Maxwell v. Southern Christian Leadership Conference Supplemental Appendix
Public Court Documents
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Brief Collection, LDF Court Filings. Maxwell v. Southern Christian Leadership Conference Supplemental Appendix, ce75ae3e-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/3bb02e39-7448-49e0-aba5-b4a8320cc0b6/maxwell-v-southern-christian-leadership-conference-supplemental-appendix. Accessed May 08, 2025.
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SUPPLEMENTAL
APPENDIX
& GO
IN THE
UNITED STATES
-Ar-v-
COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 26612
WILLIAM J. MAXWELL,
Plaintiff-Appellee,
versus
SOUTHERN CHRISTIAN LEADERSHIP
CONFERENCE, ET AL,
Defendants-Appellants,
Appeal from the United States District court
for the Northern District of Mississippi
jforrfi Ho* J.06Ara
DOCi T C A 6 . ^ 0 3
i T I T t - E o r C A S E ! A T T O R N E Y S
WILLIAM J. MAXWELL,
vaf
SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE;
AN!) DEFENDANT ONE, THE PROPER DESIGNATION
OF THE ENTITY KNOWN AS THE SOUTHERN CHRISTIAN
LEADERSHIP CONFERENCE; ET AL -
Jasis of action: Plaintiff claims of defendants the sum of
150,000,00 as damages and punitive damages for personal
f.
emon •
PLAINT IF) caus
HA COURT
A c c o u n t
..... ... Market
inj^a riot in which plaintiff was shot*
For Plaintiff; jerry 0, Lorant;-
Lorant and Bouloukos
1010 Frank Nelson Bldg.,B'ham,
35203 -
For Defendant:
Peter A, Hall
1630 - 4th Ave,,North, B'hara,
35203 -
Jack Greenberg; Charles Stephen
Ralston and Norman C, Amaker,
10 Columbus Circle, New York,N.
10019 -
Ck-Peter A.Hall
Cr 102IA1
Gk-Peter A,Hall
Cr 102)411
R X C E I V E D
15 no
00
D I S B U R S E D
1'J OO
OO
D A T E B H P e (K M IIO C % A C C O U N T R E C E IV E D D IS B U R S E D
LB 15? A B S T R A C T OP C O S T S
TO W H O M DUE AMOUNT
It. Court, J e f f ,Co, A la ,- 31 50
rahal's costs - p l f f 74 1.6
tness fees - p l f f 68 00
torney Docket Fee 20 00
193 66
Judgment ‘ i5,000 00
ifit
*
asw
•*
vn_
•
66
R E C E IP T S , R E M A R K S . E T C .
MOTIONS * '£ / ’/ ,
P F / . ' . T I U A L / - ' — —- ..........
.trial a. — ---------
JS 6 MAILED — MA#----~ 4960 -
F IL IN G S — P R O C E E D IN G S
rlrder dating July 17, 1967, on defendant's plea in abatement: which will be
'petition of defendant, Southern Christian Leadership Conference, for removal
of this cause from the Circuit Court of Jefferson County,Alabama, with cop
of complaint, affidavit pursuant to Sec 199(1),T.7,Code of Ala,,in support
of service through Secretary of State, and plea in abatement, attached,
S7 filed - copy served by counsel - " q /
g Removal Bond ($500.00) approved and filed
Not ice of Removal filed -
5
treated by the Court as a motion to dismiss, the parties to attempt to st
the facts upon which a ruling will be made, and otherwise continuing moti
the next regularly scheduled motion docket for the taking of testimony fi
r and entered (Grooms) - copies mailed attorneys - set 9-15-67 -
ffidavit of John Kopelousos, one of plaintiff's attorneys filed --copy servfed by cijiun^lj^
ffidavit of Andrew J.Young on behalf of defendant filed - copy served by cotnseH^
order overruling motion of defendant's to dismiss, after carefully consider
the affidavits filed by both plaintiff and defendant, and allowing defendant
20 days within which to file responsive pleadings filed and entered (Grooms) -
- f i copies mailed attorneys -
^Answer of defendant, Southern Christian Leadership Conference, filed - copy
f 77 of the Court, filed and entered (Grooms) - cop ies mailed attorneys-
i pulate
on to
led
rder dated Jan.22, 1968, on PRE-TRIAL HEARING, and continuing further pre-
due to the recent and sudden demise of the wife of local counsel for the
trial
defendant,
and if the parties wish to supplement this pretrial order, they shall advise tho
Court to that effect, otherwise, the foregoing will constitute the pretr
00 file
rt's atttys.
^amendment to complaint increasing the amount of damages claimed to $750,000
copy served by counsel - ~
Notice to plaintiff that defendant will take the deposition of the plaintiff, William
J.Maxwell, on Feb.28, 1968, at 2:00 P.M., at Room 410 Federal Bldg., Birmingham
Ala. etc. filed - copy served by counsel - subpoena issued and del.to d^
otion of defendant to strike plaintiffs' amendment to the complaint filed -
copy served by counsel (to be heard Just prior to trial) - UTS' *
On trial before the Hon.H.H.Grooms and a jury - Deposition of William J.Ma:cwell
taken at instance of defendant filed - introduction of plaintiff's testimony -
daily adjournment - ■
Trial resumed - p 1 aint 1 f f' s testimony continued ̂ Amendments A A B to the cjomplainjt
l(ed and allowed’ ■C/Proposed Amendment Count C filed nnd disallowo nrfi
of defendant'for directed verdict at close of plaintiff's testimony evert
introduction of defendant's testimony -order allowing amendment to answer (to be filed)-
Defendant's motion for directed verdict renewed at close of all the testimony -
ing tounder advisement - argument of counsel - oral charge of the Court: submit
jury on Counts A and B and for general verdict accompanied by interrogattries a; to
which counts damages are awarded - jury enters deliberation - further oral charge to
the jury in response to jury's questions - daily adjournment -
ury resumes deliberation -
erdict of the Jury answering "Yes" to Interrogatories, and finding in favojr of thi
Plaintiff, William J.Maxwell, and against the defendant, Southern Christ
Conference, and assessing his damages at $45,000.00 filed -
lerk's court minutes entering judgment that the plaintiff, William J .Maxwell ] , have
in
A M O U N T
r e p o r t e d i n
E M O L U M E N T
R E T U R N S
served iy counse
la l o rd ir
1 motiojn
uled
[an Leadership
taken
the
the defendant, Southern Christian Leadership Conference,the sum of $45
/with the Jury verdict, anij, taxing costs against the said defendant, file! and entered
copies mailed attorneys
Cost b i l l o f the p la in t i f f f i l e d - copy served by counsel
osts taxed by the Clerk - b i l l mailed defendant's attorneys
« fendant' s motion fo r d irected v e rd ict made o r a lly in open court reduced tc
IBfl-'fUga = 6$py counsel FPi— t k — — 1080
Mi
w ritin g
,oc
■ s £ * J
10A Rev. Civ!!
T E
■6«
Docket Continuation C . A . 6 7 * 2 0 3 "R
-------------
lA^Tiotlon of defp'
1!
15
l ’ R O C K F iD IN U S
D a ta S |JurlBins
fpndant for a judgment notwithstanding the verdict, or for a new
. trial filed - copy server! by courise 1 ¥$> ~
lot 1 on of defendant to quash the jury venire and array made at the trial of tMs
cause reduced to vri.ti.tf, and filed - copy served by c o u n s e l - ^ - *
Copy of defendant's memorandum in support of motion for judgment notwithstanding
a verdict or for new trial filed - copy served by counsel
Further Memorandum of Points and Authorities in support of defendant's motion for
\ Judgment notwithstanding the verdict or Cor new trial filed - copy served by counsel
rder, dated May 13, 1968, that, if within ten days from the date of this order
plaintiff files a remittitur of damages in the amount of $3057.00, the motion foi
new trial will be overruled, otherwise, the motion for new trial will be granted;
and overruling defendant's motion for a judgment notwithstanding the verdict,
..filed and entered (Grooms) - copies mailed attorneys
Remit ti tur of Judgment by plaintiff, Williai .1. Maxwell, pursuant, to order of ;
r\Mav 13, 1968 remitting the sum of $3, 057. 00, filed - copy served by counsel -
■Order approving and confirming remittitur of Judgment and Ordering the Cleric of
this Court to r e c e i v e , accept and f i l e sn'**» filed and entered (Grooms)
n copy mailed attorneys for defendant , , %
Notice of Appeal by d e f e n d a n t , filed - certified copy mailed attorneys for p l a j M A g f j
I Certificate of Judgment for Regiateration in Northern District of Georgia issued ^
iX for attorneys for plaintiff -
petition of defendant, Southern Christian Leadership Conference,Inc., for approval
r-T of Supersedeas Bond, filed - rf C —
^Order approving Supersedeas Bond on Appeal In this amount of $45,000.00, and ordering
the Clerk of this Court to file same, and further Ordering that no execution 1
issue upon said judgment pending, appeal, filed and entered (Grooms) - copy
mailed attorney for plaintiff- '<3-~ /)
^Supersedes* Bond ($45,000.00) approved and filed
Jrder extending the time within which the record on appeal in this action *hall
be filed and docketed with the United States Court of ^pealt to and deluding
August 21, 1968, filed and entered (Grooms)- copies mailed attorneys - certifie
copy mailed Clerk, U.S.Court of Appeals, New Orleans, L a . - / ^ y / -
.1, IsWr.n.crlpt of procdlng. .t trl.l of thi. action ftlod by Court R.portor Moodor
I N D E X
Petition for Removal with Attachments Thereto----- 1
Removal Bond--------------------— ---- — ----- ------- 15
Notice of Removal----------- — 16
Order on Defendant's Plea in Abatement- — — ----- 17
Affidavit of John Kopelousos, Attorney for
William Maxwell with Exhibits Attached— ----- - 18
Notice of Submission of Affidavit in Support
of Motion to Dismiss-----------— -— — ---------- 5 1
Affidavit of Andrew J. Young in Support of
Motion to Dismiss------------------ —— — — -— ■---— — 52
Order Overruling Defendant's Motion to Dismiss--— ~ 54
Answer of Defendant Southern Christian Leadership
Conference------------------------------------------ - 55
Order on Pre-Trial Hearing--- -— -- --------- ------ — 56
Amendment to Complaint Increasing Amount of
Damages--------- — • 59
Motion to Strike Plaintiff's Amendment to
Complaint-------------------------- --- ------ ------- - 59
Amendment "A11 to the Complaint and Order Allowing
Same--'------------- ---------------— --------- ■------- - 60
Amendment "B" to the Complaint and Order Allowing
Same------------ — ----------- ------- -— ■--------- ------ 62
Amendment "C" to the Complaint and Order Disallow
ing Same-------------- -— — -- — — — -— -— ■— ------— -- 64
Verdict-------------------------- -— — -------------— - 66
Judgment on Jury Verdict------ --------------- — --- - 6 7
Motion of Defendant for a Directed Verdict— --— — 68
Motion for a Judgment Notwithstanding the Verdict
or for a New Trial---------- — ---— -- ----------- -— - 74
PAGE NO,
INDEX - (Continued)
Motion to Quash the Jury Venire and Array-- — 82
Order Overruling Motion for a Judgment Notwith
standing Verdict-------- -------- -— ~~------------ - 84
Remittitur --------- ------------- ---------- ----— 8 5
Order Approving and Confirming Remittitur of
Judgment---------------------------- — ---- ________ go
Notice of Appeal--------------- --- ------*-- ----- - 87
Petition for Approval of Supersedeas Bond— — -— — 8 7
Order Approving Supersedeas Bond------------- -— 89
Supersedeas Bond-------------------------------— ■— 1 90
Order Extending Time within Which to File and
Docket Appeal------------------------------------- 92
Clerk's Certificate------------------------- 93
Transcript of Proceedings— ---------------- -------- - 94
W. D. Nelson— ------------------------- -------- 96
Billy J. Cooper------------ -— -------- --- -— ■— * H O
J. C. Wilson------------------------ -------- 124
Reverend J. E. Lowrey— --------------- ------- 136
James R. Hunter------------ —----------— ------- 157
L. A. McIntyre------------------- ---------------- 173
William J. Maxwell------------------------- - 188
Dr. Robert Anderson----- -— ---- --------------- 210
Jim Cunningham----------------------------------- 226
Reverend J. E. Lowrey Recalled--- ---------- - 261
PAGE NO.
Reverend Edward Gardner 269
INDEX - (Continued)
PAGE NO.
Demetrius C. Newton-------- ----------- 290
Simon Armstrong------------------------------- 298
Rosa Small---------- ---------- 309
Pauline Hall---------------------------- 315
Minnie Embry---------- ------------------ ------ 317
Oral Charge of the Court- 324
1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIAM J. MAXWELL,
P l a i n t i f f - R e s p o n d e n t ,
Vo CIVIL ACTION
SOUTHERN CHRISTIAN LEADERSHIP NO. 67-203
CONFERENCE, et al„,
Defendants-Petitionars. (Fileds April 3, 1967)
PETITION FOR REMOVAL
Petitioner Southern Christian Leadership Con
ference, defendant in the case entitled William J . Maxwell,
plaintiff, v. Southern Christian Leadership Conference, et
al., defendants, filed in the Circuit Court of Jefferson
County, Alabama, at Birmingham, Alabama, process for which
was served on defendant on or about March 3, 1967, and being
Case No. 16152 in that court, files this, its petition to
remove said action to the United States District Court for
the Northern District of Alabama, Southern Division, and
respectfully shows unto this Honorable Court as follows;
1 , That the action aforesaid involves a contro
versy which is wholly between citizens of different states;
that the plaintiff was at the time of the commencement of
this action and is at the time of this removal a citizen of
the State of Alabama, and that the defendant Southern
2
Christian Leadership Conference was at the time of the com
mencement of this action and is at the time of this removal
a corporation organized under the laws of the State of
Georgia and whose principal office is in Atlanta,, Georgia
and which is therefore a citizen of the State of Georgia;
that in the complaint plaintiff joined as defendants along
with petitioner here '"divers people who took part in the
demonstration on the occasion described herein; the actual,
names of all fictitious entities are otherwise unknown to
the plaintiff at this time”; that said "divers persons’"
are entirely fictitious and unknown to the plaintiff and
to the petitioner here; that if by "divers persons" plain
tiff intended any employees of petitioner (as indicated
in the affidavit attached to plaintiff's complaint), said
employees are likewise not citizens of the State of Alabama.
2. That to the extent any of the unnamed "divers
people" joined in the complaint as defendants do in fact
exist and committed any alleged acts which might have
caused any injury to plaintiff, the said persons were not
acting in concert with petitioner, and hence any causes of
action against said persons are severable from any alleged
claim against petitioner.
3. That this is a suit for damages claimed by
the plaintiff against the defendant and said claim is al
leged to have arisen out of acts which were alleged to have
3
occurred on February 22, 1966.
4. That the amount sued for and involved in
this controversy is $150,000? that the amount in dispute
in this action exceeds the sum of $1 0 ,0 0 0 , exclusive of
interest and costs; that this petition for removal is
filed within thirty days after the service of process
upon the defendant in this cause. Defendant has filed no
appearances or pleadings in the Circuit Court of Jefferson
County except to appear specially for the sole purpose of
filing a plea in abatement against the service of process
in this action. A copy of all processes, pleadings and
orders served upon petitioner and filed by it in this action
is attached hereto as Exhibit A to this petition and by
reference made a part hereof.
5. That petitioner desires to remove this action
into the United States District Court for the Northern
District of Alabama, Southern Division, pursuant to 28
U.S.C. §1441 and pursuant to the provisions of the Federal
Rules of Civil Procedure. Your petitioner files and offers
herewith a bond with good and sufficient surety conditioned,
as required by law, that defendant will, pay all. costs and
disbursements incurred by reason of the removal proceedings
should it be determined that this cause was not removable.
6 . That upon the filing of this petition and bond,
the petitioner will properly give written notice thereof to
4
the adversary party by filing a copy of the petition with
the Clerk of the Circuit Court of Jefferson County,
Alabama, all in accordance with law.
WHEREFORE, petitioner prays that the removal of
said cause into the United States District Court for the
Northern District of Alabama, Southern Division, be effected
and no further or other proceedings may be had with respect
to this matter in the Circuit Court of Jefferson County,
Alabama, pending a final decision and determination of
this controversy in the said United States District Court.
Respectfully submitted,
/s/ Peter A„ Hall
PETER A. HALL
1630 Fourth Avenue, North
Birmingham, Alabama
JACK GREENBERG
CHARLES STEPHEN RALSTON
NORMAN C. AMAKER
10 Columbus Circle
New York, New York 10019
Attorneys for Defendants-
Petitioners
VERIFICATION
STATE OF ALABAMA )
)
JEFFERSON COUNTY )
PETER A. HALL, being first duly sworn, deposes
and says s That he is one of the attorneys for the defen
dant Southern Christian Leadership Conference in the
5
above-captioned cause and is authorized to execute this
verification on its behalf; that he has read the fore
going petition and knows the contents thereof; that the
facts stated therein are true and correct to the best of
his information and belief.
