that they were acting any other way except
by authority and their official duties imposed upon them,
and all of that can be shown as a part of this whole thing.
But I don’t want anything to get into this record that
would have even a tinge or that would imply that there
were any prejudices whatsoever. I want this to really be
a fair trial on the basis of the incidents in connection with
what happened and the merits of the particular matter.
Mr. Raff: Your Honor, in that regard may I pose two
questions to you just to have it clear in my mind what you
really ask. This was tried in Municipal Court and again
in Circuit Court as Mr. Solomon said on May 23rd, 1867.
Now, at that time Charles Townsend in his behalf had
many witnesses that testified, naturally we were there. We
made extensive notes of their testimony. There is a pos
sibility that exists on our part equally as well as it does
on the part of the plaintiff that they may vary in their
testimony from what they gave previously. I wonder what
is the Court’s ruling with respect to our cross examination
—14—
of those witnesses in light of impeachment if their testi
mony is not—
The Court: You certainly would be permitted to do
that.
Mr. Raff: The second question, Your Honor, in the Cir
cuit Court a plea was introduced by the defendant, two
pleas were actually introduced, one was not guilty the sec
ond plea was not guilty by reason of insanity.
The Court: Don’t let any of that get in here.
Mr. Raff: You do not want that in here!
The Court: We do not want that in this case because that
would go to the merits of the other case which another jury
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103
decided. And I think you would get some prejudicial reac
tion if that is brought out in this case.
Mr. R aff: The reason I brought the second question up,
Your Honor, I think there has been some indication in the
past that the plaintiff here has been under psychiatric care
or psychiatric hospital or something such as that. Of course,
naturally he is going to testify, he is going to state what
the facts were as to the course of events he alleged hap
pened to him. I was wondering if we would be permitted
to explore his mental condition in terms of previous—
The Court: Yes, indeed, except we will not do it as a
plea.
—15—
Mr. Raff: But not do it by way of a plea?
The Court: Yes, plea in another case. I think that’s
right. In his previous convictions in the past in ’63 and
all. If that is brought up or you attempt to bring that in
here there would have to be a very narrow construction.
I think that could go on this case, in my judgment, that
could go only to show the disposition of the individual as
to his temperament and so forth and a jury could consider
it only for that purpose. I am not going to let it go in
for impeachment purposes, that is credibility purposes, or
as a part to the merits of this case. What happened two
years before or three years or five years or whatever it
was would have no bearing on this particular case as to
whether or not he was drunk and entered a plea of guilty
of being drunk. But it would go if, it comes in at all, the
Court is not going to let it go to the jury except to show
the temperament and disposition of the individual which
the officers had knowledge of. And for that purpose and
that purpose only.
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104
Mr. R aff: Do I understand that if we mention the
charges placed against him we mention it only as charges
placed against him and not as any result of what hap
pened?
The Court: You mean in this particular case?
Mr. R aff: That’s right.
— 16—
The Court: Yes, that would be because the officers, they
contend and they plead here that they were acting' as offi
cers under the authority imposed upon them as officers and
they were in their official capacity as officers and conse
quently they claim, you do, under the pleadings here that
they were performing their official duties; that he was be
ing incarcerated, he was under arrest and being put in jail
for violation of particular laws, misdemeanors, and war
rants of arrest. You’ve got copies of the warrants there.
The F.B.I. thing, you are not going to try to put that
in this record are you?
Mr. Howard: We have already discussed it, Your
Honor, and I was told that no effort would be made, of
course we object to that vigorously.
Mr. Raff: Your Honor, it is not our intention at this
time.
The Court: Well, things of that kind would not be
proper. So I wanted to try to have this session and have
an understanding of some of the rules so we would not get
all involved out there in the presence of the jury. Are
there any other questions?
Mr. Solomon: Just for the purpose of the record, the
defendants object to their not being allowed to call the
Clerk of Phillips County, Arkansas, to introduce evidence
of the convictions in the Circuit Court in May, 1967.
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
—17—
The Court: On the charges going to the merits of this
particular case?
Mr. Solomon: Yes.
The Court: Well, that objection will be registered and
shown.
Mr. Howard: If Your Honor please, the Court asked
if there were any other questions or observations. I do
have a photograph that was made of plaintiff when he
was confined to the Helena Hospital and a letter that I de
livered to Counsel for defendants a short while ago. But
I have only one print and could not supply them with
copies. In addition to the photograph I also have the cloth
ing that the plaintiff was wearing on the day that this
incident occurred. We have also subpoenaed the bookkeeper
who is his former employer, as well as his last pay check,
and these are items that we did not submit in our letter to
opposing Counsel because I had not seen these instruments
and viewed some of them for the first time this morning.
But I did advise them in my last communication that there
would be other witnesses whom I did not know but I would
reveal their identity just as soon as I had learned of it, so
these were some matters of evidence that we would like to
introduce.
—18—
The Court: Well, the Court will pass on it at the time
it is offered.
Mr. Solomon: We have no objection to the witnesses in
the record that you have apparently subpoenaed. We object
to this picture because I don’t believe it can lay a proper
foundation for its introduction and we will object to the
introduction of the clothing. This certainly has been known
106
to Mm since Ms employment, I am sure, or should have
been; and we have no way of—at this time—of doing any
thing about the introduction of that. In addition to that
we don’t feel the introduction of it is warranted on the
merits of the case.
The Court: Well, the Court cannot pass on it until we
reach the point and see how it is presented, the purpose and
so forth. But I assume you will bring this up in order to
comply with the rules, that you have not been able to
present this particular matter for their information hereto
fore and you are telling them about it today.
Mr. Howard: That’s right, Your Honor.
The Court: Anything else?
Mr. Solomon: Yes, I have one other thing. The defend
ant, Royce William Finley, thinks he should be granted
additional peremptory challenges. I would like for the
Court’s benefit to explain that I originally got into this
matter representing Mr. Finley and then when Mr. Dinning
—19—
and Mr. Raff were representing the other defendants he
joined forces so to speak in having a unanimous front. It
is my understanding that under the rules where there is
more than one defendant or more than one plaintiff the
granting of additional peremptory challenges is discre
tionary with the Court. Mr. Finley’s action as to what
happened after the placing of the plaintiff in the Helena
jail is not anything that he controlled or had anything to
do with. It would seem to me that he is in an entirely differ
ent position in the litigation than the other defendant. For
that reason the request is made that additional peremp
tory challenges be granted either to him or the defendants.
Mr. Howard: If Your Honor please, we would certainly
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
107
oppose the request. I think these defendants fit into one
class and there is no need. This is the plaintiff’s position.
The Court: As 1 understand the rule, the Court does
have discretion. Factually there is no guidance either in
the rules or the commentaries on it. I gather the impres
sion, that what was intended here, where there were con
solidations primarily of cases for the purpose of expedit
ing, that the rule should be adhered to or at least con
sidered by the Court. But there are no consolidations here.
The complaint originally include all four of these defend
ants, and the bonding company. Consequently, as Mr.
— 20—
Howard has said, they all come under the same tent. Now,
if I remember from the hearing that we had on a motion
to remand, that Mr. Finley was employed as somewhat of
an auxiliary policeman!
Mr. Solomon: Store watcher, I think.
The Court: Store watcher, and so forth, to protect, and
he was doing that under the authority invested in him by
the Chief of Police to act if he found something necessary!
Mr. Solomon: No sir, it wasn’t quite that strong. This
group of seven or eight firms, I believe, employed him to
walk around in the store to try to deter shoplifting during
the holiday season. He was granted permission to use,
to wear a uniform at least a policeman’s cap and pants.
The Court: By whom!
Mr. Solomon: The Chief of Police.
The Court: In other words, the Chief of Police ac
quiesced in his performing this duty as an officer for this
particular purpose.
Mr. Solomon: We disagree about the use of the word
“ officer” . He was just supposed to walk around.
Transcript of Proceedings, June 13 and 14, 1967
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108
The Court: Let’s say in an official capacity then. If they
permitted him to wear the uniform, that obviously would
have to come within—where they just gave him a certifi
cate or commission or not is one thing, but you just don’t
- 21-
put a man in uniform, put a pistol on him—
Mr. Solomon: He was not armed. Had nothing other
than the cap and pants on.
The Court: But it was a regular policeman’s cap?
Mr. Solomon: Yes sir.
The Court: Policeman’s pants?
Mr. Solomon: Blue pants, which was the type being
wTorn by the Police Department.
The Court: I think probably we had better consider
him as one of the officers under color of State law. How
ever, we will have to wait and see. We will pass on it after
the evidence is in as to what his capacity was. I don’t guess
maybe we should at this time.
Mr. Raff: Your Honor, we might add that he also had a
badge that said Helena Police Department on it.
The Court: A policeman without portfolio. I think prob
ably under the circumstances, it might be construed as giv
ing an advantage.
Now, anything else anybody wishes to raise? I would
like to inquire about alternate jurors. Do you want to
agree that should anything happen during the course of
the trial to one or any of the jurors that it be tried with
less than twelve, to a decision, or do you want stand-by
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alternate jurors which the rules provide for?
Mr. Howard: Your Honor, I believe plaintiff could not
stipulate to any such agreement for less than twelve.
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Colloquy
109
The Court: Well, we had better have some alternate
jurors then. In that case I will call, under the circum
stances, I suppose one is enough, wouldn’t you think?
Mr. Solomon: Yes sir.
The Court: We will call two extra then.
(Off the record discussion.)
For the record, at the pre-trial conference a motion was
made by the Counsel for the defense to dismiss as to the
Home Indemnity Company, the bonding* company for the
Chief of Police Eoy B. Ross. The Court reserved judgment
after the statement of the Counsel for both the plaintiff
and the defendant in the matter, and the Court has de
cided that the motion would be overruled, and I understand
from my conversation w*ith Mr. Solomon that it is generally
agreed that they are a proper party and so will remain
a defendant.
Mr. Solomon: Now, sir, could I make a pitch for addi
tional peremptory challenges for the Home Indemnity
Company?
The Court: Yes, you can make a pitch for it.
Mr. Solomon: I assume the Court is telling me that the
result is the same.
— 23—
The Court: I appreciate that fact, but I believe that we
will stick by the ordinary rules that are generally followed.
We would be in a lot better shape in this case.
Mr. Dinning: For the purpose of the record you will
note our exceptions.
The Court: Yes, we let the exceptions—really of what?
Mr. Dinning: The motion.
The Court: Dismissing* the bonding company?
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110
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
Mr. Dinning: Yes.
The Court: Yes, if you wish to do so, hut the Court was
under the impression from what Mr. Solomon said to him
yesterday and has indicated today that it was agreed that
the Home Indemnity Company was a proper party.
Mr. Solomon: That is correct.
Mr. Dinning: I withdraw my objection then.
The Court: I thought you were all together, but if you
want on your part to save exceptions to the record, so
noting.
Mr. Dinning: I withdraw it then.
The Court: Anything further?
Mr. Solomon: I assume we want to rule on the witnesses,
that they will not be present in the court.
—24—
The Court: Gentlemen, the Court will give you a few
minutes to get ready.
(Whereupon, at 10:00 o’clock A.M., the Court, Counsel,
and Court Reporter resume the trial of this cause in the
presence of the jury wherein the following proceedings
occurred:)
The Court: Gentlemen, are you ready to proceed in the
case of Charles Townsend v. R. B. Ross, et al?
Mr. Howard: The plaintiff is ready, Your Honor.
Mr. Raff: Defendant is ready, Your Honor.
The Court: The Clerk will call the jury.
(Whereupon, the jury was called and sworn. At 10:45
o’clock A.M. the Court, Counsel and Court Reporter retired
to Chambers wherein the following proceedings occurred.)
Hr C ham bers
The Court: Mr. Howard?
I l l
Mr. Howard: If Your Honor please, Mr. Perkins stated
that he was a member of the Mississippi Citizens Council.
In view of the fact that this is a Civil Rights case involving
the Chief of Police of Helena and a Negro who alleges that
his rights have been deprived and, further understanding
or being aware of the philosophy of the Mississippi Citi
zens Council, we move the Court to eliminate Mr. Perkins,
or rather dismiss Perkins because it is the substance of
plaintiff’s request or challenge or cause.
—25—
The Court: Any objections?
Mr. Solomon: We don’t agree that it is founded based
on what the prospective juror announced in open court,
that he had no prejudice and would fairly and impartially
try this case as the other jurors.
The Court: As I stated earlier, I do not want anything
to get into this record that would even imply that there
were any prejudicial matters that entered into it. I know
we are human beings, and we are all subject to fallacy but
to that degree, of course, we must tolerate, but I have made
up my mind on this, that if there were anyone who actively
engaged in promoting civil rights program as such, as the
nature of this, on the one-hand, or anyone that was involved
with any organization against this, as such, that it would
be advisable to let them stand aside.
Now, I am a little bit surprised; I really anticipated that
we would hit one or more Negroes out. of so many on this
that might be involved in espousing of the Civil Bights
program, in view of having the school problems in the
area which I myself have presided over in the Marvell
School District, and the meetings which have been held
which I know something about here in connection with some
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
112
of these integration programs, and civil rights programs
and so forth. And in view of the fact that there is a rather
— 26-
vocal group in organization in this area, which only a few
nights ago according to the publicity, held a rather sub
stantial meeting where it was reported over a thousand
people attended right next to us, I was quite surprised we
did not get a lot more than just the one individual.
I am encouraged by this jury very frankly. I am a lot
more encouraged as it being the kind of the jury that ought
to try this case and I have a feeling that everybody would
be better if there was no tinge or implications included in
this record with it. Now, I can see the newspaper report
in the morning and we cannot in anyway suppress the pub
licity, the press, on it. We have to recognize this as a
matter of fact. But I can see the press in the morning with
headlines, a known active member of the White Citizens
Council serving on the jury in a matter of this kind. I think
that would have a tremendous affect on the entire pro
ceedings.
And so under the circumstances, in view of that, I think
I am going to let Mr. Perkins stand aside. If there is any
one who wants to object to this ruling the record can reflect
it at this time. I do not want any misunderstanding on the
part of anybody. I am not doing this because I have any
doubts as to Mr. Perkins’ state-of-mind or question his
honesty or integrity, and I would not want anyone to get
— 27—
that implication, and above all Mr. Perkins, himself.
Mr. Solomon: Judge, because you stated what you did,
I think that then a challenge for cause would not lie in that
Mr. Howard should remove Mr. Perkins from the jury by
exercise of his peremptory challenge.
Transcript o f Proceedings, June 13 and 14, 1967
Colloquy
113
The Court: I recognize that but I think if the Court
were to assume the responsibility which is his with refer
ence to the make-up on the jury it would probably require
me to take this action, and I think that I am going to have
to do it. As an example, we have got two people on here
who have made their living in the insurance business, and
an insurance company is a defendant here. Now, limiting
the challenges to three in the regular, ordinary procedure,
of course, would be fair and I am trying to be fair for both
sides, so I think I will let them stand aside and get another
member, and I suppose in that case it will be necessary to
wait until we get another member and then recess again so
you can have an opportunity to exercise your challenges.
Mr. Solomon: Might we save some time if we got the
alternates at the same time as this new one?
The Court: I would like to do that, but doesn’t the rule
say after the regular panel, then the alternates are called?
Mr. Solomon: If it is agreed by both parties. I just
—28—
thought we might call them and put them over to the side
and interrogate them and we will save a lot of time. You
are not going to ask them any different questions than I
assume you are going to ask the others.
The Court: If it is agreed.
Mr. Howard: The plaintiff wouldn’t be in a position of
waiving any rights, Your Honor.
The Court: All right, we will get started.
(Whereupon, the trial of this cause continued proceed
ings in the presence of the jury in open court at 11:00
o’clock A.M.
Alternate jurors were called, and at 11:10 o’clock A.M.
the Court called a recess and the Court and Counsel retired
to Chambers.
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
114
At 11:25 the trial resumed in open court, jurors were
seated, and the following proceedings occurred:)
The Court: Anything further, Gentlemen!
Mr. Solomon: Nothing further.
Mr. Howard: Nothing further other than plaintiff would
like to get into the record the basis for his challenge for
cause.
The Court: (Referring to jury.) Thank you, Gentlemen,
you may be seated. The Court will be in recess giving the
Counsel an opportunity to strike the alternate juror, and
you Gentlemen may come back in Chambers.
(Whereupon, at 11:40 o’clock A.M. the Court, Counsel
and the Court Reporter retire to Chambers wherein the
following proceedings occurred.)
- 2 9 -
I n C ham bers .
The Court: You may state your objections.
Mr. Howard: The basis of the motion of plaintiff to
excuse Mr. Gunn as an alternate, for cause, is based on
the fact that he stated on examination by the Court that
he had a relative in his family who is a member of the
Arkansas State Police as well as a member of his family, a
brother I believe he stated, who is a Chief of Police or on
the police force at Forrest City. In this case the Chief of
Police is a defendant, a principal defendant. Counsel for
defendant, the Chief of Police and the other two officers,
have advised Counsel for plaintiff that they expect to call
as a witness in this case, a member who is presently a
member of the Arkansas State Police as a witness in this
case.
Mr. Solomon: Excuse me, I don’t believe that we have
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
115
listed him as a witness, nor do we intend to call anyone
who is a member of the Arkansas State Police.
Mr. Howard: Defendant’s pre-trial report, George
Powell—
Mr. Raff: We do not intend to call him,
Mr. Howard: Yon have him down as a State Police of
ficer at Brinkley.
Mr. R aff: He is now State Police officer in Helena.
— 30—
Mr. Solomon: At the time that this was given, or at the
time of the incident, Mr. Powell was a member of the
Helena Police Department, and subsequently became a
member of the Arkansas State Police. He knows nothing
of the incident. We do not intend to use him as a witness.
Mr. Howard: If Your Honor please, our position remains
the same even though Counsel has indicated they do not
plan to call him.
The Court: The Court has meticulously inquired into
the state-of-mind of Mr. Gunn recognizing by his own ad
mission he has brothers who are serving as policemen. That
he has stated emphatically that that would have no bearing
on his state-of-mind and there were no prejudices insofar
as his own feeling and state is concerned. And the gentle
men heard me questioning him and repeat the question and
heard his reply. He, of course, is only a man and he only
can state what his state-of-mind is, and therefore the Court
does not believe in view of the answers he has given that
he should be disqualified for cause under the circumstances.
Motion is overruled and exceptions saved.
Gentlemen you may strike, select or strike, on the alter
nate juror in this case. If you strike both of them we will
call two more.
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
116
(Whereupon, at 11:45 court resumed in front of the jury
and the following proceedings occurred:)
—31—
The Court: Mr. Clerk, you will call the alternate juror.
Mr. Gunn, will you take your seat in the box at the end seat.
(Mr. Gunn sworn.)
Gentlemen, the rule has been requested, has it not?
Mr. Solomon: Yes, sir.
The Court: All the witnesses will retire from the court
room. Mr. Howard, will you and Mr. Solomon approach
the bench?
(Off-the-record discussion.)
Gentlemen, you may go to the jury with your opening
statements.
(Whereupon, opening statements of Counsel were heard
and at 12:15 p.m. Court called a noon recess.)
A fternoon R ecess 1 :30 p.m .
The Court: Call your first witness, Mr. Howard.
W h ereu po n , M rs. R osetta H ouse, a witness called on be
half of the plaintiff, after first being duly sworn, testified
as follows:
Direct Examination by Mr. Howard:
Q. Mrs. House, will you kindly state your full name to
the Court, please? A. Rosetta House.
— 32—
Q. Where do you live, Mrs. House? A. Route 1, Box
292, Lexa.
The Court: Mrs. House, you will have to talk
louder so everyone will hear you.
Transcript of Proceedings, June 13 and 14, 1967
Rosetta House—for Plaintiff—Direct
117
By Mr. Howard (continuing):
Q. That is in Phillips County, Arkansas! A. Phillips
County, right.
Q. Mrs. House, Pd like to direct your attention to Decem
ber 24th, 1965. Do you recall that date! A. Yes, I do.
Q. I’ll ask you if you had the occasion to see one Charles
Townsend who is the plaintiff in this case! A. Yes.
Q. Will you kindly state in your own words the circum
stances under which you saw the plaintiff, starting with
the very first moment that you came in contact with him!
A. Charles came to the house around 9:00.
Q. And whose house was this! A. This is my house, my
mother’s house, I live with my mother, around 9:00, he
was visiting my brother.
Q. And who is your brother! A. My brother is Ernest
Brown; and my sister, Charles and two other friends was
coming to town and I have a very small car and I asked
Charles, could I drive his car.
—33—
Q. And what sort of car do you say you have! A. I have
a Mustang, four passenger and there were five of us.
Q. Now, just a second, did you see Charles when he first
arrived at the house! A. I did.
Q. Would you describe his physical appearance, his con
dition! A. He was clean, and presentable and respectable
and sober, and I asked him could I use his car to come into
town, and he said yes, and we left home, and I came by my
sister’s house. We picked her up around 10:30.
Q. And what is your sister’s name. A. Mattie Butcher;
and we picked her up around 10:30 and came into West
Helena where Charles worked at Beisel’s Mill and he
picked up his check and he also picked up a basket of
Transcript of Proceedings, June 13 and 14, 1967
Rosetta Rouse—for Plaintiff—Direct
118
groceries that they was issuing to the employees on that
day.
Q. Now just one second, before you go further. When
you all left your house headed for Helena, who was under
the steering wheel? A. I was.
Q. And who was on the front seat with you? A. Charles
and another friend. And Charles asked for the key to put
this basket of groceries in the trunk of the car.
Q. Did he get the key from you? A. Yes, he did.
Q. What happened after you passed him the key? A.
—34—
He took the key, opened the trunk and put the basket of
groceries in there.
Q. Did anybody assist him in opening the trunk? A. No.
Q. Did anybody assist him in putting the groceries in
the trunk of the car? A. No.
Q. The trunk was locked as far as you know? A. It was
locked. We left the mill and we came into Helena and I
stopped right on the corner of Cherry Street and Charles
and a friend, Otis Bays, got out of the car and went to the
Hendrix shoe-department store, and I parked the car in
the same block which was sitting in front of Sterlings
Store, and I walked back to the shoe store where Charles
was purchasing a pair of shoes. By the time I got in front
of the store, Charles and the salesman were standing out
looking in the showcase and Charles picked the shoes out
and he walked back into the store, the salesman got this
pair of shoes and he fitted him.
Q. Were you there in the presence of the plaintiff and
the salesman? A. I was.
Q. When the shoes were fitted? A. I was.
Q. Did you notice anything unusual between the sales
Transcript o f Proceedings, June 13 and 14, 1967
Rosetta House—for Plaintiff—Direct
119
man and Charles? I mean, was there any difficulty in fitting
—35—
the shoes? A. No, they didn’t exactly have the color
Charles wanted hut he choosed another one.
Q. What happened after that? A. He signed the check
and paid for the shoes and he wrapped them and gave him
his change back. I came out of the store, Charles came
out of the store behind me. He stayed in the car and I
walked across the street to Grabers. And I went in there
and stayed about five minutes, I say, and walked out. In
fact, I won’t say I walked. My sister and I, Mattie, and I
was standing up there talking to her; Charles, he was sit
ting in the car, he got out of the car and called over to me,
“Hey, Eosetta, come here.” I walks across the street where
Charles was and he got in the car and I got in behind him.
And in a couple of minutes this man walked up who I know.
Q. This man came up, do you see him in the courtroom
now? A. I do.
Q. Will you point him out to His Honor, the Judge? A.
He’s there with the solid white shirt on.
Q. Is this the gentleman, the second from the end from
my left? A. Well, sitting between the two policemen.
Q. What happened when this gentleman approached?
A. Well, he came up on the driver’s side of the car, Charles
was sitting about middleways the car, and he opened the
- 3 6 -
door just a little, the traffic was heavy, and he told him,
“ Get out, come go with me.” And Charles asked, “Come
go where?” and he said, “You’re going with me.” And he
said, “For what, what have I did?” And he said “You not
going to do right,” And he closed the door back up and I
got out on the right-hand side, Charles got out behind me.
Transcript o f Proceedings, June 13 and 14, 1967
Rosetta House— for Plaintiff—Direct
120
I was standing up there talking to this man and I asked
him, what was he going to do with him, and he said he was
going to take him to jail. I said, “Don’t take him to jail,
he’s not bothering anybody, he’s not going to hurt any
body.”
There was another friend, Otis Bays, was standing up
there, and Otis asked him, “What is he being charged with?”
And he says, “What do you have to do with it?” and Otis
says, “Is it any law that a man can’t ask what he’s being
charged with?” And this man who I know of as the store
detective says, “This nigger stole something—shoplifted,”
that’s what he said, “ shoplifted,” and I said, “He didn’t do
anything, could I take him home? I have his keys in my
hand; I was the cause of him being over here; I asked to
drive his car.” And he said, “He’s going in jail, all you go
ing in jail.” And Charles touched the man in order to get
his attention, he touched him, and before he got his hand
down touching the man the man swung at him, started
beating him, and beat Charles and hit him all up under the
eye and he slipped from the sidewalk, it was raining and
- 37-
wet, he slipped to the sidewalk and he was trying to get up,
he was tussling and he was holding the man’s legs trying
to block his licks, and blood was just going everywhere.
Q. Had Charles been to any other place other than Hen
drix, as far as you know? A. No, that was the only place
he went.
Q. Did he have any packages in his possession other than
the shoes that you testified to? A. No, the shoes is all he
had.
Q. And you saw him when he paid for these shoes? A.
I did.
Transcript of Proceedings, June 13 and 14, 1967
Rosetta House—for Plaintiff—Direct
121
Q. Did yon see any other articles in the car other than
what Charles had brought? A. No, we had a, we always
call it a teetsy jar, we carried water to the house sometime,
we had a jar in the car.
Q. But there were no other articles in the car other than
the shoes that had been purchased! A. That’s all.
Q. What else happened after that now? A. Well, this
man was walking down the street and he told him, “ Hey
come here, and help me hold this nigger.”
Q. Now who was that, who made that observation! A.
This man who I know of as the store detective. I don’t know
who the man was came helped hold Charles. And a few
minutes later he stopped somebody and say, “Call me a
- 38-
squad car.”
Q. Did you observe anything else? A. Well, no. He
called the squad car and I heard the siren coming.
Q. Were you there when the officers arrived in the
squad car? A. No, I wasn’t, they was coming down the
street, and when this man say, “I ’m going to take y’all to
jail,” so I walked on down the street.
Q. Had you done anything? A. No, I hadn’t, I was just
so upset I didn’t know anything else to do.
Q. Let me ask you this, when did you see Charles again?
A. Few hours later, I guess it was a matter of hours, I
saw him in the Helena IIosxDital, in the emergency room.
Q. Did you see him? A. Yes, they had the door opened
and he was laying up there on the table, as if he was dead,
just laying there, blood everywhere; and they had some
thing, I don’t know what they call it, it was a thing they
hang on their veins to stop from bleeding. They had all
that hanging on him; he was just laying there like he was
dead, just still.
Transcript of Proceedings, June 13 and 14, 1967
Rosetta Rouse— for Plaintiff—Direct
122
Q. Now, when the store detective, Mr. Finley, approached
the car, did he have a warrant or any instruments in his
possession as far as yon know! A. No, I didn’t see any
thing.
—39—
Mr. Howard: Your witness.
Cross Examination by Mr. Raff:
Q. As I understand your testimony, the first time you say
you saw Charles Townsend that day was at 9:00 A.M., is
that correct! A. Around 9 :00.
Q. You didn’t see him anytime prior to that or before
that on that day! A. No, I didn’t.
Q. Then you have no knowledge as to whether or not he
had been drinking prior to 9 :00 o’clock, is that correct! A.
He probably had been drinking.
Q. You say he probably had been drinking; will you tell
the jury what you mean by that! A. I didn’t see him
drinking.
Q. Well, did you have reason to think he had been drink
ing! A. No.
Q. Why did you say he probably had been drinking!
A. Because I can’t swear that he didn’t, I didn’t see him.
Q. Did you smell the odor of alcohol on his breath! A.
Well, I smelled—yes, that morning.
Q. You did smell it! A. umhuh.
Q. Was it a very strong odor! A. No, that was hours
before this happened.
Q. Was he unsteady on his feet! A. Yes.
Q. He was unsteady on his feet! A. Unsteady!
Transcript of Proceedings, June 13 and 14, 1967
Rosetta House-—for Plaintiff—Gross
—40—
123
Q. At 9:00 when you saw him? A. No, he was clean,
presentable, respectable.
Q. How about his speech, did he have any difficulty speak
ing at that time? A. No, he speaking ’bout like he speak
now.
Q. But, you did smell the odor of alcohol, is that correct ?
A. He said he’d had a beer.
Q. Did you talk to him about his drinking? A. No.
Q. What brought that up? A. Well, he was at the
house and he and my brother and all, they usually run
together and they’s just talking.
Q. Just talking about drinking? A. No, he’d had a beer,
down at the liquor store, he said.
Q. You just overheard him say that, is that right? A.
That’s right.
Q. Now as I understand it, when you left the house you
state that you drove the car, is that correct? A. I did.
Q. Was part of the reason for your driving the car be-
— 41-
cause he had been drinking? A. No, he’d lost his driver’s
license.
Q. Didn’t have anything to do with his condition at the
time? A. No, it didn’t.
Q. From 9 :00 o’clock when you were with him until ap
proximately 12:15, 12:30 or 12:45 when this occurred, were
you with him the entire time? A. I was.
Q. He was never out of your presence? A. I said, soon
as I could walk across the street and come back out—a
matter of four or five minutes.
Q. Was he out of your presence any time between the
time you met him and the time he picked up his check?
A. No.
Transcript of Proceedings, June 13 and 14, 1967
Rosetta House—for Plaintiff—Cross
124
Q. Did you go with him to pick up his check? A. I was,
I drove the car.
Q. Did you see the check handed to him? A. No, I saw
him when he signed the check.
Q. You weren’t in his presence then, when he picked up
and received his pay check, is that correct? A. I didn’t go
in the office with him, no.
Q. You don’t know anything that occurred in there do
you? A. No.
Q. Now, when he came out you were with him then, were
you not? A. I was.
—42—
Q. Where did you go then? A. The first stop I made
was in Helena.
Q. In Helena? A. In Helena.
Q. Was that at the grocery store? A. No, it was at the
corner of Cherry Street.
Q. Did you get out of the car? A. No, soon as I parked
in front of Sterlings I got out.
Q. Did you leave Charles Townsend in the car? A. No,
he was at the store.
Q. Did he go with you? A. He was at the store—soon
as I turned the corner and parked the car, I walked hack
to Hendrix Department Store and that’s where he was
standing right in the front of the store.
Q. All the time you were in Helena was he ever away
from you, during that period of time? A. No, he wasn’t.
Q. You were with him all the time? A. All the time.
Q. Now, were you with him in the shoe store? A. I was.
Q. Did he subsequently leave you after that and go over
to where the ear was? A. No, we left the store together.
Q. I thought you testified that he hollered across the
Transcript of Proceedings, June 13 and 14, 1967
Rosetta House—for Plaintiff—Cross
125
street to you, is that correct! A. I said I walked—we
— 4 3 -
left out the store together, I walked to the car, I went
straight across the street over to Grabers, stayed in there,
I said, four minutes and walked back out—
Q. Was he in there with you in Grabers! A. No, he
wasn’t,
Q. You don’t know what occurred during that time, do
you? A. I know he was sitting in the car, where I left him.
