Walker v. Georgia Appendix

    IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

No. 26,271

MARDON R. WALKER,

VERSUS
Appellant,

STATE OF GEORGIA,

Appellee.

Appeal from  the United States District Court 
For the Northern District of Georgia

APPENDIX

Lewis R. Slaton, J r. 
Solicitor General 
Atlanta Judicial Circuit

J. Robert Sparks
Assistant Solicitor General
310 Fulton Courthouse
Atlanta, Georgia

Attorneys for Appellee

Howard Moore, J r.
85914 Hunter Street, N.W. 
Atlanta, Georgia

Attorney for Appellant



I N D E X
Page

Petition for Removal..................... ............ . 1

Plaintiff's Motion to Remand..............   18

Defendant's Motion to Strike and Dismiss................ 19

Plaintiff's Motion to Remand........................  20

Judge Pye ' s Order of August 17, 1966.......     24

Amendment to Complaint........... ............ .........  36

Order Remanding Case to State Court...................  37

Notice of Appeal..........    38

Motion and Order Allowing Stay Pending Appeal.... . 39

Order Dismissing the State Indictment No. 85028......  40

Judgment on Order Dismissing.State Indictment......... 4l

Clerk's Certificate...................................  42



UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 26,271

)
(

STATE OF GEORGIA )
(

vs ) NO. 24,705
(

MARDON R. WALKER ) CRIMINAL
(
)

TRANSCRIPT OF RECORD

APPEALED FROM:

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA

Lewis R. Slaton, Jr. Howard Moore, Jr.
Solicitor General 8591 Hunter Street, N.W.
Atlanta Judicial Circuit Atlanta, Georgia
J. Robert Sparks
Assistant Solicitor General
301 Fulton County Courthouse
Atlanta, Georgia

ATTORNEYS FOR APPELLEE ATTORNEY FOR APPELLANT



IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
__________ ATLANTA DIVISION

STATE OF GEORGIA, )
Prosecutor, )

)
)

CRIMINAL NO. 24,705

vs. INDICTMENTS NO. 8502.8 and
) 88568

MARDON R. WALKER, )
Petitioner-defendant ) FULTON SUPERIOR COURT

)

PETITION FOR REMOVAL

1. Jurisdiction of the Court is Invoked pursuant to 

Title 28, United States Code, Section 1443 (l) and (2).

By this action, the petitioner seeks a federal forum to 

protect her equal rights, privileges, and Immunities 

secured by the First and Fifth Amendments, United States 

Constitution as made applicable to the states by the 

Fourteenth Amendment thereto, Fourteenth Amendment, Article 

VI, Section 2, United States Constituion, Title 42, United 

States Code, Section 1981, and by Title II of the Civil 

Rights Act of 1964 (p.L. 88-352; Laws of 88th Cong. -

2nd Sess.),

2. Petitioner-defendant Mardon R. Walker is a white or 

Caucasian citizen of the United States, residing in the State 

of Connecticut. At the time of the incident for which the 

State of Georgia is threatening to prosecute, petitioner was

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completing the first semester of the school year 1963-64 as 

an exchange student at Spelman College in Atlanta, Georgia.

Spelman College is and was a fully accredited four-year 

liberal arts college, predominantly attended by females of 

the Negro race.

3. On or about January 13* 1964,, several Negro and 

white citizens unsuccessfully sought service and accommodation 

at a short-order restaurant owned and operated by the Krystal 

Company, a business corporation organized under the laws of 

the State of Tennessee. At that time, The Krysal Company 

limited and conditioned access and admission to its goods, 

services and advantages on the basis of race or color. The 

restaurant is a place of public accommodation which simultane­

ously accommodates more than a dozen patrons. Said restaurant 

did and does serve and offers to serve food for consumption on 

the premises to interstate travelers. A substantial portion of 

the goods which it offers for consumption on the premises has moved 

and did move in interstate commerce.

4. On that date, petitioner was refused and denied service 

and accommodation and allegedly requested to leave the premises 

by a person claiming to be in charge of the restaurant. Peti­

tioner refused to leave and was arrested by officers of the 

Atlanta Police Department for violating Title 26, Ga. Code Ann.,

2



Sec. 3G05.J the so-called anti-trespass statute.

5. On or about January 28, 1964, petitioner was indicted 

by the grand jury of Pulton County, Georgia, for refusing to 

leave the premises of the Krystal Company upon request, a 

violation of 26 Ga. Code Ann., Sec. 3005. A copy of said 

indictment (No. 85028) is attached hereto as Exhibit "A1'.

6 . On or about February 17* 1964, indictment^No. 85028 

was brought on for trial before the Honorable Durwood T. Pye, 

Judge of the Superior Court of Pulton County, Georgia, 

presiding, and a jury. On or about February 25, 1964, the 

petitioner was convicted and sentenced to serve eighteen 

months in jail and to pay a fine of one thousand dollars.

Upon filing a skeleton motion for new trial, supersedeas bond 

was fixed in the amount of fifteen thousand dollars to be 

secured by unencumbered real property situated in Fulton 

County, Georgia. Shortly thereafter, petitioner was released 

on bond in that amount.

7 . Petitioner subsequently perfected her motion for new 

trial and from a denial of the same unsuccessfully appealed to 

the Supreme Court of Georgia, Walker v. State, 220 G. 415, 139 

S. E. 20278 (1964).

8. Petitioner then sought review in the Supreme Court of 

the United States on petition for writ of certiorari. On May

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24, 1965  ̂ the petition for writ of certiorari was granted and 

the judgment of conviction reversed, A copy of that order is 

attached hereto as Exhibit "B", and is reported as Walker v. 

Georgia, 381 U. S. 355 (1965).