/s/ Peter A„ Hall
Sworn to and Subscribed before
me this 31st day of March, 1967.
/s/ Pearl W. Cole
NOTARY PUBLIC
JEFFERSON COUNTY, ALABAMA
MY COMMISSION EXPIRES MAY 1, 1967
[ S E A L ]
S t a t e o f A l a b a m ag, .
O F F IC E O F S E C R E T A R Y O F S T A T E
M O N TG O M E R Y , A L A B A M A 3 6 1 0 4
V March 3, 1967
Mabel S. Amos
Secretary of State
Southern C h r is t ia n Leadership Conference
33A Auburn Avenue, N. E.
A tlan ta , Georgia
You will take notice that on.................. ...................... Mar.ob. .3.,....19.67..------------- .....the Sheriff of
Montgomery County, Alabama, served upon me, in my official capacity, Summons and Complaint
and affidavit in a case entitled.WILLIAM..>L. .MAXWELL.,-------------- ------- 1~~—- ...................--------- —-— —-
2 ■ • ■. . Plaintiff vs...SQUTRERN...CHRISTIAN..LEAD.ERSRIP...........
r.nMFFRFNCF e.t al ...... ............................. ........ ................................... -
V
, Defendant s in the CIRCUIT COURT. OF.. JEFFERSON .COUNJY,
ALABAMA BIRMINGHAM.DJV.IS.IQN.-.:_______------ ---------- -------------------------- --- Case No.......J6.15.2_
a true copy of which summons and complaint and affidavit are attached hereto and the said service
upon me as Secretary of State of the State of Alabama has the force and effect of personal service
upon you, being under provisions of Title 7, Section'----- J.99-(.!.).— bf the 1940 Code of Alabama and
Supplement thereto. ,
WITNESS MY HAND and the Great Seal of the State of Alabama this the..— ...3.-------- ....day of
March. 19&7___. . ____i.___
. ■ •; j&. 222^r^.-...................
Mabel S. Amos
Secretary of State
\ i. , , Ench 2 Copy Summons and Complaint and Affidavit
cc:' Hon. Jerry 0. Lorant
Lorant and Bouloukos
' 1010-1016 Frank Nelson B u ild in g
Birmingham, Alabama ,
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
DELIVER- TO- -ADDRESSEE- ONLY
7O O M f C S
I h l i M m s s
a w * - - I*
EQ._
S M 3 3 AH9 C & 8HAXB?
i
STATE OT ALABAMA,
j e f f &r s o h cofoiwir»
» in m u c i r c u i t c o u r t or
* jeffisesoh c o u n t y , w a
* JDIEiilMGHAM DSVI3I011
t o jsw£ sssasrar 07 inn .states o p AtABNfi^w&sxia& $
You «?.n hereby cosxa&n&od to c « w m SOUTHERN CnRIS--
txisn K zm m nm zf? c o h f d k s b s s i a d d d ^ e u d a b t os® , T in
PROPER BSJXGUATIOB C? IKS ENTITY KBCNH A3 THS SOOTHERS
CHRIGTIASI LEADERSHIP COBFHEEKCE? DSFEEBAKT TftO, *Tu3 ''
B.OTXTY 027 UE035 EEZBUff DSHCBOTPATXOSfS WEES BBSHO H3R-
f o :b b d cot Fe b r u a r y Z2, loos, cot t u b p e s h x s s s o f u b s r t y
SUPER tftKKBT LOCATED AT 420 KOETS 13th STREET, BXPIlXKGZIMi,
^EESCH COUNTY, AIABAIJAj DEFBGDABT THREE, DIVERS PEOPLEtJ-ujfvi
WHO TOOK PART III THIS DHXH3TPATXOB3 OB THE OCCASION
DESCRIBED imSXHj TH3 ACTUAL EAM33 OP ALL FICTITIOUS
I3OTITXS3 AKB OTHEITvTISC OKKEOWE TO THE, PJAXETIST AT
THIS TIME, BUT WILL B13 ADDED DY AKEtJDMSlST KUSH AS-
GEHTAJ1T30, to appear before the Circuit Court to bo .
hold for oald County at the piece of holding the emtso
within thirty (39) day* from service of this process,
then and those to answer tho Complaint ofWl&ESAEI $*
h a s k e l l .
V,
ftitnaaa ray hand this the yZ^Jlay o f _
1367,
CfERK
7:
VIXLL'XAH J, MAXWELL,
PLAINTIFF
V3,
SGOTIHEH CHRISTIAN XEAOSRSHXJ? COHFERESJCSi. AtID d e f e n d a n t
c m , TEE PROPER DESIGNATION OF TIES ENTITY KNOWN A3 THE
.SOOTSSSPU CHRISTIAN ISAOERSEXP COITFERSECEi DSmTDAtIT
Ti?0, TES EETXTTf Oil WHOSE EE3SALF DEK0K3TIL\TXQE3 VS3RB
Q3XN3 FSaFORSOSO OH FEBRUARY. 2 2 , 1335, OS THE PREJ2XSES
OF LXOSBSY SUPER 7JACKET IOOaTeO AT 420 NORTH 13 th
s t r e e t , j e p f d r s q h c o u n t y , a l a r m jaj d s -
mtfWffrmm-i, DIVERS PROFIT WHO TOOK PART XW TiJ
D«J^33TftV«<m OH TEE OCCASION DCSCltiaiSD lUlUNXK?
ua
TUG ACTUAL WJitKSS OF ALL FICTITIOUS ENTITIES ARE
oncnrasn u h i o t .jn t o inn p i a i o t i pF a t t h i s t i e s ,
RUT WILL SB ADDED BY AEStIDMSHT WHEN ASCERTAINED,
DEPEKDAOTS
9 .0 JU L J i£ JU U L
c o u n t cue* t : * •. , ( ':
Plaintiff claims of the Defendants the »um o f
Ona nundrod and Fifty Thousand Dollars (0150,000.90)
8
ph.ofWfj.lJ 8
• malicious
for willful/ondTuTt^ntional assault and battery committed ■ ' V
or cauSeETto be committed by the Defendants on tho Plain-
tiff on to-wit February 22* 1966, at to-wlt the premises
kncwn ns Liberty Super Market, located at 420 North 13th
Street, 'Birmingham, Jefferson County, Alabama, , And
Plaintiff avers that tho Defendants wore demonstrating
against tho oairt IdbortySupor Market and caused a riot
which resulted in Plaintiff being shot several times
and caused tho Plaintiff to bo greatly injured? hio
body to bo permanently injured? hio chest, abdomen and
loft forearm wore injured? there wore perforations of
his diaphragm? pancreas, stomach, colon, and renal vein?
End caused hia body to be permanently injured? and that 1
ouch injuries wore the proximate consequence of said
willful and malicious and intentional conduct as afore
said. And Plaintiff also claims punitive damages as •'
well as compensatory damages.
f) l^®m7S TT;‘° 3
Tho Plaintiff claims of the Defendants One Hundred
and Fifty Thousand Dollars ($150,000,09) damages for
.maliciously and intentionally ..cauaincr a riot on to-wit
'Fdbr5a5y-^T*1toSSr^it to-wit the premises known as
Liberty Super Market, located at 420 North 13th j
Street, Birmingham, Jefferson County, Alabama, which
caused tho following injuries to the Plaintiffs Tho
Plaintiff was shot several times and was greatly'in
jured? his body was permanently injured? his chest,
abdomen and loft forearm wore injured? ho was caused
to have perforations of hio diaphragm? pancreas,
stomach, colon, and renal vain? and his body was
permanently injured? and Plaintiff avers that such
injuries warn tho proximate consequence of the actions
of tho Defendants in maliciously and intentionally
causing a riot as aforesaid,
COUNT THREE*
Plaintiff claims of the Defendants tho sura of One
Hundred and Fifty Thousand Dollars ($150,000,00) as
damages for that heretofore on to-wit tho 2 2nd day
of February, 1966, tho Defendants were in the process
of causing demonstrations against Liberty Super Market
located at 420 North 13th Street, Birmingham, Joffer-
; son County, Alabama? and that on said date, tho Plain-
, tiff came upon said premises -.as an - invitee to purchase
certain items in said Liberty Super Market? and Plain
tiff further alleges that the Defendants owed n duty
to the public m well as the Plaintiff to demonstrate
in a proper, lawful and orderly fashion, not to cause
injury to Plaintiff?>that while Plaintiff was on said
promises nn invitee of Liberty Super Market, the
Defendants canned & riot which reunited An an «ne>ftult
and injury to tho Plaintiff in that the Plaintiff was
shot several times and was greatly injured? hia body
was permanently in j taxed? his chest# abdomen and loft
forearm wore injured? ho was caused to have perforations
— 2 -
9
'•W;
& -f * <y c:/
.of hlo disphgraiai parseureas# stomach# colon, rjifl renal
veins ana cauac-3 hlo body to bo peamiently xn^rad.
And avgra that oald coaau.lt and battery *»><•
ininrv on tlwTpiklntl^ tias' coraaitte'd'b.y d:h^~ Defendants#
ita agents# servants# and in violation of its duty f»o ̂
tha plaintiff as an Invites of tho Liberty Super Aasfeot#
all to his damage as aforosaid#
MJPJVHT ABD DQ'JICW.ZQ'3
PIAXSSTXBI? A3?« 203 8th Avenue West# Apt# C, Birmingham#
Alabama#
S53R72i DSnSHDWSRP ATs 334 Auburn Avenue B* B.# Atlanta#
Georgia (Pulton County)#
><Zh\
, \ t'V •,'>.& -v !(i
„ <** : ■’% i'.
*'• >r\‘Vh;/yy " e,' vy
%
10
W'
(hi t>~{
v
WILLIAM J. MAXWELL# . ) IN THE CIRCUIT COURT
PLAINTIFF ■
> VS. % / ) //V(o - JEFFERSON COUNTY
SOUTHERN CHRISTIAN LEAB5%$ Atk^AMA
SHIP CONFERENCE; AND DEPEN-^? fc#
DANT ONE* TI-IE PROPER DE&I^^A- /BIRMINGHAM DIVISION
TION OF THE ENTITY KNOWN V/̂
THE SOUTHERN CHRISTIAN LEADER
SHIP CONFERENCE, ET ALS, • C
DEFENDANTS ' N O ..
I
/4/r
■ f
A F F I D A V I T
Before me* the undersigned authority in and
for said Coimty and said state* personally appeared
jerry O. Lorant* who io known to me* and who* being
by mo first duly sworn* deposes and says as follows!
That he is the Attorney Q£ Record for the Plain
tiff in that certain case bearing the above styling
and docket number# and ponding in the Circuit Court
of Jefferson County# Alabama# Birmingham Division.
That Southern Christian Leadership Conference#
a Corporation* is a non resident of the State of
Alabama, and is a resident citizen of the State of
Georgia# and was incorporated June 5# 1958# and has
qualified to do business in the State of Georgia;
that the provisions of the Act# #282# General Acts
of Alabama# 1953, Regular Soaa.ions# Page 347-349#
the Cod© of Alabama as Recompiled in 1950# volume
3* Title 1, Section 199 (1) are applicable to the
case now pending in the Court by the Plaintiff*
William J. Maxwell, and against the Defendant
Corporation* southern Christian Leadership Conference#
* corporation. That amid mnm la i?c»r dam«y«» -for
11
f A »f'
personal injuries suffered by said William J» Max-
wo11, tho Plaintiff, as a result of the Defendants .
willfully, Intentionally and maliciously causing a
riot on tho p-remissa of Liberty Super Market at
420 Worth 13th Street, Birmingham, Jefferson county,
Alabama, which resulted in the shooting of ©aid
Plaintiff.
The Defendant engaged In business or performed •>'.
work or services in the state of Alabama without
having qualified under the Constitution and Laws
of tho State of Alabama to do business therein.
The said corporation and its agents, servants and
employees came into tho State of Alabama on many
occasions and solicited members and moneyi and
daring the months of February and January, 1966,
they had motor vehicles with drivers for the purpose
of increasing tho voting registration of Negroes?
that they had rented promt cos at 505** 17th Street
Worth, Birmingham, Jefferson county, Alabama? and
in so doing all of these acts as stated herein, the
Defendant engaged in business or performed services
in the State of Alabama without having qualified
under the constitution or Lows of the state of
Alabama to do business therein.
That the case hereinabove not out and under
which this service of process is being perfected
involves an act which accrued from tho doing of
' »; •
business or the performing of work or services, or
ns an het Incident thereto, by tho Dofondants, their
agents, sssorvonta and employee a, ,
12
k -o.-f o. f j ' i Z.
V
That ono of the demonstrations that took place
aa aforesaid, developed into a riot and caused per**
»
oonal injuries to the said william J. Maxwell and
the damages suffered by the plaintiff as catalogued
and sot out in the Complaint.
The last known address of the Defendants is
334 Auburn Avenue, N. E », Atlanta, Georgia (Pulton
County) and process should be served upon the Defendant
in the manner proscribed by the Provisions of Act
No. 282, General Acts of Alabama, 1953, Regular
Sessions? Pages 347-349i Volume 3 of the 1958 Code
of Alabama as Recompiled in 1958, Title 7, Section
199 (1) .
day of February, 1967.
. N^T'ARY PUBLIC
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E D W A R D W . W A D S W O R T H
CLERK
itci> States fimtrt of Ajjjaeafi' p y k ^ '
F I F T H C I R C U I T
O F F I C E O F T H E C L E R K
September 23, 1969
R O O M 408-400 ROYAL ST.
N E W ORLEANS, LA. 70130
Clerk
United States District Court
Birmingham, Alabama
Re: No. 26612 - William J.
Maxwell v, Southern
Christian Leadership Conference.
St A1 (Your No. CA 67-2©3)
Dear Sir:
( X ) Enclosed is a certified copy of the judgment of this Court in the above case
issued as and for the mandate.
( ) Having received from the Clerk of the Supreme Court a copy of the order of that
court denying certiorari, I enclose a certified copy of the judgment of this Court in the
above case, issued as and for the mandate.
Enclosed herewith are the following additional documents:
( X ) Copy of the Court’s opinion.
( x ) Original record on appeal.
( ) Original exhibits.
( jj ) ° f Costs approved by this Court.
( ) The judgment provides that appellee pay the costs in this Court. Since the case
was docketed in forma pauperis without pre-payment of fees and costs, the Clerk’s docket
ing fee o f $25.00 is now payable to this office
counsel is being so advised.
By
enc.
cc: Mr. Peter A. Hall
Mr. Charles Stephen Ralston
Messrs. Norman C. Amaker
James M. Nabrit, I I I
Jack Greenberg
by appellee, and by copy of this letter
Very truly yours,
EDW ARD W. WADSW ORTH, Clerk
Deputy Clerk
Messrs. Jerry 0. Lorant
John Kopelousos
M-3435
V
A y O )T j l y 7 ^ g ^ / ' d
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IN 'THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 26,612
U. S. COURT C - ARPCA.L'i
F i L E D
:? 1 5 193 J
EDWARD W. WADSWORTH
CLERK.
WILLIAM J. MAXWELL,
Plaintiff“Appellee,
v.
SOUTHERN CHRISTIAN LEADERSHIP
CONFERENCE, et al.,
Defendant-Appellants.
Appeal from the United States District Court
for the Northern District of Alabama
. STATEMENT OF COSTS ON APPEAL
Defendant-Appellant Southern Christian Leadership
Conference, by its undersigned attorneys, states the following
to be its costs of printing its brief on appeal and of the
appendices on appeal recoverable pursuant to Rule 39(c), Federal
Rules of Appellate Procedure.
1 .
2 .
Cost of reproducing Appendix and
Supplemental Appendix (see bill from
A*B« Letter Service, Inc., New Orleans,
La., attached hereto as Exhibit A)— --- $757.25
Cost of printing thirty (30) copies of
brief on appeal, including cost of index
pages, covers, and footnotes (see itemized
bill from Meilen Press, Inc., New York, N.Y
attached hereto as Exhibit B; the costs of
printing additional copies of the brief for
appellant-defendantrs own use have been
deducted from the total b i l l )__ ____________
TOTAL COSTS--- ---------------
/ &/> i
264 ~-8*/
$10227X2"
27
28
t s taxed |.gi
30
r3cf U.
cue amount of
urt of Appeal
Orleans* La
jTgfputy
j— s, Fifth Circu'i
Dat0“ SEP 2 3 m
Respectfully submitted, //$' £
U / J <
-.CHARLES STEPHEN RALSTON >:• - '•<
1095 Market St., Suite 418
San Francisco, California 94103
JACK GREENBERG
JAMES M. NABRIT, III
NORMAN AMAKER
10 Columbus Circle
New York, New York 1001.9
PETER A. IT ALL
A T T O R N E Y A T L A W
Suite 510.512
1 6 3 0 F O U R T H A V E N U E , N O R T H
B IR M IN G H A M , A L A B A M A 35803
Te l e p h o n e 3 84.7691
January 15, 1970
Charles Stephen Ralston, Esquire
Suite 418
1095 Market Street
San Francisco, California
Dear "Steve":
RE: Maxwel1 v SCLC
I have been advised that collateral supplied by SCLC to
support supersedeas bond furnished by Fidelity and
Deposit Company of Maryland was released by their Chicago
office on, to-wit, December 12, 1969. (See enclosures)
This release, of course, is the result of my action here
and the assistance of Mr. W. C. Nelson who had been named
by the surety company as local attorney in fact for them.