Q. Did you check the car to see if there was any alcohol
in the car? A. No, didn’t have any reason for alcohol.
Q. You don’t know if there was any alcohol in there or
not, do you? A. No.
Q. And you were away from him you say for about four
minutes then, is that right? A. That’s right.
Q. Then you came outside? A. Outside the store.
Q. When was this that he called to you? A. Soon as I
had walked into that store and walked out, and come out
to the sidewalk.
Q. You were on the other side of the street from where
the car was? A. That’s right.
— 44—
Q. And you say he hollered at you across the street?
A. He called me, say “Hey, Rosetta, come here.”
Q. Did he use any profane language at that time? A.
He did not.
Q. Are you sure of that? A. I’m sure.
Q. How long did he holler at you to come across the
street? A. He called me one time.
Q. One time and said nothing else? A. That’s all.
Q. Did you see anyone else observe this hollering at you
across the street? A. Observe?
Transcript of Proceedings, June 13 and 14, 1967
Rosetta House-—for Plaintiff—Cross
126
Q. Did it upset anybody as far as you could tell? A. No.
Q. Did not upset anybody? A. There wasn’t no dis
turbance caused.
Q. Then you went across the street? A. I did.
Q. That’s when you say that the special officer, Bill
Finley, came up, is that right? A. Well, yeah, this man
came up, I didn’t know who he was. I been seeing him walk
up and down the street.
Q. Well, tell the jury how he was dressed. A. He had on
a gray raincoat.
— 45—
Q. Did he have on a hat? A. He had on a plastic cover
over his hat.
Q. What kind of hat was it? A. It was a—I don’t know
what kind it was.
Q. Did it look like a policeman’s hat? A. Well, it had a
round bill. I didn’t notice it that closely.
Q. You didn’t notice it that close? A. No.
Q. Did it have a badge on it? A. I didn’t notice that.
Q. Did you notice a policeman’s badge pinned on him
anywhere? A. I didn’t.
Q. Did you think he was a policeman? A. I didn’t know
what he was.
Q. You had no idea what he was? A. No, I didn’t hear
nobody say anything about it.
Q. Could you tell the jury why he would come over there
if there was no disturbance; do you have any knowledge as
to why he might do that? A. I didn’t understand it, no.
Q. You saw no reason whatsoever for Bill Finley to come
over there? A. I sure didn’t.
Q. Was anything occurring when you got there that
would create a situation whereby Bill Finley would come
Transcript o f Proceedings, June 13 and 14, 1967
Rosetta House—for Plaintiff—Cross
127
over there to look at it—to see what was happening? A.
- 46-
No, I didn’t see what he came for nor nothing.
Q. Have you ever had any dealings with Bill Finley
before? A. Never noticed any.
Q. Any trouble with him or anything? A. No.
Q. Bid he have any special reason to pick on you or any
body else to your knowledge? A. Not as I knows of.
Q. Now, when he came over there, did you hear Bill
Finley tell him that he was under arrest for being drunk
and disturbing the peace? A. No.
Q. You did not hear that? A. No, I didn’t.
Q. Did you hear him tell him to get out of the car and
come with him? A. He said, “ Come on, go with me.”
That’s what he said.
Q. And didn’t Charles Townsend refuse to do that? A.
No, he asked him, “For what, go where?”
Q. Started arguing with him, didn’t he? A. No, he
didn’t.
Q. Started questioning him didn’t he? A. I questioned
him more than anybody.
Q. Were you arguing with him? A. No, I wasn’t argu-
— 47—
ing.
Q. Did you tell him not to take this man, Charles Town
send? A. I didn’t tell him, I asked him.
Q. What did you ask him? A. I said, “Don’t take him
to jail, he’s not bothering anybody. He’s not doing any
thing.”
Q. You had quite a conversation with Bill Finley didn’t
you? A. I sure did.
Q. Charles Townsend did too, didn’t he? A. No, he
didn’t get a chance.
Transcript of Proceedings, June 13 and 14, 1967
Rosetta House—for Plaintiff— Cross
128
Q. He didn’t get a chance? A. No.
Q. Tell the jury about one thing. You said that the plain
tiff, Charles Townsend, touched Bill Finley? A. In order
to get his attention.
Q. He touched him to get his attention? A. That’s
right; he had his side to him; he was talking to me.
Q. Are you telling this jury that after Bill Finley came
over there that Charles Townsend had to touch him to get
his attention? A. He had his side to him, talking to me.
Q. He was talking to you? A. That’s right.
Q. Tell the jury how he touched him? A. He touched
him with his finger.
— 48—
Q. As a matter of fact, what he did was hit him, wasn’t
it? A. He touched him with his finger, that’s what he
did.
Q. How do you know that? A. I was looking at him.
Q. You weren’t looking at Bill Finley? A. Both of them
were standing side by side.
Q. And all he did was touch him? A. All he did was
touch him.
Q. Did he ever hit him? A. No.
Q. He never hit Bill Finley at all? A. He never hit
him at all, no.
Q. And he never used any curse words at all? A. No.
Q. And he was sober? A. He was.
Q. And he wasn’t doing anything to disturb the peace?
A. He was not.
Q. Did you see any weapons that the officer had? A. No,
I didn’t notice anything; he just walked up to the side of
the car.
Q. You didn’t notice a club? A. No.
Transcript of Proceedings, June 13 and 14, 1967
Rosetta House—for Plaintiff—Cross
129
Q. Didn’t see a gun or anything? A. No.
— 49—
Q. You just saw a man in a uniform, is that right? A. I
saw him in a raincoat; I don’t know what was under the
coat.
Mr. R aff: I believe that’s all.
Redirect Examination by Mr. Howard:
Q. I call your attention, again, to putting these groceries
in the back of the car, would you state again whether or not
anybody assisted him in unlocking that trunk? A. They
did not; I passed the key out of the window; I was sitting
under the steering wheel; there was two keys on the ring;
and he used one of those keys and unlocked his trunk; the
basket of groceries was in there.
Q. The check, did anybody assist him in signing it? A.
No.
Q. Did the salesman complain about the signature being
illegible or anything of that sort? A. No, he didn’t.
Q. You mentioned shoplifting earlier, who accused whom
of shoplifting? A. This man who I know as the store
detective.
Q. He accused Charles? A. That’s right.
Q. That was the only thing that was mentioned at the
time that he was requested to go with the store detective?
A. That was the only thing.
— 50—
Mr. Howard: That’s all.
The Court: Anything further, Mr. Raff?
Mr. Raff: Nothing further, Your Honor.
The Court: Stand aside.
Transcript of Proceedings, June 13 and 14, 1967
Rosetta House—for Plaintiff—Redirect
130
Mr. Howard: If Your Honor please, our next
witness is Mrs. Mattie Butcher.
Transcript o f Proceedings, June 13 and 14, 1967
Mattie Butcher—for Plaintiff—Direct
W h e reu po n , M rs . M attie B u tch er , a witness called on
behalf of the plaintiff, after first being duly sworn, testified
as follows:
Direct Examination by Mr. Howard:
Q. Mrs. Butcher, will you kindly state your full name to
the Court, please? A. Mattie Butcher.
Q. Is that Miss or Mrs.? A. Mrs.
Q. Mrs. Butcher, are you related to Mrs. House? A.
That’s right.
Q. What is that relationship? A. Sister.
Q. Are you related to the plaintiff in this case, Charles
Townsend? A. No.
Q. Do you know the plaintiff in this case? A. Yes.
—51—
Q. I would like to direct your attention to December
24th, 1965, do you recall that date? A. I do.
Q. I ’ll ask you if you had the occasion to be in the
presence of the plaintiff on that date? A. I was.
Q. I would like for you to talk loud so his Honor can
hear you, and as the Court has pointed out, the gentle
man in the last chair. You did see him on the 24th? A.
I did.
Q. Were you in his presence on the 24th any length of
time? A. Well, part of the time.
Q. Part of the time? Will you go ahead and state in
your own words just when you saw the plaintiff and under
131
what circumstances? A. Well, they came to pick me up
about 10:30.
Q. Where were you at that time? A. I was home, they
picked me up at home.
Q. When you say they, would you kindly name the indi
viduals who came to your house? A. Arthur English,
Otis Bays, Rosetta House and Charles Townsend. They
picked me up about 10:30 and we went on to this mill,
Beisel’s Mill, where he worked, Charles Townsend. He
picked up his check and basket of fruit and he came to
the car and asked for the keys to put the fruit in the
trunk. After we left there, we came on to Helena and
—52—
came on to the end of Cherry and Rosetta stopped; he
got out and said he was going to Hendrix Shoe Store to
get him some shoes. She let him out; she pulled on and
parked in front of Sterlings and we all got out and went
different directions. About ten or fifteen minutes, I’d say,
later, we was coming from across the street; he called over
to her, “Rosetta, come here,” and she went over to see
what he want. I went on down the street further.
Q. That’s all you witnessed? A. That’s all.
Q. When you saw the plaintiff when he accompanied his
associates to your home and when you last saw him, what
was his condition, his appearance? A. He was clean and
everything, and presentable, that’s all.
Mr. Howard: That’s all.
Cross Examination by Mr. Raff:
Q. I believe you state that you had not seen Charles
Townsend before 10:30 when you were picked up, is that
correct? A. I beg your pardon?
Transcript of Proceedings, June 13 and 14, 1967
Mattie Butcher—for Plaintiff—Cross
132
Q. When was the first time you say you saw Charles
Townsend that morning? A. They picked me up about
10:30, from my home.
Q. Who was driving the car? A. Eosetta House.
—53—
Q. Where did you sit in the car? A. In the back.
Q. Did you know whether or not Charles had been
drinking by the time they picked you up? A. No, I didn’t
smell anything.
Q. Did you talk to him? A. Sure.
Q. What part of the car was he sitting in? A. He was
sitting in the front on the right.
Q. The right-hand side? A. Yes, sir.
Q. And where were you sitting? A. In the back.
Q. Whose car was this? A. Well, I don’t know really
whether it was his sister’s or his. I don’t know that.
Q. It was not your sister’s? A. No.
Q. When you came in first to West Helena, where Beisel’s
Mill is, did you go in there? A. No, stayed in the car.
Q. Who got out of the car there? A. He got out.
—54—
Q. By “he” , you mean Charles? A. Charles.
Q. Did anyone else get out? A. No.
Q. How long was he there? A. No sooner than he
could pick up his check and his basket of fruit.
Q. Did anybody get out of the car to help him? A. No.
Q. Who had the keys to the car? A. My sister, Eosetta.
Q. How did Charles open the back of the car? A. He
asked her for the keys. She gave them to him, and he
just unlocked the trunk of the car and put the fruit in.
Q. Then you proceeded on into Helena? A. Eight.
Q. Now, you say that you let Charles off at the end of
Cherry Street. Where is that? A. She let him off on
Transcript o f Proceedings, June 13 and 14, 1967
Mattie Butcher—for Plaintiff—Cross
133
the corner and she is right near Sterlings, yon know! The
corner, and then she just went on and parked in front of
Sterlings.
Q. Which side of the street did Eosetta park on? A.
Right.
Q. Eight, going which way? A. Facing the—
Q. On the Sterlings side of the street? A. That’s right.
—55—
Q. You didn’t get out of the car when Charles did? A.
No, I didn’t get out until she parked.
Q. What business is close to where he got out of the
car, do you know? A. I can’t remember. But I know he
was going after shoes.
Q. You don’t know what part of the street this was? A.
No.
Q. You say the answer to that is “ No” ? A. I can’t re
member what part of the street but I know the traffic was
sorta’ heavy and she stopped and he got out; and then
after he got out, she pulled up and parked right in the
front of Sterlings.
Q. Did anyone else get out at the time that Charles did?
A. Sure.
Q. Who? A. Otis Bays.
Q. Who else? A. That was the only two I could re
member.
Q. And I take it that Arthur English and you and
Eosetta remained in the car until it was parked? A. Un
til it was parked; and when we got out, we all went
different directions.
Q. During any of this time did you detect the odor of
alcohol on anyone in the car? A. No.
Transcript of Proceedings, June 13 and 14, 1967
Mattie Butcher—for Plaintiff—Cross
134
Transcript of Proceedings, June 13 and 14, 1967
Mattie Butcher—for Plaintiff—Cross
—56—
Q. Did your sister join you over at Grabers Store? Did
Eosetta come in Grabers Store with you? A. I can’t re
member; I know we was in Fred’s Dollar Store. We left
there; and when he called over to her to come across the
street, I don’t know no more because I went another way.
Q. Now, you say Eosetta was with you in Fred’s Dollar
Store? A. Yes, we was both coming from across there.
Q. Now where is Fred’s Dollar Store located, do you
know? A. Eight over across the street from Sterlings.
Q. Isn’t it a block down from there? A. I guess so.
I don’t think it is a block. I ’m not sure.
Q. It is in the next block from Grabers, isn’t it, going
south? A. I just can’t remember; I don’t know.
The Court: Talk a little louder. These people
have got to hear you.
Q. You know that Fred’s Dollar Store is not in the
same block as Sterlings, don’t you? A. I know.
Q. That’s correct, isn’t it? A. That’s right.
Q. And Eosetta was with you in Fred’s Dollar Store,
is that correct? A. That’s right; we was coming from
over and he called.
Mr. Eaff: That’s all. No further questions.
—57—
The Court: You may stand aside.
Mr. Howard: Our next witness, Your Honor, is
the plaintiff, Charles Townsend.
135
W hereu po n , Mr. C harles T ow n sen d , the plaintiff, was
called and after first being duly sworn, testified as follows:
Direct Examination by Mr. Howard:
Q. State your full name to the Court, please. A. My
name is Charles Townsend.
Q. Charles, I would like for you to wait until the ques
tion is completed before you make an effort to answer, will
you? Where do you live, Charles! A. I live out at Lexa.
Q. What county is that in? A. That’s in Phillips
County.
Q. Phillips County? A. Phillips County.
Q. Were you born in Phillips County? A. I was born
in Phillips County.
Q. How old are you? A. Thirty-three.
Q. Are you married? A. I was.
Q. Where is your family now? A. They is in Mil
waukee.
Q. Have you lived in Milwaukee any length of time?
A. Yes, sir, I lived there about six years.
Q. Six years? A. Yes.
Q. I ’d like for you to tell the Court just how tall you
are? A. 5' 11".
Q. How much do you weigh? A. 165 pounds.
Q. How much did you weigh December 24th, 1965? A.
About 165. Same thing.
Q. I’d like to direct your attention to the 24th of De
cember, 1965, the morning thereof; I ’d like for you to
tell the Judge and the jury just what you did. A. That
morning, I drinken two cans of beer at the store, then I
went on home, then I came—
Transcript of Proceedings, June 13 and 14, 1967
Charles Totvnsend—Plaintiff—Direct
136
Q. Now, wait a minute, at what store? A, At Ben
Price’s Store.
Q. At what time was that? A. That was at 8:00 that
morning.
Q. At 8:00 that morning— A. That’s all I had—
Q. Two cans of beer. Then you went where ? A. I went
back home again. I soon left and went on by Rosetta’s
house.
—59—
Q. What did you do there? A. I stopped in there and
me and Ernest sat down there talking awhile. Then
Rosetta asked about the car, wanted to go by town. I
told her okay because I wanted to go by and pick up
my groceries and everything; and that’s what we did.
Q. Now, you got in your car? A. Yes.
Q. Who was driving? A. Rosetta was driving.
Q. What was the first stop that you made. A. We
stopped by Mattie Butcher’s.
Q. Is that the lady who just got through testifying?
A. That was the lady who just got through testifying.
Q. N owt, what happened when you got there? A. Well,
we got there; we got in the car and came on—
Q. Did she get in the car? A. She got in the car.
Q. Where did you go from there? A. Went on to Bei-
sel’s Mill.
Q. Is that where you work? A. That’s where I work at.
Q. Now why did you go there? A. Went there to pick
up my check and groceries, they was giving out Christmas
bonus.
Q. Now, how large a package was this that you picked
up? A. Pretty good size basket.
Transcript of Proceedings, June 13 and 14, 1967
Charles Townsend—Plaintiff—Direct
—6 0 -
137
Q. Pretty good size basket. After you got this basket
and your check, what did you do'f A. I came on back to
the ear and asked Rosetta for the keys. I got the keys
and went on back there and unlocked the trunk, put the
fruit back in there.
Q. Now, let us start with when you picked up the key,
describe this key to us, is it on a ring or what? A. It
was on a ring.
Q. Was that the only key on the ring? A. It was two
of them on there.
Q. Two keys on this ring? A. One for the starter and
one to unlock the trunk.
Q. You went back to the back of the car and opened
the trunk, did you have any trouble opening the trunk?
A. No trouble a’tall.
Q. Did you have any trouble putting the basket in? A.
No.
Q. Anybody come out and assist you? A. No.
Q. What happened after you put the groceries in and
closed the trunk? A. Put the groceries in and closed the
trunk and came on over here to the Helena. We come on
up on Cherry Street, passed by Hendrix Shoe Store right
on the corner, and I got out; I said I was going on in
— 61—
there and get me a pair of shoes. I got out of the car
and Rosetta went on up and tried to find a parking place.
I went on back to Hendrix Shoe Store. In a few minutes
she came on back out; she’d parked the car. I went on
inside Hendrix and saw a pair of shoes and I told the
salesman—brought him outside and showed him a pair of
shoes I wanted, and I was asking about if he had any in
black. He said no, the only pair was tan. I said, “Well,
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Charles Townsend—Plaintiff—Direct
138
I like the shoes. I ’ll get these shoes.” I bought the tail
shoes. I tried the tan ones on and they fit; so he wrapped
the shoes. The shoes were $26.00 something or other; I
passed him the check and signed the check. He cashed the
check and gave me the change back. About this time
Eosetta walked into the store, and we walked on back out
of the store and I went on back to the car and she went
on up the street and crossed over to Grabers. In a few
minutes, I was sitting up there in the car playing the
radio, I seen her, she came out of the store. I got out
of the car and I said, “Eosetta, come here.” Just like I
said it was raining, drizzling. She came on back over to
the car. I got in then she got in on the right side and
sat down in the ear. Then this man came—
Q. Now, this man, I want you to identify the gentleman
now. A. The gentleman sitting right there.
Q. Is that Mr. Finley? A. Yes.
—62—
Q. Go ahead. A. He came up to the car and opened
the door and he said, “ You’se under arrest.” I said, “Un
der arrest for what?” and he said, “Because I said so.”
Then he closed the door and walked around to the right
side of the car. Then Eosetta got out and I got out of
the car. Stood up there on the street and he said, “You’se
under arrest.” and Eosetta was talking with him about
“what you arresting him for, he ain’t did anything like
that.” So he turned around kind of sideways and I put
my finger out just to touch him light, and about the time
I touched him, he swung around and hit me, hit me two
or three times. I fell to the street. I got up and grabbed
him around the legs to try to keep him from hitting me.
Then in a few minutes the other officers come up on the
Transcript of Proceedings, June 13 and 14, 1967
Charles T owns end-—Plaintiff—Direct
139
other side of the street, parked, the two of them led me
over to the—
Mr. Howard: Now listen, I want yon to talk
loudly and distinctly so these gentlemen can hear
you. Because they weren’t out there, the only way
they can find out about it is to hear it from you.
So slow it down and tell us now when the other
officers arrived.
A. Arrived walking across the street by the side of the
street. After they got over on the other side of the street,
they handcuffed me. They put me in the car and took me
on back up to the city jail. They first met me down on the
— 6 3 -
street then they told me to take everything out of my
pockets.
Q. You were handcuffed in the street? A. I was hand
cuffed up there at the car.
Q. Then carried to the jail? A. I was.
Q. What happened after you got to the jail? A. After
I got to the jail, they told me to take everthing out of
my pockets and put it up on the table.
Q. Were you still handcuffed? A. Yeah, I was hand
cuffed, one hand. I got the stuff out of my pocket and
laid it up on the table and they asked me my name and
everything, and I told them and they wrote that down
then they take me on up to the Helena Hospital. When I
got up to the Helena Hospital, they said they wasn’t
nothing wrong with me. I had a few cuts under my eye.
Q. How did you receive those cuts? A. On the streets
there. That Finley hit me. He hit me under here, cut me
under the eye. I had a little scratch back there. Then I
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Charles Townsend—Plaintiff—Direct
140
went on up there and they said wasn’t too much wrong with
me and Chief Ross said there’d be plenty wrong with me
when “we bring him back.” Just like that. So they brought
me on back and time I got on out of the car—
Q. Brought you back where? A. Brought me back from
the Helena Hospital.
Q. To where? A. To the city jail. Time I started up
— 64—
the hallway of that city jail they started beating all up
across my head.
Q. With what? A. Felt like a gun or something. As I
was going in they first hit me and made me dizzy, kin da’
dizzyed me. I got dizzy and they kept on slinging it on me
and then I could not half see. Then they opened the cell
door and pushed me in on the floor.
Q. Now, when you were in the jail cell what did you ob
serve in there? A. After I got in there, there was a col
ored lady and a white man in there.
Q. In the same cell? A. Yes sir.
Q. Along with you? A. Along with me.
Q. What happened after that? A. They taken me back
to the Helena Hospital, that’s when I was really beat up.
Q. They carried you back to the Helena Hospital? A.
That’s right.
Q. What happened then? A. At that time I went out.
Q. Now, were you brought back to the jail or were you
confined to the hospital? A. After the second trip I was
— 65—
confined to the hospital.
Q. You were confined to the hospital the second trip?
A. Second trip.
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Charles Townsend—Plaintiff-—Direct
141
Q. How long did you stay in the hospital? A. I stayed
in there till the 26th.
Q. That was from the 24th until when now? A. 26th.
Q. How long had you been employed at the veneer mill
at this time? A. Approximately about six months.
Q. What were you earning each week! A. I was mak
ing $1.25 an hour, approximately, the take-out was $48.00
something.
Q. $48.00 and some odd cents? A. That’s right.
Q. And after the deductions were made, what was the
take home pay? A. $42.00 something.
Q. $42.00 plus? A. Yes.
Q. Now, when Mr. Finley approached the automobile and
during the discussion, was anything said about any charges
being put against you for what you had done? A. N o -
charges?
Q. Whether or not you had committed any offense? A.
- 66-
No, he just said shoplifting.
Q. Who was shoplifting? A. He said I had been shop
lifting.
Q. Had you been shoplifting? A. No, I just went in and
bought a pair of shoes.
Q. Was that the only thing that you heard from him that
you had allegedly done? A. Yes, then he said I was under
arrest.
Q. For shoplifting? A. For shoplifting, that’s what I
heard him say.
Q. I have an instrument that I would like for you to look
at and see if you can identify it. A. This is my picture.
Mr. Solomon: Your Honor, I would like to object
to Counsel’s introducing this.
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Charles Townsend—Plaintiff—Direct
142
The Court: Have you seen it?
Mr. Solomon: Yes, sir, I saw it this morning.
The objection is based on the fact that proper foun
dation has not been laid, cannot be laid.
Mr. Howard: We are in the process of laying the
foundation, Your Honor.
Mr. Howard (continuing):
Q. You say you can identify the instrument? A. I can,
but—
Q. Just wait, can you identify the instrument, yes or no?
—67—
A. Yes.
Q. What is it? A. A photograph of me.
Q. A photograph of you? A. That’s right.
Q. When was this photograph taken? A. The 25th,
Christmas day.
Q. Whereabouts? A. The Helena Hospital.
Q. And what does this picture reflect?
The Court: Now just a minute, I don’t think, Mr.
Howard, that you have yet laid the proper founda
tion for the introduction of it, if that’s what you are
trying to do.
Mr. Howard (continuing):
Q. Now do you know who made this picture? A. I don’t
know the gentleman’s name, a girl and a boy came up. I
signed the paper for them to take the picture.
Q. To take the picture for you. And this picture was
made at your request? A. At my request.
Transcript of Proceedings, June 13 and 14, 1967
Charles Toivnsend—Plaintiff—Direct
143
Mr. Howard: If Your Honor, please?
The Court: You didn’t take the picture!
A. The picture was made and I signed the—
The Court: But who took the picture?
A. It was a lady and a man who was sent up there.
The Court: You will just have to have somebody
— 68—
to establish the fact that the picture was made and
that it was a true picture that was made.
Mr. Howard: All right, Your Honor.
Mr. Howard (continuing):
Q. Now, Charles, what were you wearing on the 24th!
What sort of clothing were you wearing? A. I had on
blue jeans, a red sweater and a red dotted shirt.
Q. Do you have those articles in your possession now?
A. I do.
Q. Would you kindly refer to them, please.
Mr. Solomon: Your Honor, here again sir, I would
like to be heard and object to the introduction of
those.
The Court: Just a minute.
Mr. Solomon: He’s pulling them out while I’m
objecting.
The Court: Don’t pull those out. Explain what
you are about to do, Mr. Howard.
Mr. Howard: I f Your Honor please, these are the
clothing that the plaintiff was wearing at the time.
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Charles T owns end-—Plaintiff—Direct
144
What we want to do is to introduce them into evi
dence. Of course, they contain certain substances
and we think that this witness is in a position to
identify that substance on this clothing. They are
his; they have been in his possession since that time.
Mr. Solomon: We object for two reasons, sir. It
—69—
was not revealed to us until this morning that Coun
sel had these in his possession or that plaintiff had
these in his possession and would attempt to intro
duce them and we have had no opportunity to ex
amine them in the period proceeding the trial. The
second reason is that he has not laid the proper
foundation for having them in his possession all
this time, and in addition to that it would do nothing
except be prejudicial if they are introduced, prejudi
cial to the interest of the defendant, and not properly
part of his record.
The Court: Are you questioning that these were
the clothes that he had on?
Mr. Solomon: Based on the fact that we had no
knowledge of them until this morning and we have
not had an opportunity to determine whether or not
they are.
The Court: That was explained earlier, before we
came to trial, the circumstances. You may proceed,
Mr. Howard, with laying the proper foundation for
them before you do introduce them.
Mr. Howard (continuing):
Q. Now, these were the clothes that you had on on the
24th! A. On the 24th.
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Charles Townsend—Plaintiff—Direct
145
Q. Since the 24th, where have these clothes been?
The Court: The 24th of what!
Mr. Howard: The 24th of December, 1965.
— 70—
A. Since the 25th they have been at home. They was at the
hospital and my brother picked them up on that Sunday
when he came up there.
Q. And carried them home? A. And carried them home.
They been at home every since—
Mr. Solomon: Sorry, hut I couldn’t hear what he
was talking about.
The Court: Talk out a little bit.
A. I said my brother came down on Christmas day on the
25th and carried the clothes home.
Q. And they have been at home every since that time?
A. They been at home every since.
Q. Have they been laundered or changed in any fashion?
A. No, sir, they haven’t been touched. Not no washing or
no nothing.
Q. And these are the same clothing that you had at the
time that you were taken into custody, carried to jail and
later to the hospital? A. Right, up to that Sunday.
Q. And you live at Lexa? A. At Lexa, Route 2, Box 31.
Mr. Howard: If Your Honor, please.
The Court: I think it is proper.
Mr. Solomon: I would like to point out that he
has not testified that they have been in his possession
—71—
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Charles Townsend—Plaintiff—Direct
continuously since the time-
146
The Court: I believe he did, Mr. Solomon.
Mr. Solomon: No sir, he said his brother picked
them up and took them home, is what I understood
him to say, from the hospital when he was confined
to the hospital and he was in the hospital until the
26th and his brother picked them up the 25th. I
might have misunderstood but that is my under
standing of what the testimony was.
Mr. Townsend: My brother brought me some more
clothes up there.
Mr. Howard (continuing) :
Q. They have been at home since that time? A. Yes,
sir.
Q. You live there and who else lives there with you?
A. Nobody there but my mother and father.
The Court: I think it is proper. You may proceed.
Let the objections be saved.
Q. Look in your bag. A. This here was my sweat shirt.
Q. Was that the sweat shirt you had on? A. Yes sir,
that’s the blood there.
Q. These brown spots are blood? A. Spots are blood.
The shirt was clean when I put it on.
Q. Now take out the next garment please. A. This was
the shirt where the blood came down from the collar. That’s
—72—
the “ T” shirt, had blood on it. They cut it off of me.
Q. Who cut the shirt off of you? A. That was cut off
at the hospital. (Taking out pants.) Now these pants have
blood on them.
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Charles Townsend—Plaintiff—Direct
147
The Court: Now you have got to talk where every
body can hear you.
A. There blood spots in the front—
Q. Now these are blood spots? A. Yes sir.
Mr. Howard: If Your Honor, please, we would
like to introduce these articles of clothing as Plain
tiff’s Exhibit # 1.
The Court: Let them be received over the objec
tions of the defendants.
(Whereupon, the clothing described above was
marked Plaintiff’s Exhibit # 1 for identifica
tion and was received in evidence and is made
a part of the record hereof.)
Q. Charles, since December 24th, 1965, what sort of work
have you been doing? A. Haven’t been doing any work,
just helping my father down around the farm, because my
head been bothering me.
Q. What sort of trouble have you had with your head?
A. When I gets out in the sun and gets hot, I gets dizzy,
then I get sleepy and I have to go lay down—go into the
shade. It was quite awhile after that, about three months,
this hole right up here opened up again and started seeping
- 7 3 -
blood.
Q. Did you return to your physician? A. Yes sir, went
back to the doctor.
Q. Now, when you were carried to the jail the first time
as well as the second time, did you touch Chief Ross or Mr.
Nicholls or Mr. Davis? A. I didn’t touch either one of
them.
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Charles Townsend—Plaintiff—Direct
148
Q. You didn’t lay a hand on them. A. I didn’t lay a
hand on them. At second time they brought me back from
the hospital by the time I got in there through that hallway
they started whamming on me, opened the cell door and
push me down on the floor.
Mr. Howard: Your witness.
Cross Examination by Mr. Raff:
Q. Charles, Rosetta stated that she smelled alcohol on
your breath about 9 :00 o’clock when you came over there.
Had you been drinking prior to going over there? A. I ’d
drinken two cans of beer at 8:00.
Q. Had two cans? A. Two cans of beer.
Q. Now, Rosetta testified that you had stated there that
you had one can, do you recall saying that? A. I said
I ’d drinken two cans of beer.
—74—
Q. You say that you had had two cans. Did you tell
Rosetta that you had one can? A. I was talking to Ernest.
I told Ernest that I had a beer.
Q. Told Ernest that you had a beer. Where did you get
that beer? A. At the store, Ben Price’s Store.
Q. What time did you get the beer. A. Got the beer at
8:00 o’clock.
Q. Did you get any wine to go with that? A. No.
Q. Did you have any other kind of alcohol or whiskey
or anything? A. I didn’t.
Q. What time was that that you got the beer? A. 8:00
o’clock.
Q. Do you normally drink around 8:00? A. No.
Q. Why did you drink around 8:00 o’clock this morning?
A. I passed the store and it was open. I went up to the
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Charles Townsend—Plaintiff—Cross
149
Transcript of Proceedings, June 13 and 14, 1967
Charles Townsend—Plaintiff—Cross
store after some cigarettes and while I was there I drank
two cans of beer. Then I went on back home.
Q. Did you take any beer with you when you left! A.
No, I didn’t.