9. On July 26, 1965, pursuant to the judgment of the 

Supreme Court of the United States, the Supreme Court of 

Georgia vacated its judgment affirming petitioner's conviction 

and reversed the judgment of the Superior Court of Pulton 

County, Georgia. A copy of the judgment of the Supreme Court 

of Georgia, entered pursuant to the wr: t of certiorari, is 

attached hereto as Exhibit "c",
10. Upon receipt of the remittitur of the Supreme Gourt 

of Georgia or shortly thereafter, the Honorable Durwood T.

Pye entered an "Order and Judgment On Remitter" and construed 

the remittitur embodying the mandate of the Supreme Court of 

the United States as "simply one in which the conviction of 

defendant, Mardon R. Walker, under the indictment against her 

in this court has been set aside and reversed, and the result 

is that the case stands for trial upon said indictment de novo 

in this court." A copy of said order is attached hereto as 

Exhibit "D."

11. On or about November 25, 1965* the Honorable Durwood T. 

Pye ordered the Solicitor General of Fulton County to prepare

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indictments against the petitioner charging her with violating 

Title 26* G a . Code Ann»* Secs. 5302* 8ll6* and 5501. The order 

specifically directed that petitioner be indicted for an alleged 

transaction or occurrence at the Krystal Company on January 13* 

1964, Petitioner* however* had previously been tried and con­

victed under the so-called anti-trespass act for the identical 

transaction or occurrence and had had that conviction vacated 

and reversed by the Supreme Court of the United States. A copy 

of said order is attached hereto as Exhibit "E. "

12. Shortly thereafter* the Solicitor General procured a 

grand jury indictment against the petitioner in the manner and 

particulars specified in the order of November 25* 1965. 

Petitioner's copy of said indictment is attached hereto as 

Exhibit "F."

13. On December 7* 1965* the Honorable Durwood T. Pye 

entered an order retaining said indictment for trial in the 

Superior Court of Fulton County and took exclusive jurisdiction 

of the case himself. A copy of said order is attached hereto 

as Exhibit "G. "

14. The indictment (No. 88568) charged petitioner with 

entering the premises of the Krystal Company with other named 

persons in a disorderly manner and damaging its property. Peti­

tioner herself did not commit any of the acts set forth in the

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bill of indictment, if the same did in fact occur.

15. On information and belief, each of the persons named 

in indictment No. 88568 was arrested at the Krystal Company on 

January 13> 1964 and charged with violating the anti-trespass 

act. Their indictments have been removed to this court and are 

pending for disposition upon the final outcome of Rachel v. 

Georgia, 342 F.2d, 336 (5th Cir. 1965), reh. denied 342 F.2d,

909; No. 147 in the Supreme Court of the United States under 

the style of Georgia v. Rachel.

16 . On information and belief, petitioner is the only 

person who allegedly entered the Krystal Company on January 13* 

1964, who has been re-indicted under different statutes for the 

same transaction or occurrence. Further, on information and 

belief, all but one of the persons named in the indictment No. 

88568 are Negro citizens of the United States, residing in the 

State of Georgia.

17. On or about January 13, 1964, the practice of limiting 

and conditioning access to places of public accommodation on the 

basis of race or color was prevalent in the City of Atlanta.

Some places of public accommodations, however, had abandoned that 

practice in favor of a more liberal and progressive business 

image, conducive to attracting international, national, and 

regional conventions and trade delegations.

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18. The statutes of the State of Georgia upon which the 

above-mentioned indictment proceeded are unconstitutional upon 

their face; in that, they fail to give petitioner adequate 

notice and warning that her belief in equal rights for all 

citizens and association with other citizens of the United 

States seeking to obtain equal access to a place or places of 

public accommodation without discrimination or segregation 

because of their race or color would constitute a violation of 

any or all of the statutes upon which the indictment was laid 

in violation of the First and Fourteenth Amendments, Constitu­

tion of the United States, the due process of law and the equal 

protection of law clauses of the Fourteenth Amendment, Article 

VI, Section 2, of the Constitution of the United States, and 

Title II of the Civil Rights Act of 1964. Said statutes are as 

follows:

"26-5302. (360 P.C.) Riot. - Any two or more
persons who shall do an unlawful act of vio­
lence or any other act in a violent and 
tumultuous manner, shall be guilty of a riot 
and punished as for a misdemeanor. (Cobb, 8ll.
Acts 1865-6, p.233.)"

"26-8116. (T8l P.C.) All other acts of malicious 
mischief. - All other acts of wilful and malicious 
mischief, in the injuring or destroying any other 
public or private property not herein enumerated, 
shall be misdemeanors. (Cobb, 825.)"

"26-5501. (366 P.C.) Punishment. -All other
offenses against the public peace, not herein 
provided for, shall be misdemeanors. (Cobb, 813.)"

- 7 -



19. Said statutes as applied against the petitioner 

infringe upon and deprive her of equal rights of association, 

belief, speech, and equal access to places of public accommoda­

tion in violation of the First and Fourteenth Amendments, 

Constitution of the United States, and Title II of the Civil 

Rights Act of 1964.

Further, said statutes as applied to subject petitioner 

to double jeopardy as punishment, coercion, intimidation, and 

harassment to threaten and deter petitioner because of her race 

or color and domicile and others from exercising equal rights of 

association, speech, and right of equal access to places of 

public accommodation violate rights, privileges, and immunities 

protected by the First, Fifth and Fourteenth Amendments, Article 

VI, Section 2 of the Constitution of the United States; 42 

United States Code, Section 1981; and Title II of the Civil Right 

Act of 1964.

20, Petitioner's indictment and prosecution are attempts 

by a certain governmental authority or authorities, under color 

of state law, to punish, coerce, harass, and intimidate the 

petitioner because of her associations and civil rights activi­

ties and an attempt to threaten, harass, intimidate, punish, 

coerce, Negro and white citizens for, through interracial 

cooperation, having procured and secured judicial, executive, 

and legislative vindication of their right to be free of



segregation or discrimination because of their race or color in 

the exercise of their equal rights under the Constitution and 

laws of the United States.