Yours very truly
PAH/w
enclosures
cc. Norman C, Amaker, Esq
.-'t
Novenber 18, 1969
;•: ' . :
a s p
Fidelity and Deposit Company of Maryland
U37 Title Building 30 Pryor Street,' 3W ■
Atlanta, Georgia 30303
59'William J* Maxwell
▼s. Southern Christian Leadership Conference, etal
Gentlemen*
I enclose a letter fror. attorney Peter A. Hall along with
tlie enclosures he mentions•
This supersedeas bond was executed May 29, 1968 by Leroy
If* Myhre and countersigned by me*
I believe your legal department will a gre© that this
case has run its course.
It is ray understanding that the collateral wa3 pojted
by Southern Christian Leasde’-’ship Conference, Inc.,
32U Auburn Avenue, Atlanta, Georgia.
You will find Kr* Hall an eatatending lawyer who can be relied upon without question*
s' Very truly yours.
W. C. Kelson
WON*go
Enol.
001 Mr* 'Hiter A* Hall1630 4th Avenue North Birmingham, Alabama 35203
Fidelity and Deposit Company
HOME OFFICE O F M A R Y L A N D BALTIMORE
B O N D I N G I N S U R A N C E
JA M E S J. DUNCAN MAMA4MM
LEROY N. MYMRE MMWTMrr MMMU
HARRY a. STEVENS. JR.
STAN LEY T . BLAKE•PCOML RCPRUENTATtVS*
ATLANTA BRANCH telephone 521-01 ss
TWX 404 527-1004
437 TITLE BUILDING, 30 PRYOR ST., S. W.
ATLANTA, GEORGIA 30303 in re ply please refer to
OUR FILE NO________________
January d, 1970
Mr, William C. Nelson,
Nelson and Crabbe, Inc.,
Birmingham, Alabama,
Re: #57 93 438 - William J. Maxwell vs. Southern
Christian Leadership Conference
$45,000,00 Supersedeas Bond
Dear Mr. Nelson:
We have your memorandum of January 8th in connection
with the above bond and wish to advise that our Chicago
Branch closed their file and returned the collateral
held by us on December 12, 1969.
Thanks.
affiliate
MARYLAND LIFE INSURANCE COMPANY OF BALTIMORE
THE UNITED STATES
WILLIAM J. MAXWELL, Petitioner
vs.
SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE1 et al.. Respondent
MOTION FOR EXTENT!OH OF TIME
TO FILE A PETITION FOR A
. WRIT OF CERTIORARI
TO THE HONORABLE HUGO L. BLACK, ASSOCIATE JUSTICE OF THE UNITED
STATES SUPREME COURTS
Comes now the Petitioner, WILLIAM J. MAXWELL, by and through
his undersigned attorney, JERRY 0. LORANT and R. CLIFFORD FULFORD,
■ ;f
and shows unto Your Honor as follows $
1. Petitioner, William J. Maxwell, recovered a Judgment in
the United States District for the Northern District of Alabama,
against Southern Christian Leadership Conference,
2. The United States Court of Appeals for the Fifth Gir-
cuit. Case No, 26612, vacated said Judgment and rendered a Judg
ment in behalf of the Defendant,
3, Petitioner represents there is a substantial Constitution
al question in his case and it will be raised in his Petition,
4, The undersigned represents it is impossible to file
Petitioner's Petition by December 3, 1969, which is the Ninety
(90) Day limit impossed by the Rules of this Honorable Court,
WHEREFORE, PREMISES CONSIDERED, Petitioner prays for a
forty-five day extension to file his Petition, said extension to
date from December 3, 1969, Petitioner prays that if the exten
sion requested is unreasonable, then such time aa Your Honor deems
reasonable is requested
JERRY
Attorney fo'r Petitioner-Movant
CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of this Motion
For Extension of Time To File A Petition For A Writ of Certiorari
on Counsel for the Defendant-Appellants# Mr. Charles Stephen
Ralston# 1905 Market Street# San Francisco# California# 94103; Mr.
Jack Greenberg# 10 Columbus Circle, New York# New York# 10019; Mr.
James M. Nabritt, III, 10 Columbus Circle# New York# New York#
10019; Mr. Norman C . Amaker# 10 Columbus Circle, New York, New
York# 10019; Mr. Peter A. Hall# 1630 Fourth Avenue North# Birming
ham# Alabama# 35203# by United States Mall# postage prepaid# this
the 25th day of November# 1969.
Jer:
Attorney for Plaintiff-Appellee#
William J. Maxwell
IN THE SUPREME COURT OF
THE UNITED STATES
WILLIAM J, MAXWELL, Petitioner
v s .
SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE; et al., Respondent
MOTION TO PROCEED IN FORMA PAUPERIS
Comes now the Petitioner, .WILLIAM J. MAXWELL, by and
through his undersigned attorney, R, Clifford Fulford and
Jerry 0. Lorant, and moves this Honorable Court for leave
to proceed in forma pauperis in accordance with the Federal
Rules of Appellate Procedure and the United States Code*
As grounds for said Motion, Petitioner incorporates here
in by reference the attached affidavit.
CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of this Motion
To Proceed In Forma Pauperis on Counsel for the Defendant-
Appellants, Mr. Charles Stephen Ralston, 1905 Market Street,
San Francisco, California, 94103; Mr, Jack Greenberg, 10 Columbus
Circle, New York, New York, 10019; Mr, James M. Nabritt,.III, 10
I
Columbus Circle, New York, New York, 10019; Mr. Norman C.
Amaker, 10 Columbus Circle, New York, New York, 10019; Mr,
Peter A. Hall, 1630 Fourth Avenue North, Birmingham, Alabama,
35203, by United States Mail, postage prepaid, this the 25th
day of November, 1969.
Ax ppellee
William J, Maxwell
STATE OF ALABAMA,
JEFFERSOS COUNTY,
Before me, the undersigned official in and for said County-
in said State, personally appeared Jerry 0. Lorant, who being
known to me and by me first being duly sworn, on his oath, de
poses and states that he is the attorney for the Petitioner in
the styled cause of William J. Maxwell vs* Southern Christian
Leadership Conference in-which William J* Maxwell desires to
petition* this Honorable Court for a writ of certiorari. The
United States Court of Appeals for the Fifth Circuit has vacated
the Judgment rendered in behalf of William J. Maxwell and Ordered
a Judgment entered in behalf of the Defendant, Southern Christian
Leadership Conference. Further that the said William J. Maxwell
is unable to pay or prepay the fees and costs or to give security
therefor? that he does not own cash or checking or savings account,
has not received any income from a business, profession or other
form of self employment or rent payments, interest, dividends
or other source? that he owns no real estate, stocks, bonds,
notes or valuable property excluding ordinary household fur
nishings, that he has dependent upon him a wife and children
and his only source of income is a salary earned by employment
as laborer of to-wit One Hundred Fifteen Dollars ($115*00) per
week. Further, the undersigned believes in good faith and has
also advised William J# Maxwell and William J. Maxwell believes
in good faith that the said William J. Maxwell is entitled to
relief prayed in a Petition asking the Judgment of the United
States Court of Appeals reversing the Judgment of the United
States District Court be set aside*
A
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Sworn to and subscribed before me on this the 25th day of
November, 1969#
NOTARY PUBLIC
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13
WILLIAM J. MAXWELL, )
)
Plaintiff, )
)
v. )
)
SOUTHERN CHRISTIAN LEADERSHIP )
CONFERENCE; AND DEFENDANT ONE, )
THE PROPER DESIGNATION OF THE )
ENTITY KNOWN AS THE SOUTHERN )
CHRISTIAN LEADERSHIP CONFERENCE,)
ET AL., )
)
Defendants. )
IN THE CIRCUIT COURT
OF JEFFERSON COUNTY
ALABAMA
BIRMINGHAM DIVISION
NO. 16152
(Filed? March 31, 1967)
PLEA IN ABATEMENT
Now comes the defendant Southern Christian Leader
ship Conference, one of the defendants in this case, by its
attorneys, appearing specially for the sole purpose of filing
this plea in abatement and for no other cause whatsoever,
and for plea in abatement, says?
That is is a foreign corporation organized under
the laws of the State of Georgia; that it was not doing
business in the State of Alabama by agent or otherwise when
this suit was filed and commenced, viz., on February 20,
1967; and that the service of process sought to be had on
it by the plaintiff was invalid and of no effect.
WHEREFORE, the above-named defendant shows that
this Honorable Court is without jurisdiction as to it that
this Court ought not to take said jurisdiction of this
complaint and cause and it prays that said cause be forever
abated and dismissed and that defendant be allowed to go
14
hence with reasonable costs in its behalf expended.
/s/ Peter A. Hall
PETER A. HALL
1630 Fourth Avenue, North
Birmingham, Alabama
JACK GREENBERG
CHARLES STEPHEN RALSTON
NORMAN Co AMAKER
10 Columbus Circle
New York, New York 10019
Attorneys for Defendant appearing
specially
VERIFICATION
STATE OF ALABAMA )
JEFFERSON COUNTY )
Before me personally appeared PETER A. HALL, who
first being duly sworn, deposes and says that he is one of
the attorneys for the defendant, Southern Christian Leader
ship Conference in the above-captioned cause and is autho
rized to execute this verification on its behalf; that he
has read the foregoing Plea in Abatement and knows the
contents thereof; that the facts stated therein are true
and correct to the best of his information and belief.
/s/ Peter A. Hall
Subscribed and sworn to before me
this the 31st day of March, 1967,
as witness my hand and official seal.
/s/ Pearl W. Cole
NOTARY PUBLIC
MY COMMISSION EXPIRES MAY 1, 1967 [ S E A L ]
...oOo.oo
15
REMOVAL BOND
(Filedi April 3, 1967)
STATE OF ALABAMA ) UNITED STATES DISTRICT COURT
: NORTHERN DISTRICT OF ALABAMA
JEFFERSON COUNTY ) CIVIL ACTION NO. CA 67-203
KNOW ALL MEN BY THESE PRESENTS, that SOUTHERN
CHRISTIAN LEADERSHIP CONFERENCE; and DEFENDANT ONE, THE
PROPER DESIGNATION OF THE ENTITY KNOWN AS THE SOUTHERN
CHRISTIAN LEADERSHIP CONFERENCE, ET A L ., as principals,
and Peter A. Hall, as surety, are held and firmly bound
unto WILLIAM J. MAXWELL, in the penal sum of Five Hundred
($500.00) Dollars for the payment thereof well and truly
to be made, we bind ourselves, our successors and assigns,
jointly and severally, by these presents;
The condition of this bond is such that?
SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE; and
DEFENDANT ONE, THE PROPER DESIGNATION OF THE ENTITY KNOWN
AS THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE, ET A L .,
have filed a Petition for Removal in the United States
District Court for the Northern District of Alabama for
the removal to said Court of a certain cause of action pend
ing in the Circuit Court of Jefferson County, Alabama
(Birmingham Division), wherein the said WILLIAM MAXWELL
is plaintiff, and the said SOUTHERN CHRISTIAN LEADERSHIP
CONFERENCE; and DEFENDANT ONE, THE PROPER DESIGNATION OF THE
ENTITY KNOWN AS THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE,
16
ET AL., are the defendants;
NOW, THEREFORE, if said petitioners shall pay
or cause to he paid all costs and disbursements incurred
by reason of this said removal proceeding should it be
determined that this action was wrongfully or improperly
removed to this said Court, then this obligation shall be
void; otherwise, it shall remain in full force and effect.
IN WITNESS WHEREOF, we, the above and under
signed principals and surety, have hereunto set out hands
and seals on this 31st day of March, 1967.
SOUTHERN CHRISTIAN LEADERSHIP
CONFERENCE; and DEFENDANT ONE,
THE PROPER DESIGNATION OF THE
ENTITY KNOWN AS THE SOUTHERN
CHRISTIAN LEADERSHIP CONFERENCE,
ET AL.
BYs /s/ Peter A. Hall (SEAL)
Attorney
,/s/ Peter A. Hall
Approved this 3rd day of
April, 1967.
/s/ William E . Davis
U. S. District Clerk
...oOo...
NOTICE OF REMOVAL
(Number and Title Omitted) (Fileds April 3, 1967)
TO: Messrs. Lorant and Bouloukos
Attorneys for Plaintiff
1010-1016 Frank Nelson Building
Birmingham, Alabama
17
Clerk of the Circuit Court
Jefferson County, Alabama
Birmingham Division
Gentlemen:
PLEASE TAKE NOTICE that a verified petition for
removal of the above-styled action from the Circuit Court
of Jefferson County, Alabama, Birmingham Division, to the
United States District Court for the Northern District of
Alabama, Southern Division, a copy of which is attached
hereto, was duly filed this day in the said United States
District Court in the office of the clerk of the Court,
Birmingham, Alabama.
Dated this 3rd day of April, 1967.
/s/ Peter A. Hall
PETER A. HALL
1630 Fourth Avenue, North
Birmingham, Alabama
JACK GREENBERG
CHARLES STEPHEN RALSTON
NORMAN C. AMAKER
10 Columbus Circle
New York, New York 10019
Attorneys for Defendant Southern
Christian Leadership Conference
.„o oOo.
ORDER ON DEFENDANT'S PLEA
IN ABATEMENT
(Number and Title Omitted) (Filed? July 18, 1967)
This matter came on for hearing on the regular
motion docket on July 14, 1967, upon the defendant's plea
18
in abatement, which will be treated by the Court as a motion
to dismiss„ The parties will attempt to stipulate the facts
upon which a ruling will be made. Otherwise, the said
motion will be continued to the next regularly scheduled
motion docket for the taking of testimony.
So ORDERED, this the 17th day of July, 1967.
/s/ H. H. Grooms
United States District Judge
...oOo...
AFFIDAVIT OF JOHN KOPELOUSOS,
ATTORNEY FOR WILLIAM MAXWELL
(Number and Title Omitted) (Fileds September 25, 1967)
Before me the undersigned authority, in and for
said County and State, personally appeared John Kopelousos,
who being by me first duly sworn, deposes and says as
follows:
"My name is John Kopelousos; and I am a resident
citizen of Jefferson County, Alabama; and am one of the
attorneys for William Maxwell, the Plaintiff in the above-
styled matter.
"I have examined the records of Case Civil Action
66-106 in the United States District Court for the Northern
District of Alabama, Southern Division, whereby Liberty
Super Market, a partnership composed of Frank Montesi,
John Monteel, Joe Mentos i, Louis Montesi, and D. C. Stignani,
filed suit against Southern Christian Leadership Conference,
19
a Georgia Corporation, and Hosea Williams, and prayed for
an injunction to issue against said Southern Christian
Leadership Conference and Hosea Williams, enjoining them
from interfering and harassing the customers of said Plain
tiff, Liberty Super Market, a partnership, et al. This
action was filed on February 23, 1966, with William E.
Davis, Clerk, United States District Court of the Northern
District of Alabama, Southern Division.
"On February 25, 1966, the Honorable C. W. Allgood,
United States District Judge, entered a temporary restrain
ing order as prayed for in the Bill of Complaint in said
Civil Action 66-106 as mentioned above, a copy of which
is attached hereto and marked Exhibit "A”, and by this
reference made a part hereof and incorporated herein. As
a part of this order, the Court made the following state
ment :
'....it finds that the defendants,
and other persons in active concert and
participation with said defendants, have
wrongfully and illegally physically hindered,
obstructed and interfered with, intimidated,
harrassed, and molested persons desiring to
enter the plaintiff's place of business from
entering said premises for the purpose of con
ducting their business.'
20
"On March 7, 1966, the Honorable C. W. Allgood,,
United States District Judge, entered an order which is
attached hereto and marked Exhibit "B", and by this refe
rence made a part hereof and incorporated herein, whereby
he extended the temporary restraining order issued on
February 25, 1966, to March 17, 1966. This order was is
sued pending use by the parties for the purpose of reconcil
ing their difficulties, the services of the Community Rela
tions Service and the Equal Employment Opportunities Com
mission .
"On January 13, 1966, Civil Action 6 6- 24, was
filed with William E. Davis, Clerk of the United States
District Court for the Northern District of Alabama,
Southern Division in which the County Board of Education
of Jefferson County, Alabama and its members were plaintiffs
against Hosea Williams, Edward Bedford, Andrew Marsete, and
Southern Christian Leadership Conference, a Corporation,
asking for a temporary restraining order, and preliminary
injunction enjoining and restraining the defendants from
conducting, encouragining, or participating in a demonstra
tion on or near any public school in Jefferson County,
Alabama. As a part of that file, there appears the Affi
davit of Charles Robert Jones, a Detective with the Police
Department of the City of Birmingham, a copy of which is
attached hereto and marked Exhibit "C", and by this reference
21
made a part hereof and incorporated herein.