Q. How did you get to the store! A. I walked up there.
Q. Were you taking any medicine! A. No.
—75—
Q. Had you taken any the day before! A. No.
Q. Not any medicine of any kind? A. No.
Q. No headache tablets? A. No.
Q. Charles, have you had some headaches prior to that
date in question that we have been talking about? A. No,
I had been working all that week.
Q. You state that you had never had any headaches prior
to then? A. What do you mean by prior date? That same
date?
Q. Prior to December 24th, 1965? A. No, I never had
none.
Q. Never had any headaches? A. No.
Q. Never had any trouble with your head hurting? A.
No. I had headaches back in ’61.
Q. Now, where was your car at 9:00 o’clock, was it in
front of Rosetta’s or where was it? A. No, the car was
at home.
Q. The car was at home? A. Yes.
Q. How long had it been since you had driven that car?
A. I hadn’t driven, my brother been driving it to work for
—76—
me. Me and him work together and he went somewhere,
anyway, he didn’t drive the car that day.
Q. How long had it been prior to December 24th, 1965
since you had driven the car? A. Oh, it been about a
couple of months.
150
Q. A couple of months? Did you have a license at that
time? A. I had a license at that time.
Q. There was testimony here today that you didn’t have
a license that day and that’s why you weren’t driving? A.
I say a couple months before; that’s why; I lost my license.
Q. You had lost it, hut you still had a valid license issued
to you at that time, is that correct? A. I didn’t have any
license that day.
Q. Had one been issued to you for the year, so that you
could drive in the year 1965? A. Yes sir, later I had got
some license.
Q. I am not talking about later; I am talking about be
fore December 24th, 1965; did you have a license to drive
a car? A. Yes sir, I had a license.
Q. And you say that you lost that license ? A. I lost my
license. I sent in and got some more license.
Q. Is that why you weren’t driving? A. That’s why I
wasn’t driving. I hadn’t had any license.
Q. Didn’t have anything to do with the alcohol you had
—77—
had to drink? A. What?
Q. Didn’t have anything to do with the beer you had had
to drink? A. No. Didn’t have anything to do with that.
Q. Did you have any beer in the car? A. Didn’t have
any beer in the car.
Q. Did you have any wine or alcohol in the ear? A. No,
sir.
Q. Did any of the other people in the car have any? A.
No.
Q. Let me refer you, Charles, to when you were at the
car and you hollered across the street to Hosetta, do you
remember that? A. I didn’t holler; I just called to her.
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Charles Townsend—Plaintiff—Cross
151
Q. You just called to her? A. Just called to her.
Q. Did you call loud? A. Just loud enough for her to
hear it. I said, “Rosetta, come here.”
Q. You had to call all the way across Cherry Street,
didn’t you? A. Across the street.
Q. But you say it wasn’t very loud? A. Loud enough for
her to hear it; I wasn’t yelling.
Q. Did it create any kind of disturbance then? A. No.
Q. Didn’t upset anybody around you, as far as you could
—78—
tell? A. Far as I could tell it didn’t upset anybody.
Q. Then she came over there and you got in the car, is
that right? A. That’s right.
Q. Had you ever seen Bill Finley before? A. No, first
time.
Q. Or the officers? A. First time I ’d ever seen them.
Q. What would create his attention whereby he would
come over there and talk to you? Do you have any idea?
A. Don’t have any idea; he came over to the side of the
car and opened the door and told me to get out.
Q. You weren’t doing any loud talking or anything? A.
No sir.
Q. You weren’t using any profanity at all? A. No, none
whatsoever.
Q. You wmren’t creating any disturbance at all? A. No.
Q. You know of no reason why he would come over there
to that car, is that what you are telling the jury? A. That’s
right; I was sitting in the car; he came up there, opened
the door, said “ Get out, you’re under arrest.” I said, “ Un
der arrest for what?”
Q. What did he tell you? A. He said, “Cause I said so,”
—79—
and closed the door and walked around on the other side.
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Charles Townsend—Plaintiff—Cross
152
Q. Bid lie ever tell you why you were under arrest? A.
He never did tell me. When he started talking to Rosetta,
I touched him under the chin like that and he swung
around—
Q. As a matter of fact, Charles, didn’t he tell you that
you were under arrest for being drunk and disturbing the
peace? A. No.
Q. Never did tell you that? A. No, I didn’t hear it.
Q. You say you finally got out of the car? A. After he
come around, she got out; I got out.
Q. Did you argue with him before you got out of the car,
Charles? A. No, I didn’t argue with him. He came up
and then closed the door, walked around on the right-hand
of the car; Rosetta got out and I got out.
Q. Was Rosetta arguing with him? A. No, she was ask
ing him about I hadn’t did anything why was he arresting
me.
Q. When you got out of the car did you argue with him?
A. No.
Q. Didn’t argue with him? A. Didn’t argue with him.
Q. Did you use any profane language then? A. No, I
didn’t use any profane lang—
— 80—
Q. Were you talking loud? A. I wasn’t talking loud.
Q. Then what caused that crowd to assemble out there,
Charles? A. The crowd came after he had hit me.
Q. After he had hit you? A. Yes.
Q. There wasn’t a crowd there prior to anything between
you and him? A. No.
Q. Now, you told the jury that you touched him. What
do you mean by that ? What do you mean that you touched
him? A. I touched him to get his attention.
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Charles Townsend—Plaintiff—Cross
153
Q. You didn’t have his attention? A. No, he was turned
around talking to Eosetta.
Q. In other words, he wasn’t bothering you at all at that
point, is that right? A. He was talking to her.
Q. Where did you touch him? Tell the jury where you
touched him? A. Touched him right there. (Indicating
right side of chin.)
Q. Touched him right there? A. Eight on the chin,
Q. Is that normally where you would touch somebody to
get their attention? A. He was turned around with his
— 81-
back to me, or side, I just touched his chin.
Q. Why did you touch him on the chin rather than the
shoulder? A. Don’t know why, just did.
Q. Any reason? A. No.
Q. Did you touch him with one finger or two fingers? A.
One finger.
Q. Touched him with your finger? A. That’s right.
Q. Did you use any profane language then? A. No,
never did.
Q. How many times did you hit Bill Finley? A. Didn’t
hit him, was just trying to keep him from hitting me.
Q. You never hit him? A. Never hit him.
Q. Did you ever bite him? A. No, I never bite him.
Q. Did you ever put your hands on him? A. Oh, when
he was hitting at me and I was trying to keep him from
hitting me.
Q. Where did you put your hands on him? A. Around
his legs and around his waist.
Q. Did you ever shove him? A. No, I didn’t shove him.
Q. When that was taking place did you use profane
— 82-
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Charles Townsend—Plaintiff—-Cross
language? A. No.
154
Q. You didn’t? A. I didn’t.
Q. Did yon say a word? A. I didn’t say nothing.
Q. You didn’t say anything? A. No, ’cause it happened
so quick; we were tussling and this other man came up, held
my one hand; and then the policemen they came up.
Q. You didn’t say one word to him then? A. No, I
didn’t say anything; police come up, walked on across—
Q. Did you ask him to stop hitting you? A. I didn’t
ask him to stop hitting me; I just—
Q. Why not? A. We both stopped—
Q. You say you both stopped; were you both hitting each
other? A. No, he started hitting on me and I tried to
put him off—
Q. But you weren’t hitting him? A. No, I wasn’t hitting
him.
Q. In other words, you don’t mean you both stopped; he
stopped hitting you, is that what you mean? A. Yes, sir.
Q. What made him stop hitting you? A. He just quit.
— 83—
Q. He just quit? A. Yes.
Q. Big crowd around there, wasn’t there ? A. The crowd
came up
Q The crowd came up? There was a big crowd there
then, wasn’t there? A. Pretty good size crowd.
Q. Are you telling this jury, Charles, that they— A.
When the crowd come up, the police car had come up there;
that’s when I went across the street; I left the crowd there.
Q. Did the police officers hit you when they came up?
A. They handcuffed me and locked me up and taken me
down to the city hall.
Q. My question to you, Charles, is, did the police officers
hit you when they came up? A. No, they didn’t hit me.
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Charles Townsend—Plaintiff—Cross
155
Q. Now, would you tell the jury how special officer, Bill
Finley, was dressed that day? A. He had on a rain suit
and a rain cap.
Q. What else did he have on? A. That’s all I could see,
the rain suit, it was gray.
Q. Didn’t you see the cap he had on? A. It was a cap.
Q. Tell the jury what the cap looked like. A. It had a
bill on it and a top over it.
— 84—
Q. Did it have a bill on it? A. It had a bill on it.
Q. Did it look like a policeman’s hat? A. Looked like a
taxicab driver or policeman’s cap or bus driver’s cap—
Q. Had a badge on it too didn’t it? A. I didn’t see the
badge.
Q. You didn’t see the badge on it? A. No, I didn’t see
no badge on it the whole time we was together.
Q. Well, who did you think he was? A. I don’t know.
Q. Well, when he came up to you with that type hat on
and said “You are under arrest,” who did you think he was,
Charles? A. It could have been anybody—could be the
gov’ment.
Q. I know that but who did you think he was when he
came up to you with that cap on and said, “You’re under
arrest.” Who did you think he was, Charles? A. He could
have been a police officer.
Q. You thought he was a police officer didn’t you? A.
When I touched him to get his attention, that’s when he
swung at me and hit me; after then, I didn’t know what was
happening.
Q. When he came up to you and said, “You’re under
arrest,” you thought he was a police officer didn’t you,
Charles? A. No.
Transcript o f Proceedings, June 13 and 14, 1967
Charles Townsend—Plaintiff-—Cross
156
Q. You did not? A. He had on a cap, he could have been
a police officer—
— 85—
Q. Did you think he was a police officer? A. I didn’t
think till later, after everything was over.
Q. You didn’t think he was a police officer then? Is that
right? A. That’s right.
Q. After the officers came up and they started taking
you to jail, did you tell this jury that they handcuffed you
then? A. They handcuffed me behind the car, when we got
across the street over there to the car. They walked me—
two of them walked me till we got across the street to the
car—
Q. Two of them? Do you see them here in the courtroom?
A. Two or three of them.
Q. Do you see them here in the courtroom? A. I think
it was the second gentleman right over there. After I got
across the street, they stood up there talking with me.
Q. You talking about that second gentleman with the
black tie on? A. That’s right.
Q. And you say he’s the one who handcuffed you? A.
Chief Eoss put the handcuffs on me, over there at the
car.
Q. Chief Eoss put the handcuffs on you? A. That’s
right.
Q. And then they put you in the car? A. Put me in
the car.
Q. Did they hit you? A. No.
—86—
Q. Where did you go then? A. Down to the city hall.
Q. When you got down to the city hall, do you remember
what happened down there ? A. Then they taken me up to
the Helena Hospital.
Transcript of Proceedings, June 13 and 14, 1967
Charles Townsend—Plaintiff—Cross
157
Q. Eight after yon got down to the city hall didn’t they
try to put yon in jail? A. No, ’cause they taken me on
to the hospital.
Q. Do yon recall having any dealings with an Officer
Nieholls when you got down there? A. No.
Q. Do you recall hitting him? A. I hasn’t hit nary a
one of those officers.
Q. You don’t recall that? A. No, I didn’t hit nary a one
of them.
Q. Do you recall trying to grab Chief Boss’ gun? A.
No, I didn’t try to grab Chief Eoss’ gun.
Q. You don’t recall that? A. Don’t recall—Chief Eoss
and them after they taken me up to the hospital, that’s
when they beat me when we got down to the jail.
Q. Do you recall biting LeBoy Davis? A. I didn’t bite
anyone.
Q. Didn’t bite him? Do you recall refusing to go into
the cell? A. No, I didn’t refuse.
Q. You didn’t refuse? Did you go in? A. They pushed
— 87—
me in there.
Q. Why did they push you in there? A. Why did they
beat me—why did they do that?
Q. Why did they push you in there? is my question to
you. A. Why did they push me in there—because there
was men enough, they—
Q. Do you know why? A. They pushed me on in there,
they had a—
Q. Well, you just told the jury that you were willing to
go in the jail, didn’t you? A. That’s why I got in the car
with them.
Q. Do you know why they pushed you in there? A..
After they got through beating me, they pushed me in there,
they pushed me in the cell.
Transcript of Proceedings, June 13 and 14, 1967
Charles Townsend—Plaintiff—Cross
158
Q. What did they beat yon with? Tell the jury about
that. What did they beat you with? A. It felt like a
pistol but I don’t know what it was.
Q. You could see couldn’t you, Charles? A. No, I had
blood in my eye.
Q. No, I am talking about before that, before that when
you got down to the jail, you could see couldn’t you? A.
Sure I could see.
Q. Well, what did they hit you with? A. They hit me
with the pistol.
Q. Did they hit you with any clubs? A. They didn’t
- 88-
hit me with no clubs.
Q. Did they have some clubs? A. They had some clubs
on their sides.
Q. They had clubs on their sides? A. That’s when they
came up on the street and got me.
Q. You say they hit you with pistols? A. They hit me
with pistols, when we came back from the hospital.
Q. All three of them hit you with pistols? A. I don’t
know what the rest of them hit me with. I know all three
of them hit me, ’cause one hit me here and one hit me
there, just all over.
Q. But you don’t know whether they were using pistols
or clubs or what they were using? A. That’s right, know
they hit me in the eye.
Q. Do you recall using profane language when you were
down there in the jail? A. I wasn’t using no profane
language.
Q. Did you ever touch one of the officers down there in
the jail, Charles? A. No.
Q. Never touched them? A. No, I never touched them.
Transcript o f Proceedings, June 13 and 14, 1967
Charles Townsend—Plaintiff—-Cross
159
Q. You were going willingly behind the bars, is that what
you are telling the jury, Charles? A. That’s right, when
— 89—
they brought me from the hospital they pushed me in the
jail.
Q. When you got out to the hospital, Charles, do you
recall a doctor coming out there? A. It was a doctor came
there and put some stitches in my head.
Q. Do you recall the doctor or someone asking you—did
you have handcuffs on at that time now, when you went out
to the hospital? A. When I first went out there I had
handcuffs on.
Q. When you saw the doctor did you have handcuffs on ?
A. I can’t remember.
Q. Are you telling the jury you can’t remember whether
you had handcuffs on or not when you saw the doctor? A.
They had probably taken the handcuffs loose.
Q. Do you recall the doctor or someone there asking you,
if they took the handcuffs off, would you be good and not
create any trouble, do you remember that? A. No, I didn’t.
Q. You don’t remember that? A. The doctor said—one
of the nurses said, “This boy’s head sure is bleeding.”
Q. Do you remember telling them “No” , you wouldn’t be
a good boy? A. I didn’t say that.
Q. You didn’t say that out at the hospital? A. Didn’t
say that.
— 90—
Q. Did they put any type of restraints on you at the
hospital? A. They did.
Q. Why did they do that, Charles? A. They had beat
me so bad, they just put the restraints on me.
Q. Why did they need to put restraints on you, Charles?
A. I don’t know.
Transcript o f Proceedings, June 13 and 14, 1967
Charles Townsend—Plaintiff—Cross
160
Q. You don’t know why? A. No, sir.
Q. Yon didn’t hear them say why? A. No.
Q. Were yon acting up out there, Charles? A. I wasn’t
acting up, I was out.
Q. You were out, and they put the restraints on you?
A. That’s right, when they got through with me, I woke
up in the bed with the restraints on my hand and my feet.
Q. Charles haven’t you been in a mental institution prior
to December 24th, 1965? A. I have been in a mental
hospital.
Q. Where was that, Charles? A. I been in the State
hospital out here at Little Rock, University.
Q. In Little Rock, when was that? A. That was in
1966, I think, in February.
Q. No, I mean before this occurrence we have been talk
ing about? A. I been in the hospital in ’51 and ’59.
— 91—
Q. You were in one in 1951? A. In ’59 and ’61.
Q. You were in a mental hospital in 1959 and 1961? A.
Yes, 1959 and 1961.
Q. What was the reason you were in the mental hospital
in 1959, Charles? A. It was a nervous breakdown.
Q. Did you have any violent reactions prior to going into
the hospital? A. No.
Q. Were you ever violent prior to going into the mental
hospital? A. No, now what—say that again.
Q. Were you ever violent or did you ever try to hurt any
body before you went into the mental hospital in 1959?
A. No, I haven’t.
Q. How long were you in there in 1959, Charles? A.
In ’59, I stayed in there three months.
Q. Three months? A. That’s right.
Transcript of Proceedings, June 13 and 14, 1967
Charles Townsend—Plaintiff—Cross
161
Q. Did yon have headaches while you were in there,
Charles? A. No, they were giving me some pills.
Q. Giving you some pills? A. Yes.
Q. Do you know what kind of pills they were giving you?
A. No, I sure don’t.
—92—
Q. Do you remember whether you had headaches or not?
A. I didn’t have no headache, I gets sleepy.
Q. Did you have trouble with your memory? A. Not too
bad, no.
Q. Did you have a little trouble with it? A. No, I ain’t
never—kinda’ hard to say.
Q. Well, you said you didn’t have too much trouble with
it, isn’t that what you said? A. I can remember a lot.
Q. Did you have some trouble with your memory,
Charles? A. No, not what I do and say. I remember what
I do and say.
Q. You do remember all the things you do and say? A.
That’s right.
Q. You say you also went to the hospital in 1961? A.In
’61.
Q. That was a mental hospital? A. Yes.
Q. Where was that, Charles? A. That was in Wiscon
sin.
Q. In Wisconsin? A. That’s right.
Q. What was the reason for you going to a mental hos
pital then, Charles? A. For the same ease, nervous break
down.
Q. You had another nervous breakdown in 1961? A. ’61.
—93—
Q. How did you get in the hospital, Charles? A. My
sister had me admitted.
Q. Your sister had you admitted? A. That’s right.
Transcript of Proceedings, June 13 and 14, 1967
C harles T owns end—Plaintiff—C ross
162
Q. You didn’t admit yourself! A. The first time I went
myself.
Q. You went yourself! A. They told me I should go.
Q. Who told you that, Charles! A. That was my broth
er and them told me—•
Q. Your brother and them told you you should go in
1959! A. In ’59, then the doctor recommended it.
Q. A doctor recommended it? A. Another doctor.
Q. Was that in 1959? A. ’59, that’s right.
Q. In 1961 who recommended that you go? A. I went
back there in ’61-—no, they sent me some papers telling me
to come back out there.
Q. Told you to come back, and how long were you in the
mental hospital in 1961, Charles? A. I stayed there six
months.
Q. Six months, then? A. That’s right.
—94—
Q. What kind of treatment did you have, Charles? A.
They just given me pills and shots—
Q. Do you know what those pills were? A. No, they gave
me a slip to get some whenever I need any.
Q. You say they gave you some shots too? A. That’s,
right.
Q. Do you know what kind of shots those were? A. I
don’t.
Q. Did they give you any other kind of treatment,
Charles ? A. That’s the only kind.
Q. That’s the only kind? A. Uh huh.
Q. Did they let you leave the hospital during that six
months, Charles? A. They let me go home and visit.
Q. How often would they let you go home and visit? A.
Every weekend.
Transcript of Proceedings, June 13 and 14, 1967
Charles Townsend—Plaintiff-—Cross
163
Q. Then you had to come back! A. I had to come back.
Q. Come back on Monday? A. Come back that Sunday
evening.
Q. And could you leave during the week? A. No, I
couldn’t leave.
Q. When you went in in 1961, did you have any trouble
—95—
with your memory then? A. No, I didn’t.
Q. Did you have a few headaches ? A. Uh uh.
Q. Didn’t have any headaches ? A. No.
Q. Have you ever been back to the hospital since 1961,
the mental hospital? A. Been to the one out here at Little
Bock in ’66.
Q. You went to the one in ’66 in Little Rock? A. That’s
right.
Q. Now, did you ever go to another one between 1961
and 1965? A. No.
Q. You did not? A. Just the—’61 and ’65, no sir.
Q. Charles, did you say that you were working on De
cember 24th, or at least you were employed at that time?
A. I was employed, I was working on the 23rd.
Q. Where were you employed? A. At the Beisel’s Ve
neer Mill.
Q. How long had you been employed there ? A. I’d been
working there about six months.
Q. Was that steady employment? A. Steady employ
ment.
Q. Did they ever lay you off? A. No, when they get
behind on the wood or something we have to be off two or
- 9 6 -
three days.
Q. Two or three days a week? A. Couple times I was
Transcript of Proceedings, June 13 and 14, 1967
Charles Townsend—Plaintiff—Cross
164
there, they laid ’em off about two or three days during that
time, ran out of logs.
Q. Did you ever have any trouble on the job or any
thing? A. No, never had any trouble on the job.
Q. Your head ever hurt you on the job? A. No.
Q. You ever have headaches or anything? A. No.
Q. What kind of work were you doing, Charles? A. I
was breaking there and setting blocks.
Q. You were what? A. I was what you call breaking
and catching and pulling on the line and setting blocks and
peeling blocks.
Q. Do the same kind of work all the time? A. Yes, sir.
Q. What did you do before that, Charles, before you
went to work for Beisel? A. I worked at Woodcrafts, over
there at the airport.
Q. What airport is that, Charles? A. There at West
Helena, old airport at West Helena, they had a little mill
at there called Woodcraft.
Q. Were you working in 1959 when you had to go to the
hospital? A. Yes, sir.
—97—
Q. Were you working in 1961 when you had to go to the
mental hospital? A. I was.
Q. Charles, do you think you really remember what hap
pened on December 24th, 1965? A. I do.
Q. You have trouble with your head, Charles? A. No,
I have trouble with it now.
Q. Never had any headaches prior to that? A. No.
Q. You are telling this jury that the only trouble you had
was with nervousness before? A. Nervousness, that’s right.
Q. Charles, when Special Officer Bill Finley came up to
the car did you see any weapons on him? A. Didn’t see
any.
Transcript of Proceedings, June 13 and 14, 1967
Charles Townsend—Plaintiff—Cross
165
Q. Did you look for them! A. Didn’t look.
Q. Did you see any kind of club or anything like that!
A. No.
Q. Had you ever had any trouble with Officer Bill Finley
before? A. Never had, that’s the first time I ’d seen him.
Q. That’s the first time you’d seen him, to your knowl
edge? A. That’s right.
Q. You don’t know of any reason why he would come up
—98—
and do the things that you told this jury he did! A. That’s
right.
Q. You don’t know of any reason? A. Don’t know of any
reason ’cause I wasn’t doing anything, sitting in the car
and he just came up.
Q. Charles, do you know any reason why the Chief of
Police, Roy Ross, or Officer LeRoy Davis, or Officer Harold
Nicholls would want to intentionally inflict bodily harm
upon you? A. Chief Ross said he wished he had been down
there on the street when it happened, he would have shoved
me down like a dog.
Q. He told you what? A. He said he wished he’d been
down there when it happened, he’d of shoved me down on
the street.
Q. When did he tell you this, Charles? A. He told me
that getting in the car.
Q. Who heard it? A. The other officers heard him I
imagine.
Q. There was a big crowd around wasn’t there? A.
There wasn’t no big crowd across the street. I got in the
car across the street.
Q. Oh, he got you away from the crowd and told you
that? A. No, that wasn’t no crowd'—the fighting was on
the other side of the street.
Transcript of Proceedings, June 13 and 14, 1967
Charles Townsend—Plaintiff—Cross
166
Q. Do you know of anyone else who heard him say that
- 9 9 -
other than you, Charles? A. No one but the police officers.
Q. Do you know of anybody else, other than those offi
cers, that heard him say that other than you, Charles? A.
No, I don’t.
Q. You don’t? A. (Nods negative.)
Q. Charles, did you ever see Officer Bill Finley again
after you were put in the police car. A. I never saw him
before.
Q. No, did you ever see him after that, after they put
you in the police car? A. When they had the trial, I seen
him at the trial.
Q. But you didn’t see him down at the police station, is
that right? A. I can’t remember faces that well.
Q. Do you remember anybody who was in the police sta
tion when you went in there? A. Just only the secretary,
she was there.
Q. Anyone else there that you remember? A. And the
policemen, that’s all.
Q. Nobody but the secretary and the policemen? A.
Only them.
Mr. Raff: I believe that’s all.
Redirect Examination by Mr. Howard:
—100—
Q. Charles, Mr. Raff has brought out on cross-examina
tion that you had had mental treatment in Milwaukee?
A. That’s right.
Q. Now, when did you leave Milwaukee, coming back
to Arkansas? A. Left there in ’61.
Q. 1961? A. That’s right.
Transcript of Proceedings, June 13 and 14, 1967
Charles Townsend—Plaintiff—Redirect
167
Q. Now from ’61, that is after you arrive in the State
of Arkansas, when did you seek any further mental treat
ment? A. Haven’t seeked any since.
Q. You haven’t been to a state hospital? A. No—
Q. Since you got back in ’61? A. ’61, haven’t been no
more since 1966.
Q. 1960—when? A. 1966. After they beaten my head
—I was paining—my eyes was hurting so bad—
Q. So after this incident involving the defendants you
had to go to the state hospital for the first time since ’61?
A. First time—that’s right—
Q. Since ’61? A. Since ’61, that’s right.
Mr. Howard: That’s all.
The Court: You may step aside.
Mr. Howard: If your Honor, please, Mrs. Dollie
— 101—
Gilcrest.
The Court: Mr. Howard, this would be an ap
propriate time for a few minutes recess and let
the jury stretch their legs and get a little exercise.
The court will be in recess for just a few minutes.
(Whereupon, at 3:00 o’clock p.m., the court took
a recess. At 3 :15 o’clock the trial was resumed in
the presence of the jury.)
The Court: Call your next witness, Mr. Howard.
Transcript of Proceedings, June 13 and 14, 1967
Charles Townsend— Plaintiff—Redirect
168
Whereupon, M bs . D ollie G ilcrest , called as a witness
on behalf of plaintiff, after first being duly sworn, testified
as follows:
Direct Examination by Mr. Howard:
Q. State your full name to the Court please. A. Dollie
Gilcrest.
Q. Is that Miss or Mrs.? A. Mrs.
Q. Mrs. Dollie Gilcrest? A. Yes, sir.
Q. Now where do you live, Mrs. Gilcrest? A. West
Helena.
Q. How long have you been a resident of West Helena?
A. Approximately twenty years.
Q. Mrs. Gilcrest, I would like to direct your attention to
— 102—
December 24th, 1965, do you recall that date? A. Yes,
I do.
Q. On that date, do you recall seeing one Charles Town
send who is the plaintiff in this case? A. Yes.
Q. I would like for you to state just where you saw him.
A. He was standing in front of the 5 & 10̂ store on Cherry
Street when I saw him, and a large crowd was there. This
accident had occurred.
The Court: Talk louder, these gentlemen have
got to hear distinctly what you say.
Q. Now this incident involving this lawsuit had just
occurred, you say? A. That’s right.
Q. I would like for you to tell the Court and the jury
in your own words just what you saw and what you did.
A. Well, actually, when I walked up, there was a large
crowd and I said, “Just what happened?”
Transcript of Proceedings, June 13 and 14, 1967
Dollie Gilcrest—for Plaintiff—Direct
169
Q. May I ask this, did you direct your question to any
particular individual? A. Well, the store detective.
Q. Is that store detective in the room now? A. Yes,
that’s him right there with the white shirt on with the
pen in it, I mean pencil in it.
Q. All right, that’s Mr. Finley. You directed what ques
tion to him? A. I says, “Just what happened?”
— 103—
Q. What was the response? A. He didn’t say anything,
he acted as if he didn’t hear me talking or anything, but
there was another man that was helping him to hold
Townsend, he says “Nothing.”
Mr. Raff: Excuse me, I would like to interpose
an objection to what someone else testified—what
someone else said, I mean.
The Court: Was it in the presence of the parties
here?
A. What, sir?
The Court: What was said, was it in the presence
of the parties, Mr. Townsend and Mr. Finley?
A. Yes, sir, they was the ones standing there when I
asked what happened.
The Court: You may proceed, the Court will
overrule the objection, exceptions saved.
By Mr. Howard (continuing):
Q. What was his response? A. I asked what had hap
pened and neither of them said anything, but another man,
Transcript of Proceedings, June 13 and 14, 1967
Dollie Gilcrest—for Plaintiff—Direct
170
white man, that was helping the store detective to hold
Townsend, he says, “Nothing, but that nigger was shop
lifting.”
Q. Were you in a position to observe Townsend? A. I
was close to Townsend, close to all of them because I
wanted to see what had happened, but—
—104—
Q. What condition was Townsend in? A. Townsend
was standing beside the car, the store detective and the
other white man w’as standing right in front of Townsend.
They stood there until the officers came to make the arrest.
Q. What condition was Townsend in? A. Townsend
was bleeding from under his eye, and a place in his head.
Q. What was Townsend saying and doing? A. He wasn’t
saying nothing then—he wasn’t doing nothing. He was
just standing there backed up against the car. I don’t
know what he had did before I got there or nothing but he
wasn’t doing anything then.
Q. After the police arrived, they carried Townsend
away, is that correct? A. They did. The store detective
marched Townsend across the street to the car. The Chief
of Police got out of the car, from under the steering wheel,
came around behind the car, they made the arrest, put
Townsend in the back seat. Carried him—I don’t know
where they carried him but I know they left there with him.
Q. They left? A. After they left, the store detective,
he opened the door of the car—
Q. What ear was that? A. That was Townsend—the
- 1 0 5 -
car that Townsend was, you know, standing beside when
this arrest was made. He opened the door of the car,
he got into the car, he looked in the car. And I was very
Transcript of Proceedings, June 13 and 14, 1967
Dollie Gilcrest—for Plaintiff—Direct
171
much anxious to see what had he stolen. He didn’t find
anything in the car but a little oP 10 ̂ paper bag laying
up there on the dash-board of the car. I don’t know what
was in it because the store detective, he didn’t even pay
the little ol’ sack any attention hisself. But he did look
in the car, in the back and the front.
Q. In the front of the car? A. But nothing did he find.
Q. He didn’t bring anything out? A. No, he didn’t.
Mr. Howard: That’s all.
Cross Examination by Mr. Raff:
Q. As I understand it when you got there, nothing was
happening, but there was a big crowd around? A. That’s
right.
Q. Mrs. Gilcrest, I didn’t quite get clear from your testi
mony whether or not Townsend was being held by anyone.
A. Townsend was standing up against the car—I don’t
know whether it was his car or whose car it was—Town
send was standing up against the car, the store detective
and another white man was standing there along with
Townsend to hold Townsend in customs until the officers
— 106—
got there—
Q. Now you say they were holding him, do you mean
they physically had hold of him? A. No, they didn’t.
Q. They were not touching him? A. No, they wasn’t.
Q. None of the three were touching each other when you
walked up? A. They was standing, you know, right to
gether, and a large crowd was around them.
Q. You have identified Bill Finley, here, as being the
store detective? A. That’s right.
Transcript of Proceedings, June 13 and 14, 1967
Dollie Gilcrest—for Plaintiff—Gross
172
Q. How was he dressed? A. He had on a police suit,
and he had a gray plastic raincoat—it was raining—he
had a gray raincoat and a plastic cap, you know, that fits
over this here cap, that’s what he had on.
Q. What type of cap— A. And he had a stick—what—
I don’t know what you’d call it, a stick, or what you’d call
it, but he did have this in his hand, I don’t know what you
all would call it.
Q. A night stick or club-type thing? A. That’s right.
Q. About how long was it? A. Oh, I guess it was about
that long—it had a—
—107—
Q. Now when you say “it was about that long” , for the
purpose of the record, was it three feet or one foot or what?