21. For the reasons hereinbefore stated, petitioner was 

indicted and is now threatened with prosecution and punishment 

for acts done under color of authority derived from the laws of 

the United States providing for equal access to places of public 

accommodation, including the right to associate with organiza­

tions and persons seeking to acquire and enjoy equal access for 

themselves and others similarly affected to places of public 

accommodation as defined in Title II of the Civil Rights Act

of 1964.

22. Petitioner is denied and/or cannot enforce in the 

Courts of the State of Georgia rights under the Constitution 

and laws of the United States providing for the equal rights 

of citizens; in that, among other things;

(a) Petitioner's right to trial by jury is effectively 

withheld and denied by Title 59, Ga. Code Ann., Sec. 106, which 

requires the jury commissioners of the several counties to select 

the names from tax digests, which were organized and maintained 

pursuant to Title 92, Ga. Code Ann., Sec. 6307, on the basis of 

race or color.

(b) For the reasons set forth in paragraphs 10, 11,

-  9 -



and 13 above, the petitioner is further denied and/or cannot 

enforce in the Superior Court of Fulton County, Georgia, rights 

under the Constitution and laws of the United States providing 

for equal rights.

23. On information and belief, the cases against petitioner 

have not been called or scheduled for trial. Petitioner believes, 

however, that trial is imminent.

24. Petitioner is presently at liberty in the State of 

Connecticut and will abide by any order of this Court served 

upon her attorney of record directed to her.

25. Since the cases or charges pending against the peti­

tioner are criminal, bond xvith good and sufficient surety is not 

required to be filed herewith.

WHEREFORE, in view of these facts, petitioner prays that:

(a) The aforesaid criminal indictments be removed 

from the Superior Court of Fulton County, Georgia, to the United 

States District Court for the Northern District of Georgia,

Atlanta Division, for trial;

(b) This petition be filed pursuant to 28 U.S.C., 

Sections 1443 and 1446(a) (1958), and Lefton v. City of 

Hattiesburg, 333 Fed. 2d 280 (5th Cir. 1964);

(c) The aforesaid criminal prosecutions stand so 

removed as provided for in Title 28, United States Code, Sec.

1446 (c) and (e);

10 -



(d) Jurisdiction be retained by this Court under 28 

U.S.C., Sec. 144-3 (1958)., or, in the alternative, petitioner be 

granted a full evidentiary hearing as soon as practicable as 

provided for in Rachel v. State of Georgia, 242 F.2d (5th Cir. 

1965);

(e) The court accord such further relief as is 

necessary and justified to protect .the petitioner's interest.

/s/ Howard Moore, Jr.____________
HOWARD MOORE, JR.
859i HUNTER ST. , N.W.
ATLANTA, GOERIGA 30314

ATTORNEY FOR PETITIONER 

VERIFICATION

I, HOWARD MOORE, JR., of lawful age, first being duly 

sworn, upon oath, depose and say:

That I am a member of the Bar of the State of Georgia;

That I am the duly authorized attorney for Mardon R.

Walker;

That I have read the annexed petition and know the 

contents thereof;

That I know of my own personal knowledge that the facts 

stated therein are true except such as are stated on information 

and belief;

11 -





STATE OF G EO R G IA , CO U N T Y  OF FULTON.

IN THE SUPERIOR CO U RT  OF SA ID  COUNTY.

THE G R A N D  JURORS selected, chosen and sworn for the County of Fulton, to-wlt:

• I............................................................................... ,Foreman

In the name and behalf of the citizens of Georgia, charge and accuse

MARDON R. WALKER
with the offense of:—

..................... MISDEMEANOR.............................
for that said accused, in the County of Fulton and State of Georgia, on the

*
... 13th ...............day ........ January... ............• 19 64

did wilfully, maliciously, violently, tumultuously, and unlawfully, acting 
with common intent and concert of action with fourteen other persons, to 

wit: James M. Carter, Jean Potts, Betty Brown, Lynda Woods alias Judy

Kindell, Bobby Ziegler, Billy E. Kindell, Rafael H. Bentham, James A. Kin- 
dell, Lewis A. Hurst, Jackie Smith alias Annette C. Alexander, Robert Weave 

alias Larry F. Camp, Dexter Morton, Moreland R, Huber alias Bob, Jack Kryst 
alias Jack Heytnan, enter and invade the premises of The Krystal Company, a 
place of business in the city of Atlanta, said county, in a violent and 
tumultuous manner, with intent then and there to disturb and disrupt ther
operation of said business and, while on said premises, and pursuant to sue 

common intent and concert of action, did spit on the floor, vomit on the 
floor, engage in loud talking and banging on the counter, and did squirt 
mustard and catsup on napkins, counters and other property of said company:

contrary to the laws of said State, the good order, peace and dignity thereof.

LE W IS  R . SLATON, W ILL IA M  T. BOYD, Solicitor General.

J R .  Special Presentment.

: - 13 - ■ . . .....

. • . .



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FULTON SUPERIOR COURT

THE STATE 

vs.

... Bill

day of..................................... . 19......

................................................. Foreman

waives copy of indictment, list of witnesses, foil panel, 

formal arraignment, and pleads...................... .........

......... ......................................... .... ....... Sol. Sen'I.

....................................... ...................Deft's. Atty.



THE STATE 

VERSUS

MAROON WALKER

CASE NUMBER 88568
INDICTMENT FOR MISDEMEANOR
TRUE BILL. RETURNED DECEMBER 3, 1965
FULTON SUPERIOR COURT

O R D E R

Ordered, that the foregoing indictment be retained

in this Court for trial.