"Also, as part of the court file in Civil Action
66-24, appears the Affidavit of C. L. Edmondson, Sr., a
Detective with the Police Department of the City of
Birmingham, a copy of which is attached hereto and marked
Exhibit ”D ", and by this reference made a part hereof and
incorporated herein.
"Within both of these Affidavits, it affirmatively
appears that the Southern Christian Leadership Conference
was actively engaged in carrying out the purposes of its
charter within the State of Alabama and had persons employed
and stationed in the State of Alabama to carry out its pur
poses .
"It further affirmatively appears from the Affi
davit of C. L. Edmondson, Sr., that the Southern Christian
Leadership Conference had an office located at 504-1/2 South
17th Street in the City of Birmingham.
"In File Number CA 66-24 in the United States
District Court for the Northern District of Alabama,
Southern Division, appears the further Affidavit of Otha B„
Wilson, employed with the Police Department of the City of
Birmingham, a copy of which is attached hereto and marked
Exhibit "E", and by this reference made a part hereof and
incorporated herein, which affirmatively shows that the
Defendants had employees living and acting in their behalf
22
in the State of Alabama.
"On January 13, 1966, in Case CA66-24 in the
United States District Court for the Northern District of
Alabama, Southern Division, Honorables H. H. Grooms,
Clarence W. Allgood, and Seybourn H. Lynne, United States
District Judges, issued a temporary restraining order,
enjoining the corporate entity, Southern Christian Leader
ship Conference from conducting, encouraging, or participat
ing in any demonstration on or near any public school in
the State of Alabama.
"In file, CA66-24, in the United States District
Court for the Northern District of Alabama, Southern Divi
sion, also appears an Affidavit of Andrew Marrisett, a copy
of which is attached hereto and marked Exhibit "F", and
by this reference made a part hereof and incorporated herein,
in which it affirmatively appears that he was a field
worker for the Southern Christian Leadership Conference,
and has been for more than one year, working in Dallas,
Wilcox, Marengo, Jefferson and other counties in Alabama
in an effort,to spur voter-registration among Negroes. It
further affirmatively appears that the said Andrew Marrisett
was born in Jefferson County, and was at the time of the
filing of said Affidavit, January 17, 1966, a resident of
said County, and has been a resident of Jefferson County,
Alabama, all his life.
23
"In CA66-24 in the United States District Court
for the Northern District of Alabama, Southern Division,
appears the Affidavit of Leroy Jerome Moton, a copy of
which is attached to this Affidavit and marked Exhibit "G",
and by this reference made a part hereof and incorporated
herein. It affirmatively appears from this Affidavit
that said Leroy Moton was an employee of the Southern
Christian Leadership Conference and was employed full time
by the Southern Christian Leadership Conference.
"In CA66-24, there appears an Opinion in Lieu of
Formal Findings of Fact Under Rule 52 rendered by the
Honorable H. H. Grooms, United States District Judge,
filed on January 26, 1966, a copy of which is attached
hereto and marked Exhibit ”H", and by this reference made
a part hereof and incorporated herein. In the said opinion,
it affirmatively appears that the Southern Christian Leader
ship Conference had staff members in Birmingham, Jefferson
County, Alabama, to carry out its purposes and goals. That
the said staff members of the Southern Christian Leadership
Conference encouraged and induced, aided and assisted local
citizens in carrying out what was referred to in the opinion
as the 'Christmas Project'; the purpose of said 'Christmas
Project' being to boycott the schools of the City of
Birmingham and schools of Jefferson County, Alabama."
/s/ John Kopelousos
JOHN KOPELOUSOS
24
Sworn to and subscribed before me this the 22nd
day of September, 1967.
/s/ Dorothy Nell Chasteen Salter
NOTARY PUBLIC
EXHIBIT "A"
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ALABAMA, SOUTHERN DIVISION
LIBERTY SUPER MARKET, a partner
ship, composed of FRANK MONTESI,
JOHN MONTESI, JOE MONTESI,
LOUIS MONTESI, and D. C„
STIGNANI,
Plaintiff,
CIVIL ACTION
SOUTHERN CHRISTIAN LEADERSHIP
CONFERENCE, a Georgia corpora
tion whose name is otherwise
unknown to the plaintiff, the
correct name of which will be
supplied by amendment when
ascertained; and HOSEA WILLIAMS,
No. CA 66-106
Defendants. (Filed; February 25, 1966)
ORDER
THIS CAUSE coming on to be heard on the motion
of plaintiff for a temporary restraining order upon the
verified complaint and affidavits submitted therewith; and
the Court having jurisdiction of this Cause for the issuance
of a temporary restraining order, and a preliminary injunc
tion, and being fully advised in the premises; it finds that
the defendants, and other persons in active concert and
participation with said defendants, have wrongfully and
illegally physically hindered, obstructed and interfered
with, intimidated, harrassed, and molested persons desiring
to enter the plaintiff's place of business from entering
said premises for the purpose of conducting their business,,
And, by their conduct in congregating and loitering on
and near the plaintiff's premises, engaged in illegal acts
and conduct which wrongfully interfered with, intimidated,
harrassed and hindered plaintiff's customers, prospective
customers and employees in the conduct of their lawful
business and in the performance of their duties, respecti
vely, and have exhibited signs, hand-bills, and conducted
an illegal boycott upon the basis of unfounded accusations
of racial discrimination by the plaintiff in its hiring and
employment practices, which conduct has caused, or contri
buted to, the destruction of personal property, physical
injuries, and caused irreparable damage, in loss of revenue,
to the plaintiff's business, all of which will continue
unless restrained by Order of this Court; it is
ORDERED, ADJUDGED and DECREED that, pending
further Order of this Court, the defendants, their agents,
servants and employees, officers, representatives and all
other persons in active concert and participation with them,
be and they hereby are, restrained and enjoined from;
26
(a) physically hindering, obstructing,
interfering with, delaying, molesting or har-
rassing other persons desiring to enter plain
tiff's premises from entering said premises
for the purpose of conducting business with
plaintiff or for any other purpose;
(b) congregating or loitering, indivi
dually, or in groups, on or near the plaintiff's
premises, and engaging in any acts or conduct of
whatsoever character which interferes with,
intimidates, harrasses, hinders or annoys plain
tiff's employees in the performance of their
duties, or other persons in the conduct of their
business with the plaintiff, or which in any way
interferes with the proper or normal conduct of
plaintiff's grocery business;
(c) conducting, inciting, advocating or
participating in any picketing in excess of twelve
persons carrying signs who will be required to
continue to move along the sidewalks adjoining
the property of Liberty Super Market at 420 North
13th Street; conducting a boycott of the plain
tiff's business or place of business for the pur
pose of compelling or coercing the plaintiff to
hire Negro employees in violation of the Civil
27
Rights Act of 1964, and the valid seniority pro-
visions of any collective bargaining agreement
existing between the plaintiff and its employees,
their respective certified bargaining agents,
their respective successors and assigns.
It is further,
ORDERED, ADJUDGED and DECREED that this Order
shall be effective on and after four o'clock P„M„, on the
25th day of February, 1966. It is further
ORDERED, ADJUDGED and DECREED that plaintiff's
file their bond with corporate surety, to be approved by
the Court in the sum of Five Hundred Dollars ($500.00),
conditioned for the payment of such costs or damages which
may be incurred by any parties who are found by the Court
to be wrongfully enjoined and restrained. It is further
ORDERED, ADJUDGED and DECREED that a hearing on
the issuance of a preliminary injunction be set at two
o'clock P.M., on Tuesday, March 1, 1966. It is further
ORDERED, ADJUDGED and DECREED that the defendants
be served with a copy of this order and the notice of the
hearing set on March 1, 1966. The United States Marshal is
hereby directed to serve said defendants forthwith, and any
persons in active concert and participation with them,
known, or made known, to the Marshal.
28
Done, this 25th day of February, 1966.
/s/ C. W. Allgood
UNITED STATES DISTRICT JUDGE
EXHIBIT "B11
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ALABAMA, SOUTHERN DIVISION
LIBERTY SUPER MARKET, a partner
ship, composed of FRANK MONTESI,
JOHN MONTESI, JOE MONTESI,
LOUIS MONTESI, and D. C.
STIGNANI,
Plaintiff,
v. CIVIL ACTION
SOUTHERN CHRISTIAN LEADERSHIP NO. CA 66-106
CONFERENCE, a Georgia corpora
tion whose name is otherwise
unknown to the plaintiff, the
correct name of which will be
supplied by amendment when
ascertained; and HOSEA WILLIAMS,
Defendants. (Filed § March 7, 1966)
ORDER
THIS CAUSE came on to be heard on March 1, 1966,
upon plaintiff's motion for preliminary injunction as Ordered
by the Court on February 25, 1966, when a temporary restrain
ing order was issued in this cause; after hearing witnesses
for the plaintiff at said hearing the Court decided to recess
in order that the mediation services of the Community Rela
tions Service and assistance by the Equal Employment Opportunities
29
Commission could be utilized. To that end, the Court
ordered, on March 2, 1966, that such a request issue; and,
it appearing to the Court from the verified complaint, affi
davits, and testimony taken to date, that the defendants,
unless restrained by this Court, will commit the acts re
ferred to in the restraining order of February 25, 1966,
that the plaintiff will suffer and continue to suffer im
mediate and irreparable injury, loss and damage, unless the
temporary restraining order is extended, pending recon
vened hearing on plaintiff's motion for preliminary injunc
tion, it is,
ORDERED, that the temporary restraining order
issued in this cause on February 25, 1966, be, and it hereby
is, extended to the 17th day of March, 1966, subject to
further Order of this Court.
DONE this 7th day of March, 1966.
/s/ C. W. Allgood
UNITED STATES DISTRICT COURT
EXHIBIT "C"
A F F I D A V I T
STATE OF ALABAMA )
)
JEFFERSON COUNTY )
My name is Charles Robert Jones. I am a Detective
in the Police Department of the City of Birmingham.
30
On January 11, 1966, at approximately 10s55 P.M.,
I observed a 1961 Pontiac with Georgia '65 registration
J2064, going West on 4th Avenue North. I pursued this car,
s ince it was speeding and reached speeds in excess of 50
miles per hour. The speed limit in this area is 25 miles
per hour. This car continued West and ran through a light
changing from red to amber at 4th Avenue and 11th Street
Morth, and continued West and made the light at 4th Avenue
and 9th Street North. At this time, I attempted to pull
alongside this car and noted the driver making actions as
if he was reaching under his seat. I thought perhaps he
might be reaching for a gun so I went on past him and pulled
over to the side. He continued on and I followed. I turned
the dome light on in my automobile, took my badge from my
pocket, pulled alongside this car, blew my horn several
times and displayed my badge. This subject paid no atten
tion to this and continued on. Rather than have any after
consequence as to whether or not he knew it was the Police
stopping him, I called for a patrol car to intercept this
car. This car was intercepted by Car #32, manned by Officer
Manuel Michael and Officer Robert C. Pierce, at 3rd Avenue
and 11th Street West. After getting the defendant out of
the automobile, it was determined that he did not have any
Alabama driver's license, or any other State License, in
his possession. He identified himself as Lester Hankerson,
31
Negro male, 41, affiliated with the Southern Christian
Leadership Conference, and was in town from Georgia and
had been participating in and organizing these marches.
The defendant had in the automobile with him a
Negro girl seventeen, and a Negro boy, fourteen, whom he
said he had gotten from Bessemer to participate in the
parade and was returning them home. At this time he was
placed under arrest for Reckless Driving, No State Driver's
License, and Speeding. The automobile was pulled in which
he had earlier identified as being owned by Southern
Christian Leadership Conference. Defendant gave his ad
dress as 563 Johnson Avenue, Atlanta, Georgia.
The above and foregoing statement is made by me
under oath and the facts are as stated. I understand that
this Affidavit may be used in a proceeding in the United
States District Court of Birmingham, Alabama, or some other
Court.
/s/ Charles Robert Jones
Affiant
SWORN TO AND SUBSCRIBED BEFORE ME THIS
13th day of January, 1966.
/s/ (Illigible) Davis
Notary Public
32
EXHIBIT "D"
AFFIDAVIT
STATE OF ALABAMA )
)
JEFFERSON COUNTY )
My name is C. L. Edmondson, Sr. I am a detective
in the Police Department in the City of Birmingham.
On Tuesday, January 11, 1966, I interviewed a
Negro woman whose name is Marie Nix, alias Anna Suddin,
age 23, at the Ensley Precinct of the Birmingham Police
Department. During this interview she stated she was stay
ing at the Gaston Motel where she had been for some four
weeks. She stated her home address was 2517-16th Avenue,
Bessemer, Albama. In connection with an incident which
is said to have occurred at Western Olin High School, she
stated that she had been at the high school that morning
from about lOsOO A.M., and gave the following information
concerning this occurrences
"She came over to the high school from
the downtown area in a station wagon in which
were Eddie James Sanders, Jr., and four others;
'me and Eddie James Sanders were supposed to
lead the kids when they got out of school on
the march downtown. We were going to march on
the courthouse from Western High'; We all went
in the school and the teachers put us out; All the
33
other workers except Eddie Sanders and I left,
but we stayed; It was in front of this school
that me and Eddie James Sanders were placed in a
patrol car and brought to Ensley headquarters."
She said she was a member of the Southern Christian
Leadership Conference and was wearing a badge of that organi
zation which she said she would like to get back.
I also on this same occasion interviewed Eddie
James Sanders, Jr., a young Negro who gave his birth as
July 18, 1945. He stated that the office of the Southern
Christian Leadership Conference was at 505-1/2 17th Street,
City of Birmingham, and that his home address was 868-41st
Place North, that he was a graduate of the 1964 class from
Hayes High School; classed as 1Y in the draft and owns a
1962 Chrysler with Alabama tag and has Mobile County
Driver's License; that he was single and joined the Southern
Christian Leadership Conference in 1963 when they had demon
strations in Birmingham; that he had just returned to
Birmingham a short time before Christmas from Jackson,
Alabama, where he had been a Southern Christian Leadership
Conference worker in that county; that he had been arrested
a number of times, some of these being in the City of
Birmingham; that he had attended Miles College for a short
time but discontinued college in order to work with the
Southern Christian Leadership Conference.
34
He stated that he was here for the voter registra
tion drive; that they wanted the school children to partici
pate in marches or demonstrations; that they first intended
to try to persuade the children to leave school and join
the demonstration but if that didn't succeed, they would
then take direct action, that is, would go in the schools
and get them out. He also stated that he was in charge of
the march that was supposed to have taken place from Western
Olin High School that morning.
I asked Sanders why school children were being
brought in as they could not register and could not vote,
and he said the purpose was to dramatize to them the need
to get a better education and that they could make a better
living and put this education to use and to take them out of
segregated schools.
Sanders also stated that he was the sportsman
or leader of this group that on the day before had gone
through a number of schools in the Ensley area including
Tuxedo Grammar School where a large number of the students
left school and went with him on the march to the Court
House of Jefferson County at Birmingham.. I asked him about
this march and he said that children were offered transporta
tion to the Court House but said they wanted to march in
stead and that he was in favor of it, and led the march.
He also stated that the school children had been informed
35
of this march in advance.
I asked him how they got back to their homes
after the march and he said that transportation was fur
nished to them and that they returned home about 1%30 P.M.
on the night of January 10, 1966.
The next day, January 12, I went to Western Olin
School about 8:00 A.M. On this day I saw and talked again
with Eddie James Sanders, Jr. This was before school was
supposed to commence but a large number of children were
on the school grounds. The school principal was trying
to get his students in school even before the time school
normally would begin. With Eddie Sanders on this occasion
were several young Negroes who identified themselves as
also being workers for the Southern Christian Leadership
Conference. Sanders and the others in this group most
of the time were not on the school grounds but across the
street and continued to beckon and persuade the school,
children to cross the street where they were. A large
number did so. Sanders then got upon top of an automobile
and made a speech to the students, and urged them to march
and if you want your freedom, let's march downtown now. He
did persuade a number of the school children to join with
him. In the beginning there was a very large number but
they had not gone far until the number dwindled down to about
77. This group was made up of very young school children.
36
From all appearances they ranged from about 8 years to 16
years of age. They marched to the annex of the Baptist
Church on 19th Street and Avenue P „ A number of the group
were placed in cars at this point and went in different
directions, some towards Birmingham and some the other way.
The others left the group and walked towards Ensley.
Another member of the Police Department took some
pictures of the events that occurred on January 12.
The above and foregoing statement is made by me
under oath and the facts are as stated. This affidavit is
being given for use in the United States District Court at
Birmingham, Alabama, or other court.
/s/ C. L. Edmondson, Sr.
Affiant
Sworn to and subscribed before me, this
13th day of January, 1966.
/s/ (Illigible) Davis
Notary Public
EXHIBIT '“E"
A F F I D A V I T
STATE OF ALABAMA)
)
JEFFERSON COUNTY)
My name is Otha B. Wilson. X am a Lieutenant in
the Police Department of the City of Birmingham, Alabama.
On January 11, 1966, in response to a report of a
37
disturbance at Hayes High School in the City of Birmingham,
Alabama, I was instructed by Captain J. M. McDowell to go
to Hayes High School in the City of Birmingham, Alabama,
with Detective Alvin J. Cornelius, and investigate the
disturbance. We arrived there about twelve o ’clock Noon.