A. Well, I would say about like this.
Q. Would I be fair in saying three feet, about a yard
long? A. Like that, and it had a little string—you know,
something at the end of—like he could hand it on his
finger.
Q. You have observed police clubs or billy clubs, or
whatever you call them, or the clubs policeman carry?
A. Yes, sir.
Q. Have you not? A. Yes, sir.
Q. I believe your husband is a policeman in West Helena,
isn’t he? A. Yes, sir.
Q. Is this the type of club that your husband carries, is
that what you are saying? A. I don’t know if he carries
one or not.
Q. You mean, you don’t know whether your husband
has one? A. That’s what I ’m trying to say.
Q. But you do know that the defendant, Finley, had one
in his hand at that time? A. That’s right.
Transcript of Proceedings, June 13 and 14, 1967
Dollie Gilcrest—for Plaintiff—-Cross
173
Q. Did he have anything else, any other kind of weapon,
that you saw? A. You mean a gun?
—108—
Q. Pistol, anything? A. Well, I can’t say whether he
had a pistol—I didn’t see a pistol at the time. I ’m just
saying what I saw and that was this stick, but I do know
he had his button on and—
Q. His button, you talking about a badge? A. That’s
right.
The Court: You will have to talk out to the jury.
Q. You saw the badge,where was the badge on him?
A. It was on his coat, you know, he didn’t have this slicker
fastened up at the time. He had a gray slicker on but it
wasn’t fastened up and he did have this button on it.
Q. Was this slicker plastic that you could see through?
A. It wasn’t too clear of a slicker, but it was a gray looking
slicker that he had on.
Q. And it was opened at the time that you saw it? A.
It was.
Q. Back to the hat, this was a regular policeman’s hat
with a stiff bill? A. It was.
Q. Did it have any kind of emblem on it or badge on
the cap? A. I don’t remember. But I do know that he
had a gray plastic over it.
Q. You told us that the plaintiff, Townsend, was bleeding
from a cut under his eye and from a cut on his head, is
that right? A. He was.
—109—
Q. How about the defendant, Finley, was he bleeding
any place? A. I didn’t see him bleeding any place.
Transcript of Proceedings, June 13 and 14, 1967
Dollie Gilcrest— for Plaintiff—Cross
174
Q. Did you look to see whether he was? A. I did.
Q. Could he have been and you not see it? A. Well, I
was very close to all of them.
Q. Was his clothing disarrayed in any way, I am talking
about the defendant, Finley? A. You mean torn or any
thing?
Q. Torn? A. I didn't see them torn any place.
Q. You didn’t notice? A. I noticed him to see what had
happened, but 1 didn’t see his clothes torn any place or
anything.
Q. Were the plaintiff’s clothes torn in any manner? A.
I didn’t see his torn, I just seen blood on them and he
was very dusty, you know. I don’t know if he was dusty
when he got to town or what, but he was very dusty.
Q. Was Townsend handcuffed at the time you saw him?
A. At the time I saw him?
Q. Yes. A. He wasn’t handcuffed at the time I saw him
because when I saw Townsend he was on the street stand
ing besides this car.
Q. Right. But you didn’t tell us whether or not he had
handcuffs on when you saw him? A. He wasn’t hand-
— 110—
cuffed at that time because they hadn’t ever took him
under arrest. When they marched Townsend across the
street and put him in the back seat, that is when they
handcuffed Townsend.
Q. Who handcuffed him? A. I reckon it was the Chief
of Police that handcuffed him, that’s who came down—
there were two of them in the car.
Q. How many police cars did you see there? A. I be
lieve it was two.
Q. WTiich car did they take Townsend to? A. There
Transcript o f Proceedings, June 13 and 14, 1967
Dollie Gilcrest■—for Plaintiff—Cross
175
was one parked kinda’ over and the one that stopped
right in the street, that is the one they put Townsend in.
Q. Who put him in the car! A. The Chief.
Q. You are talking about Chief Roy Ross sitting here
at the end of the table! A. Yes, sir.
Q. He is the one that got out of the car and put Town
send in the car! A. That’s right.
Q. You are certain of that! A. Yes, sir.
Q. Did he place handcuffs on Townsend! A. Yes.
— I ll—
Q. When! A. Before placing him in the car. They
went in Townsend’s pocket and got something out of
Townsend’s pocket, I don’t know what they got out of
Townsend’s pocket.
Q. Did it look like a weapon of any kind! A. I don’t
know what it was.
Q. Then did they put the handcuffs on him after they
got that out of his pocket? A. They did.
Q. Did they handcuff his hands behind him or in front
of him? A. I can’t say.
Q. How can you say they handcuffed him then? A. I
seen them when they did but I don’t know if they put them
behind him or in front of him. I remember them going into
Townsend’s pocket, taking something out of his pocket,
then handcuffing him and putting him in the back seat of
the car, and the two officers got back in the front and left.
Q. Was Townsend in the back of the car by himself? A.
In the back seat? Yes, he was.
Q. There was not another officer in the back seat? A.
There was two officers but they were both in the front.
Q. Now what happened to the officers in the other ear?
A. They pulled off and went on after the crowd left and
everything, you know, I don’t know where they went to.
Transcript o f Proceedings, June 13 and 14, 1967
Dollie Gilcrest— for Plaintiff— Cross
176
Q. Did the Chief get out of the car and come over to the
sidewalk and get Townsend and take him back? A. No,
— 112-
sir, he did not.
Q. How did Townsend get from the sidewalk towards
the car? A. When the Chief drove up, the store detective
say, “ Okay, let’s he moving.” That’s what he told Town
send. Townsend did his shoulders just like this (indicating
swinging motion), and he said “Off,” and Townsend
marched on to the car.
Q. Townsend went over to the ear with him? A. He did.
The store detective went with him though.
Q. Was he walking in front of him or behind him or
what? A. Walking right along with him.
Q. Beside him. Did he have his hands on him? A. I
don’t know, I know they walked right along there together,
I don’t think he—they walked right along there together.
Q. You didn’t see any blows pass—you didn’t see any
part of a fray on the street? A. No, I didn’t.
Q. Did you hear any profanity being used? A. Not but
one profane and that was the man who was helping—the
white man that was helping the store detective hold Towns
end.
When you say “holding,” standing beside him is what
you are saying? A. That’s what I mean.
Q. Where had you been before this? A. Well, it was
Christmas Eve, and we had been and bought some stuff at
—1 1 3 -
Dixie, and we were parked down there on the lower end of
town; then I had a lay-a-way up at Sterlings, where I had
laid up some toys and things for Christmas, and I was on
my way to get a lay-a-way out.
Transcript of Proceedings, June 13 and 14, 1967
Dollie Gilcrest—for Plaintiff—Cross
177
Q. The crowd gathered and you walked up to see what
happened? A. The crowd was gathered right where the
lay-a-way was to be got out.
Q. Eight. You had to push your way through to the cen
ter did you not? A. Well, when I got there and all this
was happening I didn’t go on in to get the lay-a-way, I
waited to see what was going on before getting the lay-a-way
out.
Transcript o f Proceedings, June 13 and 14, 1967
Dollie Gilcrest—for Plaintiff—Redirect
Mr. E aff: I believe that’s all.
Redirect Examination by Mr. Howard:
Q. Now Mrs. Gilcrest, Mr. Raff asked you if profanity
was used out there and you said that there was some
profanity, but you didn’t tell us who used the profanity.
Who was it? A. I say, the only profanity that I can say
was used was when I walked up. I asked the question, I
said, “Just what happened?” The white man who was
helping the store detective to hold Townsend, he said,
“Nothing but that nigger was shoplifting.” That’s all.
Q. That was the profanity you had reference to? A.
Other than that I didn’t heard any more.
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Mr. Howard: That’s all.
The Court: Stand aside.
Mr. Howard: If Your Honor, please, we would
like to call the medical librarian of the Helena Hospi
tal, Mrs. Ann Morris.
178
W h ereu po n , M rs . A n n M orris, ca lled as a w itn ess on be
h a lf o f the p la in tiff, a fte r be in g d u ly sw orn , testified as
follows:
Direct Examination by Mr. Howard:
Q. Would you kindly state your full name to the Court
and the jury, please. A. Mrs. Ann Morris.
Q. Mrs. Morris, where do you live. A. 217 N. 11th
Street in West Helena.
Q. What is your occupation? A. I am the Medical Rec
ord Librarian at the Helena Hospital.
Q. How long have you served as Medical Librarian at
the hospital? A. Since January, 1966.
Q. As Medical Librarian what are your duties and re
sponsibilities? A. Well, I have many, I couldn’t list them
all, but we are responsible for all the charts of all the pa
tients who have ever been admitted to the hospital. A n ri
also for the outpatient records, we keep them on file.
Q. Now, who initially prepares these records? A. When
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the patient is admitted to the hospital, the nurse on the
floor assembles the chart that is made up of many things.
When the patient is discharged, the chart comes to the
medical-records office and we process it from there.
Q. Is this the usual practice and procedure in your hos
pital ? A. Yes.
Q. How long has this practice and procedure been in
force? A. Since 1941 when the hospital was established.
Q. As far as you know, the standard policy and practice
for preparing these reports are followed in each ease? A.
Yes.
Q. Now, to give you a hypothetical example, suppose Dr.
Transcript o f Proceedings, June 13 and 14, 1967
Ann Morris—for Plaintiff—Direct
179
“X ” visits a patient, makes a diagnosis and renders a re
port, are you responsible for that or is your department
responsible or the custodian of such a report? A. Yes.
Q. I believe you were subpoenaed to appear in this case,
is that correct? A. That’s right.
Q. You were also requested to bring certain records. A
Yes.
Q. What were those records? A. The hospital record
and the emergency-room record of Charles Townsend and
also his hospital bill.
Q. Did you bring those records with you? A. Yes, I did.
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Q. Do you have them there? A. Yes, I do.
Mr. Howard: If Your Honor please, for the simple
purpose of identification we would like to introduce
these records. I don’t believe Counsel for the de
fendant has had an opportunity—-as a matter of fact,
I saw a copy for the first time this morning. It may
well be that they would like to examine them, I do
have a copy to supply to them.
(Mr. Solomon observes.)
The Court: Any objection?
Mr. Solomon: No objection.
The Court: Without objection let the original be
received and properly identified for the record, and
when a copy can be made available it may be with
drawn.
(Whereupon, the emergency report, the medical
history and the hospital bill were marked as
Plaintiff’s Exhibit No. 2 for identification and
received into the record.)
Transcript of Proceedings, June 13 and 14, 1967
Ann Morris—for Plaintiff—Direct
180
Mr. Howard (continuing):
Q. One final question, Mrs. Morris, would you kindly tell
the Court and the jury, what is the total hospital bill in
volved in this matter? A. I don’t know, medical records
department—it is listed here I am sure. I know that the
bill has not been paid.
Q. The bill has not been paid? A. No. I have nothing
to do with the billing. Medical Records is divorced from
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the business office.
Q. But you do have a statement of the bill? A. Yes, I
obtained the bill for you and brought it along as you had
requested me to do.
Q. Right, would you kindly refer to it? A. Yes.
Q. Tell us what the balance is, please? A. Well, I don’t
know if I can read it—
Q. According to that record. A. It looks to me like the
unpaid balance is $128.60.
Q. Can you further tell us whether there have been any
payments at all, at any time? A. Mr. Butler, who is our
comptroller, said nothing has been paid on the bill.
Q. Thank you.
Cross Examination by Mr. Solomon:
Q. For the benefit of all of us, Mrs. Morris, can you see
these from that distance? A. Yes, sir.
Q. What is this first white sheet on top of these records?
A. This is called a summary sheet. It tells the diagnosis,
the final diagnosis, it gives the patient’s name and address,
the doctor’s name, if they had any insurance, it mostly is
for the business office.
Transcript of Proceedings, June 13 and 14, 1967
Ann Morris—for Plaintiff—Gross
181
Transcript o f Proceedings, June 13 and 14, 1967
Ann Morris—for Plaintiff—Cross
— 118—
Q. Now that’s the white sheet. A. Yes, sir.
Q. Is there anything on this that has anything about
diagnosis on it? A. Yes, the provisional diagnosis when
he was admitted to the hospital, the final diagnosis when
he was discharged.
Q. It also has the date of admission, does it not? A.
Yes, sir, it does.
Q. And what is shown on this record? A. 12/24/65 at
3 :00 p.m.
Q. Now the second sheet which is the yellow one, headed
“Minor History,” what is that, Mrs. Morris? A. This is
dictated by the physician, it tells the admitting diagnosis
and the discharge diagnosis, it tells family history, past
personal history, the present illness, the chief complaint,
the physical examination and the progress notes and the
condition on discharge.
Q. There appears a signature on here, does the attend
ing physician sign this? A. Yes.
Q. He is the one who actually prepares this or has it
prepared? A. He dictates it and we transcribe it.
Q. Now several sheets in, is one white sheet, marked
“X-ray Consultation,” what is that record? A. This is
dictated by the x-ray—the radiologist in the hospital, and
— 119—
typed by his secretary and taken to the floor and put on
the chart while the patient is in the hospital. This is his
diagnosis confirmed by x-ray.
Q. Does the attending physician normally request this, is
it done at his request? A. That’s correct.
Q. The next sheet, following that, is a green one, what is
this sheet Mrs. Morris ? A. This is the doctor’s orders, the
182
doctor either writes them or occasionally they telephone in
to the nurse, then they have to sign the orders their next
visit when they make the rounds. These are the orders the
doctor prescribes, treatment.
Q. A page or so under that, a white sheet headed “Nurses
Remarks,” what is this, Mrs. Morris? A. This is a run
ning account of the patient’s hospital stay. It is written by
the nurses on the floor.
Q. For the benefit of the jury would you please read the
first note there? A. Yes, sir, “4:00 p.m., colored male, age
23 years, admitted per stretcher from the emergency room,
put to bed in room 103, restraints applied to arms and
ankles.”
Q. The white sheets following this are the continuation
of the nurses notes? A. That’s right.
Q. They continue until the patient is discharged? A.
— 120—
That’s right.
Q. Then we get to the last one, which is a white one that
looks like it is marked “Business Office,” what is that? A.
This is the medical-records copy of the emergency-room—
if the patient comes in through the emergency room rather
than just comes in ambulatory or just walks in, then we have
an emergency-room record which is incorporated into the
chart, and we file it on the back of the chart. This is what
happened when a patient first entered the hospital in the
emergency room.
Q. From that record, would you please tell us the ad
mitting time? A. 2:30 p.m., was the time admitted to the
emergency room.
Q. And the time discharged from the emergency room?
A. It says 4:00 p.m., however the hospital admission says
Transcript of Proceedings, June 13 and 14, 1967
Ann Morris—for Plaintiff-Cross
183
3 :00 p.m., but this can happen. They can be admitted while
they are still in the emergency room.
Mr. Solomon: That’s all.
The Court: Any further questions? Would it be
agreeable to the parties to permit such copy as we
have here to be substituted for the original!
Mr. Solomon: Yes, sir.
The Court: Do you have a copy!
Mrs. Morris: I have given it to Mr. Howard.
Mr. Solomon: It is not legible, that is my only
complaint and why I raised the question. I can’t
read these.
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The Court: Well, I think for the time being you
had better leave them with us and we will see that
they are returned.
Mrs. Morris: May I have a receipt?
The Court: The Clerk has them in charge. They
are in charge of the Court now and they were brought
here under subpoena so that is your assurance.
Mrs. Morris: All right.
The Court: You may step down.
Mr. Howard: Your Honor, our next witness is
Doctor Ellis.
Transcript of Proceedings, June 13 and 14, 1967
Ann Morris—for Plaintiff—Cross
184
W h e reu po n , D octor W. A. E l lis , ca lled as a w itness on
b eh a lf o f the p la in tiff, a fte r first bein g d u ly sw orn , testified
as fo l lo w s :
Direct Examination by Mr. Howard:
Q. State your full name. A. Doctor William A. Ellis,
Jr.
Q. Where do you live, Doctor Ellis! A. 1103 Porter
Street.
Q. That is in Helena, Phillips County! A. Yes, sir.
Q. What is your occupation? A. Physician and surgeon.
— 122—
Mr. Solomon: Your Honor, we will admit to the
doctor’s qualifications.
Q. Doctor Ellis, I would like to direct your attention to
the 24th of December, 1965, do you recall that day? A.
Yes, sir, I do.
Q. Did you have any occasion on that day to see one
Charles Townsend? A. I did.
Q. Would you kindly relate in your own words the cir
cumstances under which you saw this man and if you ren
dered any medical attention, what type? A. I was on call
at the Helena Hospital, and there I saw in the emergency
room this colored gentleman they had on the stretcher.
He was very—he had to be restrained, he was very—lot of
cursing and what not, and I called the porter to help me
restrain him to the stretcher so I could sew him up. He
had wounds bleeding from his scalp, his right ear, and
the under side of his right eye.
Q. As I understand your testimony, you had to close a
head wound, is that correct? A. Yes, sir.
Transcript of Proceedings, June 13 and 14, 1967
Dr. W. A. Ellis■—for Plaintiff—Direct
185
Q. How many sutures were required to close this head
wound? A. Oh, I haven’t any idea.
Q. You didn’t count them? A. No, I didn’t count them.
He had several wounds on his head.
—123—
Q. He had several? A. Yes, sir.
Q. How long was this man confined to the hospital? A.
He was admitted on the 24th and discharged the 27th.
Q. The 27th? A. Yes.
Q. Other than the injuries that you refer to about the
head and what have you, did you see any in the face? A.
His eye, his right eye, had one on the side of it. That’s
the only one that I discerned.
Q. He was on a stretcher when you saw him? A. He
was.
Transcript of Proceedings, June 13 and 14, 1967
Dr. W. A. Ellis—for Plaintiff—Cross
Mr. Howard: That’s all.
Cross Examination by Mr. Raff:
Q. Doctor, it has been introduced into evidence the hos
pital records pertaining to this patient, as Plaintiff’s Ex
hibit No. 2. One of them is the yellow sheet which is the
second sheet—there—is that your signature appearing
thereon, Doctor? A. It is.
Q. Did you cause that record to be made during the
course of your treatment of this patient? A. I did.
Q. Did you make any observations, Doctor, as to whether
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or not this man had been drinking? Or under the influence
of intoxicants? A. Yes, I did. I think I put that, on his
chart. He had to be restrained on a stretcher so I could
sew him up.
186
Q. Are you stating, then, that he was under the influence
of intoxicants when you saw him? A. Yes, sir.
Q. I believe you stated that he was cursing at the time?
A. Yes, sir.
Q. Was he conscious, Doctor, when you were working on
him? A. Sure.
Q. When you first saw him? A. Yes, sir.
Q. Did you cause x-rays to be made in the course of your
treatment of him in the hospital? A. I did.
Q. Of what region of his body? A. His scalp and his
head.
Q. Did they show any abnormalities? A. No, sir, they
didn’t.
Q. Have you seen the plaintiff since December 27th when
he was discharged from the hospital? A. No, sir, I haven’t.
Q. Did you ever see him prior to this time in the emer
gency room? A. No, sir, I didn’t.
—125—
Mr. R aff: I believe, that’s all.
Mr. Howard: No further questions.
The Court: Doctor, you may stand aside.
Mr. Howard: Our next witness, Your Honor, is
Doctor Daniel Tonyman.
Transcript o f Proceedings, June 13 and 14, 1967
Dr. W. A. Ellis—for Plaintiff— Cross
187
Whereupon, D octor D an iel T o n ym an called as a witness
on behalf of the plaintiff, after first being duly sworn,
testified as follows:
Direct Examination by Mr. Howard:
Q. Kindy state your full name to the Court and the jury,
please. A. Daniel Tonyman.
Q. Doctor Tonyman, what is your profession? A. Phy
sician in Marvell, Arkansas.
Q. How long have you been a physician? A. About
seven years.
Mr. Solomon: We admit the doctor’s qualifica
tions.
Q. Doctor Tonyman, I would like to ask you if you have
had the occasion to perform any medical services for and
in behalf of one Charles Townsend? A. Yes.
Q. Do you recall the date? A. I first saw him on the
30th of December of ’65.
Q. The 30th of December? A. About four days after he
came out of the hospital.
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Q. Four days after he came out of the hospital? A. Yes.
Q. What sort of service did you render, if any, on that
day? A. Well, he had some cuts on his head and I changed
the dressing and eventually removed the stitches from his
head.
Q. Were you able to determine how many stitches or
sutures had been placed in his head? A. No, I don’t re
member that.
Q. Were there several? A. Quite a few.
Transcript of Proceedings, June 13 and 14, 1967
Dr. Daniel Tonyman—for Plaintiff—Direct
188
Q. Quite a few? A. Yes. About a dozen or so.
Q. Do you recall the date that you removed these su
tures? A. Well, it was about the 6th or 7th day after they
were put in.
Q. I see.
Mr. Howard: No further questions.
Cross Examination by Mr. Raff:
Q. Doctor, did you attend the patient before this date?
A. No, sir.
Q. He had never been a patient of yours before then?
A. No, sir.
Q. After you removed the sutures, have you attended
him after that? Subsequent to that? A. About a week
later, he continued to complain about headaches, loss of
—1 2 7 -
memory, stuttering, and so I went ahead and referred him
to the state hospital at Little Rock.
Q. You had any further contact with him? A. No, not
after that.
Mr. Raff: That’s all.
Mr. Howard: No further questions.
The Court: Doctor, you may be excused.
Mr. Howard: Your Honor, the next witness is
Mrs. Connie Straub who is bookkeeper for Beisel
Hoop and Veneer Mill.
Transcript o f Proceedings, June 13 and 14, 1967
Dr, Daniel Tonyman—for Plaintiff—Cross
189
Whereupon, M rs. C o nnie S traub , called as a witness on
behalf of the plaintiff, after first being duly sworn, testified
as follows:
Direct Examination by Mr. Howard:
Q. Will you kindly state your full name to the Court,
please. A. Mrs. Connie Straub.
Q. Mrs. Straub, where do you live? A. 727 Claburne,
West Helena.
Q. How long’ have you been a resident of West Helena?
A. Since 1937,1 believe.
Q. What is your occupation? A. I am Office Manager
for Beisel Veneer.
Q. As Office Manager, what are your responsibilities?
A. To handle various things in the office, to see that they’re
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—that the work is kept up and the work reports and rec
ords and so forth.
Q. Would that include keeping pay records? A. No, I
don’t keep the pay records, I merely know about the pay
records and okay them and sign the checks.
Q. And sign the checks. This is carried on, that is the
making of these records, the process is carried on in your
office—the same office you occupy? A. Yes.
Q. I believe you were subpoenaed to appear at this hear
ing, is that correct? A. Yes.
Q. You also were requested to bring certain records with
you? A. Yes.
Q. Do you have those records with you? A. I do.
Q. In addition, you were requested to bring a check and
then today you sent for a second check at my request, is
that correct? A. That’s right.
Transcript of Proceedings, June 13 and 14, 1967
Connie Straub—for Plaintiff—Direct
190
Q. Will you kindly refer to your records.
Mr. Howard: If Your Honor please, I don’t be
lieve that Counsel for the other side has had an
opportunity to review these records; I, for the first
time, reviewed them this morning. With the per
mission of the Court, they may have that oppor
tunity now before I ask any additional questions.
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(Whereupon, Mr. Howard offers the records to
the Defense Counsel and continues question
ing the witness as follows)
Q. First, I would like to ask you to look at a check that
is dated December 23rd, do you have that check, Mrs.
Straub? A. Yes, just a second.
Q. Who is the payee on that check? A. Charles Town
send.
Q. What is the amount? A. $42.29.
The Court: Talk a little louder.
Q. How much is that check? A. Forty-two dollars and
twenty-nine cents.
Q. Will you advise the Court whether or not that check
has been endorsed by the payee. A. Yes, it has Charles
Twonsend’s name on it.
Q. Is there a second endorsement? A. Hendrix’s Shoes.
Mr. Howard: Your Honor, we would like to intro
duce this as Plaintiffs Exhibit No. 3. Now it may
well be, if Your Honor please, that Mrs. Straub
Transcript of Proceedings, June 13 and 14, 1967
Connie Straub—for Plaintiff—Direct
191
would like to withdraw these at a later date. So I
will ask that copies be made, if that’s possible.
Mr. Solomon: No objection.
The Court: Without objection, let it be properly
identified as Plaintiff’s Exhibit No. 3, and it may be
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withdrawn subsequently and a copy substituted for
it.
(Whereupon, the above identified instrument
was marked as Plaintiff’s Exhibit No. 3 for
identification and received into the record.)
By Mr. Howard (Continuing):
Q. I believe you have another instrument, I am not speak
ing about the second check, another instrument in your pos
session. Where is that record, Mrs. Straub! A. I beg your
pardon!
Q. You have a third, I am not speaking about the second
check, but there is another instrument that you have in
your possession, the large yellow sheet! A. The earnings,
the individual earnings.
Q. Would you kindly refer to the pay period of the—
ending the 24th of December, 1965? A. Finished the 29th.
Q. The 29th? A. The 29th or the 22nd. The 22nd is the
check that you have; and the next one is seven days later,
the 29th.
Q. Now how much was that check? A. That check is for
$9.04.
Q. Starting from the very top of your ledger sheet there,
what is the first pay period? A. Thursday.
Q. For what month? A. Our pay period starts with
Thursday always.
Transcript of Proceedings, June 13 and 14, 1967
Connie Straub-—for Plaintiff-Direct
192
Q. For what month, now, what week? A. This is July
—131—
14th, 1965, is at the top of the page.
Q. Is that the beginning date of this party’s employ
ment? A. Yes.
Q. What did he earn for the month of July? A. This is
not totaled by month, this is our quarterly report to the
Social Security and Unemployment Office so the total is on
a quarterly basis.
Q. Could you give us the quarterly basis? A. $504.07.
Q. That’s for what months now? A. July, August and
September.
Q. Five-hundred and how much? A. $504.07.
Q. Now for the next quarter. A. $421.57.
Q. And that would he for what month now? A. That was
October, November and December.
Q. Do you have anything listed after December ? A. No.
Q. None at all? A. Nothing.
Mr. Howard: Your Honor please, we would like
to introduce this sheet as Plaintiff’s Exhibit No. 4.
If there are no objections.
Mr. Solomon: No objections.
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Mrs. Straub: May I say something, please?
The Court: The Court doesn’t have the slightest
idea about what you are about to say and so I think
probably you had better not.
Mr. Solomon: Might I say, we have no objections
that a copy be substituted for the original.
The Court: Were you about to explain something
with reference to this?
Transcript of Proceedings, June 13 and 14, 1967
Connie Straub—for Plaintiff—Direct
193
Mrs. Straub: No, my boss told me to bring these
back.
The Court: Well, we will permit you to substitute
a copy for this. Let it be received without objection.
(Whereupon, the above described instrument
was marked as Plaintiff’s Exhibit No. 4 for
identification and received into the record.)
Mr. Howard: Your witness.
Cross Examination by Mr. Raff:
Q. Mrs. Straub, from your record, when was the last
time the plaintiff was employed with your company that
your records indicate? A. December 23rd, 1965, was his
last day of work, eight hours.
Q. He has had no employment since that time? A. No.
Q. Do your records indicate or would you know whether
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or not he tried to seek employment with your company
after December 24th, 1965? A. I don’t know.
Q. You have no knowledge of it if he has or hasn’t? A.
No.
Mr. R aff: I believe, that’s all.
Mr. Howard: No further questions Your Honor.
The Court: You may stand aside. We are going
to have to keep these records though unless you have
a copy with you.
Mrs. Straub: I didn’t bring a copy.
The Court: We will have to keep them until you
can get a copy to substitute for them, then that may
be done.
Mrs. Straub: These are the original records.
Transcript of Proceedings, June 13 and 14, 1967
Connie Straub—for Plaintiff—Cross
194
The Court: Yes, and it’s an exhibit in this court
too. The Clerk will take perfectly good care of them
and be responsible for them. A copy will be made.
I f you have another copy—
Mrs. Straub: Well, see, I don’t have another copy.
The Court: We will make one and let you have it
back. Now let me see, one check was introduced and
the other was not, so you may take that back with
you.
Mr. Howard: If Your Honor please, our next
—134—
witness is the shoe salesman at Hendrix Shoe Store.
Of course, the only thing we had was the fact that
the shoe salesman’s first name was Don, so, I believe
the Marshall made an effort to serve a subpoena by
the description.
Transcript o f Proceedings, June 13 and 14, 1967
Donald Wm. Moreland—for Plaintiff—Direct
W hereu pon , D onald W m. M oreland , called as a witness
on behalf of the plaintiff, after first being duly sworn,
testified as follows:
Direct Examination by Mr. Howard-.
Q. Would you kindly state your full name to the Court
and the jury, please. A. Donald William Moreland.
Q. Mr. Moreland, where do you live? A. Marvell, Ark
ansas.
Q. What is your occupation? A. I work for ArkLa
Chemical Corporation.
Q. Did you formerly hold a position with Hendrix Shoe
Store? A. Yes.
Q. For what period? A. Seven years.
195
Q. Seven years? Do yon recall having a business trans
action with one Charles Townsend who is the plaintiff in
this case? A. Faintly.
—135—
Q. I beg your pardon? A. I would say, faintly.
Q. I am speaking particularly about December 24th,
1965, the plaintiff has introduced an exhibit which has been
designated as Exhibit No. 3 for the plaintiff. I’ll ask you
if you might refresh your memory by looking at that in
strument. A. I cashed this check for him on December
23rd or 24th, I don’t remember which, when he bought a
pair of shoes and paid for them.
Q. Paid for them out of this check? A. Yes.
Mr. Howard: That’s all.
Mr. Solomon: We have no further questions.
The Court: You may step aside.
Mr. Howard: Our next witness, Your Honor, is
Mr. Willie Olloway.
Transcript of Proceedings, June 13 and 14, 1967
Mr. Willie Olloway—for Plaintiff—Direct
W h ereu po n , Mr. W illie O llo w ay , called as a witness on
behalf of plaintiff, after first being duly sworn, testified
as follows:
Direct Examination by Mr. Howard:
Q. Kindly state your full name to the Court, please. A.
Willie Olloway.
Q. Where do you live, Mr. Olloway? A. At Lexa.
—136—
Q. That is in Phillips County, Arkansas? A. Yes, sir.
196
Q. Are you related to the plaintiff in this case, Charles
Townsend? A. Yes, sir. I am his step-father.
Q. That relationship is step-father? A. Yes, sir.
Q. Mr. Olloway, I would like to call your attention to
December 24th, 1965, or a few days after that, and ask you
if you had the occasion to visit with your son? A. I went
over to the hospital.
Q. What hospital was that? A. Helena Hospital.
Q. Would you go ahead and describe to the Court what
you saw?
The Court: Talk loud enough so all these gentle
men can hear you.
A. Well, when I saw him they had him in the bed. They had
his head all bandaged up, he was plum out.
Q. He was plum out? A. Yes, sir.
Q. He was unconscious, you mean? A. He was just
laying there, yes, sir.
Q. Flat on his back? A. That’s right.
Q. How long did you stay there at the hospital? A.
They didn’t let us stay very long.
— 137—
Q. When was this, do you recall? A. Sir?
Q. What date was this? A. That was the 24th.
Q. The 24th? A. Yes, sir.
Q. That was the same day that this incident took place?
A. That’s right.
Q. What room was he in? A. Sir?
Q. What room was he in? A. He was in the men’s
ward.