Further ordered, that the undersigned Judge takes

exclusive jurisdiction of said case.

This day of December, 1965.

EXHIBIT <*G"



THE STATE CASE NUMBER 88568

VERSUS
INDICTMENT FOR MISDEMEANOR 
TRUE BILL RETURNED DECEMBER 3

MARDON WALKER FULTON SUPERIOR COURT

O R D E R

Ordered, that the foregoing indictment be retained 

in this Court for trial.

Further ordered, that the vmdnrn.igned Judge takes 

exclusive jurisdiction of said case.

This day of December, 1965.

EXHIBIT "G"

- 16 -

, 1965



(TITLE AND NUMBER OMITTED)

TO: THE HONORABLE J. W. SIMMONS, CLERK OF THE SUPERIOR COURT
OF FULTON COUNTY,, GEORGIA, AND HONORABLE ROY COWAN,
DEPUTY CLERK IN THE CRIMINAL DIVISION OF THE SUPERIOR 
COURT OF SAID COUNTY:

You are hereby notified that on the 13th day of April, 

1966, a petition for removal in the above-entitled case, 

the foregoing petition being a copy of the same, was filed 

in the United States District Court for the Northern District 

of Georgia, Atlanta Division.

This 13th day of April, 1966.

/s/ Howard Moore, Jr.
HOWARD MOORE, JR.
859? HUNTER ST. , N. W.
ATLANTA, GEORGIA 30314

ATTORNEY FOR PETITIONER 

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the Petition 

for Removal in the case of the State of Georgia v. Mardon R. 

Walker, United States District Court for the Northern District 

of Georgia, Atlanta, Georgia, upon the Clerk of the Superior 

Court of Fulton County, Georgia, and upon the Honorable Lewis 

Slaton, Solicitor General, of the Superior Court of Fulton 

County, Georgia, by personally serving a copy of the same upon

-  17 -



the said Clerk and Solicitor General at their respective of-

flees* in the Pulton County Courthouse Building* Atlanta* 

Georgia on April 13th* 1966.

/s/ Howard Moore* Jr._______
HOWARD MOORS, JR.

ATTORNEY FOR PETITIONER

FILED IN CLERK'S OFFICE 
APF, 18* 1966

(Title and Number Omitted)

MOTION TO REMAND TO FULTON SUPERIOR COURT 

Now comes the State of Georgia* acting by and through 

Lewis R. Slaton* Jr.* Solicitor General* and J. Robert Sparks* 

Assistant Solicitor General* Atlanta Judicial Circuit* and 

respectfully moves this Court to remand- the indictments against 

Mardon R. Walker filed April 13, 1966* and numbered as shown In 

the caption above* to the Fulton Superior Court for trial or 

other disposition* on the ground that the allegations set forth 

in said Petition for Removal do not set out sufficient cause as 

a matter of law to authorize the removal of said criminal cases 

from Fulton Superior Court to this Honorable Court.

-  18 -



WHEREFORE, Movant prays that this Court issue an order 

remanding this case to Fulton Superior Court for trial or 

other disposition.

/s/ Lewis R, Slaton, Jr.__________
Lewis R. Slaton, Jr., Solicitor 

General, A. J. C.

/s/ J, Robert S p a r k s ____
J. Robert Sparks, Assistant Solicitor

General, A. J. C.

FILED IN CLERK'S OFFICE 
APR 25, 1966

(Title and Number Omitted)

MOTION TO STRIKE AND DISMISS MOTION 
OF THE STATE OF GEORGIA TO REMAND 
TO FULTON SUPERIOR C O U R T ______

MARDON R. WALKER, defendant-petitioner in the above- 

captioned petition for removal, moves this Court for an order 

striking and dismissing the motion filed on behalf of the State 

of Georgia to remand on the grounds of its legal insufficiency. 

Said motion constitutes a mere conclusion of the pleader and is 

wholly devoid of any allegations which set forth how and by what 

authority the allegations of the removal petition fail to "set 

out sufficient cause as a matter of law to authorize" removal.

- 19



WHEREFORE, defendant-petitioner moves this Court for an

order striking and dismissing the motion to remand.

/s/ Howard Moore, Jr,_______
HOWARD MOORE, JR.
859! Hunter St., N. W. 
Atlanta, Georgia 30314

ATTORNEY FOR PETITIONER

STATE OF GEORGIA I

FILED IN CLERK'S OFFICE 
AUG. 24, 1966

v.

MARDON R. WALKER

Case No. 24705

MOTION TO REMAND TO FULTON SUPERIOR COURT

Now comes the State of Georgia, acting by and through 

Lewis R. Slaton, Jr., Solicitor General, and Paul Ginsberg and 

J. Robert Sparks, Assistant Solicitors General, for the Atlanta 

Judicial Circuit, Atlanta, Georgia, and respectfully shows:

1. That the defendants named in Exhibit A hereto attached 

and made a part hereof were indicted by the Grand Jury of Fulton 

County, Georgia, and charged with violating Title 26, Georgia 

Code Section 3005, under the indictment numbers and premises 

where said offense occurred all as shown in said Exhibit A.

2. That on or about February 17* 1964, after a trial 

calendar had been set for the trials in the Fulton Superior

20



Courts Atlanta Judicial Circuit., Georgia* and while one trial 

was in progress* certain of the defendants filed in this Court 

a Petition for Removal of said cases from the Pulton Superior 

Court to this Court* under the name*'number and style in this 

Court* as shown in Exhibit B* hereto attached and made a part 

hereof,

3, That the Petition for Removal filed by Thomas Rachel 

and others* being Case No. 23869* in this Court and more fully 

set forth in Exhibit B hereto attached* was not granted and 

before the State of Georgia had time to file its response 

thereto* this Court* on its own Motion* refused to grant re­

moval of said Case No. 23869* and same was remanded to the 

Pulton Superior Court by Order of His Honor United States 

District Court Judge Sloan.