We met the Principal, J, B. Norman, in the hallway, and at
that time there was coming from the other end of the hall
way in the building a group of young people singing and
yelling. This group was being led by a man who identified
himself as Reverend T. S. Cooper, who said he preaches at
Mount Siniai Baptist Church, located at 9108 14th Avenue
North, Zion City. Upon asking him for some identification,
he produced a driver's license in the name of Tony Scott
Cooper. In my presence, Cooper was told by J. B. Norman
that he could not go through the building with his group.
He claimed he had gotten permission from someone, whom he
either could not or would not identify, but Norman told
him no one other than he, as Principal, or someone at the
Board of Education Office, had authority to grant him such
permission. After Norman asked him and his group to leave,
we identified ourselves as police officers, and after some
discussion Cooper said he would take his group and leave.
In the course of the discussion, Cooper stated that he was
a member of the Southern Christian Leadership Conference
(commonly referred to as "SCLC"), and that he had been
38
assigned to that area out there where he lives. This as
signment was given to him, he said, by Chairman of the
Committee, Ben Clark.
After the group had gotten outside of the build
ing and across the street, I noted that it contained approxi
mately 35 to 50 young people, a large number of whom ap
peared to be of high school age.
On January 12, 1966, on instructions from Captain
J. M. McDowell of the Birmingham Police Department, in the
company of Detective Emmett M. Goodwin, I went to Parker
High School in the City of Birmingham. We arrived there
about 8s50 A.M. About this time, while I was talking to
Harold Edward Kerr, who is Boys’ Advisor at Parker High
School, and waiting for the Principal, Robert C. Johnson,
who was down the hall, three young Negro men came into
the hallway at the front entrance of the building and were
stopped by Kerr and told by him that they could not come
into the school building. One of the men, who was later
identified as William C. Harris, told Kerr that this was a
public building and they had a right to come in. Kerr
told them that they would have to have permission from the
Principal to come in. At this point, Harris told one of
the others, later identified as Leroy Jerome Moton, to go
get the children out of the rooms. As he proceeded down the
hall I followed him, and upon identifying myself as an officer
39
he came back and the three men in Moton's group and we two
officers went into the outer office of the school, where we
told him that he would have to leave the premises upon the
request of Johnson, the Principal, I explained to him that
if the Principal desired to have him arrested for trespass
that he was subject to Arrest for Trespass After Warning.
Harris then stated that they would leave. He said he had
not been in jail since he was in Selma, and that he would be
glad to go to jail. Before leaving, he stated that they
would get Hosea Williams and Martin Luther King in here
and all of the children in Jefferson County would be taken
out of the schools.
During the discussion, Harris asked for our
identification, which we gave him. We, in turn, asked
the three for their identification. Harris produced a
billfold identification card indicating his name to be
William C. Harris, Date of Births 2-1-43, Address? 627
Cherry Street, Albany, Georgia. He further identified him
self as working for SCLC out of Atlanta, Georgia. Another
of these men produced a card showing his name to be Charles
M. Garrison, Address; 563 Johnson Avenue Northeast, Atlanta,
Georgia, Zip Code; 30303. He identified himself as a SCLC
worker. The third one also identified himself by a card in
his billfold as Leroy Jerome Moton, same address as Charles
M. Garrison. His telephone number was listed 522-1420. Also
40
on the identification card was a statement that Moton
was on the SCLC staff. These men then left but, as stated
above, said they would be back.
Before leaving the building, Detective Goodwin
and I interviewed some of the high school adult staff per
sonnel. We were attempting to determine the identity of
the group who had participated in an incident on the day
before, that is, January 11th, though the Principal and
others with whom we talked could not identify any of these
people.
The above and foregoing statement is made by me
under oath and the facts are as stated. I understand
that this Affidavit may be used in a proceeding in the
United States District Court of Birmingham, Alabama, or
some other Court.
/s/ Otha B. Wilson
Affiant
SWORN TO AND SUBSCRIBED BEFORE ME THIS
13th day of January, 1966.
/s/ (Illigible) Davis
Notary Public
EXHIBIT ’’F ”
STATE OF ALABAMA)
JEFFERSON COUNTY)
Before me, the undersigned authority for and in
41
said County and State, personally appeared Andrew Marrisett,
known to me, and who being by me first duly sworn on oath
deposes and says;
My name is Andrew Marrisett. I am the same person
as Andrew Marsete joined as a party defendant in that cer
tain action now pending in United States District Court
for the Northern District of Alabama, Southern Division,
Civil Action No. 66-24, entitled County Board of Education
of Jefferson County, et al, vs. Hosea Williams, et al.
I was born in Jefferson County, Alabama, and am
now a resident of said county, and have been for all my
life. I am a field worker for Southern Christian Leadership
Conference, Inc., and have for more than one year been
working in Dallas, Wilcox, Marengo, Jefferson and other
counties in Alabama in an effort to spur voter-registration
among Negroes.
/s/ Andrew Marrisett
Sworn to and subscribed before
me this 17th day of January, 1966.
/s/ Pearl W. Cole
Notary Public
MY COMMISSION EXPIRES MAY 1, 1967
EXHIBIT “G"
EXHIBIT "A"
STATE OF ALABAMA)
JEFFERSON COUNTY)
Before me, the undersigned authority for and in
42
said County and State, personally appeared Leroy Jerome
Moton, known to me, and who being by me first duly sworn
on oath deposes and says:
My name is Leroy Jerome Moton. I am the same
person as Leroy Jerome Moton joined as a party defendant
in that certain action now pending in United States
District Court for the Northern District of Alabama,
Southern Division, Civil Action No. 66-26, entitled City
Board of Education of Birmingham, etc., et al, v The
Southern Christian Leadership Con-erence, a corporation,
etal.
I was born in Selma, Dallas County, Alabama, on
to-wit; May 25, 1945, and have lived there all of my life,
until March, 1965, when I went to Atlanta, Georgia, to work
full time with Southern Christian Leadership Conference,
Incorporated. Since that date, I have worked in Georgia
and in Alabama. My mother still resides in Selma, Dallas
County, Alabama.
I am not twenty-one (21) years of age and will
not be twenty-one (21) years of age until my next birthday,
May 25, 1966.
/s/ Leroy Jerome Moton
Sworn to and subscribed before
me this 14th day of January, 1966.
/s/ Pearl W. Cole
Notary Public; MY COMMISSION EXPIRES MAY I, 1967.
43
EXHIBIT “H"
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ALABAMA, SOUTHERN DIVISION
THE COUNTY BOARD OF EDUCATION
OF JEFFERSON COUNTY, ALABAMA,
a public School Board under the
laws of the State of Alabama, et al.,
Plaintiffs
vs. CIVIL ACTION
HOSEA WILLIAMS, et al.,
Defendants
NO. 66-24
CITY BOARD OF EDUCATION OF
BIRMINGHAM, ALABAMA, et al.,
Plaintiffs
vs. CIVIL ACTION
SOUTHERN CHRISTIAN LEADERSHIP NO. 66-26
CONFERENCE, a corporation, et al.,
Defendants (Fileds January 26, 1966)
OPINION IN LIEU OF FORMAL FIND-
INGS OF FACT UNDER RULE 52
These cases came on at this time upon the defen
dants' motions to dissolve the temporary restraining orders
and upon the plaintiffs' motions for temporary injunctions.
Since the temporary restraining orders were not renewed
within ten days of their issuance, these orders expired on
January 24, 1966.
These actions have been consolidated for trial of
44
the issues presented by the motions for temporary injunc
tions .
Leroy Jerome Moton was dismissed as a party defen
dant in Civil Action 66-26, and Andrew Marrisett has been
dismissed as a party defendant in Civil Action 66-24.
The Court has jurisdiction of these actions and
of the parties now before it.
Civil Action No. 66-26 is filed by the City Board
of Education of Birmingham and the City of Birmingham.
Civil Action No. 66-24 is filed by the County Board of
Education of Jefferson County, by the members of said Board
and by the Superintendent of Education. The Southern
Christian Leadership Conference, a corporation, and Hosea
Williams are parties defendant in each action. William C.
Harris and Charles M. Garrison are also parties defendant
in Civil Action No. 66-26 and Edward Bedford in Civil
Action No. 66-24.
On or about December 15 or 16, 1965, the defen
dant Williams, who is an employee of the corporate defendant
and a member of its Executive Committee and Director of its
Voter Registration and Political Education Division, came
to Birmingham, Alabama. He was to conduct a project known
as "Christmas Project," extending from December 20, 1965,
to January 7, 1966. The purpose of this project was to
stimulate and encourage voter registration. Williams brought
45
with him, or during the period of time involved was joined
by, some seventeen staff workers.
Demonstrations were conducted, but the task fell
short of its goal. The group remained in Birmingham and
on January 10, 1966, began the recruitment of school children
for the purpose of giving further impetus to the objectives
which had not been achieved by the "Christmas Project."
Williams and his staff worked with a local Steering Com
mittee. Various members of the staff and members of the
Steering Committee went to a number of the schools in both
the County and the City and began efforts to induce and per
suade the pupils in the schools to join in the demonstra
tions. Some of the individuals invaded the school premises
and went into the halls and classrooms and after warning
returned to conduct their campaigns of enticement and allure
ment of the children from the schools.
At Western High two of the intruders, a male and
a female, namely, Marie Nix and Eddie J. Sanders, the latter
being one of the staff members of the Southern Christian
Leadership Conference, when they were shoved out the front
door, lay down just outside the entrance on the school
premises and sang and yelled for an hour and twenty minutes,
remaining in this position until they were arrested and re
moved .
Defendant Williams denies that he authorized this
46
action and claims to have discouraged the same. However,
one witness testified that he had heard Williams state
that the school children were "the secret weapons'* in
their demonstrations. The same witness also stated that
he heard Williams direct those assembled in the immediate
vicinity of Parker High School to go in and turn out the
students.
The Court is satisfied from the evidence that
the action of many of the individuals met the approval and
tacit consent of the Southern Christian Leadership Con
ference and of defendant Williams and that the success that
was achieved in respect, to getting the children out of the
schools could not have been achieved without the aid, assis
tance, encouragement and inducement of the defendants and
the staff members of the Southern Christian Leadership Con
ference .
The intruders on the school premises and into
the school buildings disturbed the conduct of the instruc
tions being carried on. The intruders sang and yelled in
some of the school buildings and motioned the pupils to
leave the schools and join in the demonstrations. The de
monstrations took place during school hours and the pupils
were induced to leave the school buildings and the premises
without permission of the school officials. The demonstra
tions which were carried on in the downtown area were composed
47
largely of children of school age, and the Court finds
that many of them were students enticed from the schools.
On two occasions these demonstrators went into
the heart of downtown Birmingham and paraded in the middle
of the streets, ignoring traffic controls and blocking
traffic at the busiest street intersections in the heart
of the city. On one occasion several hundred of them lay
down in the middle of 20th Street, the principal street
in downtown Birmingham. On two or three occasions a
bridge on one of the highways leading from Brighton to
Bessemer was blocked from forty minutes to an hour by
the demonstrators, ninety per cent of whom were children
of school age. On other occasions there were instances
in which they threw themselves in front of moving vehicles.
The activities of the defendants and those act
ing in concert with them brought about abnormal absences
from certain of the County and City schools. Brighton,
Westfield and Wenonah, County high schools, had many ab
sentees during this period. On January 10, 1966, Brighton
had 667 absentees out of an enrollment of 968; on January
11, 303 absentees; and on January 12, 251. During the
three days referred to these three schools suffered an ab
normal. absence of 1591.
Within the City of Birmingham five high schools
and three elementary schools were particularly affected.
48
These schools suffered excess absences of 4392 during the
school days from January 11 to January 21, 1966, both
inclusive.
Funds are allocated to the schools from the Edu
cational Trust Minimum Fund Program and from County funds
on the basis of average daily attendance. The County
Board receives approximately $1.00 per day per pupil in
attendance, the City Board $1.23 per day per pupil. These
funds are lost to them when the students absent themselves
for any reason from the schools.
The corporate defendant was an active participant
in the 1963 demonstrations. From April 15 to May 10, 1963,
the Negro schools in the County lost $4,083.12 on account
of excess absences, and from May 3 to May 17, 1963, the
schools of the City of Birmingham had 84,900 excess absences
at a loss to them of $1 . 0 2 per day per pupil, or a total of
$86,598.00. These were the periods covered by the demon
strations for that year.
Williams claims that the objective of this drive
has been obtained. However, the corporate defendant has
six departments and each department has its own objective,
and the likelihood of the future interruption of the schools
is a threat that cannot be ignored in view of the experiences
in 1963 and during the present month.
Even though any person who willfully disturbs a
49
school is guilty of a misdemeanor, Title 14, Sections 118
and 119, Alabama Code of 1940, and may be guilty of causing
or contributing to the delinquency of school children,
Title 13, Section 366, the enforcement of these provisions
of the criminal law may have a deterrent effect with respect
to future violations, but such enforcement is no answer to
the problem presented by the facts of these cases. The
schools are entitled to be free from harassment, distur
bances and the unwarranted interruption of their sessions.
Parents should have some assurance that when they entrust
their children to the school authorities their instruction
at the school will not be needlessly interrupted and that
they will not be enticed away from the schools and subjected
to the hazards of traffic. The school authorities should
have the right to conduct the schools in an orderly and
uninterrupted manner while the children are in their
custody at the schools. The Boards of Education should
not be subjected to the losses incident to absences such
as have occurred during the recent demonstrations.
The facts of these cases reveal a transgression
of the foregoing rights by the defendants and their agents,
servants and employees and those acting in concert with
them.
The right to demonstrate within the law is not in
question. That right cannot be validly disputed. The
50
challenge here, however, is the right to demonstrate without
the law. Under a government of laws there are correlative
rights as there are correlative responsibilities. My right
to demonstrate does not include the right to break down my
neighbor's fence or to otherwise destroy my neighbor's
property. It does not include the right to disrupt the
conduct of instructions in our schools by the invasion of
their halls and classrooms for the recruitment of demon
strators. It does not include the right to entice and
coerce students into becoming truants. It does not include
the right to subject the schools to loss of funds resulting
from such truancy. It does not include the right to lure
school children away from the school premises into the
streets in the heart of the city and exposing them to the
hazards of traffic without regard for traffic controls
and safety regulations and laws.
The vindication of the legal right to demonstrate
does not depend upon the motive of those seeking vindication.
It is also equally true that the motive does not justify
the use of illegal means in the organization and conduct
of demonstrations, whether the motive be to bring about the
registration of Negro citizens by federal registrars or to
arouse such citizens from their apathy respecting the duties
of citizenship in that area. If these were the motives, the
Court notes that the demonstrators have achieved their
51
objective as to the former, if not as to the latter.
The law has removed the roadblocks to the advance
ment of every citizen to full citizenship, but it has not
absolved the citizen, whatever his race, from the responsibi
lities of citizenship,
"Let all things be done decently and in order,"
(1 Corinthians 14s40), and in accordance with the law of
the land, and there will be no just cause for complaint
in the area of civil rights, or in others. To act other
wise is but to breed disrespect and contempt for all law
and order.
The plaintiffs will suffer irreparable injury if
a preliminary injunction is not granted, since they other
wise have no adequate redress. The injunction will issue
in each case upon the plaintiffs in each case executing a
bond in the sum of $1,000.00 as provided by Rule 65(c).
Done and Ordered, this the 26th day of January,
1966.
/s/ H. H. Grooms
United States District Judge
. . e O 0 O . ® to
NOTICE OP SUBMISSION OF AFFIDAVIT
IN SUPPORT OF MOTION TO DISMISS
(Number and Title Omitted) (Fileds September 25, 1967)
Comes now, Southern Christian Leadership Conference
Incorporated, named as defendant in the abovesaid action and
52
in support of its motion to dismiss now pending in this
Honorable Court, Submits the attached Affidavit of Andrew
J. Young, an officer of said defendant Corporation.
Respectfully submitted,
/s/ Peter A. Hall
PETER A. HALL
1630 Fourth Avenue, North
Birmingham, Alabama
JACK GREENBERG
CHARLES STEPHEN RALSTON
NORMAN C. AMAKER
10 Columbus Circle
New York, New York 10019
Attorneys for Defendants-
Petitioners
AFFIDAVIT OF ANDREW J„ YOUNG
(Number and Title Omitted) (Filed? September 25, 1967)
ANDREW J. YOUNG, being duly sworn, deposes and
says i
-1 -
That he is an officer of the Southern Christian
Leadership Conference, defendant in this action, having the
title of Executive Director. That as an officer, he has
knowledge of defendant's business.
- 2-
That defendant, Southern Christian Leadership
Conference, is a corporation chartered and organized under
the laws of the State of Georgia; that said corporation is
53
not chartered under the laws of the State of Alabama, nor
has it qualified under the laws of said State as a foreign
corporation.