Q. He wasn’t in the emergency ward? A. No.
Transcript of Proceedings, June 13 and 14, 1967
Mr. Willie Olloway—for Plaintiff—Direct
197
Q. How long did yon stay there? A. I stayed there, I
reckon about thirty minutes. Then we had to leave.
Q. Did you try to talk with him? A. No sir, I did not.
I just looked at him after I saw he was out. I just looked
at him, didn’t say anything.
Q. Now when did you see him again? A. I went back
there Sunday. Christmas Day.
Q. And what was his condition at that time? A. Well, he
had come to, he was sitting up in the bed.
— 138—
Q. What is your occupation? A. I have a farm and I
farms.
Transcript of Proceedings, June 13 and 14, 1967
Mr. Willie Olloway—for Plaintiff—Direct
The Court: I can’t hear you.
Q. I want you to talk so these gentlemen can hear you.
A. I says I am a farmer and I have a farm.
Q. You have a farm? A. Yes, sir.
Q. Since Charles Townsend has been discharged from the
hospital, where has he been living? A. Living there with
me.
Q. With you? A. Yes, sir.
Q. What sort of work has he been doing? A. He hasn’t
been doing anything. Sometimes I would let him drive the
tractor and he would get dizzy and come in. Sometimes he
don’t come out of his room for three days and won’t eat
anything. We don’t bother when he has those kind of
spells.
Q. When did this sort of conduct start taking place?
A. Just after he come from the hospital.
Q. Prior to this date did you notice this sort of conduct?
A. Hum.
198
Q. Prior to the 24th of December, did he act the same
way? A. Before? No, sir.
Q. Did you understand my question? A. Yes sir, I un
derstood it.
—139—
Q. What was your answer? A. I said, on the 24th he
was all right when he left home.
Q. My question was, prior to the time he entered the
hospital, did he act the way you just described after he was
released? A. Yes, sir, he acted the same way when he left
the hospital.
Q. No, before he got in the hospital, did he act like he is
acting now? A. Oh, no sir. He was working at the mill,
turned a check every week.
Q. Had no trouble or complaint? A. Working every
week. That’s right. I didn’t understand you earlier.
Q. I see. Can you tell the Court what other complaints
he has had other than what you just enumerated? A. Com
plaints he had?
Q. Yes, about his condition?
Mr. Solomon: Your Honor, I hate to keep inter
posing objections, but I don’t believe this is permis
sible.
The Court: I don’t know what you mean, Mr.
Hdward, by what complaints he had.
Mr. Howard: What I am simply trying to get at
is what sort of physical conduct that this man has
seen or observed. I get the impression that he is
highly nervous.
Transcript' o f Proceedings, June 13 and 14, 1967
Mr. Willie Olloway—for Plaintiff—Direct
199
The Court: Yon can ask about his condition but
I think it would be misleading to try to describe the
— 140—
complaints in general terms.
By Mr. Howard (continuing):
Q. Are there other acts or other conditions that you have
observed that you have not told us about, already! A. Yes,
sir.
Q. What are they! A. He has been to the mental hospi
tal twice.
Q. Where! A. At Milwaukee, then after this accident
we carried him to Little Eock.
Q. How long did he stay in Little Rock! A. Thirty
days.
Q. When did he get back from Milwaukee! A. Let’s
see, I think it was ’62, I think.
Q. You are not sure! A. I am not sure.
Q. After he got back here, did you observe any mental
problems with him! A. Well, he acted kinda’ funny for
a while but he got all right.
Q. The first knowledge or the first indication that there
was some mental difficulty was after this incident! A.
Yes, sir.
Transcript of Proceedings, June 13 and 14, 1967
Mr. Willie Olloway—for Plaintiff—Direct
Mr. Howard: That’s all.
Mr. Solomon: No questions.
The Court: You may stand aside.
Mr. Howard: Mrs. Olloway.
— 141—
20 0
Whereupon, M rs. B eijlah Ollo w ay , called on behalf of
the plaintiff, after first being duly sworn, testified as
follows:
Direct Examination by Mr. Howard:
Q. Would you kindly state your full name to the Court,
please. A. Beulah Olloway.
The Court: You must talk so all these gentlemen
can hear you.
A. Beulah Olloway.
Q. Where do you live, Mrs. Olloway! A. Lexa.
Q. That is in Phillips County, Arkansas! A. Phillips
County.
Q. How long have you been a resident of Phillips
County! A. All my life, just about.
Q. What is your age! How old are you! A. 65.
Q. Do you know Charles Townsend, the plaintiff in this
case! A. He is my son.
Q. Mrs. Olloway, I would like to direct your attention
to December 24th, 1965; did you have the occasion to see
your son on that day! A. I did.
—142—
Q. Where did you see him! A. In the hospital.
Q. Will you state just what you saw when you visited
him! A. His head was all plastered up and he was a
terrible sight.
Q. I understand that he lives with you and Mr. Olloway,
is that correct! A. Yes, sir, that’s right, he lives with me.
Q. What sort of work is he doing now! A. He is not
doing too much of anything. He is having trouble with
his head and every once and a while looks like he is going
out or something, he just have blackouts or something.
Transcript of Proceedings, June 13 and 14, 1967
Beulah Olloway—for Plaintiff—Direct
201
Q. Has he made an effort to do any work? A. Well, he
tried to. He can’t work very long. He’s not doing anything.
He’s just dependent on us.
Q. You all take care of him; you feed him and that sort
of thing? A. That’s right.
Q. In addition to the hospital bill at Helena Hospital,
what other bills have you accumulated or incurred as a
result of your son’s condition? A. I carried him to the
eye doctor and let him check his eye ’cause his eye was a
solid piece of blood—he couldn’t see. Having trouble with
his eye like that. I carried him to the eye doctor there
in Helena.
Q. How much have you paid for that? A. I paid $13.00
for that.
—143—
Q. Are there any other expenditures other than that?
A. I had a bill at Little Rock.
Q. How much was that bill? A. That was $150.00.
Q. Has that bill been paid? A. No sir, I didn’t have
the money to pay all of it. It hasn’t been paid. Not all of
it. I am still paying on it.
Q. Are there any other expenditures? A. No, not as
I recall.
Mr. Howard: That’s all.
Mr. Solomon: No questions.
The Court: Stand aside.
Mr. Howard: Your Honor, at this stage the
plaintiff rests.
The Court: The Court will be in recess for a
few minutes.
(Whereupon, the Court, Counsel and Court Re
porter retired to Chambers at 4:15 p.m. where the
following proceedings occurred.)
Transcript of Proceedings, June 13 and 14, 1967
Beulah Olloway—for Plaintiff—Direct
202
I n C hambeks
Mr. Solomon: At this time, sir, Counsel for the
defendant, Royce William Finley would like to move
for a directed verdict since there is no proof that
he has done anything that could be construed as
depriving the plaintiff of his rights guaranteed to him
under the Constitution. The plaintiff testified that
he was told first that he was under arrest and got
—144—
out of the car and that the first laying on of hands
was done by the plaintiff and that the officer had
advised him that he was under arrest.
The Court: Is that it?
Mr. Howard: Yes, sir, we oppose that, if Your
Honor please. First, I think it was quite clear that
there was no warrant of any type in the possession
of Mr. Finley. The evidence is quite clear at this
stage that the plaintiff had done nothing, was simply
sitting in his car. There is further evidence that
the plaintiff asked why he was being taken into
custody or why he was being asked to get out of
the car. There was no immediate response. The
law is quite clear in this State, that it is the duty
of an officer to inform an individual who is being
arrested of the nature of the charge and to even
display the warrant if he has one in his possession.
Then, there is ample evidence here that plaintiff
was being charged with shoplifting, and even after
the plaintiff was carried to jail, Mr. Finley searched
the automobile without a warrant and found nothing,
and then, the plaintiff’s version of this whole inci
dent is that he simply sought to get his attention
Transcript of Proceedings, June 13 and 14, 1967
Motion for a Directed Verdict
203
and that he was struck by Mr. Finley. So we re
spectfully urge the Court to deny the request for a
directed verdict.
The Court: This is a case brought by the plain-
—1 4 5 -
tiff for the deprivation of the rights, privileges,
immunities and so forth, as guaranteed by the Con
stitution and brought under the various statutes
having to do with the rights and privileges as just
indicated going back to the statute of 1871, I believe,
’71 or ’72 there, and the statutes enacted by Con
gress since, under the federal question involved;
that being true in Mr. Finley, a special officer, was
the officer who first apprehended, approached the
plaintiff and as a result the testimony at this time
being that an encounter occurred in which the plain
tiff contends that he was struck several times by
the defendant, which resulted in him being taken
into custody, first by the special officer, who re
ported and called for the police who came and he
assisted in the arrest.
According to the testimony here, it is very clear,
in turning over to the City Police, under the cir
cumstances, was a part of the continuing process
that started at the time. And I am restrained tor
have to overrule the motion insofar as Mr. Finley
is concerned.
Mr. Solomon: Please note our exceptions.
The Court: Exceptions noted.
Mr. Solomon: I don’t know if this is the proper
time or not sir, but it would seem to me that punitive
damages would not lie against Mr. Finley for the
Transcript of Proceedings, June 13 and 14, 1967
Motion for a Directed Verdict
204
same reasons. I think he is entitled to a directed
verdict.
—146—
The Court: That may be true but I think it is
premature it this time.
Mr. Solomon: All right. I don’t know whether
a copy of this bond is in the record of the Home
Indemnity Company.
The Court: The copy of the bond is included with
the pleadings,
Mr. Solomon: I just want to make certain of that.
We have no objection to it being done. We wanted to
make certain that it was in the record. There is a
copy attached to the pleading! I didn’t think there
was.
The Court: Yes, it is filed; you filed what was
called a pre-trial report. And in your pre-trial
report you included a copy along with copies of
the docket and other things. If you want it to be
included as an exhibit, of course, that—
Mr. Solomon: If it is not in the record at this
time, well of course; and if we have not admitted
enough to make it a part of the record, then there
is no proof of the existence of the bond. I was not
trying to get any traps there; I was honestly trying
to get it—the fact that it was in the record, if not,
then it was put there so that it would be a part of the
record.
The Court: With your pre-trial report, which
would be in the nature, I suppose, of complying with
the rules, you included a copy of the power of
attorney of the insurance company, a copy of the
Transcript of Proceedings, June 13 and 14, 1967
Motion for a Directed Verdict
205
Transcript of Proceedings, June IS and 14, 1967
Boyce William Finley—for Defendants—Direct
- 1 4 7 -
Indemnity Bond of the insurance company, a copy
of the dockets of the Municipal Court and a copy
of a F.B.I, report from Wisconsin, I believe or some
place. And that is included in the pleadings.
Mr. Solomon: That is all we have sir.
(Whereupon, at 4:30 the Court resumed in front
of the jury and case for the defense was begun
as follows) :
The Court: Call you first witness, Mr. Solomon.
Mr. Solomon: Royce William Finley, Your Honor.
The Court: Come around, Mr. Finley.
Whereupon, R oyce W illiam F in l e y , called on behalf of
the defendant, after first being duly sworn, testified as
follows:
Direct Examination by Mr. Solomon:
Q. State your full name to the jury. A. Royce William
Finley.
Q. Where do you live, Mr. Finley? A. 209 St. Andrews,
in West Helena.
Q. How long have you lived in Phillips County? A.
About three-and-a-half years.
Q. Are you married? A. Yes.
Q. Do you have children? A. Two boys.
—148—
Q. Are you presently employed? A. Yes.
Q. Where is that, Mr. Finley? A. Drive a mail truck.
Q. Mr. Finley, I would like to refer you back to Decem
ber 24th, 1965, do you recall what you were doing on that
date? A. Yes, sir.
206
Q. What was that, Mr. Finley? A. I was employed by
some merchants up on Cherry Street during the Christmas
holidays for the purpose of trying to prevent shoplifting.
Q. Had you also consulted with Chief Eoy Eoss of the
Helena Police Department about this? A. Yes, sir,
through permission from Chief Eoss.
Q. Did you wear any type of uniform on that date? A.
Yes sir, I had on a regular policeman’s uniform, cap and
pants.
Q. What type of cap was that? A. Eegular policeman’s
cap.
Q. Was it the same type that is worn by the Helena,
Police Department? A. I believe so.
Q. Does that cap have a badge on it? A. It had a regu
lar policeman’s shield on it, on the cap.
Q. Did you have anything over the cap on that day?
A. No sir, I didn’t have any kind of covering over the cap
at that time.
—149—
Q. You didn’t have a rain covering over it? A. I did not.
Q. Did you have on a raincoat? A. I did have on a plas
tic raincoat.
Q. Was it the type of raincoat that you could see
through? A. Yes sir, you could see through it, it was a
white transparent raincoat.
Q. The pants that you had on, what color were they? A.
They were black, regular uniform britches.
Q. What about the shirt that you had on? A. It was a
gray uniform policeman’s shirt.
Q. Did you have a badge on the shirt? A. Yes sir, I did.
Q. What type of badge was that? A. It was the regular
uniform badge just like these officers use here on the Helena
Police Department.
Transcript of Proceedings, June 13 and 14, 1967
Royce William Finley—for Defendants—Direct
207
Q. Was your uniform and badge visible through the
raincoat! A. Yes sir, it was. And at this time the coat
was open.
Q. Was open? A. It was open.
Q. Now, I refer you back to approximately 12:15 or 12:30
on December 24th, 1965. I want you to tell the jury what
you were doing that day when you went down towards
Grabers. A. Well, I was making my rounds, around 1:00
—1 5 0 -
o’clock. I was walking north in the 400 block of Cherry
Street approximately along about West Brothers Store. I
heard this loud commotion across the street over in front
of the dime store about Sterlings. I looked over across the
street which was almost directly across the street from me.
I noticed Charles Townsend standing up across the street
hollering in a loud voice, using profane language. Holler
ing in a very loud—
Q. Now, were you on the other side of the street at that
time? A. Yes, I was, I was across the street.
Q. Could you hear the profanity, you say? A. Very
well.
Q. Could you tell at whom he was directing this pro
fanity? A. No sir, I couldn’t. I couldn’t tell who or any
one in particular that he was talking to.
Q. At the time that you observed this, were you armed?
A. No, sir.
Q. Did you have a night stick of any type? A. No sir,
didn’t have any type of weapon.
Q. No black-jack or anything such as that? A. No sir,
not anything.
Q. Did you have anything in your hands that might ap
pear to look like a night-stick or black-jack? A. No, sir.
Transcript of Proceedings, June 13 and 14, 1967
Royce William Finley—for Defendants—Direct
208
Q. What did you do then? A. I went across the street.
—151—
As I went across the street, Charles Townsend got in this
automobile.
Q. Did he see you cross the street? A. I couldn’t say.
I would imagine that he did but I couldn’t say for sure
whether he did or didn’t. I went up to the car that Charles
Townsend was in and I told him that he was under arrest
for creating a disturbance and for public drunkeness.
Q. Did you tell him that when he was still in the car?
A. Told him that while he was still in the car, that he was
under arrest for public drunkeness and disturbing the
peace and to come along with me quietly.
Q. Was there anything in his manner or demeanor that
indicated to you that he was under the influence of intoxi
cating liquor ? A. Even from across the street I had made
the opinion that he was very drunk.
Q. Would you tell the jury why you arrived at that
opinion? A. He was in a staggering condition, his man
ner of speech his tongue was heavy, he talked like a drunk
and he didn’t have control of hisself. He was limber and
in addition had all the appearance of a drunk.
Q. Did your opinion change any at all when you got
closer to the plaintiff, Charles Townsend? A. No sir, after
I got up and looked at him better, I more contend that he
was drunk.
Q. Could you smell an odor of alcohol? A. Yes sir, you
—152—
could. Very strong odor of alcohol. He wouldn’t get out of
the car and I opened up the car door and he didn’t get out
after I opened the car door.
Transcript of Proceedings, June 13 and 14, 1967
Royce William Finley—for Defendants—Direct
209
Q. Did you request that he get out of the car? A. Yes,
I did, I told him to get out of the car that he was under
arrest.
Q. Do you recall what he said to you? A. There was
a lot of talking that went on, he was using very bad lan
guage at this time.
Q. When you say “bad” do you mean by that profane?
A. Well, if there is another word worse than profane he
was using that, this was bad, very bad language.
Q. Was he threatening you any at all? A. No, sir, it
wasn’t so much a threat, he continued this very bad talk.
He was very unruly, he wouldn’t go along with me in any
thing I asked him to do.
Q. You opened the car door? A. I opened the car door.
Q. What happened then? A. He got out and some more
folks come up there and we was talking. He was very
unruly, like I say he wouldn’t quiet down. I asked him to
calm hisself down so there wouldn’t be a disturbance there.
There was lot of folks down on the street there doing their
Christmas shopping.
Q. Did he answer you? A. What did he say to you
— 153—
when you asked him to quiet down? A. He didn’t say
anything, he just kept on with his boisterous manner, cuss
ing, and I asked him—I told him three or four different
times he was under arrest, he was going to have to go to
jail, and it would be better on him and me and everything
concerned if he would quieten hisself down and come along
quietly ’cause he was going to have to go to jail. And
during this time he hit me, hit me in the face.
Q. Now, what were you doing when that occurred? A.
X was—we was talking, I don’t remember whether I was
Transcript of Proceedings, June 13 and 14, 1967
Royce William Finley—for Defendants—Direct
210
talking to him or anybody in particular. These other folks
come np there and they caused a lot of this, if they had
left us alone, I wouldn’t have had near as much trouble
with Charles Townsend as I did. They egged him on, and
he knew these folks was with him, which made him worse.
Q. Was he using profanity all along? A. All during this
time. He hit me and I hit him two or three times and he
had on a red, loose sweater, and I grabbed him up close
to me by this sweater, where he couldn’t hit me in the
face.
Q. Did you strike him in any manner, before he hit you?
A. No sir, I did not.
Q. Would you explain to the jury what you mean by
“he hit you” what exactly did he do? A. He hit me with
his fist, just a lick with—
—154—
Q. Where did he hit you? A. He hit me in the face, I
don’t remember which side it was on.
Q. What happened then? A. Well, like I say, I hit him
two or three times, and he kept swinging at me and he
was swinging during all this time, and I grabbed holt of
his sweater, he had on a loose, red sweater, and I grabbed
holt of his sweater, helt him up close to me, so he couldn’t
hit me in the face. He continuously kept hitting me around
in the body, around the shoulders mostly. He tried to hit
me in the face but with me holding him right up close to
my body, kept him from hitting me in the face, and I held
him there and I said to myself, the first white man comes
along, I ’m going to ask him to hold him, so there won’t
be any more confusion than I can help, if I can get some
body to hold him till I can get some help down here. This
Transcript of Proceedings, June 13 and 14, 1967
Boyce William Finley—for Defendants—Direct
211
man did come along and 1 asked him, “ Gan you help me
hold this man!” And he did, he got on one side of him
and I got on the other and we held him. I also, during this
time asked—there was three or four people standing around
close—course there was a pretty good crowd that had
gathered, but there was two or three people there close
and I asked them to call the police station and get some
help down there. I understand that there was two or three
calls made down at the police station. I had asked two
or three people to call.
Q. Did you ever knock the plaintiff, Charles Townsend,
— 1 5 5 -
down! A. No sir, neither one of us went down, we scuffled
and he tore my raincoat.
Q. You have heard testimony in this courtroom that he
was trying to hold your legs or something, do you recall
that! A. No sir, I don’t.
Q. You do not recall that! A. No, sir.
Q. Did he finally stop offering resistance! A. He did,
after this other man got there and held him there for a
few minutes and he was still struggling, with me on one
side and this other man on the other side, he finally
quietened down.
Q. You have heard testimony in the courtroom that all
he did was just touch you to get your attention, is that
correct! A. That is not true, no sir, that is not true.
Q. Were you there when the officers arrived! A. Yes,
sir, I was.
Q. Who arrived,-Bill? A. It was Officer Bottorff, I be
lieve is the way you pronounce it, and he was the first
officer there.
Q. Did he then take charge of Charles Townsend? A.
He did, he took him over and put him in—
Transcript of Proceedings, June 13 and 14, 1967
Royce William Finley—for Defendants—Direct
212
The Court: Talk a little louder.
A. Took him over and put him in Chief Boss’s car. Chief
Boss’s car had pulled right up on this side, Chief was
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headed down the other way on Cherry Street, headed
south on Cherry Street. He pulled his car on this side of
the street, on this side of the street where the commotion
was going on which was right there close. All they had
to do was take him right out there to the edge of the
curb and put him in Chief’s car.
Q. Did you have an occasion to observe whether or not
he was handcuffed by the officers? A. Up until the time
that he was put in the car he was not handcuffed, when
ever they left him in the car.
Q. When the car left he was not? A. When the car left
he had not been handcuffed.
Q. Bill, prior to this employment that we have been
talking about, have you had any previous experience in
police work? A. Yes, sir, nine years, I was on the police
department in Greenville, Mississippi, nine years.
Q. Were you a patrolman or what? A. Yes sir, I was
a patrolman, first class patrolman.
Q. How long ago was that? A. Let’s see, that’s been
three-a-half or four years ago.
Mr. Solomon: I believe that’s all.
Cross Examination by Mr. Howard-.
Q. Mr. Finley, I gather from your testimony you have
had a great deal of police work. I think you said you
Transcript o f Proceedings, June 13 and 14, 1967
Royce William Finley—for Defendants—Cross
213
Transcript of Proceedings, June 13 and 14, 1967
Boyce William Finley—-for Defendants—Cross
—157—
served as a patrolman in Greenville, Mississippi? A. Yes,
that’s correct.
Q- How many years? A. Approximately nine years.
Q. Now this morning your Counsel referred to you as
a special policeman. Would you kindly tell us the differ
ence between a special policeman and a regular policeman?
A. Well, I can give you my definition.
Q. Well, let us deal with the definition that involved your
services on December 24th. A. Well, that’s what I say, I
can give you my definition.
Q. I don’t want your definition of a special policeman,
I want the definition that involved your services on De
cember 24th. A. Like I have already stated, I was hired
by these merchants, approximately eight merchants—
Q. To do what? A. Like I already stated, my princi
pal job was to prevent shoplifting, to try to go around
through these stores and by my presence to try to—
Q. Prevent shoplifting, that was your assignment? A.
That’s right, I was hired by these merchants to do this.
Q. Then you had no authority to arrest anybody for dis
turbing the peace, did you? A. Yes, I did.
Q. Who gave you that authority? A. I had the same
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authority as any officer.
Q. Well, I understand these other officers came up with
sidearms but you just testified you didn’t have a pistol?
A. That’s true.
Q. Well what’s the difference? A. There is no differ
ence, I could have wore one.
Q. You didn’t have one? A. No, I didn’t have one and
I didn’t have a night stick.
214
Q. So really your principal assignment was to sort of
survey the department stores and check on shoplifting?
A. With the authority to make arrest.
Q. Did you have a warrant when you checked with Mr.
Townsend? A. No sir, and under these conditions I didn’t
need one. This was a misdemeanor that was committed
in my presence. Under these circumstances I didn’t need
a warrant.
Q. So you came to the conclusion you didn’t need a war
rant to arrest him for this alleged misdemeanor. What
about searching his automobile? A. I did not search his
car. I looked in it.
Q. What is the difference between searching and looking?
A. There is lots of difference. There is lots of difference in
going around and pulling things around and looking.
Q. Did you set foot inside the car? A. I did not.
Q. Did you open the door? A. I did not. I looked into
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the car. Come back, after Charles Townsend was carried
to the station and looked in the car.
Q. In other words, you admit that you had no type of
warrant to search this man’s car at the time? A. No, I
did not.
Q. I think you further testified “the plaintiff was very
drunk—” A. He was very drunk.
Q. “Limber.” A. He was staggering.
Q. “Staggering.” A. Also, as you know, as a drunk
moves they do get limber, they don’t have control over
their motions, over their arms and legs.
Q. I see, so he was in bad shape? A. He was drunk.
Q. How much do you weigh, Mr. Finley? A. About 190.
Transcript of Proceedings, June 13 and 14, 1967
Royce William Finley—for Defendants—Cross
215
Q. 190 pounds? And you mean to sit there and tell this
jury and this Court you got a man who was dead drunk,
and is limber, that you have got to bust him up the side
of the head and face? A. Yes, and I would like to make
another statement, too.
Q. Just answer the question. A. That was true.
Q. The man was dead drunk— A. That’s right, could
have been a lot worser.
Q. Now just where did he strike you in the face? A.
—160—
Like I say before, I don’t remember exactly whereabouts
he struck me in the face.
Q. You have heard these witnesses testify here today
that you looked in the front part of the car and you looked
in the back part of the car? A. Bight, I did look in.
Q. You did? A. I didn’t go through there and go into
the car.
Q. Did you find anything that had been taken from any
of the stores? A, I wasn’t looking for anything that had
been taken.
Q. What were you looking for? A. I was just looking
in there to see what I could see.
Q. Was that part of your assignment? A. Nothing
wrong in that.
Q. Do you make it a practice just going around town
looking in cars? A, No, I don’t.
Mr. Howard: I believe that’s all, Your Honor.
The Court: Anything further ?
Redirect Examination by Mr. R aff:
Q. When this occurred between you and Charles Towns
end, you stated that he struck you? A. Yes, sir.
Transcript of Proceedings, June 13 and 14, 1967
Royce William Finley—for Defendants■—Redirect
216
Q. Did you have any bruises or cuts? A. No, sir.
—161—
Q. What about your clothes, were they disarrayed in
any manner? A. My shirt tail was practically out and
my pants had got partly down by this time and my plastic
raincoat I was wearing, it was partly tore off of me. He
had ahold of it.
Q. Did you have a tie on at that time? A. Yes, sir,
had a tie on.
Q. Was that disarranged? A. Yes, it was.
Q. You did not go to the police station with the police
did you? A. No, sir.
Q. Did you have any further contact at all with the
plaintiff, Charles Townsend? A. No more than the two
trials we have had after that, one in the Municipal Court
and one in the Circuit Court.
Q. Let me ask you this question, did you use any more
force than was necessary to maintain—
The Court: That is a question for the jury to
determine.
Mr. Raff: I believe that’s all, Your Honor.
Mr. Howard: I believe that’s all.
The Court: You may stand aside.
Mr. Solomon: Might I inquire how late we are
going? This next witness, I assume, will take the
next 45 minutes or an hour.
•—162—
The Court: As you look at the sun from my view
point it is way up in the sky, yet. We were a little
late getting started this morning because of the
necessary matters preliminary to getting underway.
The Court would like to go on for a little while yet.
Transcript o f Proceedings, June 13 and 14, 1967
Boyce William Finley—for Defendants—Redirect
217
W h e r e u p o n , W il l i a m A. S t e w a r t , called as a witness
on behalf of defendant, after first being duly sworn, testi-
field as follows:
Direct Examination by Mr. Raff:
Q. Will you please state your name, sir? A. William A.
Stewart.
Q. And your present residence? A. Newport, Arkansas,
703 Walnut Street.
Q. How long have you lived in Newport? A. About five
days.
Q. Prior to that time, where did you live? A. 909 Col
lege Street, Helena, Arkansas.
Q. What is your profession sir? A. Methodist minister.
Q. On December 24th, 1965, were you pastor of the First
Methodist Church of Helena, Arkansas? A. Yes, sir.
Q. I believe that it is fair to say that you have just
been moved to Newport as pastor there, is that correct?
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A. Right.
Q. How long have you been in your profession? A.
Thirty-five years.
Q. What education have you had? A. I have a degree
from Hendrix College, a degree from Southern Methodist
University, and graduate work from Vanderbilt Univer
sity.
Q. For the record, what year were you ordained, if you
remember, sir? A. 1942. I was a licensed minister before
that time.
Q. Going back to December 24th, 1965, do you recall
Transcript of Proceedings, June 13 and 14, 1967
William A. Stewart—for Defendants—Direct
218
seeing the plaintiff, Charles Townsend, on that day? A.
Yes, sir.
Q. Do you recall what time of day it was? A. No, I do
not remember exactly.
Q. Where had yon been immediately prior to your first
seeing him? A. My daughter, son and granddaughter and
I had been in Sterlings Store shopping.
Q. Did you see him in the store? A. No, I did not.
Q. Where did you first see him? A. Behind the steering
wheel of a car parked at the curb on Cherry Street in
front of the store.
Q. What directed your attention to him? A. A uni
formed policeman was talking to him and asking him to
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get out of the car.
Q. Go ahead sir, tell us what you observed. A. The
uniformed policeman was asking him to get out of the car
and he was refusing to do so.
Q. What type of language specifically was the plaintiff—
A. He was using very profane language, very obscene, and
finally he got out of the car and came around, he was still
using a great deal of profanity, and a crowd gathered
around and from a remark that I heard in the crowd I
decided-—
Transcript of Proceedings, June 13 and 14, 1967
William A. Stewart—for Defendants—Direct
The Court: Don’t be telling what you heard in the
crowd.
Mr. Solomon: He was telling what he decided,
I believe, sir, not what the remark was.
The Court: He said, from a remark he heard.
Mr. Solomon: He decided.
219
Mr. Raff (continuing):
Q. Don’t tell us what anyone else said, just tell us what
you did. A. I decided that I would go into Crescent Jew
elry Store and request a Mr. Gardner there to call the
police station for a police car to come.
Q. Did you do that? A. I did.
Q. Then did you come back outside? A. I came back
out on the street, I sent my daughter and little grand
daughter on down the street and my teen-age son and I
165—
came back out on the street.
Q. What did you observe then? A. There was an argu
ment going on and there was a woman that was asking
the uniformed policeman to let her put him in the car and
take him away home, and there was a great deal more
profanity as he declared that he did not want to go home,
that he would go home when he got ready.
Q. Did you have an opportunity to observe the plaintiff,
Charles Townsend during this time? A. I did, sir.
Q. From this observation do you have an opinion as to
whether he was under the influence of intoxicants? A.
Definitely so. It is my opinion that he was intoxicated.
Q. On what do you base that, Reverend Stewart? A.
On personal dealings and observations of people that I
have known to be under the influence of alcohol.
Q. In your profession have you had to deal with people
that had problems of alcoholism? A. I have.
Mr. Howard: If Your Honor please, I object to
this inference. It is improper what he has done with
other people. I think he can testify about the plain
tiff if he had seen him.
j.ranscript of Proceedings, June 13 and 14, 1967
William A. Stewart—-for Defendants—Direct
220
The Court: Well, Mr. Raff, if the witness was to
be qualified to express an opinion it should have
— 166—
been prior to the expressing of the opinion. How
ever, the witness has expressed his opinion and no
objection has been made to it so there will be no
need to proceed with qualifying the parson’s opinion
under the circumstances.
Mr. Raff (continuing) :
Q. Would you continue as to what happened then, Reverend
Stewart? A. Well, during the argument there was one
time when the plaintiff turned to the uniformed policeman
and in the act of his profanity and cursing he spit out at
him, and at that time, he—
Mr. Howard: I object to “ spit out at him” Your
Honor.
The Court: Well, he can describe what he saw.
Proceed.
Mr. Howard: Note our exception.
The Court: The exception is noted.
A. And then there was this scuffing and he pushed him
back on the hood of the car and by that time the two police
cars had arrived and they came and took the plaintiff and
put him in the police car and drove away.