4. Whereupon* the aforesaid Remand Order of Court of the 

Honorable United. States Judge Sloan was thereafter superseded by 

the United States Court of Appeals for the Fifth Circuit* which 

Court thereafter entered an Order and Opinion reversing that of 

Judge Sloan* which Order and Opinion of said Circuit Court of 

Appeals was thereafter reviewed on a writ of certiorari by the 

Supreme Court of the United States* which made rulings contrary 

to that of said Fifth Circuit Court of Appeals* all as set forth 

in the decision of the Supreme Court of the United States in 

Case Number 19?* October Term* 1965  ̂ entitled* State of Georgia*

21



Petitioner, versus Thomas Rachel, et al.

5. That certain of the named defendants as set forth in 

Exhibit B hereto attached and made a part hereof, filed Petitions 

for Removal of said indictments of the Fulton Superior Court, to 

this Court, all as shown in the caption and more detailed as to 

names; case numbers in the Button Superior Court; case numbers

in this Court; date of the ofiense; and place where the offense 

occurred as alleged in said indictments, as more fully set forth 

in both Exhibits A and B hereto ,'ttached and made a part hereof.

6. That the State of Georgi now respectfully moves this 

Court to remand all the indictment against said named defendants 

as shown in the caption and in Exhibit A hereto attached, to the 

Fulton Superior Court for trial or oVier disposition, on the 

grounds that the allegations set forth in said Petitions for 

Removal, aforementioned, do not set out sufficient cause as a 

matter of law, to authorize the removal f said criminal cases 

from, the Fulton Superior Court to this Honorable Court.

7„ That heretofore this Honorable Coi't did issue re­

straining orders and injunctions, restrainir and enjoining 

the Solicitor General of the Atlanta Jucicialcj.lrcuit, Georgia, 

from proceeding with trial of said cases aforenj-d, in the 

Fulton Superior Court, Georgia, and also enjoint1 and restrained 

the Sheriff of Fulton County, Georgia, from actin in said cases 

in the Fulton Superior Court, which restraining or*rs and

22



injunctions should now be vacated and set aside.

WHEREFORE, Movant prays:

1. That this Honorable Court issue an Order, remanding 

said cases shown in Exhibits A and B to the Fulton Superior 

Court for trial or other disposition; and

2. That this Honorable Court vacate and dissolve any and 

all restraining orders and injunctions heretofore issued by 

this Court against the Solicitor General of the Atlanta 

Judicial Circuit, Georgia, and the Sheriff of Fulton County, 

Georgia, in the above-entitled cases and all other similar 

cases now before this Honorable 'Court.

Lewis R. Slaton, Jr., Solicitor General 
A. J. C., Georgia

J. Robert Sparks, Assistant Solicitor 
General, A. J. C., Georgia

Paul Ginsberg, Assistant Solicitor 
General, A. J. C., Georgia

FILED IN CLERK'S OFFICE 
JUNE 5, 1968

- 23



FILED IN CLERK'S OFFICE 
AUG 24, 1966

IN THE SUPERIOR COURT, ATLANTA JUDICIAL CIRCUIT 
IN AND FOR THE COUNTY OF FULTON 
ATLANTA, FULTON COUNTY, GEORGIA

O R D E R

This Order is entered in reference to the following 

indictments for misdemeanor heretofore returned Into this 

Court by the Grand Jury, to wit:

CASE CLERK'S NUMBER

State versus Wilkie Lamar Alford 84119

State versus Debbie Amis 84120

State versus Carl C. Arnold 84121

State versus Janet Nance Aucremann 84122

State versus Adrian B. Boone 84123

State versus Amos Brown 84124

State versus Archer Columbus Black 84125

State versus Willie Randolph Bryant 84126

State versus Willie Paul Berrien, Jr. 84127

State versus Joseph Calhoun, Jr. 84128

State versus Russell Carmichael Campbell 84129

State versus John Arthur Cherry 84130

State versus Walter Norris Cuby 84131

State versus Peter Igor DeLissovy 84132

State versus Freddie Brown Dixon 84133

-  24



CASE CLERK'S NUMBER

State versus Albert Lee Dunn 84134 

State versus Arthur Reginald Elliott 84135 

State versus Clifford Warren Endres 84136 

State versus Joe Eyer 84137 

State versus Marion A. Fitchue 84138 

State versus Larry Crawford Fox 84139 

State versus James Cottrell Freeman, Jr. 84140 

State versus Edmond Barry Gaither 84l4l 

State versus Melvin Douglas Gerald 84142 

State versus Walter Otto Gill 84143 

State versus Bruce Gordon 84144 

State versus William Gordon, Jr. 84145 

State versus Coulin Gougis 84146 

State versus Willie C. Graham 84147 

State versus Elizabeth Ann Heath 84148 

State versus Carl Vincent Hill 84149 

State versus Harold Mayo Holmes 84150 

State versus Jeannett Stockton Hume 84151 

State versus Gwendolyn Marie lies 84152 

State versus Donald Earl Jacobs, Jr. 84153 

State versus Ronnie Steve Jenkins 84154 

State versus Samuel A. Jennings 84155 

State versus George William Johnson 84156

- 25



CASE CLERK'S NUMBER

State versus Willie P. Johnson 84157

State versus Willie Mitchell Johnson 84158

State versus Ashton Bryan Jones 84159

State versus George Washington Jones * Jr. 84160

State versus Stephen G. Jones 84l6l

State versus Elaine Makouski 84162

State versus Ross Marain 84163

State versus Justin McLendon Marshall 84164

State versus Joseph E» Matthews, 111 84165

State versus Janice Melita Mohr 84166

State versus Ralph M. Moore 84167

State versus James Earl McLeod 84168

State versus London T. Newton, Jr. 84169

State versus Lynn Pfuhl 84170

State versus Matthew Plummer 84171

State versus John Ponder 84172

State versus Thomas Rachel 84173

State versus Robert Anthony Rhodes 84174

State versus Julius M. Samstein 84175

State versus David Satcher 84176

State versus Everett Newton Smith 84177

State versus Michael Sayer 84178

State versus Leonard Andrew Scruggs, Jr. 84179

-  26 -



CASE CLERK'S NUMBER

State versus Henry Marion Steele 84180 

State versus Herbert Alonzo Stone 84181 

State versus Antonio Thomas 84182 

State versus James F. Thompson 84183 

State versus Ronald Franklin Turner 84185 

State versus Judy Walborn 84186 

State versus Jerry Walker 84187 

State versus Anna Jo Weaver S4l88 

State versus Andrew Jackson Webb 84189 

State versus Eric Weinberger 84190 

State versus Charles Edward Wells, Sr. 84191 

State versus Louis Elliott Whitted 84192 

State versus Johnny Randolph Williams, Jr. 84193 

State versus Curtis James Wilson 84194 

State versus Elijah Young 84195 

State versus Joyce E. Barrett 84989 

State versus Rafael Bentham 84990 

State versus Harry G. Boyte 84991 

State versus Joseph E. Boone 84992 

State versus James Carter 84995 

State versus Eunice G, Cooper 8499^ 

State versus Leon Cox, Jr. 84997

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CASE CLERK'S NUMBER

State versus Albert Dunn 84998

State versus John L. Gibson 85OOO

State versus Prathia Laura Ann Hall 85OOI

State versus Bob Huber 85004-

State versus Louis A, Hurst 85OO5

State versus James Kindell 85008

State versus Jack Krystal 85OO9

State versus John Lewis 85OIO

State versus John B. Norris 85014

State versus Dexter Morton 85OI5

State versus Gary T. Robinson 85020

State versus Jackie Smith 85022

State versus Joseph Trent 85025

State versus Wyatt Walker 85027

State versus Clinton Warner 85029

State versus Robert Weaver 85030

State versus Lynda Woods 85031

State versus Bobbie Zeigler 85032

State versus Annette Alexander 85103

State versus Mamie Jean Hurst 85104

State versus Betty Brown (Reindicted under
real name of Mamie Jean Hurst) 84993

State versus Billy Kimball 85OO7

State versus Billy Kindell 85IO5

State versus Annie Kindell 85IO6

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This Order is also entered in reference to the following 

indictment, returned by the Grand Jury to this Court against 

Marion R. Walker and James R. Forman, being Indictment Number 

88567, and charging the offense of misdemeanor as therein set 

out, in which indictment petition seeking to remove the same to 

the United States District Court was filed on or about April 6, 

1966.

This Order is also entered in reference to Indictment 

Number 85028, against Mardon R. Walker, upon which indictment 

defendant has been tried and convicted and a new trial granted, 

and in which case proceedings were undertaken to remove said 

case to the United States Court on or about April 13, 1966,

This Order is also entered in reference to any and all 

other indictments pending in this Court which are similarly 

situated and in which proceedings similar to those referred to 

in this Order are pending in the United States District Court.

In some of said cases, proceedings seeking to remove the 

same from this Court to the District Court of the United States 

were filed in said United States Court, said cases being remanded 

to this Court by Order of His Honor, United States Judge Sloan, 

whose said Order of Remand was thereafter superseded by the 

United States Court of Appeals for the Fifth Circuit, which 

Court thereafter entered an Order and Opinion reversing that of

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Judge Sloan, which Order and Opinion of said Circuit Court 

of Appeals was thereafter reviewed on writ of certiorari by 

the Supreme Court of the United States, which made rulings 

contrary to that of said Fifth Circuit Court of Appeals, all 

as set forth in the decision of the Supreme Court of the 

United States in Case Number 147, October Term, 1965, entitled, 

State of Georgia, Petitioner, versus Thomas Rachel et al. See, 

the Order and Opinion of this Court, stated in Open Court March 

20, 1964, and entered March 23, 1964, -which Order and Opinion 

is made a part hereof by this, reference thereto.

In some of the aforesaid cases, proceedings seeking to 

remove them from this Court to the United States District Court 

have been filed in said United States Court and are now pend­

ing therein, there having been no orders entered thereon.

In some of said cases, proceedings have been filed by and 

in behalf of the defendants therein in the United States District 

Court, undertaking to enjoin the Solicitor General of the 

Atlanta Judicial Circuit and the Sheriff of Fulton County and 

other officers of the State from proceeding with their duties 

under the laws of the State in relation to said eases, and 

restraining orders and writs of temporary injunction have 

heretofore issued by the United States District Court, whereby 

officers of the State have been enjoined and restrained from 

proceeding with their duties aforesaid.

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It now appears to the Court that the Supreme Court of 

the United States has laid down the applicable law in relation 

to the efforts to remove said cases from this Court to the 

United States District Court, as follows, to wit:

It appears that, in said case of State of Georgia, 

Petitioner, versus Thomas Rachel et al„, and in the case of 

The City of Greenwood, Mississippi, Petitioner, versus Willie 

Peacock et al„, and in the case of Willie Peacock, et al„, 

Petitioners, versus The City of Greenwood, Mississippi, all of 

these cases being on writs of certiorari, directed by the 

Supreme Court of the United States to the aforesaid Court of 

Appeals for the Fifth Circuit, said Supreme Court has held, in 

substance, that the aforesaid cases are removable from the 

state courts to the United States District Court only in the 

event a particular defendant establishes that his arrest and 

subsequent indictment and prosecution was on account of some 

transaction specifically authorized to be engaged in by the 

Act of Congress, known as the 1964 Civil Rights Act, which Act 

the Supreme Court of the United States has retroactively 

applied, and said Supreme Court has held that It must appear 

that said arrest and subsequent prosecution were for non-violent 

acts specifically authorized by specific federal statute, viz: 

said 1964 Civil Rights Act, and that the arrested and prosecuted

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person was peaceably and In a lawful arid legitimate manner 

seeking in good faith public accommodation in a restaurant 

engaged in Interstate commerce, and was arrested and 

prosecuted therefor exclusively because of race. See, the 

aforesaid Opinions of the Supreme Court of the United States.

