Walker v. Georgia Appendix
Public Court Documents
January 1, 1964 - January 1, 1968

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Brief Collection, LDF Court Filings. Walker v. Georgia Appendix, 1964. 1387df34-c89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/194daef7-e5e5-4875-9929-c5146af3aef3/walker-v-georgia-appendix. Accessed May 12, 2025.
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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 - 1 ~ 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 - 3 - 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 - 4 - 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 - 5 - 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. - 6 - 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 - ■ . . ..... . • . . % at WITNESSES: Sol's No.. Clerk's No..Z%££1, g* j. m m s W m ' $ hitlNtt £ © i * & * <S»* ## «*♦»♦ ■*2r € #* * i . f« 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 - 27 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 - 28 - 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 - 29 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. - 30 - 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 - 31 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