Q. With reference to this scuffling, did you state that the
plaintiff pushed the defendant,. Officer Finley? A. They
grappled together and then he pushed him back from him
and over on the hood of the car.
Transcript of Proceedings, June 13 and 14, 1967
William A. Stewart—for Defendants—Direct
22 1
Q. Did you see the plaintiff, Townsend, when he got into
— 167—
the police car? A. Yes, I watched him until the police car
drove away with him.
Q. Do you recall whether or not he was placed under
any restraint? Specifically, were handcuffs placed on him?
A. I did not notice that, noticed that there was a police
man on either side of him and they walked him to the
police car.
Q. At the time that he got in the car, did he apparently
do so willingly, into the police car? A. I would say so.
Q. Had he stopped the use of the profane and obscene
language at that point? A. No, last I heard him, they
were taking him away, he was still using profane lan
guage.
Transcript o f Proceedings, June 13 and 14, 1967
William A. Stewart—for Defendants—Cross
Mr. Raff: Your witness.
Cross Examination by Mr, Howard:
Q. Reverend Stewart, what time of day was this, now?
A. I do not recall the hour of the day.
Q. Describe the automobile that you say that the plain
tiff was pushed up against? A. I believe it was a con
vertible. At least, it had a black hard top. I believe it was
a convertible.
Q. You are not sure? A. No, I am not, not sure as to
whether it was a convertible or a hard-topped car.
Q. Can you describe the other part of the car, that is,
— 168—
the color? You said the top was convertible or hard-
topped. A. I don’t know that I paid any particular atten
tion to it, I was more concerned with the incident that was
222
going on. As I recall it was a grayish color with a black
top.
Q. What kind of car was it? . A. I do not know. I ’m not
very good at recognizing—
Q. Suppose I told you it was a blue base, would that
refresh your memory? A. It could have been.
Q. That is a vast distinction between gray is it not? You
agree don’t you? A. Yes.
Q. Suppose I told you the top was white instead of black.
That’s a vast distinction isn’t it? A. Yes, it is.
Q. Describe the clothing that the plaintiff had on. A. If
I remember, it was sort of a bluish trousers and either a
red or an orange colored shirt that he had on.
Q. What was the lady wearing that the police officer was
talking to? A. I do not remember the details of her dress.
Q. What were the weather conditions at that time? A.
It was a cool enough day, I know that I had on a top coat.
Q. Did she have a coat on? A. I do not recall.
—169—
Q. Now, you recall everything else out there, the pro
fanity, the striking, the spitting. A. That was the inci
dent that drew the most attention there, that I was most
observing.
Q. Yes, but you were looking at the entire incident, is
that right? A. Yes, that’s right.
Q. What sort of hat did this woman have on? A. I do
not recall that she was even wearing a hat.
Q. What sort of pistol did the officer have on? A. I
didn’t even notice that he even had a pistol. He had a
uniform on but I didn’t notice that he had a pistol.
Q. What else did he have in his possession? A. I
not aware—
Transcript of Proceedings, June 13 and 14, 1967
William A. Stewart—for Defendants—Cross
am
223
Q. Did he have a coat on? A. He was uniformed.
Q. He didn’t have a coat on? A. Not that I remember,
I remember seeing his badge on his uniform.
Q. The weather was cool enough for a coat and you had
your coat on? A. I had a topcoat on, yes.
Q. Did the officer have a coat? A. He had his uniform
coat on.
Q. Uniform coat? Suppose I told you he had a raincoat
—170—
on? A. Could have had.
Q. Could have had? Then you are not positive about any
of the factual situations that actually transpired out there,
are you? A. Yes, I am, sir.
Q. You don’t know whether he had a coat on, “he could
have” , you don’t know whether the woman had a coat on,
you don’t know whether she had a hat on. You say the car
that this boy was pushed up against was a black top con
vertible with a gray base, then we find that you are not
sure about that. What sort of headgear did the plaintiff
have? A. I do not recall that he had on any headgear
when he got out of the car.
Q. Suppose I told you that there was a green cap, does
that refresh your memory? A. I don’t believe he had it
on when he got out of the car.
Q. Now is it your testimony that the officers did not
put a handcuff on the plaintiff or you just don’t know? A.
I did not see the officers handcuff him as they led him away
to the police car.
Q. You just don’t know, is that what you’re saying? A.
I did not see it.
Q. You did not see it. Are you saying then that they
did not handcuff him? A. They could have.
Transcript of Proceedings, June 13 and 14, 1967
William A. Stewart—for Defendants— Cross
224
Transcript o f Proceedings, June 13 and 14, 1967
William A. Stewart—for Defendants—Redirect
—171—
Q. The only tiling unusual about the weather was the
fact that it was cool, is that right? A. It had been raining
that day, yes, it was not at that time.
Q. How many doors to this car? A. I believe it would
be a two-door car.
Q. You are not positive? A. No, I am not about the
ear.
Q. Can you describe the lady who was doing the talking
to the officer? A. Well, she was—I would say would
weigh probably around 135 or 140 pounds, something of
that nature, and I would say was about 5-6 or 7 feet tall.
That would be 6 or 7 inches.
Q. Is it your further testimony that when the squad car
came up. the officers got out and did what now? A. They
got out and came over to the sidewalk and took the man
into custody and started back to the patrol car with him,
and I watched until he was in the patrol car and then my
son and I went on down the street and rejoined my daughter
and granddaughter.
Q. Now, the officer to whom you referred earlier, that
is that you saw in uniform, did not carry him across the
street to the patrol car? A. No, the two policemen who
arrived in the squad car took him over and put him in
the car.
Mr. Howard: I believe, that’s all, Your Honor.
—172—
Redirect Examination hy Mr. Solomon:
Q. Eeverend Stewart, do you have any doubt in your
mind that the man was using profane and obscene language
while he was sitting in the car? A. None whatsoever.
225
Q. Do you have any doubt in your mind that he was
using this profane and obscene language when he got out
of the car and was on the sidewalk? A. No, sir.
Q. In your opinion he was intoxicated? A. Yes, sir.
Mr. Solomon: Nothing further.
The Court: You may stand aside, Reverend Stewr-
art.
Transcript of Proceedings, June 13 and 14, 1967
Sidney Carvill—for Defendants—Direct
W hereu po n , S idney C arvill w as ca lled as a w itness fo r
the d efen se and a fte r be in g du ly sw orn , testified as fo l lo w s :
Direct Examination by Mr. Solomon:
Q. Please state your name. A. Sidney Carvill.
Q. And your age? A. 35.
Q. And your residence? A. In Helena.
—173—
Q. How long have you lived in Helena? A. All my life.
Q. What do you do Mr. Carvill? A. I am an accountant.
Q. On December 24, 1965, did you observe an incident
on Cherry Street? A. Yes, sir.
Q. Did it involve the plaintiff, Charles Townsend, who
is sitting here? A. Yes, sir.
Q. Where did the incident occur? A. In front of Ster
lings Store on Cherry.
Q. Do you recall what time of day it was? A. About
noon.
Q. How did you happen to get there, sir, or where had
you been? A. I had been in an office across the street
from there, an insurance office, and saw the crowd gather
ing and knew that something had happened and I wTent
across the street.
226
Q. What did you observe when you got there? A. I
saw the defendant being held by the collar by the police
man and cursing and drunk.
Mr. Howard: I object to the conclusion, Your
Honor, without some foundation laid.
The Court: Don’t state any conclusions just state
—174—
what you saw in fact.
Q. You say that the officer was holding him by the col
lar, was that officer Bill Finley, who was acting as an
officer, the gentleman sitting here at the counsel table? A.
Yes.
Q. What was the plaintiff, Charles Townsend, doing? A.
He was mumbling and shouting, and every now’ and then
would try to twist away, to get away.
Q. Was he using profane or obscene language? A. Yes,
sir.
Transcript of Proceedings, June 13 and 14, 1967
Sidney Carvill—for Defendants—Direct
Mr. Howard: We object to his leading this wit
ness.
The Court: It is a proper question. You may
proceed.
Q. (Mr. Solomon, continuing.) Please ansvTer that. A.
Yes, sir, he was.
Q. What were his other actions? A. Well, I ’d say he
was belligerent, he tried to get awray, he tried to hit
the officer once or twice.
Q. How was the officer holding him? A. By the shirt
front.
227
Q. Did you notice whether or not this officer was armed?
A. No, sir, I didn’t.
Q. Did you see any weapon of any kind in this officer’s
hand? A. No, sir.
— 175—
Q. Did you observe anything else with reference to the
defendant’s actions. The defendant officer’s actions? A.
No sir, I asked if anybody had called the station, called
the police and they said they had, that they were on their
way and he was just trying to hold him until they got
there.
Q. Did you wait there until the police came? A. Yes,
sir.
Q. Do you recall what officers came? A. Uh—Officer
Bottorff was there, the Chief of Police, Officer Nicholls.
Q. Were you there when he was placed in the car? A.
Yes, sir.
Q. Do you recall whether or not he was put under re
straint or handcuffs put on him? A. I don’t think he was.
Q. Did they have any trouble getting him in the car?
A. No, sir.
Q. Anything else happen there at the scene, Mr. Carvill-
A. No sir, that was about it.
Q. Did you have an occasion to have any other contact
with the plaintiff, Charles Townsend, after that incident?
A. No sir, not with him, I went by the station.
Q. The police station? A. Yes, sir. Five or ten minutes
after it happened.
Q. Did you observe anything there? A. I saw several
— 176—
of the officers come out, they had blood on them and I
also noticed a—a friend of mine in the station said that
they had had trouble.
Transcript of Proceedings, June 13 and 14, 1967
Sidney Carvill—for Defendants—Direct
228
Q. Well, don’t tell us what the friend said. A. Oh.
Q. You saw the officers coming out with blood on them,
did you observe any marks on any of the officers? A. Yes,
sir. One of them was bitten.
Q. On what part of his body? A. On his arm, I think.
Q. Do you remember what officer that was? A. Davis,
yes sir.
Q. Officer LeRoy Davis, who is sitting at the table here?
A. Yes, sir.
Q. Did you have any other contact with the plaintiff,
Charles Townsend? A. No, sir.
Mr. Solomon: That’s all.
Cross Examination by Mr. Howard:
Q. I don’t believe I got your last name, sir? A. Carvill.
Q. Carver? C A R V E R ? A. Carvill, V I L L .
Q. Carvill. Now, you say you saw some blood on the
- 1 7 7 -
officers? A. Yes, sir.
Q. Whose blood was it? A. I have no idea.
Q. It could have been the plainiff’s blood as far as you
know, that right? A. Could have been.
Q. I think you testified that you saw the plaintiff in the
custody of the police officer near an automobile? A. No
sir, I didn’t say that.
Q. You didn’t say that? Was there an automobile there?
A. The street was lined with automobiles.
Q. In the vicinity of the plaintiff and the officer who
had this man in custody? A. Yes, sir, there were a num
ber of them.
Transcript of Proceedings, June 13 and 14, 1967
Sidney Carvill—for Defendants—Cross
229
Q. You don’t know his car from the others? A. No, I
don’t.
Q. How close did you get to the group! A. Right in
the group, close enough to have touched any of them.
Q. Was he ever placed up beside a car? A. I don’t
recall it.
Q. You don’t recall that? How long were you there? A.
In minutes—I don’t know.
Q. 'What time did you get there? A. I don’t know that.
Q. What time did you say it took place? A. Some time
—178—
around noon.
Q. Then tell us about how long you think you stayed
there at the scene. A. Oh, I ’d say about fifteen minutes.
Q. Fifteen minutes, and during that fifteen minutes the
officer didn’t place this man up against the car. You didn’t
see that? A. I didn’t see that.
Q. You were there until the officers came in the squad
car? A. Yes.
Q. Up until that time, during the entire fifteen minutes,
they were out standing out in the open? A. Yes.
Q. How did the plaintiff get to the squad car? A. He
walked.
Q. Who carried him? A. One of the officers escorted
him to the car.
Q. Which one? A. I don’t remember.
Q. Was it the officer who was holding him when you
first arrived at the scene? A. No, he stayed there.
Q. Did you see the Chief of Police out there? A. I saw
him, I think I did—
Q. You are not positive? A. I am not real positive.
Transcript of Proceedings, June 13 and 14, 1967
Sidney CarviU—for Defendants— Cross
230
—179—
Q. How many officers carried him across the street to
the squad car? One, two, three or four! A. I think about
three of them.
Q. Three of them accompanied him to the squad car?
A. (Nods affirmative.)
Q. Name those officers. A. I know that one was Officer
Nicholls and Chief Ross was there, and I think Officer
Davis, if I am not mistaken, I believe he was there.
Q. The three of the officers came to the side of the
street where Mr. Finley was and got the plaintiff, Charles
Townsend, carried him across the street to the squad car—
A. I don’t think it was across the street, I think, I am
sure the squad car was right in front of the store.
Q. On the same side of the street? A. Yes, on the same
side of the street.
Q. So the squad car pulled up right next to Mr. Finley
and the plaintiff and they just politely opened the door
and put him in? A. Yes, sir.
Q. Suppose I told you that a prior witness stated that
the officers came across the street and got the plaintiff
and carried him back to the car? A. I ’d have to say he
was mistaken as far as I recollect.
—180—
Q. As far as you are concerned that witness is mis
taken? A. I would say so.
Q. You are positive about your testimony? A. As sure
as I can be about something that happened a year and a
half ago.
Q. So if a prior witness gave testimony just the oppo
site to what you have just said, he is utterly wrong and
mistaken? A. I wouldn’t say he was utterly wrong and
mistaken, but I ’ll say that I don’t think that I am.
Transcript of Proceedings, June 13 and 14, 1967
Sidney Carvill—for Defendants—Cross
231
Transcript of Proceedings, June 13 and 14, 1967
Sidney Carvill—for Defendants—Redirect
Preston Bottorff—for Defendants—Direct
Q. So, then he has to be mistaken? A. I would say so,
yes.
Mr. Howard: That’s all.
Redirect Examination by Mr. Solomon:
Q. Mr. Carvill, I forgot to ask you, do you recall the
condition of Mr. Finley’s clothing when you got there?
A. Yes, sir, it was disarrayed, I guess you’d say.
Q. Did you notice whether any of it was torn? A. Yes,
sir, he had a tie that was torn off and down, it was one
of these little clip-on ties that was torn down. His shirt
was messed up. His raincoat was torn, I believe.
Mr. Solomon: That’s all.
The Court: Anything further?
Mr. Howard: Nothing further, Your Honor.
The Court: You may stand aside.
— 181—
W hereu po n , P reston B ottorff, ca lled as a w itness on
beha lf o f the defendant, a fte r first be in g du ly sw orn , tes
tified as fo llo w s :
Direct Examination by Mr. Raff:
Q. Would you state your full name to the jury. A.
Preston Bottorff.
Q. Now, Preston, I have always had a little difficulty
with your last name so would you mind spelling that not
only for myself but for the reporter here too. A. B O T
T O R F F .
Q. Preston, where do you reside? A. Helena.
232
Q. What is your occupation? A. Patrolman, Police De
partment of Helena.
Q. How long have you been employed in that capacity?
A. Five and a half—almost six years.
Q. Were you still employed in that capacity on Decem
ber 24th, 1965? A. I was.
Q. Did you have an occasion on that date to have an
experience with the plaintiff, Charles Townsend? A. I
did.
Q. Will you tell the Court what that experience was?
A. On that morning we received a call—
—182—
Mr. Howard: Objection, Your Honor, unless the
foundation is laid.
The Court: You may proceed.
Mr. Raff (continuing):
Q. Go ahead. A. ■—that there was a disturbance on
Cherry Street. Officer was having trouble with some sub
ject. Upon arriving, I parked in front of the Malco
Theater—
Q. Now was anyone in the car with you when you ar
rived? A. Yes, sir, there was.
Q. Who was that? A. Officer Johnny Cooper.
Q. All right. A. Arriving at the scene, parking in front
of the Malco Theater, I crossed the street where there was
a large crowd gathered, and approaching Officer Finley,
the subject seated there was with Finley.
Q. You are speaking of Charles Townsend? A. Charles
Townsend. He was the subject that Officer Finley had that
was giving trouble. I didn’t know all the details.
Transcript o f Proceedings, June 13 and 14, 1967
Preston Bottorff—for Defendants—Direct
233
Q. Did you personally observe any of the trouble when
you arrived! A. No, I didn’t. Everything was quiet when
I arrived there.
Q. Did you observe Bill Finley! A. Yes, sir.
Q. What was his state of dress at that time! A. He
— 183—
was in an officer’s uniform. He had on a cap and badge.
Q. Did you notice whether or not he had a night stick
or blackjack or club or anything of that sort! A. I did
not.
Q. What was the state of his dress, was it in order or
disarrayed or what! A. He was dressed like an officer,
he had on a cap and badge.
Q. How was Charles Townsend dressed! A. In street
clothes, I couldn’t tell you exactly what he had on.
Q. When you arrived there, did you hear any profanity
used on the part of anyone! A. Not at that time, no, sir.
Q. Were things relatively quiet when you arrived! A.
when I arrived they was, yes sir.
Q. Was there a large crowd there at that time! A.
There was a real large crowd.
Q. Is there any, for lack of a better term, customary pro
cedure that you follow when there is a large crowd and
you have had a report that there may be a disturbance
there! A. Usually, if a subject that might be involved
in a disturbance or any type of trouble, the procedure is
to get him away from the crowd as soon as possible.
Q. What did you do when you arrived there! A. After
discovering that Charles Townsend was the one who was
creating the disturbance or trouble, I caught him by the
- 184-
arm and led him to the street where the Chief’s car had
pulled up, opened the back door and put him in the car.
Transcript o f Proceedings, June 13 and 14, 1967
Preston Bottorff—for Defendants—Direct
234
Q. Did you handcuff him? A. No, sir.
Q. Did you get in the car with them? A. No, sir.
Q. Did the car pull away at that time? A. Yes, sir.
Q. Did you see anyone attempt to handcuff him? A. No,
sir.
Q. I would like to refer you back to the demeanor of
Charles Townsend, did you have an occasion to observe
his walk, his mannerisms, how he was acting during this
period of time? A. He appeared to be drunk to me. He
had the odor of alcohol about him.
Q. You said he had an odor of alcohol about him? A.
Yes.
Q. Was he unsteady on his feet? A. I was leading him
by the arm, I had him by the arm leading him to the car
and he stumbled as he stepped off the curb.
Q. Have you had the occasion to have considerable ex
perience with men under the influence of intoxicating li
quor? A. I do.
Q. Do you have an opinion as to whether or not Charles
Townsend was under the influence of intoxicating liquor
at the time of this occurrence? A. Yes sir, he was.
—185—
Q. Your answer is “he was” ? A. He was.
Mr. R aff: I believe that’s all.
Cross Examination by Mr. Howard:
Q. Officer, I don’t believe I got your last name, what is
your full name, sir? A. Preston Bottorff.
Q. Spell that again for us. A. B O T T O E F F ,
Q. As I understand your testimony, you came up in the
squad car? A. That’s right.
Transcript of Proceedings, June 13 and 14, 1967
Preston Bottorff—for Defendants—Cross
235
Q. And the plaintiff was standing near Mr. Finley, is
that correct? A. That’s right.
Q. The Chief’s car was parked across the street? A.
No.
Q. Where was it parked? A. It was parked on the
right curb. He had pulled up just as I had got across the
street. He pulled up on the right side of the street.
Q. Then did you lead this man across the street, you
say? A. I led him to the car which was not across the
street.
— 186—
Q. By yourself or did you have assistance from others?
A. Officer Finley walked with me to the car with him.
Q. Now, just the two of you? A. Yes.
Q. Did you notice any bruises or abrasions on the face
of Townsend? A. No, I didn’t.
Q. Did you see any blood? A. No.
Q. No bleeding around the eye? A. No.
Mr. Howard: I believe that’s all.
Mr. Raff': We have nothing further, Your Honor.
The Court: You may stand aside. Gentlemen, I
think we have gone, really, beyond the hour; but I
felt justified in trying to proceed with this so we
can conclude it as expeditiously as we can. I think
it is time now to recess for the day. Gentlemen of
the jury, you will be permitted to separate during
the evening, overnight, and go to your respective
abodes. The Court would admonish you again, do
not discuss this matter among yourselves or with
anyone else. And do not let anyone discuss it with
you. This does not mean that you will not be think
ing about this case and the testimony that you have
Transcript of Proceedings, June 13 and 11, 1967
Preston Bottorff—-for Defendants—Cross
236
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
heard thus far. Be here, then, tomorrow morning
at 9:00 o’clock.
(Whereupon, the trial in the above entitled cause
was adjourned at 5:30 o’clock p.m. until the follow
ing morning at 9:00 o’clock a.m., at which time the
following proceedings were had in open court:)
—188—
# # * # #
Be It Remembered, that the hearing was continued in
the above-entitled cause on its merits before The Hon
orable Oren Harris and a Jury, pursuant to adjournment
of June 13, 1967, in the Federal Courtroom, Post Office
Building, Helena, Arkansas, on June 14, 1967.
The appearances at said time and place were as pre
viously noted.
# # # # #
237
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
P roceedings
190—
The Court: You may call your next witness.
Mr. Solomon: Before doing that, sir, the defen
dant would like to offer into evidence the bond
executed by the Home Indemnity Company for Eoy
B. Ross with the City of Helena, Arkansas, in the
sum of $3,000.00 which is a statutory bond that is
required by the city council, Defendant’s Exhibit
No. 1.
Mr. Howard: No objection.
The Court: Without objection, let it be received
for the record.
(Whereupon, the document described above was
marked Defendant’s Exhibit No. 1 for iden
tification and was received in evidence and
is made a part of the record hereof.)
Mr. Solomon: Attached to it sir, and which we
consider part of the bond is the power of attorney
authorizing the signature on the bond in behalf of
Home Indemnity Company.
The Court: It wall be received with the copy of
the bond itself as part of the exhibit.
Mr. Solomon: May we also substitute, since this
is an official record, a copy of it at a later time?
The Court: That may be done. I am sure there
will be no objection to it.
238
Transcript o f Proceedings, June 13 and 14, 1967
Harold Nicholls—for Defendants—Direct
—191—
W hereu po n , H arold N ich o lls , ca lled as a w itness on
b eh a lf o f the defen dan t, a fte r first be in g du ly sw orn , testi
fied as fo llo w s :
Direct Examination by Mr. Raff:
Q. State your full name to the jury and tell them where
you live. A. Harold Nicholls, Helena, Arkansas.
Q. Are you married, Harold? A. Yes, I am.
Q. What is your occupation? A. I am a patrolman with
the Police Department of the City of Helena.
Q. How long have you been employed in that capacity?
A. A little over two years.
Q. Were you employed in that capacity on December
24th, 1965? A. Yes, sir, I was.
Q. Did you have an occasion to have an experience
with the plaintiff, Charles Townsend, on that date? A.
Yes, sir, I did.
Q. Would you tell the jury about that? A. This was
the 24th of December, ’65, Chief Boss, Officer Davis and
myself were at the police station in Helena, we were in
the office, received a call—the station did—had some
trouble down on Cherry Street so we all three got in the
Chief’s car, I got in the back, Officer Davis and Chief Boss,
—192—
got in the front. We proceeded down Cherry, we saw a
very large crowd gathered on the street about along in
front of the Sterlings Store. We pulled up and stopped
just like you’d double park and Officer Bottorff and Mr.
Finley brought the subject, Townsend, out to our car.
Q. Now Officer Bottorff was not in the car with you, is
that right? A. He was not, he was already at the scene.
239
They brought him out to the car, where we were at, opened
the back door—
Q. Let me ask you a question here, was he handcuffed at
that time! A. No, sir, he was not.
Q. Did you have an occasion to observe Bill Finley!
A. Yes, sir.
Q. Would you tell this jury the state of his dress! A.
He had on a raincoat like—it was a plastic, just a plastic
raincoat, it was torn, his shirt was all disarrayed in front,
his tie was pulled loose, he led him over to the ear, I moved
over—
Q. Did you observe any marks on Bill Finley? A. No,
sir, not any distinguishing marks on him.
Q. All right, go ahead. A. Like I say, they put him in
the back of the car and closed the door and we proceeded
on away from the scene.
Q. Now did you handcuff him when he got in the car?
—193—
A. No, sir, he was not handcuffed.
Q. Where was he sitting in the car? A. He was sitting-
in the back, on the right-hand side.
Q. Was anyone sitting next to him? A. I was in the back
sitting- next to him.
Q. Go ahead. A. When we got him in the car, we pro
ceeded to leave, get away from there like it is the usual
custom to do, try to get away to keep all the trouble we
can down and get the crowd moved out.
Q. Was the plaintiff, Charles Townsend, giving you any
trouble at that time? A. No, sir, he did not. He got in
the car, he wouldn’t say anything at all to us.
Q. Go ahead. A. We took him on to the police station,
pulled around to the side were we usually go in to take a
prisoner out.
Transcript of Proceedings, June 13 and 14, 1967
Harold Nicholls—for Defendants—Direct
240
Q. Were there any threats made to Charles Townsend
at that time? A. No, sir. There wasn’t anything said at
all.
Q. Did you know Charles Townsend? A. No, sir, not
at that time, I did not.
Q. Did you have any reason to have anything particularly
against Charles Townsend at that time? A. No, sir.
— 194—
Q. Go ahead. A. We pulled into the side, Chief Ross
and Officer Davis got out, and I got out, Officer Davis
opened the door and Townsend got out. We took him
inside through the side door around up to the desk where
we book ’em at.
Q. That’s sort of your receiving station? A. Yes, sir.
Q. Customary to go there first? A. Yes, sir.
Q. Go ahead. A. We took him up there, his personal
belongings were taken from him, they finally got him to
tell them his name and his address, he told them that.
I got the key to put him in the back, in jail you go out of
the office just through the door.
Q. Now let me ask you this, at that time is it customary
to place any charges against the man or let your records
reflect—were any charges placed against him at that time?
A. Yes, sir.
Q. Do you recall what they were? A. Yes, sir, he was
charged with “drunk and disturbing the peace.”
Q. Go ahead. A. I was out, got the key, walked out
through the door into the back where you go into the jail
and Townsend—took Townsend with me in there. I was
walking kind of behind him. As I started opening the
door, before I started to open the door, I came around him
and put him on the left.
Transcript of Proceedings, June 13 and 14, 1967
Harold Nicholls—for Defendants—Direct
241
Transcript of Proceedings, June 13 and 14, 1967
Harold Nicholls—for Defendants—Direct
—195—
Q. Let me ask you this, did you have any type of weapon
on you at that time? A. Sir?
Q. Did you have a weapon on you, a gun or anything at
that time? A. Yes, sir.
Q. Go ahead. A. I put him to my left, so my weapon
would be around from him like—
Q. Is that the procedure you are supposed to follow?
A. That is the procedure I usually try to follow.
Q. Did you have a night stick in your hand? A. No,
sir, I did not.
Q, Go ahead. A. And as I started to open the door,
I never did get the key in the door, I just started to go
to the door, Townsend caught me on the right side of my
face—
Q. When you say he “caught” you, what do you mean
by that ? A. That he hit me with his fist on the right side
of my face right along here.
Q. Do you know of any reason as to why he would do
that at that time? A. No, sir, I do not, that’s—I wasn’t
expecting any trouble at that time.
Q. Go ahead. A. He hit me and knocked me back up
against the cigarette machine which was sitting in the hall
—196—
there, and—
Q. Did he say anything? A. He didn’t say anything at
that time, he hadn’t said anything at all other than give
his name and address.
Q. Go ahead. A. I say, he hit me and knocked me back
up against the cigarette machine and started at me. I hit
him and knocked him back against the wall part of the
jail there.
242
Q. What did you hit him with? A. With my fist.
Q. Go ahead. A. At that time Chief Ross came out of
the front office, just through the door there, just a matter
of a few feet there, came in and attempted to get aholt
of Townsend and he got aholt of Chief Ross’s hand and
bit him on the back of the hand, and Chief Ross knocked
Townsend down.
Q. How did he knock him down? A. Just with his
hands. And as Townsend fell down, he started kicking and
that’s when he started hollering and cursing.
Q. Using profanity then? A. Yes, sir, he was kicking
and kicked the Chief’s gun out of its holster. It hit the
floor and Townsend made an attempt to grab the gun, and
Chief then kicked the gun away from him and about this
time Officer Davis came in, and Townsend had gotten up.
Officer Davis then attempted to grab aholt of him to hold
—197—
him and Townsend got a hold of him in the arm. Got a
big place on his arm there. And he wouldn’t turn loose—
Q. Say he got “aholt of him on the arm” what do you
mean by that? A. He bit him on the arm with his mouth.
Got aholt of him biting him. And Officer Davis was wear
ing a small off-duty revolver, a small one you carry when
you are off duty.
Q. Is that the snub-nose type of revolver? A. Yes, very
small. I think it was a Chief’s special. And he hit Towns
end two or three, four times, I don’t know, to get him to
turn loose. He wouldn’t turn loose of him.
Q. You mean, he was still biting him, is that what you
mean? A. He had aholt to him all this time, biting him,
and Officer Davis was trying to get him loose, and Towns
end wouldn’t turn loose of him. He finally did—when he
Transcript of Proceedings, June 13 and 14, 1967
Harold Nicholls■—for Defendants—Direct
243
finally did turn loose, Chief' and Officer Davis got aholt of
him and I opened the door and we put him in—just right
inside the door. And I locked the door and we turned
around and started hack up to the office and about this
time Officer Boland and Bottorff came up outside in the
car. The Chief advised them to put the handcuff’s on him
at this time and take him to the hospital.
Q. Now is this the first time he ever had handcuffs on?
A. Yes, sir. When he was brought out of the cell hack
into the front, after this, that was the first time cuffs were
ever placed on him.
—198—
Q. Was he then taken to the hospital, did you observe?
A. He was then taken to the hospital, they took him out
side and after that I didn’t see him anymore until he
appeared in Municipal Court.
Q. Did you have any further contact with him? A. No,
sir, not after that until we appeared in Municipal Court
with him.
Q. What is the size of the waiting room that you have,
where you bring them in, where you hook them so to
speak? A. Oh, it’s, in the front office it’s just the office
part and all together there, the desk and everything is
inside, it’s maybe 12' X 12', something like that.
Q. When you carried him hack there to the jail or where
the bars are, explain to the Court how big an area that is.
A. Well, you come out of the front office, you come out
of the office into just a small area there, which is probably
eight feet by twelve feet. There is just a small space in
between there where the bars come down, where you un
lock the door to go in.
Q. Is that a difficult area to maneuver in? A. Well, it’s
kinda’ small.
Transcript of Proceedings, June 13 and 14, 1967
Harold, Nicholls—for Defendants—Direct
244
Q. Have you had any further contact with him? A.
No, sir, not after he was taken to the hospital, I had no
more contact with him until we went to Municipal Court.
Q. Now, when he first got into your car, did you observe
—199—
Charles Townsend then, at that time? A. Yes.
Q. Did you observe his demeanor and how he acted? A.
Yes, sir.
Q. What did you observe? A. When he first—-when they
put him in the car, you could smell a very strong odor of
alcohol about him. His eyes were red-like, you could tell
he was drinking very heavily. He had a real very strong
odor of alcohol about him.
Q. In your experience as a police officer you have had
occasion, have you not, to experience being around people
who are under the influence of intoxicating liquor? A.