The Solicitor General is directed hereby to file in the 

United States District Court for the Northern District of 

Georgia motions to remand each and all of the aforesaid cases, 

and motions to dissolve and set aside each and all of the 

aforesaid restraining orders and injunctions, and by all 

appropriate pleadings to assert the exclusive authority of the 

Courts of the State of Georgia to try each and all of said 

cases.

Said Solicitor General is further directed to present 

before the United States District Court all evidence in 

relation to the above cases, which bears upon the question of 

violence, lack of peaceableness, and riots and disturbances.

The Solicitor General is further directed to present to 

the United States District Court evidence of all disorders 

accompanying the aforesaid transactions and taking place before 

and after the same in relation to the general subject matter, 

whether or not included within the particular indictment.

-  32



Said Solicitor General is further directed to present to 

the United States District Court all evidence on the question 

of the existence of combination., agreement or conspiracy in 

relation to the transactions involved in said indictments, 

during, before, and after the times thereof.

The Solicitor General is further directed to present to 

the United States District Court the evidence in relation to 

transactions involved in the following indictment, not sought 

to be removed, so far as this Court is advised, to wit: 

Indictment Number 88568, The State versus Mardon R. 

Walker.

Said Solicitor General is further directed to present, 

in relation to all of the foregoing matters, testimony of all 

available witnesses, and to cause said witnesses to be served 

with subpoena for appearance before the United States Court, 

including the following witnesses, to wit:

Charles Lebedin; Captain C. C. Hamby; H. J. Drury;

H. E. Quinn; Sergeant B. F. Marler; William Kontoes; Hinson 

McAuliff; G. L. Harvey; Lieutenant W. K. Perry; Jim Petkas; 

Captain R. E. Little; Officer M. G. Redding; Officer C. E. 

Wright; Officer J. E. Hendrix; Officer H. McCollister; Emory 

Crenshaw; Officer R. B. Moore; Officer W. E. Peacock; F. R. 

Pike; A.W. Tollison; George Evagoras; Harry O'Nan; B. VanCleve

-  33



Captain J. L, Moseley; Officer J. R. Shattles; Moreton 

Rolleston, Jr.; William Cowan; Lieutenant Howard Baugh;

Edna Farrington; and, Dora McRae.

The Solicitor General is further directed to present to 

said United States District Judge the photographs introduced 

in this Court on the trials of cases against Mardon R„ Walker 

and Tom Taylor Tolg, including the photographs received by 

the Presiding Judge by mail in an unmarked envelope and 

delivered to the Solicitor General in Open Court in the 

presence of counsel for the defendant in the case on trial, 

including also the twenty-five photographs of those delivered 

to the Solicitor General in Open Court and left by the 

Solicitor General with the Court Reporter, which twenty-five 

photographs are herewith delivered by the Court to the 

Solicitor General.

The Solicitor General is further directed to request said 

United States Judge to make such Orders and exercise such 

authority as is necessary to cause the defendants in such cases 

as are remanded to this Court to appear in this Court for trial, 

and, in respect of those defendants turned out of the Fulton 

County Jail by Order of the Federal Courts, to issue such 

Orders and take such proceedings as are necessary to place 

said defendants back in said jail to await trial.

- 3^ -



All of said cases having been duly and regularly placed 

on the calendar of Judge Pye and being on his calendar for trial 

at the time the aforesaid proceedings to remove them from this 

Court were instituted, and at the time the aforesaid injunctions 

and restraining orders against the officials of the State were 

promulgated, and at the time several defendants were turned out 

of jail by federal officials, and Judge Pye laving entered 

Orders, Judgments, and Opinions in said cases, it is Ordered 

that, upon the remand of said cases, the Clerk place them on 

the calendar of Judge Pye for trial at such time as directed 

by dm.

The Clerk is directed to file this Order, and enter same 

upon the Minutes of the Court, and to furnish a certified copy 

thereof to the Solicitor General.

This 17th day of August, 1966.

/s/ Purwood T. Pye 
Presiding Judge, Superior Court 
Atlanta Judicial Circuit

Filed Jun. 5, 1968

- 35



(Title and Number Omitted)

AMENDMENT

Mardon R. Walker, petitioner-defendant in the above-entitled 

petition for removal, amends her previously filed petition by 

striking sub-paragraph (a) of paragraph 22 in its entirety and 

substitutes therefor the following:

(a) Petitioner's right to be free of punishment, coercion, 

and intimidation for having exercised or having attempted to 

exercise rights, privileges, and immunities secured by Title II 

of the Civil Rights Act of 1964 by the enforcement of the 

judgment rendered in Walker v. State, 381 U.S. 355 (19&5) i-3 

denied and withheld by the mere pendency of the indictments 

and proceedings which are attached hereto as Exhibits A and 

F, respectively.

WHEREFORE, petitioner-defendant prays that this her 

amendment be allowed and ordered filed.