-3-
That at the time of the filing of this action,
and at the time of service of process, the chief contact
of the corporation with the State of Alabama was the pre
sence in the State of Albert Turner, a paid staff member
of the Southern Christian Leadership Conference. That at
the time of service of process in this action, Albert
Turner was not directly engaged in any project of the
Southern Christian Leadership Conference? that his only
activity within the State of Alabama was the giving of
advice on a consultative basis with persons and organiza
tions within the State.
-4-
That at the time of service of process in this
action, there may have been present in the State one or
more persons or organizations affiliated in some capacity
with the defendant Southern Christian Leadership Conference,
but who were not then conducting business on behalf of said
defendant.
SOUTHERN CHRISTIAN LEADERSHIP
CONFERENCE, INC.
BYs /s/ Andrew J. Young
ANDREW J. YOUNG, EXECUTIVE
Director
54
Subscribed and sworn to before me,
this 22nd day of September, 1967,
/s/ Alice Lewis
NOTARY PUBLIC, GEORGIA STATE AT LARGE
MY COMMISSION EXPIRES JUNE 24, 1968
[ S E A L ]
. . . oOo. . o
ORDER OVERRULING DEFENDANT'S
MOTION TO DISMISS
(Number and Title Omitted) (Fileds September 27, 1967)
The defendant's plea in abatement herein, which
is being treated as a motion to dismiss, was heard on the
regular motion docket, on September 15, 1967, at which
time a submission was taken thereon to allow the filing
of affidavits. Having carefully considered the affidavits
filed by the plaintiff and the defendant, the Court is of
the opinion that the said motion to dismiss is due to be
overruled.
It is, therefore, ORDERED, ADJUDGED and DECREED
that the defendant's motion to dismiss be and the same is
hereby overruled, and the said defendant is allowed twenty
days within which to file responsive pleadings.
Done and Ordered, this the 27th day of September,
/s/ H. H. Grooms
United States District Judge
1967.
„ ..oOo...
55
ANSWER OF DEFENDANT SOUTHERN CHRISTIAN
LEADERSHIP CONFERENCE
(Number and Title Omitted) (Fileds October 6 , 1967)
Comes the defendant Southern Christian Leadership
Conference in the above-styled cause by its attorney and
answers to the complaint of the plaintiff as follows:
FIRST DEFENSE
The complaint fails to state a claim against de
fendant upon which relief can be granted.
SECOND DEFENSE
The counts set forth in the complaint of the plain
tiff are vague and indefinite, do not allege with sufficient
certainty what were the circumstances and event of the al
leged injuries to plaintiff, and do not allege facts show
ing that plaintiff sustained any damage or injury as the
proximate result of negligence or breach of duty or any
intentional conduct on the part of defendant.
THIRD DEFENSE
Plaintiff denies each and every allegation con
tained in the complaint, i,.e_., in counts 1, 2 and 3 thereof,
except as to those allegations concerning the existence
and extent of injuries to plaintiff, defendant alleges
that it is without knowledge or information to form a be
lief as to the truth of said allegations.
56
FOURTH DEFENSE
Defendant alleges that at all times complained of
by the plaintiff to the extent defendant was conducting any
acts in the City of Birmingham, Alabama, such acts were
within its federally constitutionally protected rights of
freedom of speech and assembly.
Respectfully submitted,
/s/ Peter A. Hall
PETER A „ HALL
1630 Fourth Avenue, North
Birmingham, Alabama
JACK GREENBERG
CHARLES STEPHEN RALSTON
NORMAN C. AMAKER
10 Columbus Circle
New York, New York 10019
Attorneys for Defendants
. o „ o 0 q . . o
ORDER ON PRE-TRIAL
HEARING
(Number and Title Omitted) (Filedj January 26, 1968)
This cause coming on to be heard on a regular
pre-trial hearing, and all parties being present in person
or by counsel, the following action was thereupon taken;
1. The following pleadings and amendments were
allowed:
Complaint and answer.
2. It was agreed by all of the parties that the
following are all of the issues in controversy in this cause
57
The plaintiff states his case in three counts,
claiming in each count the sum of $150,000.00= In Count
One it is averred that the defendants were guilty of wilful,
malicious and intentional assault and battery upon the
plaintiff on February 22, 1966, on the premises of the
Liberty Super Market located at 420 North 13th Street
in Birmingham, Alabama? that the defendants were demon
strating against said Super Market and caused a riot which
resulted in plaintiff being shot several times and caused
him to be greatly injured. He alleges permanent injury
which is the proximate consequence of said wilful and mali
cious and intentional conduct of the defendants. He claims
punitive as well as compensatory damages. Count Two follows
the pattern of Count One and claims damages of the defen
dants for maliciously and intentionally causing a riot which
caused the alleged injuries to the plaintiff. Count Three
follows the pattern of Counts One and Two and alleges that
the plaintiff came upon the premises as an invitee to pur
chase certain items at said Liberty Super Market? that de
fendants owed a duty to the public as well as the plaintiff
to demonstrate in a proper, lawful and orderly fashion
and not to cause injury to plaintiff? that while plaintiff
was on the premises the defendants caused a riot which re
sulted in an assault and injury to plaintiff in that he was
shot several times and greatly injured as set out in said
58
count. Plaintiff avers that said assault and battery and
injury on him was committed by the defendants, their agents,
servants, and in violation of their duty to him as an in
vitee of the Liberty Super Market.
Defendant pleads the general issue, except as
admitted. Defendant claims that at all times it was acting
within its federally constitutionally protected rights of
freedom of speech and assembly.
Due to the recent and sudden demise of the wife
of local counsel for the defendant, further pretrial
hearing is continued. If the parties wish to supplement
this pretrial order, they shall advise the Court to that
effect. Otherwise, the foregoing will constitute the pre
trial order of the Court.
It is therefore ORDERED by the Court that all
of the above-named allowances and agreements be and the
same are hereby binding upon all parties in the above-
styled cause, unless this order be hereafter modified by
order of the Court.
Done this 22nd day of January, 1958.
/s/ H. H. Grooms
United States District Judge.
..oOGg ..„
59
AMENDMENT TO COMPLAINT INCREASING
AMOUNT OF DAMAGES
(Number and Title Omitted) (Filed; February 20, 1968)
Comes now the Plaintiff in the above cause by
and through his Attorneys of Record and Amends the Complaint
and each Count thereof by substituting for the sum One
Hundred Fifty Thousand Dollars ($150,000=00) where the same
appears therein, the sum of Seven Hundred Fifty Thousand
Dollars ($750,000.00) so that the Complaint as Amended
will claim in each Count separately, the sum of Seven
Hundred Fifty Thousand Dollars ($750,000.00) as damages.
LORANT, BOULOUKOS & KOPELOUSOS,
ATTORNEYS FOR THE PLAINTIFF
BY; /s/ Jerry 0. Lorant
• a a O O O a a a
MOTION TO STRIKE PLAINTIFFS 1
AMENDMENT TO THE COMPLAINT
(Number and Title Omitted) (Filed; February 27, 1968)
Defendant, by its undersigned attorneys, hereby
moves to strike the amendment to his complaint filed by
the plaintiff in this action on the grounds that responsive
pleadings have been filed and under Rule 15(a), Fed. R.
Civ. Proc., leave of court must be obtained to so amend.
No leave of court has been obtained and no good cause for
the amendment has been shown. The pretrial order of this
Court has been entered, setting the amount of damages claimed
60
in each count of the complaint at $150,000.00, and that to
allow an amendment in the said amount in such a large degree
at such a short time before trial will work great hardship
and oppression to defendant*
Respectfully submitted,
/s/ Peter A. Hall
PETER A* HALL
1630 Fourth Avenue, North
Birmingham, Alabama
JACK GREENBERG
CHARLES STEPHEN RALSTON
10 Columbus Circle
New York, New York 10019
Attorneys for Defendant
a a a O0O © ® .
AMENDMENT "A" TO THE
COMPLAINT
(Number and Title Omitted) (Filed? March 5, 1968)
Comes now the Plaintiff and with leave of Court
first had and obtained, Amends his Complaint heretofore
filed by adding Count A hereto?
COUNT A:
Plaintiff claims of the Defendant, Southern
Christian Leadership Conference, a Corporation, the sum
of One Hundred Fifty Thousand Dollars ($150,000.00) as
damages arising out of the following facts?
Plaintiff avers that on to-wit on and prior to
February 21, 1966, at to-wit the premises known as Liberty
61
Super Market, 420 North 13th Street, Birmingham, Jefferson
County, Alabama, undertook to picket, parade and demon
strate against said Liberty Super Market and the Defendant
thereby caused an incident to-wit a riot and a shooting
which resulted in the Plaintiff being shot and caused the
Plaintiff the following injuriess He was permanently
injured, permanently damaged, suffered great physical and
mental pain and anguish, caused medical expenses, loss of
earnings, his body, nervous system were injured and per
manently injured, his chest, abdomen and left forearm were
injured, he had perforations of his diaphram, his pancreas,
stomach, colon and other parts of his body were injured
and Plaintiff avers that his injuries and damages were
caused as a result of a nuisance to-wit brought about by
the picketing and parading and demonstrating of the Defen
dant and divers persons brought together at said time and
place by the Defendant to parade, picket and demonstrate
and that said picketing, parading and demonstrating caused
the eruption of violence which constituted to-wit said nui
sance and caused the Plaintiff to suffer the injuries and
damages aforesaid. Plaintiff avers that his injuries and
damages are the proximate consequence of the nuisance as
set out hereinbefore.
Plaintiff further avers that the Defendant is a
non-resident corporation, organized in the State of Georgia,
62
and a non-resident of the State of Alabama, with its princi
pal place of business in a State other than the State of
Alabama, and that the Plaintiff is a domicile and resident
of the State of Alabama, and over the age of 21 years,
being a resident citizen of the State of Alabama.
LORANT, BOULOUKOS & KOPELOUSOS,
ATTORNEYS FOR PLAINTIFF
BY-.: /s/ Jerry 0. Lorant
3/5/68
Allowed
/s/ H. Ho Grooms
Judge
...oOo.„.
AMENDMENT "B" TO THE
COMPLAINT
(Number and Title Omitted) (Fileds March 5, 1968)
Comes now the Plaintiff and with leave of Court
first had and obtained, Amends his Complaint heretofore
filed, by adding Count B heretos
COUNT B s
Plaintiff claims of the Defendant the sum of
One Hundred Fifty Thousand Dollars ($150,000.00) as damages
arising out of the following facts:
Plaintiff avers that the Defendant, Southern
Christian Leadership Conference, on to-wit February 21,
1966, undertook to picket and demonstrate at to-wit the
Liberty Super Market at 420 North 13th Street, Birmingham,
63
Jefferson County/ Alabama, and that the Defendant at said
time and place negligently allowed said picketing and demon
strating to erupt into violence, that the Defendant was
negligent in failing to adequately provide safeguards in
cluding to-wit control and maintenance of its pickets and
paraders for the proper protecting of members of the public
which might be injured as a result of any violence that
might erupt and Defendant knew or had reason to believe or
with dhfeasbnable. diligence1 would have known , that said
picketing and parading at said time and rpiace:- as aforesaid pni
would erupt into violence and create to-wit a near riot
TilTMIAJ'i >IGri SY3KSGTT A
and that great danger to the life and limb of the public
i netted' ,0 yxiaL \e\ : YS
including the Plaintiff would be attended to said picketing,
80\c.\£
parading and demonstrating if said picketing, parading and
be wo 1 .1A
demonstrating were not protected by said Defendant properly
a moo .I’d j 11 ,H \a\
controlling said picketing, parading and demonstrating and u
the Defendant negligently conducted said picketing, parading
and demonstrating so that the same erupted into violence,
03. A0JJ.A3 X (1 - / • v13 A«j MO 0
causing the Plaintiff to receive the injuries and damages
(8dei ,5 rioxsM sb e lig ) (bsidimO s lix T £>ns 'xsdrntm)
as follows; He was permanently injured, permanently
;*i .dxjD do bvbqI riiiw brie , iiiJ iiijilH arid won asmoO
damaged, suffer great physical and mental pain and anguish,
end pnibbs vd i/tiiSiqmoO sir! sbasm e ^bsnxsddo b a s bed je -x ii
caused medical expenses, loss of earnings, his body, nervous
; pniwo J. loi
system were injured and permanently injured, his chest, abdo-
s D THU GO
men and left forearm were injured, he had perforations of his
nisriJjioc , JnsbnsisCi s da do ami sin i l i d n i e l i
diaphram, his pancreas, stomach, colon and other parts of
64
his body were injured and Plaintiff avers that his in
juries and damages are the proximate consequence of the
negligence of the Defendant as aforesaid.
Plaintiff further avers that the Defendant is
a non-resident corporation, organized in the State of Georgia,
and a non-resident of the State of Alabama, with its princi
pal place of business in a State other than the State of
Alabama, and that the Plaintiff is a domicile and resident
of the State of Alabama, and over the age of 21 years, be
ing a resident citizen of the State of Alabama.
LORANT, BOULOUKOS & KOPELOUSOS,
ATTORNEYS FOR PLAINTIFF
BY; /s/ Jerry 0. Lorant
3/5/68
Allowed
/s/ H. H. Grooms
U . So Judge
. o . OOO o . o
AMENDMENT "C" TO THE
COMPLAINT - DISALLOWED
(Number and Title Omitted) (Filed; March 5, 1968)
Comes now the Plaintiff, and with leave of Court
first had and obtained, amends his Complaint by adding the
following %
COUNT Cs
Plaintiff claims of the Defendant, Southern
65
Christian Leadership Conference, the sum of One Hundred
and Fifty Thousand Dollars ($150,000.00) arising out of
the following factss
Plaintiff avers that the Defendant undertook to
cause to-wit, a demonstration, parade or picket of the
store known as Liberty Super Market in Birmingham, Jefferson
County, Alabama, on to-wit February 21, 1966, and to-wit
secured and caused divers and sundry people to-wit all under
the direction and control of the Southern Christian Leader
ship Conference, to come to said premises and to picket
and demonstrate and parade, and to-wit negligently allowed
said premises to be not reasonably safe for use by the
public including the Plaintiff, in and about patronizing
said store; and negligently failed to use reasonable and
proper means to prevent members of the public, including
the Plaintiff from being injured on said occasion, and to-
wit the said picketing, parading and demonstrating of and
by the Defendant at said time and place caused violence to
erupt and caused the Plaintiff to be shot and caused him
to suffer the following injuries and damagess He was per
manently injured, permanently damaged, suffer great physi
cal and mental pain and anguish, caused medical expenses,
loss of earnings, his. body, nervous system were injured
and permanently injured, his chest, abdomen and left forearm
were injured, he had perforations of his diaphram, his
66
pancreas, stomach, colon and other parts of his body were
injured and Plaintiff avers that the Defendant was negli
gent in failing to use proper means and safeguards to pro
tect members of the public, including the Plaintiff from
being injured at said time and place; and Plaintiff was
caused his injuries and damages as the proximate conse
quence of the said negligence, hence this suit,,
LORANT, BOULOUKOS & KOPELOUSOS
ATTORNEYS FOR PLAINTIFF
/s/ Jerry 0. Lorant
OF COUNSEL
3/5/68
Disallowed
/s/ H. H. Grooms
Judge
„ . . 0 O0 ...
V E R B I C T
(Number and Title Omitted) (Filed; March 6 , 1968)
We, the jury, find for the plaintiff William J.
Maxwell, and against the defendant Southern Christian
Leadership Conference, and assess his damages at $45,000.00.
/s/ (Signature Illigible)
Foreman
Our verdict includes damages based upon a
nuisance. Yes X No
Our verdict includes damages based upon negligence.
No
/s/ (Signature Illigible)
Foreman
o . o OOO , . o
Yes X
67
JUDGMENT ON JURY VERDICT
(Number and Title Omitted) (Filed: March 6 , 1968)
This action came on for trial on March 4, 1968
before the Court and a jury, Honorable H. H. Grooms, United
States District Judge, presiding, and the issues having
been duly tried and the jury having duly rendered its
verdict, on March 6 , 1968
It is Ordered and Adjudged that the plaintiff
William J. Maxwell have and recover of the defendant
Southern Christian Leadership Conference the sum of
$4 5 ,0 0 0 . 0 0 in accordance with verdict of the jury this day
filed as follows:
"We, the jury, find for the plaintiff William J .
Maxwell and against the defendant Southern
Christian Leadership Conference and assess his
damages at $45,000.00; our verdict includes
damages based upon a nuisance, Yes; our verdict includes
damages based upon negligence, Yes; and taxing costs against
the defendant.
William E . Davis, Clerk
By: /s/ Dan Strong
Deputy Clerk
March 6 , 1968
Birmingham, Alabama
o . . OOO o e .
68
MOTION OF DEFENDANT FOR A
DIRECTED VERDICT
(Number and Title Omitted) (Fileds March 14, 1968)
Defendant hereby moves the Court for a directed
verdict in favor of defendant in this cause as to Count A
of the complaint on the grounds s
1„ There was no evidence that defendant corpora
tion undertook to, or caused others to, picket, parade, and
demonstrate at the premises of Liberty Supermarket at any
time in February, 1966.
2. There was no evidence that defendant corpora
tion undertook to, or caused others to, picket, parade, and
demonstrate at the premises of Liberty Supermarket on the
specific date in question herein, viz., February 22, 1966.