Yes, sir.
Q. Do you have an opinion as to whether or not he was
under the influence of intoxicating liquor to such an ex
tent that he was drunk at the time you observed him and
saw him? A. Yes, sir, I do.
Q. Would you tell the jury what your opinion is? A.
He was drunk, very definitely.
Mr. R aff: I believe that’s all.
Cross Examination by Mr. Hoivard:
Q. Mr. Nicholls, what is your weight? A. My weight?
Q. Yes, what do you weigh? A. About 200 pounds.
— 200—
Q. 200 pounds? What did you weigh on the 24th of
December, 1965? A. About 200 pounds.
Transcript of Proceedings, June 13 and 14, 1967
Harold Nicholls—for Defendants—Cross
245
Q. About 200 pounds. And what is your height? A.
Six foot.
Q. Were you here yesterday when Charles Townsend
testified that he was 165? A. Yes, I was.
Q. Were you here also yesterday when Mr. Finley tes
tified that shortly before you and Chief Ross and Mr.
Davis arrived on the scene that Charles Townsend was,
to use his terms, “very drunk” and “limp?” A. Yes, sir.
Q. Are you telling this Judge and this jury that a man,
165 pounds, under the conditions described by Mr. Finley,
one of your associates, “very drunk and very limp,” he
also stated that he could barely stand, that you, 200 pound,
six foot, had this much trouble out of this man, after you
got him to the jail? A. Yes, sir.
Q. He gave you no trouble while he was out there with
all of these people, waited until he got behind the walls
of the jailhouse before he took any aggressive action, is
that what you are telling the jury? A. He wasn’t in the
jail at that time.
Q. Well, he was in the jailhouse, was he not? A. He
— 201—
was in the police station.
Q. He was behind four walls, is that correct? A. He
was inside, yes.
Q. Your position is that he left a group of people, some
of his friends, who had accompanied him to town, waited
until he got behind four walls with three officers, you,
yourself weighing 200, six feet, before he took an aggres
sive position; at the time he was “limp, very drunk,” to
use Mr. Finley’s terms, and couldn’t stand on his feet
hardly, is that what you are telling this jury? A. I am
telling just the way it happened, yes, sir.
Transcript of Proceedings, June 13 and 14, 1967
Harold Nicholls—for Defendants—Cross
246
Q. I think you testified that when you saw Mr. Finley
you did not see any bruises or abrasions about his face
or any blood at all, is that correct? A. Not that I re
member, no.
Q. What about Charles Townsend, was he bleeding? A.
He had a very small cut, right under one eye, I believe it
was maybe his right eye, I am not sure about that. It was
very small, maybe a tiny drop of blood on his face, that
was the only mark that I saw on him at all.
Q. So you did see a bruise on Townsend? A. I did at
that time.
Q. After you got him in the car, or after he was placed
in the car with you, or after you got to the City Hall or
Police Station, did you ask him whether or not he wanted
— 202-
medical attention? A. We took him in the front, that’s
customary what we do.
Q. My question was, did you ask him if he wanted medi
cal attention? A. No, we didn’t—I didn’t he didn’t look
as though he needed it.
Q. Well, did you ask him? A. No, I didn’t.
Q. Well, the Chief was there with you in the car, and
Mr. Davis, did either one of them ask him, in your presence,
if he wanted medical attention. A. Not in my presence.
Q. Not in your presence? A. They could have, when I
started to the back, I don’t know.
Q. But I thought he was with you when you started
to the back? A. He was, I took him into the back.
Q. Then they didn’t ask him ? A. Not that I know of, no.
Q. Well, now the four of you entered the police station
together and you alone carried him to the back, so there
was no opportunity for Mr. Ross or Mr. Davis to ask
Transcript of Proceedings, June 13 and 14, 1967
Harold Nicholls—for Defendants—Cross
247
him if he wanted medical attention, isn’t that correct? A.
They could have in the front, I don’t know.
Q. But you were up there? A. I was up there but I
didn’t hear them, they could have.
— 203—
Q. Do you have trouble with your hearing? A. Not too
much.
Q. Not too much? A. No.
Q. Any at all? A. Not that I notice.
Q. All right, then, if the question had been placed to
him, you would have heard it? A. Possibly and possibly
not.
Q. But you were there weren’t you? A. Yes, I was
there.
Q. Now, is that all that took place, what you testified to?
A. To the best of my knowledge, yes.
Q. Is there some doubt about it? A. No, not in my
mind, that’s just the way it happened.
Q. That’s just the way it happened, nothing else. Have
you read the pleading that was filed by Mr. Dinning and
Mr. Solomon, the answer to this complaint? A. No.
Q. Did you know that there is an allegation in here that
Charles Townsend tried to escape from the jail. What
about that? A. I don’t know about that.
Q. You don’t know anything about that? Let me read
it to you.
(Whereupon, Mr. Howard reads from the plead
ing as follows:)
“While attempting to place the plaintiff in the
— 204-
City Jail the plaintiff assaulted the defendants,
Transcript o f Proceedings, June 13 and 14, 1967
Harold Nicholls—for Defendants—Cross
248
Harold Nicholls, Roy B. Ross, and LeRoy Davis, and
in attempting to avoid confinement, endeavored to
escape from custody.”
Mr. Solomon: Tour Honor, I have no objections
to the witness testifying to what he knows and I
think that this is a conclusion for the jury to de
termine whether the plaintiff’s actions, if they were
as the officers testified, was an attempt to remove
himself from custody. I think it is a conclusion
rather than anything else.
The Court: Well, there is no proof of testimony
about any attempted escape thus far. The mere fact
that there was an allegation to that effect would
have no bearing whatsoever.
Mr. Howard: If Your Honor please, of course,
this is cross-examination. We are trying to find out
from this defendant and witness what took place
behind the four walls of the City Hall. He has
testified that this plaintiff assaulted him. In their
response they have, in addition to the charge of as
saulting this officer, that he tried to escape. He has
answered my question, however, he said that he—
The Court: He said that he had not read the
complaint and that is understandable. You may pro
ceed.
Mr. Howard: If I am not mistaken, if Your
Honor please, I thought also he said he had no
- 2 0 5 -
knowledge that the man tried to escape.
The Court: You may proceed. He testified to
what he knows.
Transcript of Proceedings, June 13 and 14, 1967
Harold Nicholls—for Defendants-—Cross
249
Q. (Mr. Howard, continuing.) I believe you said you did
strike him? A. I did, after he struck me, yes, sir.
Q. Where did he strike you? A. On the face, along here.
(Indicating below the eye.)
Q. Yon were behind him at the time? A. He was on the
left side of me. On the left, as I started to open the door
he struck me and knocked me backwards.
Q. He was on your left side, but struck you on the right
side of your face? A. That’s right. He struck me right
here.
Q. With what hand? A. The left hand.
Q. And you did what? A. What?
Q. What did you do? A. When he struck me it knocked
me back up against the cigarette machine which was sitting
across this room, and he came towards me. And as he
came towards me I hit him with my fist and knocked him
back away from me.
Q. How did he come towards you? A. He just came
towards me.
— -206—
Q. Hurriedly? A. Yeah. He wasn’t—he didn’t walk up
casually.
Q. Had a lot of energy? A. That’s right.
Q. And you felt that he was about to do you bodily harm?
A. He already had.
Q. Now, in spite of the fact that you thought he was
drunk, in spite of what Mr. Finley said, that he was limber?
A. I don’t understand what you are talking about.
Q. Now you just told the Counsel for the defendants
that you had had a great deal of experience with drunks,
and— A. I didn’t understand what you just asked me.
Transcript of Proceedings, June 13 and 14, 1967
Harold Nicholls—for Defendants—Cross
250
Q. Well, you said that you feared bodily harm, even
though, as Mr. Finley has testified, he was very drunk
and limp. A. That’s right.
Mr. Howard: That’s all.
The Court: You may stand aside.
Transcript of Proceedings, June 13 and 14, 1967
LeRoy Davis—for Defendants—Direct
W h e e e u p o n , L eR oy D avis, a w itness called on behalf o f
the defen dan ts, a fter first be in g du ly sw orn , testified as
follows:
Direct Examination by Mr. R aff:
Q. State your full name to the Court and where you live.
A. LeRoy Davis, live 1025 Park Hill.
Q. What is your occupation, Officer Davis! A. Patrol -
—2 0 7 -
man with the Helena Police Department.
Q. How long have you been employed in that capacity?
A. A little over fourteen years.
Q. Has all of that service been with the Helena Police
Department? A. About a year and a half of that was with
the Fire Department, about eighteen months.
Q. And the rest of it has been with the Helena Police
Department? A. Rest of it has been with the police de
partment.
Q. Officer Davis, are you married? A. Yes, sir. Have
three sons.
Q. How long have you lived in Phillips County? A.
Ever since 1940.
Q. Were you acting in the capacity of a police officer on
December 24th, 1965? A. Yes, sir.
251
Q. Do you recall an occurrence which took place con
cerning the plaintiff, Charles Townsend, on that date?
A. Yes, sir.
Q. Tell the Court what you recall about that day? A.
Chief Ross and Officer Nicholls and myself was at the
station and we received a call that there was a disturbance
on Cherry Street. And we went over there in the Chief’s
car and went south on Cherry Street and this crowd was
gathered in front of Sterlings.
Q. Were you on duty at that time, Officer Davis! A.
— 208-
No sir, I was off duty.
Q. Did you have your uniform on at that time? A. I
did not. I had on a pair of dress pants and a white short
sleeve sports shirt.
Q. Were you carrying a weapon at that time? A. Yes,
sir, I had a small .38 Terrier.
Q. Is it customary when you are not on regular duty
for the off-duty officers to carry weapons? A. Yes, sir,
it is because we are on call 24 hours.
Q. Go ahead. A. And when we pulled up to this crowd,
we parked, just double parked, and Officer Bottorff and
Mr. Finley brought Townsend towards the car, and I just
opened the door and turned around in the seat, I never
did get out.
Q. Were you in the front seat? A. I was in the front
seat on the right-hand side.
Q. Who was driving? A. Chief Ross.
Q. All right. A. And they put Townsend in the car.
Q. Now at the time that they put him in the car, was
he handcuffed? A. He was not.
Transcript of Proceedings, June 13 and 14, 1967
LeBoy Davis—for Defendants—Direct
252
Transcript of Proceedings, June 13 and 14, 1967
LeRoy Davis—for Defendants—Direct
Q. Did you have an occasion to observe Officer Finley?
A. I did.
—209—
Q. Would you tell the jury what state or condition you
saw him in with respect to his dress, the way he looked.
A. Well, his shirt was all ruffled up, his tie was pulled
loose and his raincoat was tore.
Q. Did you also observe the plaintiff, Charles Townsend?
A. I did.
Q. Would you tell the jury how he looked. A. Well, he
had a cut under one eye, just a small cut.
Q. Was it bleeding? A. Very little.
Q. When you say “very little” was it bleeding down his
face? A. It wasn’t bleeding and running down his face,
just a few drops.
Q. Did you observe anything else wrong with him other
than that? A. Not other than he was drunk.
Q. Did you have an occasion to determine whether or
not he had the odor of alcohol amout his breath? A. He
did.
Q. Was there anything else about the way he was acting
that you observed? A. He was unsteady on his feet and,
of course, he didn’t say anything to us.
Q. Was he using any profanity at that time? A. At
that time, he was not.
Q. In your experience, Officer Davis, you have had an
- 210-
occasion to observe many people who are under the in
fluence of alcohol have you not? A. Yes, sir.
Q. Do you have an opinion as to whether or not the
plaintiff, Charles Townsend, was under the influence of
253
intoxicating liquors to such an extent that he was drunk
at the time you saw him? A. Yes, sir.
Q. What is that opinion? A. He was drunk.
Q. What happened after he got in the car? A. After
we got in the car, well, immediately we pulled off.
Q. Did he say anything? A. Did not.
Q. Did anyone make any threats towards Mm? A. Did
not, we didn’t say nothing to him, and he didn’t say nothing
to us.
Q. Did you handcuff him? A. Did not.
Q. Go ahead. A. We pulled in on the side of the police
station, and took him through this little hallway on into
the front office.
Q. Now this is not the police station that you are operat
ing from now, is it? A. No, sir, was not. It’s the one we
was in then, it’s been tore down they’re building us a
— 211—
new one.
Q. Well, explain to the jury, if you will, where you took
him in and what it looked like? A. We pulled up on the
west side of the police station in the alley-way between
the police department and the city hall.
Q. Is that customary to do that? A. That’s customary
to do that, and go in a side door in a hall, it was seven
or eight feet wide and approximately twelve foot long.
The door come in from the outside in one end and at the
other end was a bathroom, and there was one door went
in to the office where we book them.
Q. Now is the office your receiving station? A. Yes, sir.
Q. And is it in a different room from the jail where
the actual bars are? A. Yes, sir, there’s a hallway, seven
or eight foot hallway, between the office door and the jail
door.
Transcript o f Proceedings, June 13 and 14, 1967
LeRoy Davis-—for Defendants—Direct
254
Q. Now this hallway is the only room that’s between the
receiving station where you eventually carried him into
and the bars themselves in the back? A. Yes, sir.
Q. And there are two separate rooms, aren’t there! A.
Yes, sir.
Q. Go ahead. A. We took his personal belongings off of
him.
—212—
Q. This is in the receiving station! A. Yes, sir. And
got his name and everything and he was booked for drunk
and disturbing the peace. Officer Nicholls—
Q. Now did he give you any trouble up to this point?
A. Not a bit.
Q. Did he do any talking or anything? A. Did not, name
and address is all he said.
Q. Did you have any reason to expect any further trouble
from him? A. No, sir, did not.
Q. Go ahead. A. Officer Nicholls started back to lock
him up and I don’t know whether the Chief went back with
him or not, I was in the process of putting up his personal
belongings, we put them in a brown envelope and we have
a drawer that we put them in, when I heard this commo
tion. When I come through the door-—
Q. Now that’s the door from the receiving station? A.
The door from the receiving room into this little hall.
Q. The hallway is the only thing between you and the
jail when you come out of the receiving station, is that
right? A. Yes, sir. When I went through this door, about
the time I went through this door, Townsend was down
more or less, kinda’ in a sitting position on the floor and
he kicked the Chief someway or ’nother and his gun come
out and hit the floor.
Transcript of Proceedings, June 13 and 14, 1967
LeRoy Davis—for Defendants—Direct
255
Q. Did you see Mm kick the Chief? A. Yes, sir, I did.
—213—
Q. And did you see the gun come out? A. Yes, sir.
Q. Did Townsend take any further action then? A. He
lunged toward the gun and Chief kicked the gun out of
his way and I reached around and got him around the neck.
Course he raised up sorta’ in about a half-standing posi
tion, and I just caught him around the neck, was intend
ing to catch him around the neck, just like that, and when
I did he got me right there with his teeth, and I thought
he never was going to turn me loose.
Q. Now in the quarters that you were in there, was it
difficult to maneuver or operate in there? A. Yes, sir, it
is.
Q. Explain to the jury why you don’t have much room.
A. You have a Coke machine and a cigarette machine and
the heater is satting in there.
Q. What is the width of that room? A. It is approxi
mately seven or eight feet, I don’t know just exactly.
Q. What about the length of it? A. It was about twelve
foot long.
Q. Is it difficult or easy for several men to hold a
belligerent subject in a room such as that? A. It is kinda’
difficult, cause you get in one another’s way.
—214—
Q. What happened after you grabbed him around the
neck? A. I tried to grab him around the neck and he got
me with his teeth and I started trying to get him loose
and took this small caliber pistol and hit him on the head
with it to turn me loose.
Q. Now when you say a small caliber pistol, Roy, ex
plain to the jury what type pistol that is. A. It’s a .38
Transcript of Proceedings, June 13 and 14, 1967
LeRoy Davis—for Defendants—Direct
256
Terrier, short, a real small gun. The same size as a Chief’s
Special if any of you know what that is, only it’s about
two ounces lighter.
Q. Tell the jury how much this gun weighs? A. Weighs
seventeen ounces.
Q. Now did you make any effort to get him to quit biting
you prior to using the gun? A. I tried to pull my arm
out of his mouth and I couldn’t.
Q. You could not do it? A. I couldn’t do it.
Q. Was there anything else that you could do under the
circumstances then, other than the action that you took?
A. There was not.
Q. What happened after that? A. Well, after I finally
got him to turn me loose I just slipped my arm on down
under his neck and put my gun back in my holster, and
by that time, Chief Ross got ahold of him and we put him
on back in the jail, Mr. Nicholls opened the door.
—215—
Q. Was he using any profanity at that time? A. Well,
he wasn’t when he had ahold of my arm, he was when I
turned him loose and put him in the jail.
Q. Did anything else occur in your presence concerning
this? A. Officer Bottorff and Bogle came up and Chief
advised them to take him to the hospital and after I got
my arm to quit bleeding, I went on home.
Q. Is there anything unusual or have you had it occur
in your experience where a man under the influence of
intoxicating liquors has at one point assaulted an officer?
A. Yes, sir, I been hit several times myself.
Q. Does that happen every now and then? A. It does.
Q. Is it possible for a man under a high state of intoxi
cation to commit an assault on another? A. Yes, sir, I
have had it happen to me.
Transcript o f Proceedings, June 13 and 14, 1967
LeRoy Davis—for Defendants—Direct
257
Q. Do you have an opinion as to whether or not the
defendant was under the influence of intoxicating liquors
to such an extent that he was drunk when you observed
him? A, He was.
Mr. R aff: I believe that’s all.
Cross Examination by Mr. Howard:
Q. Now, Mr. Davis, what is your weight? A. I weigh
now about 180 pounds.
— 216—
Q. 180 pounds? A. 5' 11".
Q. And you are five feet, eleven inches. What did you
weigh on December 24th, 1965? A. Weighed about 170.
Q. As I understand your testimony, when you went in
the back towards the jail cell, you sawr Townsend on the
floor? A. He was kinda’ in a sitting back position, with
his hands on the floor.
Q. Beg your pardon? A. He was kinda’ in a sitting back
position, had his hands on the floor like that, behind him,
when I first come through the door.
Q. Was he leaning up against a wall or what? A. He
was not, he wras in the floor.
Q. On his back or on his arms? A. Yes.
Q. Which now? A. He was kinda’ sitting down leaning
back on his arms.
Q. Did you see any blood on him at that time ? A. Only
this place under his eye when we picked him up.
Q. So nobody else struck him in your presence? A. I
didn’t see anybody strike him.
Q. But you did strike him? A. I struck him.
Transcript of Proceedings, June 13 and 14, 1967
LeBoy Davis—for Defendants—Gross
258
Transcript of Proceedings, June 13 and 14, 1967
LeRoy Davis—for Defendants—Cross
—217—
Q. With what, now? A. A .38 Terrier.
Q. Now after yon struck him, did anybody else strike
him? A. Not that I know of.
Q. Well, you were there weren’t you? A. I was there,
yeah.
Q. Did you hear Doctor Tonyman testify yesterday that
he took out more than twelve stitches out of this man’s
head? A. It’s possible that I put them in there.
Q. With your gun, then? A. That’s right.
Q. And the only blood you saw then was the blood under
the eye? A. When I first went in there.
Q. I asked if you saw—was there blood anytime after
you got in there or after you left? A. Yeah, when we put
him in jail there was blood all over me and him too.
Q. And so you put the head wounds that he sustained?
A. I ’m sure I put some of them on him.
Q. Some of them? Then there is some doubt in your
mind as to whether or not you put all of them ? A. I don’t
know whether I put all of them on him or not.
Q. Now, there was no blood when you first got there
other than under the eye, is that right? A. That’s right.
—218—
Q. And you are the only one who struck him? A. I
didn’t say I was the only one who struck him, I say—
Q. Well, who else struck him? A. I didn’t see anybody
else strike him.
Q. But you didn’t see any blood when you first went in?
A. I did not.
Q. And, as I understand your testimony, noboclv else
struck him after you struck him? A. Not that I know of.
259
Q. Well, did you leave the Chief and Mr. Nicholls back
there alone? A. I did not.
Q. They left the same time you left? A. We put him
in jail, Officer Bottorff and Officer Bogle came up and the
Chief advised them to take him to the hospital.
Q. Now, coming back to my question then, these twelve
or more stitches were put apparently only by you, is that
correct? A. As far as 1 know, because I didn’t see any
body else hit him.
Mr. Howard: That’s all.
Mr. R aff: Jim Bogle, Tour Honor.
Transcript of Proceedings, June 13 and 14, 1967
Jim Bogle—for Defendants—Direct
W h ereu pon , J im B ogle, ca lled as a w itness on b eh a lf
o f the defen dan ts, a fte r first be in g du ly sw orn, testified as
f o l lo w s :
Direct Examination by Mr. Raff:
—219—
Q. State your full name to the jury and tell them where
you live. A. James Adrian Bogle, Jr., live in Helena,
Arkansas on Poplar Street.
Q. How long have you lived in Phillips County, Mr.
Bogle? A. Since 1962.
Q. What is your occupation? A. At the present time,
I am employed by the Merchants and Parmer’s Bank.
Q. And how long have you been in their employ? A. A
little over a year now.
Q. In whose employ were you on December 24th, 1965?
A. The City of Helena, Police Department.
Q. Are you married Mr. Bogle? A. Yes, sir.
Q. Have a family? A. Yes, sir.
260
Q. On that date did you have an occasion to have an
experience with the plaintiff, Charles Townsend? A. Yes,
sir, I did.
Q. Tell the jury what experience you had. A. I took
him to the hospital. That day we received a call down
town, it was shoplifting, and I went down town.
Q. Do you know who made that call? A. Sir?
— 220—
Q. Do you know who made that call? A. It came in
from—I took it for granted it came in from Sterlings
Store, because that’s where they sent me.
Q. There were several calls weren’t there? A. Yes,
sir, but I was already gone at the time the other calls
came back in.
Q. Go ahead. A. I arrived at Sterling's, there was no
shoplifter, there had been a commotion on the street out
side, I understood. But in between the time I had received
a call to Buford’s Cafe and I went down to Buford’s, sup
posed to have been a stabbing.
Q. Now were you in the car alone? A. Yes, sir.
Q. Go ahead. A. I arrived at Buford’s, there was no
one had called from there, they said no one was cut so I
came back to the station. When I arrived back there,
there’d been some trouble at the station. It was between
Charles Townsend and three officers. And they asked me
to take him to the hospital.
Q. Now did you observe Officer LeRoy Davis when you
went in there? A. Yes, sir, he had a bite on one of his
arms, I forget which one.
Q. Did it appear to be a serious bite? A. Yes, sir, I ’d
say so.
Transcript of Proceedings, June 13 and 14, 1967
Jim Bogle—for Defendants—Direct
261
Transcript of Proceedings, June 13 and 14, 1967
Jim Bogle—for Defendants—Direct
— 221—
Q. Was it bleeding? A. Yes, sir, it was, if I remember
right.
Q. Did you observe anything about Officer Boss'? A.
Yes, sir, he was bleeding from the hand, from some posi
tion of the hand and Officer Nicholls’ face was real red
and looked like he had been struck.
Q. What did you do then? A. I got Townsend out of
the jail and put some handcuffs on him, handcuffed him
in the front.
Q. Now, did you get him at the request of the Chief of
Police, Boy Boss? A. Yes, sir, take him to the hospital.
Was walking to the car, I was, Townsend—
Q. Was anyone with you at the time? A. Officer Bot-
torff, he was in front of me, he was getting ready to get
into the car, and I was going to open the side door and
put Charles inside the car and he tried to hit me with the
handcuffs.
Q. Tried to what? A. Hit me with the handcuffs.
Q. Now when did this occur? A. I was walking out the
door.
Q. What did you do? A. 1 pinned him against the car.
Q. Did he say anything to you? A. No, sir, he was just,
uh—mumbling under his breath and every now and then
— 222—
he would come out with profane language but wasn’t any
thing directed at me.
Q. Did you have an occasion to determine whether or
not there was any odor on his breath? A. Yes, sir, I did.
Q. What type of odor was that? A. Alcohol.
Q. Did you have an occasion to observe his demeanor
262
with respect to the way he talked and the way he walked?
A. Yes, sir, he was drunk.
Q. You did have considerable experience with people
under the influence of intoxicating liquors, didn’t you ? A.
Yes, sir, I did.
Q. Do you have an opinion as to whether or not he was
under the influence of intoxicating liquors to such an ex
tent that he was drunk when you saw him and observed
him? A. Yes, sir, from my observing him he was drunk.
Q. Then what happened? A. Well, put him in the car,
took him to the hospital, got up to the hospital.
Q. Did you have any trouble with him going to the hos
pital? A. He mumbled all the way up and cussed some,—
used profane language all the way up and we told him to
be quiet and he wouldn’t be quiet, he just continuously kept
saying something.
— 223—
Q. All right. A. Got him to the hospital, got him out
of the car, took him into the emergency room, laid him
down on the table, never took the handcuffs off of him.
Then the doctor wasn’t available, they was either on house
calls or something. The nurses could not get ahold of a
doctor. I don’t know how long he was there.
Q. Now is this the first time he had been taken to the
hospital? A. Yes, sir.
Q. Go ahead. A. And I don’t know how long we stayed
there, thirty minutes or so, forty minutes, and he was
cussing some, laying on the table there, wouldn’t be quiet.
Q, This in the emergency room? A. This in the emer
gency room and it was upsetting the nurse there some,
she was scared.
Q. Is that why you left the handcuffs on? A. Yes, sir.
Transcript of Proceedings, June 13 and 14, 1967
Jim Bogle—for Defendants—Direct
263
Q. Is that proper procedure? A. Yes, sir, with some
one that may be violent.
Q. Go ahead. A. So finally she just told us that she
could not reach a doctor right then and he was upsetting
the emergency room routine down there, with all that
talking and so forth, so we put him back in the car and
took him back to the station.
Q. How long were you out there at that time? A.
- 2 2 4 -
Thirty or forty minutes. Took him back to the station and
I went inside the station, Officer Bottorff stayed in the
car with him and I got on the phone and called Chief Ross
to ask what to do, and in the meantime, before I even got
ahold of Chief Ross, the hospital called and said the doc
tor was there and to bring him right back. So we took
him right back and there was a doctor there. And while
there, Doctor Ellis requested that I take the handcuffs off
of him and I said “All right,” and I asked Charles if he
would behave himself, and he looked up at me and said,
“No, I will not.”
Q. Said no, he would not if you took the handcuffs off?
A. Then Doctor Ellis called for the leather restraints.
Q. Were those placed on him at that time? A. Yes, sir,
they was.
Q. Was he fully conscious at that time? A. Yes, sir,
he was.
Q. Was he using any profanity at that time? A. Yes,
sir, he was.
Q. Did you make the request that he stop doing that?
A. Yes, sir.
Q. Was your request observed by him? A. Yes, sir.
Q. Did he stop using profanity, then? A. No.
Transcript of Proceedings, June 13 and 14, 1967
Jim Bogle—for Defendants—Direct
264
Transcript of Proceedings, June 13 and 14, 1967
Jim Bogle—for Defendants—Cross
—225—
Q. Then what happened? A. Well, after we got him
restrained down to the table with the leather straps, Doc
tor Ellis stated that he thought that between himself and
the orderlies they could handle him and we was free to
leave. In the meantime, Officer Bottorff, had to go outside,
there was a disturbance in the hall out there, he had to bar
the emergency-room door.
Q. Had to bar the room door? A. Had to close it and
shutter it to keep everybody out.
Q. Were there people gathering out there? A. Yes, sir,
big commotion.
Q. And disturbance out there? A. Yes, sir.
Q. Is that the only contact you had with him? A. Yes,
sir.
Mr. Raff: I believe that’s all.
Cross Examination by Mr. Howard:
Q. Mr. Bogle, at this time, that is December 24th, 1965,
you were a member of the Helena Police Department, is
that correct? A. Yes, that’s correct.
Q. You were an officer? A. That’s right, I was an
officer.
Q. Had you been an officer long as of that time? A.
Two and a half to three years.
—226—
Q. Now, you testified that when you carried Townsend to
the hospital, you laid him on the table, what table did you
lay him on? A. Well, we didn’t actually lay him on the
table, we took him into the room, emergency room—
265
Q. That’s what you just told this jury, you laid him on
the table. A. All right, let me finish talking. We took
him into the emergency room, they have emergency tables,
something like stretchers, we set him on the table and
laid him down, that’s all it was, he walked under his own
power the whole time.
Q. You did place him on the table? A. Yes, we place
anyone on the table, that’s just normal procedure.
Q. Now, he was bleeding at the time you took him to
the hospital? A. Yes, he was.
Q. From what parts of the body? A. Head.
Q. Were there any bruises on his face? A. I imagine
so, I didn’t pay that much attention to them. Like I say,
it was blood, he hadn’t been cleaned up, I don’t know.
Q. And when you got him out of the cell, where was he?
A. Sitting on the bench.
Transcript of Proceedings, June 13 and 14, 1967
Roy Ross—for Defendants—Direct
Mr. Howard: I believe that’s all.
The Court: You may stand aside.
Mr. R aff: Chief Roy Ross.
—227—
W h e b e u p o w , R o y Ross a witness called on behalf of the
defendant, after first being duly sworn, testified as follows:
Direct Examination by Mr. R aff:
Q. State your full name and where you live to the jury.
A. Roy Ross, live at 603 MacDonald, Helena.
Q. What is your occupation? A. Chief of Police, Helena.
Q. How long have you been employed in that capacity,
26 6
Chief Boss? A. Be seven years in September, first of
September.
Q. Did you have previous police experience prior to that ?
A. I bad about seven years and a half with the Arkansas
State Police.
Q. Were you employed as Chief of Police in the city of
Helena, Arkansas, on December 24th, 1965? A. Yes, sir,
I was.
Q. On that date, did you have an occasion to have an
experience with the plaintiff, Charles Townsend? A. Yes,
sir, I did.
Q. Would you tell the Court about that? A. We was
at the station whenever the call came in, that there was a
disturbance down on Cherry Street. I got in my car with
Officer Davis and Officer Nicholls.
—228—
Q. Do you recall approximately what time that was? A.
It was around 1:00 o’clock whenever we first got the first
call, 1:15 or something like that. We went to the scene,
when we arrived there, we observed Townsend and Bill
Finley standing beside a car right on the side of the
street and a big crowd of people had gathered there. When
we pulled up to the scene, Officer Bottorff, had walked over
there, he had preceded us there and reached it before we
got there, and they just walked over to the back of the
car and Officer Davis turned around and Officer Nicholls
was there in the back seat and they just opened the back
door and put Townsend in. It was very obvious at that
time that there’d been some trouble there. You could tell
by looking at Townsend and also at Officer Finley.
Q. Now, you did observe Officer Finley when he walked
up to the car? A. Yes, sir, I did.
Transcript of Proceedings, June 13 and 14, 1967
Roy Ross—for Defendants—Direct
267
Q. Would you tell the jury what his state of dress was
and what he looked like? A. Well, I know his raincoat
was torn and that his tie was loose and was hanging down
from the top and the rest of it I didn’t pay a lot of atten
tion to because immediately after getting him in our car,
we left the scene.
Q. Did he have on any police clothes at that time? A.
Oh, yes, sir. He had on a uniform, cap with a badge.
— 229—
Q. In your opinion was it easily recognizable that he was
a police officer? A. Yes, sir, it was.