This 25th day of September, 1967*

Respectfully submitted,

/s/ Howard Moore, Jr.
HOWARD MOORE, JR.
859| Hunter Street, N.W.
Atlanta, Georgia 30314

So ordered, subject to motions, answers, and objections, this 

25th day of September, 1967°

/s/ Lewis R, M o r g a n _____
CHIEF JUDGE, UNITED STATES 
DISTRICT COURT

- 36 -



(TITLE AND NUMBER OMITTED)

The above and foregoing case came on before this Court 

on motion of the State of Georgia to remand to the Superior 

Court of Pulton County the above-numbered indictment.

The Courts after receiving evidence, hearing oral 

arguments of the parties, and considering the case on the 

submission of written briefs, finds that, although the Krystal 

Restaurant is a covered establishment within the meaning of'

Title II of the Civil Rights Act of 1964, as a matter of law 

the cause is not properly removable under Section 1443 (l),

Title 28, United States Code, from the Superior Court of 

Pulton County, Georgia; and, accordingly, the case is remanded 

to the Superior Court of Fulton County.

The defendant Mardon R. Walker is charged in the indictment 

returned by the Fulton Superior Court with violations of 

Sections 26-5303, 26-5501, and 26-8116 of the Georgia Code 

Annotated, with damaging private property and behaving in a 

riotous manner at the Krystal Restaurant on January 13, 1964.

For the reason set out in this Court!s opinion of April 

2, 1968, in the case of Criminal No. 24701, State of Georgia 

v. Mardon R. Walker and James Forman, the within and foregoing 

case is hereby remanded to the Superior Court of Fulton

-  37 -



County, Georgia,

IT IS SO ORDERED.

This the 2nd day of April, 1968.

/s/ Lewis R. Morgan 
LEWIS R. MORGAN 
United States District Judge

(TITLE AND HUMBER OMITTED)

NOTICE OF APPEAL

Notice is hereby given that the petitioner-defendant, 

MARDON R. WALKER, hereby appeals to the United States Court of 

Appeals for the Fifth Circuit from the final order, dated April 

5 , 1968, and the final judgment entered thereon, remanding said 

case to the Superior Court of Fulton County, Georgia.

This 8th day of April, 1968.

/s/ Howard Moore, Jr.
HOWARD MOORE, JR.
PETER E. RINDSKOPF 
8592 Hunter St., N.W.
Atlanta, Georgia 3031^

ATTORNEYS FOR PETITIONER

- 38 -



MOTION FOR STAY PENDING APPEAL 

Comes now the defendant in the above-numbered case* 

having filed notice of appeal in said case to the United 

States Court of Appeals for the Fifth Circuit, and moves 

this Honorable Court to stay the remand of this cause to 

the Superior Court of Fulton County, Georgia, pending 

determination of her appeal.

This 8th day of April,, 1968,

(TITLE AND NUMBER OMITTED)

/s/ Howard Moore, Jr, 
HOWARD MOORE, JR,
PETER E. RINDSKOPF 
8591' Hunter St,, N.W. 
Atlanta, Georgia 3031^-

ATTORNEYS FOR MOVANT

So Ordered, this 10th day of April, I.968,

__/s/ Lewis R. Morgan 
CHIEF JUDGE, UNITED STATES 
DISTRICT COURT

-  39



O R D E R
The above and foregoing case came on before this Court on 

motion of the State of Georgia to remand to the Superior Court 

of Pulton County the above-numbered indictment.

The Court,, after receiving evidence, hearing oral arguments 

of the parties, and considering the case on the submission of 

written briefs, finds:

1. The Krystal Company, a place of business in the City 

of Atlanta, Georgia, is a covered establishment within the 

meaning of Title II of the Civil Rights Act of 1964.

2. The defendant, Mardon R. Walker, was requested to 

leave the premises of said establishment on January 13# 1964, and 

failing to do so was arrested and charged with violation of the 

anti-trespass law (Ga, L. i960, page 142, Code Annotated, Section 

26-3005).

The Court concludes, as a matter of law, that the cause is 

properly removable under Section 1443 (l), 28 United States Code, 

from the Superior Court of Fulton County, Georgia, and accord­

ingly, removal is allowed and the above-numbered indictment is 

hereby ordered dismissed with prejudice.

A judgment of dismissal with full prejudice to further

(TITLE AND NUMBER OMITTED)

- 40



prosecution under each of the above indictments to be entered

for the defendant, Mardon R. Walker. 

This the 3rd day of May,, 1968,

/s/ Lewis R. Morgan 
LEWIS R. MORGAN 
UNITED STATES DISTRICT JUDGE

(TITLE AND NUMBER OMITTED)

JUDGMENT

The above and foregoing case came on for hearing before 

the Court, Honorable Lewis R. Morgan, presiding, and the 

issues having been duly heard and a decision having been duly 

rendered,

IT IS ORDERED AND ADJUDGED that said case be, and the 

same hereby is dismissed with full prejudice to further 

prosecution, with costs taxed against the State of Georgia. 

Dated at Atlanta, Georgia on this the 6th day of April,

1968.

Claude L. Goza, Clerk

By:
/s/ (signature illegible) 

Deputy Clerk

Filed and entered in 

the Clerk's Office 

This the 6th day of 

April, 1968.
-  41 -



CLERK'S CERTIFICATE

UNITED STATES OF AMERICA )
) SS:

NORTHERN DISTRICT OF GEORGIA)

I* Claude L. Goza, Clerk of the United States 

District Court in and for the Northern District of 

Georgia, do hereby certify that the foregoing and 

attached 149 pages contain the record on appeal in 

the matter of:

STATE OF GEORGIA 

VS

MARDON R„ WALKER 

Criminal No, 24,705

IN TESTIMONY WHEREOF., I hereunto subscribe my name

and affix the seal of the said District Court,, at Atlanta,

Georgia, this 5th day of June, 19680

CLAUDE L0 GOZA, Clerk 
United States District Court 
Northern District of Georgia

By: /s/ (signature illegible)
Deputy Clerk

-  42