Specifically, there was no evidence with regard to the
particular date complained of that defendant corporation,
or any of its agents, officers, or employees, were present
at the time of any demonstrations on February 22, 1966, or
prior to the incident complained of, had organized such
demonstrations, etc., or had authorized any agents, officers,
or employees to conduct or participate in any such demon
strations, etc.
3. There was no evidence that the persons, or
any of them, that may have come to the Liberty Supermarket
on the date complained of were there by direction or authorization
69
of defendant corporation, or were under the control or
direction of defendant. Rather, the evidence affirmatively-
showed that any such persons were under the control, direc
tion, and supervision of persons not the agents of or autho
rized by defendant corporation.
4. There was no evidence that defendant corpora
tion authorized any of its officers, employees, or agents
to organize or carry out any demonstration at the Liberty
Supermarket in the course of their employment by the
corporation or in the capacity as an officer of it. Nor
was there any evidence that defendant corporation ratified
any acts or conduct of any persons involved in the demon
strations. There was no evidence that any persons involved
in the demonstrations were acting other than as individuals
or as representatives of other organizations than defendant
corporation.
5. There was no evidence that the defendant
corporation or any of its agents, employees, or officers,
acting in the scope of their authority or otherwise, caused
any incident, whether a riot or otherwise, that resulted
in injuries to the plaintiff.
6 . There was no evidence that the defendant
corporation or persons brought together by the defendant
corporation or its agents, officers, or employees, caused
or created, or were responsible in any way for, a nuisance
70
that resulted in injuries to the plaintiff. There was no
evidence that defendant corporation, its officers, agents,
or employees, caused an eruption of violence, or caused
picketing, demonstrating, or parading, that resulted in
violence resulting in injuries to the plaintiff.
7. There was no evidence that any acts or con
duct of defendant corporation, its agents, employees, or
officers, were the proximate cause of any injuries to plain
tiff.
As to Count B of the plaintiff's complaint, de
fendant moves for a directed verdict on the grounds:
1. Defendant reasserts grounds 1-5 set out above
with regard to Count A as bases for a direct verdict with
regard to Count B,
2. There was no evidence that defendant corpora
tion, its agents, employees, or officers, negligently or
otherwise allowed any picketing or demonstrating to erupt
into violence on the date complained of.
3. There was no evidence that defendant corpora
tion, its agents, employees, or officers, negligently or
otherwise failed to adequately provide safeguards to control
and maintain pickets and parades or otherwise negligently
or otherwise failed to take any action required to protect
members of the public from violence.
4. There was no evidence that defendant corporation,
71
its agents, employees, or officers, was negligent in any
way; that it failed to exercise due care owed to plaintiff;
that it knew, had reason to believe, or with reasonable
diligence would or could have known, that any violence or
riot would occur as a result of any acts or conduct of it;
or that any acts or conduct of it were the proximate result
of any injuries to plaintiff.
As to both Counts A and B, defendant, moves for
directed verdicts on the groundss
1. That there was no evidence that defendant
corporation, its agents, employees, or officers, were
responsible for any of the events of the date complained
of or were otherwise responsible for the injuries suffered
by plaintiff;
2. That the evidence affirmatively shows that
the events occurring on the date complained of were brought
about by persons, other than defendant corporation, its
agents, employees, or officers, including the conduct of
the picketing, parading, and demonstrations, and the shoot
ing of the plaintiff.
3. That the injuries suffered by plaintiff were
the result of an independent intervening cause not under
the control of defendant corporation or able to be reasonably
foreseen by it, viz., the deliberate, intentional, malicious,
and unprovoked firing of a pistol or gun by an unknown person
72
wholly unconnected and not under the control of defendant
corporation.
As to its Affirmative Defenses, defendant moves
for directed verdicts on both Counts A and B on the
grounds s
1. The evidence affirmatively showed that the
persons conducting the demonstrations at all times acted
lawfully and peacefully as protected by the First and
Fourteenth Amendments to the Constitution, that they
had instructed those persons demonstrating to act nonvio-
lently and peacefully, and did not participate in, encour
age, or authorize any unlawful or wrongful acts or conduct
by any persons at any time on the date complained of.
2. The evidence affirmatively showed that, to
the extent any officer, employee, or agent of the defendant
corporation was in any way involved in organizing any
demonstrations at any time at the Liberty Supermarket, he
did no more than exercise rights guaranteed under the
First and Fourteenth Amendments' protections of free speech
and assembly.
3. The evidence affirmatively showed that plain
tiff was guilty of contributory negligence and assumption
of risk in that he went to the premises of the Liberty
Supermarket on the date in question knowing that picketing
and demonstrating was taking place; he arrived shortly before
73
closing time but rather than going about his own business
parked his car a short distance from the demonstrators and
sat in it and observed them for 5 to 10 minutes, and that
he heard shots fired but instead of remaining in his car
where he was in no danger, got out of his car and stood
up to see what was occurring a short distance from the site
of the incident. In so doing he failed to exercise the
degree of care required by a reasonable and prudent man,
placed himself voluntarily and knowingly in a position of
danger, and, as a proximate result, suffered injuries which
otherwise would not have occurred.
WHEREFORE, for the foregoing reasons, defendant
moves for a directed verdict in its favor on both counts
of the complaint.
Respectfully submitted,
/s/ Peter A. Hall
PETER A. HALL
1630 Fourth Avenue, North
Birmingham, Alabama
JACK GREENBERG
CHARLES STEPHEN RALSTON
10 Columbus Circle
New York, New York 10019
Attorneys for Defendant
Southern Christian Leadership
Conference
. . .o0o .-u
74
MOTION FOR A JUDGMENT
NOTWITHSTANDING THE VERDICT OR FOR A
NEW TRIAL
(Number and Title Omitted) (Fileds March 14, 1968)
Defendant, Southern Christian Leadership Con
ference, by and through its attorneys, moves the Court
to set aside the verdict and judgment entered thereon,
both on March 6, 1968, and to enter a judgment in favor
of the defendant in accordance with the motion for directed
verdict made orally by the defendant at the close of plain
tiff's case and in accordance with the motion for directed
verdict made orally by the defendant at the close of all
the testimony herein, on the grounds relied on in those
motions.
As to Count A, the nuisance count:
1„ There was no evidence that defendant corpora
tion undertook to, or caused others to, picket, parade,
and demonstrate at the premises of Liberty Supermarket
at any time in February, 1966.
2. There was no evidence that defendant corpora
tion undertook to, or caused others to, picket, parade,
and demonstrate at the premises of Liberty Supermarket on
the specific date in question herein, viz., February 22,
1966. Specifically, there was no evidence with regard
to the particular date complained of that defendant corpora
tion, or any of its agents, officers, or employees, were
75
present at the time of any demonstrations on February 22,
1966, or prior to the incident complained of, had organized
such demonstrations, etc., or had authorized any agents,
officers, or employees to conduct or participate in any
such demonstrations, etc.
3. There was no evidence that the persons, or
any of them, that may have come to the Liberty Supermarket
on the date complained of were there by direction or autho
rization of defendant corporation, or were under the control
or direction of defendant. Rather, the evidence affirmatively
showed that any such persons were under the control, direc
tion, and supervision of persons not the agents of or
authorized by defendant corporation.
4. There was no evidence that defendant corpora
tion authorized any of its officers, employees, or agents
to organize or carry out any demonstration at the Liberty
Supermarket in the course of their employment by the
corporation or in the capacity as an officer of it. Nor
was there any evidence that defendant corporation ratified
any acts or conduct of any persons involved in the demon
strations. There was no evidence that any persons involved
in the demonstrations were acting other than as indivi
duals or as representatives of other organizations than
defendant corporation.
5. There was no evidence that the defendant
76
corporation or any of its agents, employees, or officers,
acting in the scope of their authority or otherwise,
caused any incident, whether a riot or otherwise, that
resulted in injuries to the plaintiff.
6. There was no evidence that the defendant
corporation or persons brought together by the defendant
corporation or its agents, officers, or employees, caused
or created, or were responsible in any way for, a nuisance
that resulted in injuries to the plaintiff. There was no
evidence that defendant corporation, its officers, agents,
or employees, caused an eruption of violence, or caused
picketing, demonstrating, or parading, that resulted in vio
lence resulting in injuries to the plaintiff.
7. There was no evidence that any acts or con
duct of defendant corporation, its agents, employees, or
officers, were the proximate cause of any injuries to plain
tiff.
As to Count B, the negligence count:
1. Defendant reasserts grounds 1-5 set out above
with regard to Count A as bases for a judgment in its favor
with regard to Count B.
2. There was no evidence that defendant corpora
tion, its agents, employees, or officers, negligently or
otherwise allowed any picketing or demonstrating to erupt
into violence on the date complained of.
77
3. There was no evidence that defendant corpora
tion, its agents, employees, or officers, negligently or
otherwise failed to adequately provide safeguards to con
trol and maintain pickets and parades or otherwise negli
gently or otherwise failed to take any action required to
protect members of the public from violence.
4. There was no evidence that defendant corpora
tion, its agents, employees, or officers, was negligent in
any way; that it failed to exercise due care owed to plain
tiff; that it knew, had reason to believe, or with reason
able diligence would or could have known, that any violence
or riot would occur as a result of any acts or conduct of
it; or that any acts or conduct of it were the proximate
result of any injuries to plaintiff.
As to both Counts A and B:
1. There was no evidence that defendant corpora
tion, its agents, employees, or officers, were responsible
for any of the events of the date complained of or were
otherwise responsible for the injuries suffered by plain
tiff;
2. The evidence affirmatively shows that the
events occurring on the date complained of were brought
about by persons, other than defendant corporation, its
agents, employees, or officers, including the conduct of the
picketing, parading, and demonstrations, and the shooting of
78
the plaintiff.
3. The injuries suffered by plaintiff were the
result of an independent intervening cause not under the
control of defendant corporation or able to be reasonably
foreseen by it, viz., the deliberate, intentional, mali
cious, and unprovoked firing of a pistol or gun by an un
known person wholly unconnected and not under the control
of defendant corporation.
As to defendant's affirmative defenses;
1. The evidence affirmatively showed that the
persons conducting the demonstrations at all times acted
lawfully and peacefully as protected by the First and
Fourteenth Amendments to the Constitution, that they had
instructed those persons demonstrating to act nonviolently
and peacefully, and did not participate in, encourage, or
authorize any unlawful or wrongful acts or conduct, by any
persons at any time on the date complained of.
2. The evidence affirmatively showed that, to
the extent any officer, employee, or agent of the defendant
corporation was in any way involved in organizing any demon
strations at any time at the Liberty Supermarket, he did no
more than exercise rights guaranteed under the First and
Fourteenth Amendments1 protections of free speech and as
sembly.
3. The evidence affirmatively showed that plaintiff
79
w 3.s guilty of contributory negligence and a&sumption of risk
in that he went to the premises of the Liberty Supermarket
on the date in question knowing that picketing and demon
strating was taking place; he arrived shortly before closing
time but rather than going about his own business parked
his car a short distance from the demonstrators and sat in
it and observed them for 5 to 10 minutes, and that he heard
shots fired but instead of remaining in his car where he
was in no danger, got out of his car and stood up to see
what was occurring a short distance from the site of the
incident. In so doing he failed to exercise the degree of
care required by a reasonable and prudent man, placed himself
voluntarily and knowingly in a position, of danger, and, as
a proximate result, suffered injuries which otherwise would
not have occurred.
In the alternative, defendant moves the Court to
set aside the verdict and the judgment entered thereon and
grant defendant a new trial on the following grounds %
1 . The verdict is contrary to the law;
2. The verdict is contrary to the evidence;
3. The evidence in this case is totally insuffi
cient to show any liability on the part of the defendant,
and there is no evidence to sustain the verdict of the jury
herein;
4. The evidence considered in its most favorable
80
light on behalf of the plaintiff is insufficient to support
any verdict that might be rendered for the plaintiff against
defendant herein?
5. The evidence shows, as a matter of law, that
the injury sustained by the plaintiff, if any, on the
date complained of, February 22, 1966, was the result of
his own negligence and assumption of risk in that he had
full knowledge of the picketing and demonstrating that was
going on at the Liberty Supermarket; he went to the premises
thereof and parked his car a short distance from the demon
strations, rather than going about his own business; he re
mained in his car for five to ten minutes watching what was
going on; after hearing shots he got out of his car to see
what was going on and was then shot, and that therefore he
could have avoided all injury to himself by the exercise
of reasonable care and by not placing himself in a position
to be injured,
6. The evidence showed that, as a matter of law,
to the extent that any agent, employee, or officer, of de
fendant was in any way involved in bringing about any demon
stration, etc., at Liberty Supermarket he did no more than
exercise rights protected by the First and Fourteenth Amend
ments to the Constitution.
7. The verdict of the jury herein is excessive
and appears to have been given under the influence of passion
81
and prejudice.
8. The court erred in permitting plaintiff's
attorney on direct examination to allow the witness F. D,
Nelson to refresh his recollection from notes not taken by
himself but by another person.
9. The court erred in permitting plaintiff's
attorney on direct examination of witness James Cunningham
to introduce photographs purporting to show demonstration
and picketing at the Liberty Supermarket without a proper
foundation having been laid.
10. Counsel for plaintiff improperly argued to
the jury that Martin Luther King and "outside agitators"
had been responsible for the injuries to plaintiff, and
the court did not admonish counsel or instruct the jury to
disregard such statements,
11. The court erred in denying defendant's motion
to quash the jury panel on the grounds of systematic exclu
sion of Negroes therefrom, as more fully appears from defen
dant's motion.
In the alternative, defendant moves the Court to
set aside the award of damages in the amount of $45,000 as
excessive on the grounds that plaxntiff proved actual
damages in the amount of $4,107.00, and that there was no
evidence introduced to support damages in excess of that
amount so that all such amounts were wholly speculative and
82
were punitive in nature.
Respectfully submitted,
/s/ Peter A. Hall
PETER A. HALL
1630 Fourth Avenue
Birmingham, Alabama
JACK GREENBERG
CHARLES STEPHEN RALSTON
10 Columbus Circle
New York, New York 10019
Attorneys for Defendant Southern
Christian Leadership Conference
...oOo..„
MOTION TO QUASH THE JURY VENIRE
AND ARRAY
(Number and Title Omitted) (Filed; March 15, 1968)
Defendant, by its undersigned attorneys, hereby
move the Court, in accordance with its oral motion made
prior to trial, to quash the jury panel from which the jury
that tried the action was chosen and in support thereof
would show the following;
1. The entire jury venire, consisting of 45
persons, were persons of the white or Caucasian race.
2. Approximately twenty percent of persons eli
gible for jury service in this district are of the Negro
race.
3. Upon information and belief, the percentage
of Negroes on the jury rolls who may be called for jury
service is substantially below the percentage of those
83
eligible for jury service.
4. The absence of Negroes on the jury venire
drawn for this case and the low percentage of those in the
entire jury roll result from the method of selection of
jurors, i_.e_. , the ’’key man" system and the lack of acquain
tance of the "key men” with persons in the Negro community.
5. As a result, there has been systematic exclu
sion of Negroes from the jury rolls and venires in this dis
trict in violation of defendant's rights under the due pro
cess clause of the Fifth Amendment to the Constitution of
the United States, 28 U.S.C. §§1861-1864, and the decisions
of the Court of Appeals for the Fifth Circuit in Rabinowitz
Vo United States, 366 F .2d 34 (5th Cir. 1966).
Respectfully submitted,
/s/ Peter A. Hall
PETER A. HALL
1630 Fourth Avenue, North
Birmingham, Alabama
JACK GREENBERG
CHARLES STEPHEN RALSTON
10 Columbus Circle
New York, New York 10019
Attorneys for Defendant
Southern Christian Leadership
Conference
.,.o0o...
84
ORDER OVERRULING MOTION
FOR A JUDGMENT NOTWITHSTANDING
VERDICT
(Number and Title Omitted) (Fileds May 14, 1968)
This case has heretofore been submitted upon the
defendant's motion for judgment notwithstanding the verdict.
The Court is of the opinion that a jury issue was presented
upon the merits, including the issue of agency. As to the
challenge to the venire, the Court notes that the entire
panel was composed of jurors who had been excused from jury
duty within the prior few months when called to serve in
this or other divisions of this Court and who were directed
to report for the session at which this case was tried. The
excuses were the usual excuses for business reasons, illness,
conflicts with other engagements, etc. Only three Negroes
asked to be excused from such prior panels and were directed
to report for duty for the first two weeks in March. These
three were excused from this venire and ordered to report
at a later date. There certainly was no intent to discrimi
nate in the summoning of the panel, and the Court is of the
opinion that there was no actual discrimination.
The plaintiff is a Negro citizen of Birmingham,
Alabama. There was admitted in evidence, over objections
duly interposed, a bill submitted to the plaintiff by the
U. S. Veterans Administration for $3057 for medical service.
The Government did not intervene.