Q. What was Charles Townsend’s condition when you
saw him? A. It was very obvious that he was drunk. He
had a strong odor of alcohol and at the time I saw him he
was just standing up, he wasn’t even talking or anything.
Q. You have had considerable experience with men under
the influence of alcohol? A. Yes, sir.
Q. And you have an opinion as to whether or not he was
sufficiently under the influence of alcohol to be drunk? A.
He was definitely drunk, there is no doubt about it.
Q. Did you observe whether or not Officer Finley was
armed? A. He was not.
Q. Now did he have a club or a night stick or blackjack
or anything such as that? A. No, he did not as far as I
know.
Q. Was Charles Townsend bleeding profusely when you
saw him? A. No, sir. The only place was under one of
his eyes, I ’m not sure which eye it was, it was just a
small speck of blood under one eye.
Q. Did they have any trouble getting him in the car at
that time? A. No, sir, did not have a bit of trouble what
Transcript of Proceedings, June 13 and 14, 1967
Roy Ross—for Defendants—Direct
soever.
268
Q. Did you know Charles Townsend at that time! A. I
—230—
did not.
Q. Did you have any particular reason to have anything
against Charles Townsend! A. Not a thing in the world.
Q. Do you have any personal knowledge as to whether
or not your officers that work under you would have any
thing particular against Charles Townsend? A. I am
positive that they do not.
Q. Was this just a normal case, so to speak, a normal
call that you would go out on? A. Yes, sir.
Q. Now you stated that Charles Townsend said nothing?
A. Said nothing whatsoever to us.
Q. Did he give any difficulty or anything when he got
in the car? A. No, sir.
Q. Was he handcuffed by you or any of your officers at
that time? A. He certainly was not.
Q. Then what happened? A. We proceeded to the station
with him, we pulled into the—right on the side of the
station, got out, all of us walked into the front office, still
wasn’t anything, no trouble, no one had said anything.
There was officer Davis and Officer Nicholls was proceed
ing to book him there which is the usual procedure, write
him up—
Q. Now when you say “book him” would you explain
—231—
to the jury what you mean by that, what is the type of
procedure you do at that point? A. That’s when you take
his name and address and everything and write the charges
up on him and everything.
Q. Was he charged at that time? A. Yes, sir.
Transcript of Proceedings, June 13 and 14, 1967
Roy Ross—for Defendants—Direct
269
Q. Tell tlie jury what he was charged with! A. Charged
with being drunk and disturbing the peace.
Q. Now if you would, would you explain to the jury what
your reception room or the room in which you book these
people looks like in terms of the size of it, and go ahead
and explain where the jail is and where the hall is and
how it connects and how big it was? A. The whole build
ing was just a long building which—half of it was the Fire
Department and the other side of it was ours. And our
main front office was approximately twelve by twelve.
Inside it we had a large safe, and a storage room and a
desk and several other odds and ends, things which you
have in a station there, and right to the rear of it—the
front door of it faced out on to Cherry Street, right to
the rear we have a rear door which walked into a hallway,
and this hallway is approximately twelve or fifteen foot
long and probably seven or eight feet wide, and as you
walk out of the main office into the hallway you can see
the line of bars across there which houses a jail and inside
these bars is the cell block which we have four cells in the
- 232-
rear of the jail and a door there and in this little hallway
you can go outside or come back into the front part of the
office, either way you want to go, and also into the jail part
of it.
Q. Now did you also have other things in the hallway,
like a cigarette machine ? A. Cigarette machines, coke ma
chines and there was a storage place there where we keep
tobacco and things which we give the prisoners.
Q. And do these items take up an amount of space in
the hallway? A. Considerable, and also a bathroom in
the end of it.
Transcript of Proceedings, June 13 and 14, 1967
Roy Ross—for Defendants—Direct
270
Q. Is it difficult for three men to maneuver in a place
such as that? A. It’s very crowded in there. There is
also a stove in there which heated the place.
Q. And it is customary after yon book them to walk
into this hallway and then you are where the bars are?
A. Into the cell, yes, sir.
Q. What happened after you hooked him? A. Well,
after we booked him, I was still there in the front office
and Officer Nicholls took the key and went through this
door and closed the door behind to lock him up.
Q. At the time that he carried him through the door,
from the beginning of the time you saw him until then,
had any threats been made by you or any of your officers?
A. Hadn’t been any kind of conversation whatsoever, other
—233—
than his name and address and what information they’d
asked him there at the desk.
Q. Did you have any reason at that moment to expect
any trouble? A. None whatsoever.
Q. Go ahead. A. And, as I said, Officer Nicholls walked
through the door into this hallway with him and the door
closed behind him, at the same time I had started to go
back outside to my car and just before I got to the door,
I heard this commotion back in there and just as I opened
the door, I saw Harold Nicholls getting up off the cigarette
machine and went back at Townsend; well, at that time, I
ran over to get ahold of Townsend, I reached up to get him
by the collar, like this, when I did—
Q. Now what was Townsend doing? A. At that time
he was just sorta’ half humped over and he was just
swinging with both hands blindly, and whenever I reached
up to get ahold of him, he grabbed me with his teeth in
Transcript of Proceedings, June 13 and 14, 1967
Roy Ross—for Defendants—Direct
271
the back of the hand and at that time I hit him, I hit
him somewhere in the face, I am not sure where,
Q. What did you hit him with? A. With my fist.
Q. Did you have a club or anything? A. I did not,
didn’t have anything whatsoever.
Q. Did Officer Nicholls have a club or anything? A.
He did not.
—234—
Q. Did you have your weapon on you at that time? A.
I had a pistol on me.
Q. All right. A. At the time I hit him, he fell back
against this bar place and slumped down and kicked, and
he was kicking with both feet, sitting on the floor, and
he kicked the gun out of my holster, and at the same time,
I was trying to hold him off: and get ahold of my gun
and we were both scrambling for the gun down on the
floor there. And about that time, Officer Davis came—
Q. You say you were both scrambling, do you mean the
plaintiff, Charles Townsend? A. Right, he was down on
the floor kicking and fighting there and, course, I had
gotten down there on the floor too trying to keep him from
getting ahold of that gun.
Q. Was he going after your gun, the plaintiff, Charles
Townsend? A. We were both fighting there. As far as
I am concerned he was, he was scrambling—he was kicking
and grabbing with his hands. And at that time, Officer
Davis came through the door, whenever he came through
there and got ahold of him, well, I quit everything other
than just try to get ahold of my gun. When I did get my
gun, got it in my holster, strapped down, by that time it
was all over, he had quit fighting.
Q. Was it difficult for the three of you to subdue a man
Transcript of Proceedings, June 13 and 14, 1967
Roy Ross—for Defendants—Direct
Transcript of Proceedings, June 13 and 14, 1967
Boy Ross—for Defendants—Direct
—2 3 5 -
in these quarters! A. At no time was any two of us on
him at any one time. At the time, whenever I came in and
hit him, Officer Nicholls wasn’t even close to him, and at
the time Officer Davis came in and took over, I was try
ing to get my gun off the floor and hold him away from
me, and that’s when Officer Davis came in and took over
Q. Now are you aware of what Officer Davis did! A. I
know he had him around the neck, and I know that he was
hitting him there but I wasn’t observing him ’cause I was
trying to get my hands back on that gun, ’cause I had
took my foot and kicked it away from both of us where he
couldn’t get ahold of it. And by the time I had turned
around and got my gun, we all got ahold of him, that was
the end of it. By the time we all got ourselves straightened
out there—
Q. Did you observe whether or not Officer Davis had to
hit him with his gun! A. Yes, sir, I observed it.
Q. Let me ask you this question, in your opinion from
what you saw there and based upon your experience, was
there any other reasonable approach under the circum
stances— A. No.
Q. ■—that you or any of your officers could have used at
that time! A. We had no other choice, there wasn’t noth
ing else that we could do and defend ourselves and—
—236—
Q. What happened after you placed him in the jail! A.
Well, the minute he was placed in jail all—
Q. Was he using any profanity? A. Oh, he was cursing
at that time, yes, sir, lot of it going on at that time. The
minute we got him where we could handle him, we pushed
him in the jail there which wasn’t in a cell block, it was
273
just inside the steel door there, there was a wooden bench
sitting there and he sat down on it.
Q. Was that sort of a walk-around? A. It was sort of
a run-around inside there.
Q. But it’s not a specific cell! A. It’s not a cell block
under any terms. And at that time—
Q. Had he been handcuffed at all anytime prior to that?
A. No, sir, he had not even had the handcuffs on him at
that time. Officer Bottorff and Bogle came in and I ad
vised them to put the handcuffs on him and take him to the
hospital.
Q. Now about what time was this? A. This was ap
proximately 1 :35 ’cause it was approximately 1 :30 when
we got to the station with him, and this probably took
five minutes.
Q. And had he ever been to the hospital to your knowl
edge prior to that? A. No, sir, not in our custody, he
hadn’t, not then.
Q. You instructed them to take him to the hospital?
A. Take him to the hospital, yes.
—237—
Q. Did you observe whether or not they followed your
instructions? A. Yes, sir, they sure did. I left and went
home and approximately twenty or twenty-five minutes
they called me at home and told me that they had had
difficulty at the hospital and that the nurses didn’t want
them to leave him there and that they couldn’t locate a
doctor. And I said, “Well, let me have the nurses’ names
in charge and I’ll call out there and make arrangements.”
But while I was on the phone talking to them the other
phone rang and they told me to hold on there, and while
I did, it was the hospital calling telling to bring him back
that they had located a doctor. Which they did.
Transcript of Proceedings, June 13 and 14, 1967
Roy Ross—for Defendants—Direct
274
Q. Now, how much time elapsed between the time that
you first instructed your officers to go out there and the
time that you knew they were going back for the second
time? A. Pd say thirty minutes at the most.
Q. Thirty minutes at the most? A. Yes, sir. Thirty or
forty minutes.
Q. He had not gone to the hospital prior to the time
that you first mentioned to us? A. No, sir.
Q. Did anything happen after the schuffle that you had
in the jail, did anything happen after that in terms of
any violence on the part of Charles Townsend? A. Other
than what I was told happened at the hospital.
Q. But nothing concerning you or Officer Davis, to your
- 2 3 8 -
knowledge? A. No, sir, I went home and I did not see
him, the rest of my contact was by phone.
Mr. Raff: I believe that’s all.
Cross Examination by Mr. Howard:
Q. What is your weight? A. 210 pounds.
Q. What did you weigh on December 24th, 1965? A. I
imagine about the same.
Q. What is your height? A. 6' 1".
Q. Now you state that there were two trips made to the
hospital? A. That is correct.
Q. Now as I understand your testimony, you were at
the station when this call came in about some disturbance
there on Cherry Street, is that correct? A. (Nods affirma
tively. )
Q. I would like to know just what you did when you
got the call? A. The first thing I did was got in my car
Transcript of Proceedings, June 13 and 14, 1967
Roy Ross—for Defendants—Cross
275
with Officer Davis and Nicholls and proceeded to the loca
tion.
Q. When yon got to the scene, you didn’t have a warrant
of any type? A. No.
Q. And after Townsend was placed in the car, you didn’t
carry him to a magistrate or judge of any sort, you just
—239—
carried him directly to the jail house, is that correct?
A. That’s correct.
Q. Now your testimony also was to the effect that he
gave you no trouble, got in the car and got to the jail
house, I mean, to the front part of the jail, and you booked
him, took his personal belongings and he cooperated in
every respect, is that correct? A. That’s correct.
Q. Now, Mr. Finley made the observation that he was
very drunk and was limp, do you agree with that? A. I
would say that he was very drunk.
Q. Now a prior witness testified that when you all came
up to the scene that two officers got out of your car and
got Townsend to accompany them back to your car. Was
I to understand your testimony that wasn’t the case? A.
That’s right, that is not the case.
Q. So that witness is wrong? A. That’s right.
Q. I believe that was Reverend Stewart who made that
observation. A. I don’t know who it was.
Q. You did strike Townsend, is that correct? A. I
didn’t understand you?
Q. You said you did strike him? A. That’s right.
Q. You heard Doctor Tonyman state that he took out
—2 4 0 -
more than twelve stitches out of his head? A. (Nods
affirmative.)
Transcript o f Proceedings, June 13 and 14, 1967
Roy Ross~for Defendants—Cross
276
Q. Do you know which officer caused that head wound!
A. Wouldn’t have no idea.
Q. Now when you first got to the police station, did you
make any eflort to inquire if Townsend wanted medical
attention? A. At that time he didn’t need any medical
attention.
Q. How did you make that determination? A. Because
there wasn’t any visible signs or means of being hurt in
any manner other than just a small piece of blood, right
on his eye.
Q. Have you had any medical experience? A. I ’ve had
enough that I could tell if a man’s hurt.
Q. Don’t you think it is for a doctor to determine if he
needed medical attention? A. I think I can tell whether
a man’s hurt or not.
Q. But you did not ask him if he wanted any medical
attention at all? A. I did not.
Q. Now how long have you known Mr. Finley? A.
Just prior to his employment with the merchants down
there.
Q. When was he employed by the merchants? A. I am
not sure how long, probably during the month of Decem
ber, I am not positive.
Q. That is the first time you became acquainted with
him? A. Yes.
— 241—
Q. What sort of arrangements were made between your
office and Mr. Finley and the merchants? A. Several of
the merchants came to me and talked to me about wanting
to hire Mr. Finley more or less as a special officer just
for shoplifting. My instruction was that he would have
to work, more or less under my supervision; that he could
Transcript of Proceedings, June 13 and 14, 1967
Roy Ross—for Defendants—Gross
277
do whatever they requested him to do, but if he was to be
under—be a special officer that I would expect him to any
other type of violations that he would look after and make
the proper arrest.
Q. Did you have him on your payroll? A. I did not.
Q. Did you give him a gun? A. I did not.
Q. So then his specific duties then were to sort of look
out for shoplifters, is that correct? A. That is correct.
Mr. Howard: That is all.
Bedirect Examination by Mr. Baff:
Q. Did you give him specific instructions that in the
event that he saw other violations other than shoplifting
that he was supposed to pursue ? A. I did, I gave him the
badge which he was wearing.
—242—
Q. Did this badge say Helena Police Department? A.
Eight. His instructions was that any type violation that
he saw that he w7as to make the proper thing as an ordi
nary officer would do to make an arrest.
Q. As I understand your testimony, when you observed
that the plaintiff, Charles Townsend, he was in a drunken
state at that time? A. Eight.
Q. Is it customary in your practice or your officers’,
when they see a crime such as this committed in their
presence to go get a warrant and then come back and serve
it if they can find him? A. No sir, we don’t carry the
warrant around with us.
Q. It is not customary nor is it your duty, is it? A. No.
Q. If it is done in your presence? A. That’s right.
Q. After this occurred in the jail or right near the con
Transcript of Proceedings, June 13 and 14, 1967
Boy Boss—for Defendants—Bedirect
278
fines of the jail, were any additional charges placed against
the plaintiff, Charles Townsend? A. Yes.
Q. What were those charges? A. Resisting arrest and
assaulting an officer.
Mr. R aff: I believe that is all.
—243—
Becross Examination by Mr. Howard:
Q. Now, Chief, you told Counsel that it is not a practice
for you to have an officer to pick up a warrant if you run
into a drunk. Is it also your practice not to require them
to get a warrant to search personal property of people?
A. Yes, sir, we have to search anything we definitely get
a search warrant.
Q. Did you have a search warrant or did Mr. Finley
have a search warrant? A. He did not. I don’t know if
he searched anything.
Q. My question was, to your knowledge did he request
a search warrant? A. He did not.
Q. And you had not been advised of one having been
issued to anyone in this incident, is that correct? A. Had
not.
Mr. Howard: That’s all.
The Court: Anything further gentlemen?
Mr. Raff: Nothing further, Your Honor.
The Court: You may stand aside.
Mr. Solomon: The defense rests.
The Court: Anything further ?
Mr. Howard: Your Honor please, I would like to
make a motion if I may. Perhaps the matter can be
—244—
taken up in chambers?
Transcript of Proceedings, June 13 and 14, 1967
Boy Boss—for Defendants—Becross
279
The Court: Do you have any further testimony!
Mr. Howard: It may well be after the Court rules
on this motion.
The Court: The Court will be in recess for a few
minutes. Gentlemen, you may stretch your legs, walk
around, remain at call.
(Whereupon, at 10:30 o’clock a.m. the Court,
Counsel and the Court Reporter retired to chambers
where the following proceedings occurred:)
I n C ham bers
The Court: During the recess of Court, in cham
bers, Mr. Howard, do you have anything that you
wish to present!
Mr. Howard: Yes, if Your Honor please, at this
time plaintiff moves for a directed verdict in his
behalf and, of course, the position of the plaintiff
is that, after reviewing the evidence submitted by
plaintiff’s witnesses and the evidence submitted bv
defendants’ witnesses, the contradictions that now
appear in defendants’ case with respect to just what
happened at the scene of the incident, the plaintiff’s
position is that the issue is such that reasonable
men could not find other than in the behalf of the
plaintiff. The plaintiff moves for a directed verdict.
—245—
The Court: Of course, the motion will be over
ruled because it is a matter for the jury to deter
mine. That is an academic rule of law. It doesn’t
require any further deliberation. Note the excep
tions.
Transcript of Proceedings, June 13 and 14, .1967
Motion f or a Directed Verdict
280
Mr. Howard: That’s all.
The Court: Do you have any further testimony?
Mr. Howard: I will call about, one, probably two,
in rebuttal just about one or two questions.
The Court: Do you want some time to get ready
for it first?
Mr. Howard: Just about five or ten minutes.
Mr. Solomon: Do you know who they are?
Mr. Howard: Yes, Mrs. House and perhaps
Townsend.
(Whereupon, at 10:35 o’clock a.m. Court resumed
the trial of this cause in the presence of the jury
wherein the following proceedings occurred.)
The Court: Mr. Howard.
Mr. Howard: Our next witness is Mrs. Rosetta
House.
Transcript of Proceedings, June 13 and 14, 1967
Rosetta House—for Plaintiff—Recalled—Direct
W hereupon, Mrs. Rosetta H ouse was recalled as a wit
ness on behalf of the plaintiff and testified as follows:
Direct Examination by Mr. Howard (Continued):
—246—
Q. Mrs. House, you testified earlier in this case, as a
matter of fact, yesterday, is that correct? A. Yes, that’s
right.
Q. Will you kindly tell the Court and the jury the color
of the automobile that you and Charles Townsend and the
others drove the 24th of December, 1965? A. It was blue
and white.
Q. What color was the top? A. White.
Q. And the base was blue? A. The bottom was blue,
yes.
281
Q. What sort of clothing did you have on that day?
A. I had on a black coat with a clear rain scarf.
Q. What sort of head gear was Charles wearing? A,
He was wearing a green cap with a bib.
Q. Now the witness has testified here in this case also
yesterday, a Reverend Stewart, did you see him at the
scene of the incident? A. No, I didn’t.
Q. Do you know Reverend Stewart, or have you seen
him sometime, did you see him yesterday? A. I saw him.
Q. Do you know for a fact? A. I don’t know, no.
Q. You don’t know Reverend Stewart? A. I don’t know
—247—
him.
Q. Did anybody point the witness out to you? A. They
did.
Q. As Reverend Stewart? A. That’s right.
Q. Did you see that gentleman at the scene? A. No, I
didn’t.
Transcript of Proceedings, June 13 and 14, 1967
Rosetta House—for Plaintiff— Recalled—Direct
Mr. Howard: That’s all.
Mr. Solomon: No questions.
The Court: Stand aside.
Mr. Howard: Our next witness, if Your Honor
please, is the plaintiff.
282
W hereupon, Charles T ownsend was recalled as a wit
ness on behalf of the plaintiff and testified as follows:
Direct Examination by Mr. Howard (Continued):
Q. Charles, there has been some testimony here that
you assaulted, I believe it was Officer Nicholls? A. I did
not assault Officer Nicholls.
Mr. Solomon: Your Honor, I don’t believe this
is rebuttal. He testified on direct examination that
he did not assault any officer and he repeated it
several times. This is merely for the purpose of
emphasis and is not new or proper rebuttal material.
— 248—
The Court: Well, the Court will have to see what
he is going to bring out yet. Let’s see what it is.
Mr. Hoivard (continuing):
Q. Officer Nicholls stated that you knocked him up
against a cigarette or candy machine? A. I did not touch
any of the officers at any time.
Q. You did not knock him up against the machine? A.
No. I did not.
Q. I believe it was Officer Bogle who testified that he
carried you to the hospital and that you used profanity
in his presence? A. I didn’t use profanity at any time.
Q. Did you threaten him? A. No, I did not threaten
him.
Q. Did you make any attempt to strike him? A. I did
not.
Transcript of Proceedings, June IS and 14, 1967
Charles Townsend—Plaintiff—Recalled—Direct
Mr. Howard: That is all.
283
Mr. Solomon: No questions.
The Court: You may stand aside.
Mr. Howard: That is all for the plaintiff, Your
Honor.
The Court: The plaintiff closes this case!
Mr. Howard: Yes, sir.
The Court: Any further testimony?
Mr. Solomon: No, sir.
The Court: Does the defense rest?
—249—
Mr. Solomon: Yes.
Mr. Howard: Your Honor, I would like to ap
proach the bench if I may on one point. We would
like to renew our motion for the record.
The Court: Very well, but the Court is going to
have a recess now for the purpose—is it anything
with reference to any further testimony?
Mr. Howard: No.
The Court: Gentlemen, the Court will be in recess
for a little while. You may make yourselves as
comfortable as you can; walk around and get some
exercise. Just remain within call. It probably will
be several minutes before we are ready to proceed
as it will be necessary to get the instructions to
present to you.
Court is in recess.
(Whereupon, at 11:00 o’clock a.m. the Court,
Counsel and the Court Reporter retired to Cham
bers wherein the following proceedings occurred:)
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
284
Transcript of Proceedings, June 13 and 14, 1967
Motion for a Directed Verdict
I n C ham bers
The Court: Mr. Howard, you had something else
you wanted to present?
Mr. Howard: For the record, if Your Honor
please, the plaintiff moves again for a directed ver
dict in his behalf based upon the same reasons as
serted earlier.
The Court: What kind of verdict?
—250—
Mr. Howard: Directed verdict of the plaintiff
claiming that he is entitled to recover against de
fendants in this case for the deprivation of consti
tutional' rights, loss of time, medical expense, pain
and suffering, humiliation.
The Court: Do you have in mind then that the
jury fix the amounts? The Court doesn’t under
stand precisely what you are asking.
Mr. Howard: Well, we have set out, in our com
plaint, that plaintiff has been damaged in the sum
of $75,000. for the punitive damages and we think
that the Court is in a position to arrive at the actual
out-of-pocket damages and to award as well the
punitive damages.
The Court: Well, the Court thinks this is a mat
ter for the jury to pass on and the motion is over
ruled. Exception saved.
Now gentlemen, we will take these instructions in
order.
Mr. Howard: We would like for the record to
reflect the exception or the objection of the plaintiff
to the action of the Court in declining the instruc
tions submitted by plaintiff, in view of the fact
285
that the plaintiff takes the position that the instruc
tions submitted represent the philosophy or the law
as announced by the Supreme Court in Monroe vs.
Pape and other federal cases decided subsequently
to the Supreme Court’s decision in Monroe vs. Pape.
— 251—
I would like to make a record of the Court’s in
struction No. 7 which refers to instruction No. 6.
Plaintiff objects in that it may well bring about
some confusion in the minds of the jurors during
their deliberation unless some instruction is given
which includes the wording of Title 42, Section 1943,
which provides in effect that every person who is
subjected to any deprivation of rights, privileges
or immunities by any person acting under the color
of the law is entitled to bring an action to recover
for such damages, whereas the Court instruction
makes reference to an Act of Congress providing
for equal rights of all persons within the jurisdic
tion of the United States. The plaintiff’s position
is that it may well be that the jury might become
confused and make this whole case a racial issue
centered around equal rights when this really isn’t
a case involving civil rights or the civil rights
provision of 1964.
The Court: Well, the very fact that the suit is
brought and the Court has taken jurisdiction of it
and is trying the matter to a jury here complies
with the provision of the law of establishing the
right of an individual to bring a suit in court which
is his suit, so the fact that it is here and being
tried complies with the provision in that statute
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
286
which entitles this man to bring the suit, and it is
being brought accordingly.
The Court is endeavoring to avoid this matter
—252—
developing into a racial action or lawsuit and dur
ing the voir dire obtaining a jury to try the case,
special pains have been taken to not make this into
that kind of lawsuit, but to be tried under the law
as the right of an individual citizen of the United
States which the Constitution protects.
Mr. Howard: If Your Honor, please, No. 3 bothers
me, that no specific intent is necessary on the part
of the officer to deprive one of his constitutional
rights in order to have the deprivation of the rights
and this third paragraph seems to conflict with
Monroe vs. Pape that it in effect states that he
must knowingly or have the specific intent to de
prive and that is not the law as announced by
Monroe vs. Pape. No specific intent is necessary.
The Court: Well, I can show you the rules on it
and the citations to substantiate. This is word for
word, this has been recommended in the federal
jury practice instructions by Judges Mathes and
Devitt. Now it is true that specific intent is not
required and that is the rule of Monroe vs. Pape
which you have just indicated, but we are not say
ing here that there was any specific intent. We are
saying though that it was knowingly done, that
you have asked for punitive damages as well as
actual. And you are not entitled for the matter to
be submitted for punitive damages unless the de
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
287
fendants knowingly committed the alleged acts on
the plaintiff.
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Mr. Howard: Then, if Your Honor please, we
would have no objections if this was then limited
to the question of punitive damages, but this instruc
tion goes to actual as well.
The Court: I believe it is correct as it is so you
can save your objections to it.
Mr. Howard: All right, sir.
Mr. Solomon: May I be heard on instruction No.
10? There is no evidence of any permanent injury
from which this jury could do anything more than
speculate in fixing an amount. The only testimony
is of the plaintiff himself, that he had headaches and
from his parent, step-father, that he worked occa
sionally and seemed to stay in his room. There is
no medical testimony as to the nature and extent
of any permanent injuries. So anything, if this
issue is submitted to the jury, would be pure specu
lation on their part to fix an amount. If you want me
to go further, there is no proof of any medical care
expenses other than a $13.00 item for eye glasses,
one Helena Hospital bill in the amount of $160.00-
odd dollars, and a mother’s testimony that she owed
a hospital in Little Rock $150.00. There is no testi
mony in the record of any pain and suffering period
or mental anguish. There is no testimony at all in
the record concerning this item of damages.
As to the fourth part of the instruction, the loss of
—254—
earnings, there has been nothing placed in the ree-
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
288
ord as to the age or the mortality table of a life
with reference to the future earnings of the defen
dant, his life’s span, or what his earnings were other
than for a six-months period immediately preceding
this incident. Any of these questions submitted to
the jury could not be answered except on a purely
speculative basis.
Mr. Howard: If Your Honor please, we disagree.
I think Dr. Tonyman sustained the plaintiff’s con
tention that he had blackouts, dizzy spells and as a
result of his examination or discussion with the
plaintiff he referred him to the State Hospital for
examination. And, of course, we admit the man
has been released, he has not been seen by any
other doctor other than the ones who testified be
cause, he said, I think the parents stated they didn’t
have the money.
The Court: Well, the Court appreciates the ob
jection that has been raised to it but I am going
to give this instruction as it is. I feel that with
the testimony of the plaintiff as to his condition,
the testimony by the doctor from Marvell, Doctor
Tonyman, as to his treatment with him and diag
nosis of it, and having sent him to Little Rock be
cause of his condition to try to relieve him of his
alleged injury at that time, together with the rec
ord of his employment and the amount of money
that he did receive immediately prior per week,
and that is the reason among other things that I
thought circumstantial-evidence instruction would be
—255—
appropriate in this case. And I think that with all
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
289
of this and the circumstances involved the testimony
here, it should be submitted to the jury for the
jury’s determination.
Mr. Solomon: If you please, note our exceptions.
The Court: Exceptions noted, and this will be
No. 10.
Mr. Solomon: For the purpose of the record, may
we object to instruction No. 11 on the basis that
there is no evidence from which the jury could rea
sonably find any of these three defendants, Boss,
Nicholls or Davis, that would be guilty of punitive
damages and that an instructed verdict in their be
half should be given in the charge of punitive dam
ages.
The Court: The objections to the instruction is
noted and saved for the record.
Do you have any special instructions?
Mr. Howard: If Your Honor please, the plaintiff
did request an instruction on the Arkansas law
which requires an officer to inform the prisoner in
his custody of the charge if he has got a warrant
to display. We do have evidence in this record
that the requests were made wanting to know why
he was being arrested or being taken into custody.
The Court: Well, I think under the testimony
here, the statute I have given under the law would
be applicable toward the situation as to what the
law is in this case.
—256—
Mr. Howard: Which one is that, Your Honor?
The Court: That’s No. 13.
Transcript o f Proceedings, June 13 and 14, 1967
Colloquy
290
Mr. Howard: That’s true, but the law also says
that the party being arrested is entitled to know
why.
Mr. Solomon: Wouldn’t that be a question of
false arrest!
The Court: Well, I think that is a question for
the jury to decide as to whether or not he was at
that time under the facts stated here.
Mr. Howard: Is the Court holding* that we are
not entitled to that instruction!
The Court: I don’t think the instruction that you
just asked for, I don’t believe is applicable and
necessary in view of the instructions that we are
giving as to the duty.
Mr. Howard: Will the Court kindly note our ex
ceptions.
The Court: Yes, of course.
Mr. Howard: Then another one, the statute also,
of Arkansas, provides that a party is to be carried
before a magistrate or a judge, especially when he
is being arrested without a warrant. We would also
request instruction in that regard.
The Court: The Court does not feel that would
be an appropriate instruction to give in light of the
—2 5 7 -
testimony in this case. Exceptions are noted.
Gentlemen, anything else for the records? If you
have any exceptions or further objections this would
be a good time to note them.
(Whereupon, the Court recessed for the noon hour,
resumed at 1:00 o’clock p.m. in the presence of the
jury at which time Counsel presented closing argu-
Transcript of Proceedings, June 13 and 14, 1967
Colloquy
291
Transcript of Proceedings, June 13 and 14, 1967
Verdict
meats and Court’s instructions were given to the
jury.
The jury returned the following verdict:)
“We, the Jury, find in favor of the defendants,
Eoy B. Ross, Harold Nicholls, LeRoy Davis, Royce
William Finley, and The Home Indemnity Com
pany, and against the plaintiff, Charles Townsend.”
Signed—John P. (Jack) Dozier
Dated: June 14, 1967
(Whereupon, the trial in the above entitled matter
was concluded.)
CERTIFICATE
I, Joan F. Lines, hereby certify that I am Acting Official
Reporter for the United States District Court, Eastern
District of Arkansas, Eastern Division, that on the 13th
and 14th of June, 1967, I was present in court and reported
the proceedings had in the case of Charles Townsend vs.
Roy B. Ross, Chief of Police, Et Al., before the Honor
able Oren Harris, Judge of said court, and that the fore
going pages of typewritten matter contain a true and
correct transcription of testimony given, as reported by
me at the time and reduced to typewriting.
W it n e s s my hand this 6th day of October, 1967.
/ s / Joan F. Lines
Reporter
ME11EN PRESS IN C — N. Y. C.<^p5»219