85
A veteran is not entitled to recover the value of
hospital care provided free to him by the Government, Smith
v. Foucha, 172 So. 2d 318 (La. App.). The Government can
not maintain an action against the veteran. United States
v. Ammons, (N.D.Fla.) 242 F. Supp. 461. A remittitur in
the amount of $3057.00 will be directed. The plaintiff
suffered very grievous injuries; the amount of the verdict
is not excessive.
It is, therefore, ORDERED, ADJUDGED and DECREED
that, if within ten days from the date of this order plain
tiff files a remittitur of damages in the amount of $3057.00,
the motion for new trial be overruled. Otherwise, the
motion for new trial will be granted. Defendant's motion
for a judgment notwithstanding the verdict be and the same
is hereby overruled.
Done and Ordered, this the 13th day of May, 1968.
/s/ H. H. Grooms
United States District Judge
.o.oOo...
REMITTITUR
(Number and Title Omitted) (Filed? May 16, 1968)
Now comes the Plaintiff, William J. Maxwell,
by and through his Attorney, the undersigned, and pursuant
to that certain order entered by the Court herein on the
13th day of May, 1968, does hereby within the period of ten
86
(10) days specified in the said order, file this his remit
titur in the cause, remitting the sum of Three Thousand and
Fifty-Seven Dollars ($3057.00).
LORANT, B0UL0UK0S & KOPELOUSOS
ATTORNEYS FOR PLAINTIFF, WILLIAM
J„ MAXWELL
BYs /s/ John Kopelousos
...oOo...
ORDER APPROVING AND
CONFIRMING REMITTITUR OF
JUDGMENT
(Number and Title Omitted) (Filed? May 16, 1968)
On this date, in the above entitled cause came
the Plaintiff by his Attorneys of Record, Lorant, Bouloukos
& Kopelousos, and having submitted to the Court for its
approval, Remittitur of Judgment, and the Court having
heard and considered the same, and it appearing to the Court
that said Remittitur of Judgment, is in all respects, fair,
reasonable and just, and should be made?
Now, upon motion of counsel, it is, therefore,
ORDERED, ADJUDGED AND DECREED that said Remittitur
of Judgment be, and the same is hereby, in all respects ap
proved and confirmed by the Court, and the Clerk is ordered
to receive, accept and file the same herein.
Dated this the 16 day of May, 1968.
H. H. Grooms
H. H. GROOMS, UNITED STATES DISTRICT JUDGE
...oOo...
87
NOTICE OF APPEAL
(Number and Title Omitted) (Filedz May 23, 1968)
Notice is hereby given that the Southern Christian
Leadership Conference, defendant above named, hereby appeals
to the United States Court of Appeals for the Fifth Circuit
from the orders of this Court entered May 13, 1968, denying
defendant's motions for a new trial and for judgment not
withstanding the verdict, renewing plaintiff's motion for
directed verdict made at trial, denying defendant's motion
to dismiss, and from the judgment entered in this action on
March 5, 1968.
/s/ Peter A. Hall
PETER A. HALL
1630 Fourth Avenue, North
Birmingham, Alabama
JACK GREENBERG
CHARLES STEPHEN RALSTON
10 Columbus Circle
New York, New York 10019
Attorneys for Appellant Southern
Christian Leadership Conference
...oOo..»
PETITION FOR APPROVAL OF
SUPERSEDEAS BOND
(Number and Title Omitted) (FLied: May 31, 1968)
Now comes the defendant and states s
On May 16, 1968 by virtue of the plaintiff having
remitted the amount of $3,057 on the judgment, final judg
ment was entered in the above cause for the plaintiff and
88
against the defendant for the sum of $41,943, and final
orders having previously been entered on May 13, 1968,
overruling a motion of the defendant for a new trial and
for a judgment notwithstanding the verdict in the alter
native, and the defendant having filed notice of appeal to
the United States Court of Appeals for the Fifth Circuit
on May 23, 1968, from said judgment, and desires supersedeas
bond pending said appeal.
Defendant, Southern Christian Leadership Con
ference, Inc., tenders herewith supersedeas and cost bond
in the sum of $45,000 as has been previously set by the
Court condition so as required by rule 73(d) of the Federal
Rule of Civil Procedure, Title 28, United States Code, to
satisfy the judgment if the appeal be dismissed, affirmed
or modified, and to pay all amounts it may be required to
pay under said judgment and judgment and opinion of the
Court of Appeals and signed by the defendant as principal
and by FIDELITY AND DEPOSIT COMPANY OF MARYLAND a surety
company with its home office in BALTIMORE, MARYLAND, and
qualified to do business in BIRMINGHAM, STATE OF ALABAMA,
and under the laws of THE STATE OF ALABAMA.
Wherefore, defendant prays for order of this Court
approving said bond staying execution of said judgment pend
ing appeal, and for such further order as the Court may deem
89
proper hereunder.
/s/ Peter A. Hall
PETER A. HALL
1630 - Fourth Avenue, North
Birmingham, Alabama 35203
JACK GREENBERG
CHARLES STEPHEN RALSTON
10 Columbus Circle
New York, New York 10019
ATTORNEYS FOR APPELLANT
Southern Christian Leadership
Conference
...oOo...
ORDER APPROVING SUPERSEDEAS
BOND____________________
(Number and Title Omitted) (Fileds May 31, 1968)
tX--This cause ̂ ife^%rfÎ t5bi,hearing on petition of
defendant for approval of supersedeas- bond on appeal.
And it appearin^i£liiLt&ifili^i8^^lSant has appealed
to the uiiiteel States'! cotrt - -of Appeal'd--fbt the- .fifth-'Circuit H)
from the teeame-tlnat on _____
day o t 99Y° 1 gras ,t>1968/ byf;virtue1 *of -the -plaintif1 repittingjae
the for $41,943 and bests: and order on M a y .s bn£
13, 1968, d e n y i n g motion ' for a -new trial;: :a n id d e n y i n g 'motionI.xW
for judgpent:':«©fewitbstanding- the ;verdict in the: alternative,
andttea^At§ndered)iits'>:bohd in tne -sum of ::$4d;/.00£fc condition oisb
as fequiredbty fule-i&Itd) Jot .the-Federal .Rules--of-Civit-i..; i.ol
P-rededurai',1 28 United-'States: Code -.arid t o -sat isf.y- said: -judg-sit J
ment ftt.ehppehi-lte-'tistrtissedyxiatfirraed or mod-if ied.., -.together an
90
with all costs interests or damages that may be assessed.
It appearing that said bond is signed as surety
by FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a surety com
pany, qualified and authorized to do business in BIRMINGHAM,
ALABAMA, and that said bond is sufficient in amount and
surety.
It is therefore ordered that said bond is hereby
approved, and the clerk is ordered to file the same.
It is furthered ordered that no execution issue
upon said judgment pending appeal.
Ordered this 31 day of May, 1968.
/s/ H. H. Grooms
UNITED STATES DISTRICT JUDGE
...oOo...
SUPERSEDEAS BOND
(Number and Title Omitted) (Filed: May 31, 1968)
We the undersigned attorneys, jointly and
separately acknowledge that we and our agents, employees,
and all successors in interests are jointly bound to pay
William Maxwell, plaintiff, the sum of $45,000.
The condition of this bond is that whereas the
defendant has appealed to the United States Court of Appeals
for the Fifth Circuit from the final order and judgment of
this court denying its motion for new trial or, in the alter
native, for a judgment notwithstanding the verdict, dated
«4
<*%„
J ' w
i d <f ' f F2.J ,o£<T
IN THE
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Ho. % qs>i%
WILLIAM J. MAXWELL,
Plaintiff-Appellee,
versus
SOUTHERN CHRISTIAN LEADERSHIP CONFEiRENCE,
ET AL,
Defendant-Appellants.
Appeal from the United States District Court for the
Northern District of Alabama
(September 2, 1969)
Before BELL and THORNBERRY, Circuit Judges, and
CHOATE, Senior District Judge.
CHOATE, Senior District Judge: The appellant, de
fendant below, is a corporation that actively promotes
what it considers to be the best interests of Negro citi
zens. This diversity case arose through a chain of e-
vents that began with “peaceful” demonstration and
ended with a gunshot wound to an observer, plaintiff
below and appellee herein. Plaintiff, proceeding on al
2 WM. J. MAXWELL v. SCLC, ET AL
ternative theories of negligence and “nuisance”,1
maintained that, defendant, through its agents, was
legally responsible for his injuries. The jury found for
the plaintiff and awarded him $45,000.2 Defendant’s
Defendant’s motions for directed verdict and judgment
notwithstanding the verdict were denied. On a close
question of proximate causation, we reverse.
In February of 1986 the Liberty Supermarket, located
in a predominately Negro section of Birmingham, Ala
bama, was the subject of demonstrations and picket
ing.3 4 Beginning as an essentially local affair, SCLC
agents soon became actively involved."1 Defendant’s
agents had made speeches to encourage the demon
strations and were participating when the shooting oc
curred.
On the night of the shooting incident, 700 people had
gathered at a nearby church. After hearing speeches,
the crowd marched toward the Liberty Supermarket
where picketing was already in progress. As the
marchers neared the market, a white male was leaving
the parking lot of the market in his car. He could
not immediately enter the street, however, because
’ No authority has been cited' to this Court that would indicate
that nuisance is applicable to the case at bar and: we confine
our consideration to the other issues presented.
aUpon a remittitur by plaintiff, judgment was entered for $41,000.
3The demonstrations were apparently triggered by an incident that
had occurred at the market between Negro customers and a
store policeman. In the course of things, the demonstrators also
complained of alleged discriminatory employment practices
by the market.
4We are, of course, viewing the evidence in a light most favorable
to plaintiff.
WM. J. MAXWELL v. SCLC, ET AL 3
of cars continuously circling the block. A group of
marchers and picketers began “hollering” at the driv
er,3 * * and ultimately between 100 and 200' marchers and
picketers converged on the car and began to rock it
back and forth. At this point, the driver of the car
fired several pistol shots from his car. The crowd mo
mentarily fell back but again attacked the car. A sec
ond volley was fired and the driver turned into the
street and left the area.6
Plaintiff had been observing the demonstration from
his car for some five or ten minutes prior to the shoot
ing incident. After hearing the first round of shots,
plaintiff apparently thought the shooting was over and
stepped out of his car. He was struck by a bullet from
the second volley.
The appellant, by brief, states that “this case raises
an important and significant issue — whether an or
ganization can be subjected to onerous legal judgments
on no more basis than its continuing efforts, protected
by the constitutional guarantees of freedom of speech
and assembly, to achieve racial justice.” This is most
certainly not an issue in this case. If there is liability
under a proper application of sound tort principles,
the stated objectives of the defendant, whatever they
may be, will be of no consequence. The First Amend
ment is simply not involved in this case.
sSoime of the participants were heard to have said, “ Get him, Get
him.”
6The driver of the car later reported the incident to' Birmingham
police and identified himself as the person who fired the shots.
4 WM. J. MAXWELL v. SCLC, ET AL
Passing over the factual arguments asserted regard
ing the appellant’s vulnerability to liability for negli
gence on the basis of agency, iit is clear that the ulti
mate issue is one of proximate cause. For this we
turn, as we must, to Alabama law.
The Alabama Supreme Court’s most recent state
ment of its view of proximate causation is found in
Aggregate Limestone Co. v. Robison, 161 So. 2d 820
(Ala. 1964):
The fact that the injury “results” from the
negligence is not sufficient to satisfy the re
quirements of negligence law. The injury has
to “proximately” result from the negligent act
or omission. The word “proximate” adds that
requirement of unbroken causation to the other
requirements necessary for actionable negli
gence. Proximate cause involves considera
tion of active force, or result of active force
on passive force, or of several active forces
on each other. “ Proximate” means next in re
lation to cause and effect, and together with
the word “remote” is used to distinguish be
tween actionable and non-actionable negli
gence. “Proximate cause” is not necessarily the
act nearest injury, but is an act which actively
aided in producing injury as a direct and exist
ing cause. 161 So. 2d at 822.
Where there are two or more causes of injury, “the
law will consider only the proximate cause and not
a remote cause. . . ” Morgan v. City of Tuscaloosa,
WM. J. MAXWELL v. SCLC, ET AL 5
108 So. 2d 342, 344 (Ala. 1959). “ [W]here a prior cause
merely created the condition or gives rise to the oc
casion and after the condition has been created an
intervening agency produced the injury, the first is not
the proximate .cause.” Morgan, supra, at pg. 345.
Of course it is an incomplete answer to say, as ap
pellant would have it, that “mere” advocacy of and
participation in a “peaceful” demonstration could not
result in legal liability for resulting harm to persons
or property. Here, emotions were charged, there were
recent incidents with racial overtones, and there was
a potentially if not probably unmanageable number
of participants. It may indeed be negligent to foster
a “peaceful” demonstration in, those circumstances,
or at least to do so without proper safeguards, when
it is reasonably foreseeable that harm to persons or
property might result. Nevertheless, the controlling
question in this case, and the one upon which we rest
our decision is whether the particular harm that oc
curred in this case was the proximate result of that
type of negligence.
Crediting plaintiff’s view of the evidence regarding
defendant’s participation in the demonstration, the
most that can be said on the record before us is that
defendant, by act or omission, negligently created a
condition that might foreseeably result in injury. There
was no evidence to indicate that violence was overtly
advocated or that defendant’s agents actually partici
pated in the violence that occurred. But upon creation
of the condition, it cannot be said that the ensuing in
jury to plaintiff was the result of “an act which actively
6 WM. J. MAXWELL v. SCLC, ET AL
aided injury as a direct and existing cause.” (Em
phasis supplied) Aggregate Limestone Co. v. Robison,
supra. The car was attacked in an apparently spon
taneous outburst, the driver, angered and excited, re
sponded by the possibly criminal act of firing pistol
shots into the crowd, and the plaintiff, in apparent
disregard for his own safety, placed himself in a posi
tion of peril. Thus, while it is true that the defendant
need not foresee the particular consequences of his
negligence, Sullivan v. Alabama Power Co., 20 So. 2d,
224, (Ala. 1944), we must hold that, on these facts,
the condition was a remote cause and not a proximate
cause of plaintiff’s injuries. See Aggregate Limestone
Co. v. Robison, supra; Mobile City Lines, Inc. v. Proc
tor, 130 So. 2d 388 (Ala. 1961); Mahone v. Birmingham
Electric Co., 73 So. 2d 378 (Ala. 1954); and Louisville
& N. R. Co. v. Maddox, 183 So. 849 (Ala. 1938).
Plaintiff’s most compelling argument rests on the
principle, recognized in Alabama, that an intervening
criminal act of a third person will not necessarily im
munize the defendant from liability if such act was
reasonably foreseeable. Liberty National Life Ins. Co.
v. Weldon, 100 So. 2d 696 (Ala. 1957). In the present
case, it might be said that defendant could have reason
ably foreseen that some form of violent conduct might
occur, even though the demonstration was ostensibly
to be peaceful. But we are not prepared to say that
the ensuing chain of events, including the actions of
the plaintiff,7 were of a type that it could be known
7While plaintiff’s actions may not have been such to hold, as a mat
ter of law, that he assumed the risk, his conduct is a factor re
garding the issue of causation.
WM. J. MAXWELL v. SCLC, ET AL 7
by common experience would follow. See Morgan v.
City of Tuscaloosa, 108 So. 2d at 345.
The operative facts in the chain of events leading
up to plaintiff’s injury are uncontradicted. “When the
facts are such that reasonable men must draw the
same conclusion, the question of proximate cause is
one of law for the courts.” Morgan v. City of Tusca
loosa, supra, at 435. Upon careful consideration we
conclude that the acts of defendant were not a proxi
mate cause of plaintiff’s injury under the authorities
cited. The judgment is vacated with directions to enter
judgment for the defendant.
Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La.
91
May 13, 1968, and said judgments and orders having become
final on May 16, 1968 by virtue of the plaintiffs remitting
the amount of $3,000, if this defendant shall pay the
amount of the final judgment herein if this appeal shall
be dismissed or the judgment affirmed or modified to
gether with all costs that may be awarded, then this bond
is void, otherwise to be and remain in full force and ef
fect „
We, the undersigned, as principal and surety,
respectively, hereunto set our hand and seals, this 29th
day of May, 1968 „
/s/ James Harrison
Principal
SOUTHERN CHRISTIAN LEADERSHIP
CONFERENCE, INC.
3 24 Auburn Ave.
Atlanta, Georgia
DEFENDANT-APPELANT
FIDELITY AND DEPOSIT COMPANY OF
MARYLAND
Bys /=/ Leroy N. Myhre
Surety Leroy No Myhre,
Attorney-in-Fact
[S E A L]
COUNTERSIGNED
Bys /s/ Wo Co Nelson
Resident Agent, State of Ala*
5/31/68
Approved
/s/ H„ Ho Grooms
Judge
...oOo.o o
92
ORDER EXTENDING TIME
WITHIN WHICH TO FILE AND
DOCKET APPEAL
(Number and Title Omitted) (Fileds June 27, 1968)
Pursuant to Rule 73(g), Federal Rules of Civil
Procedure, and for good cause shown, it is hereby
ORDERED that the time within which the record
on appeal in the above entitled action must be filed with
the United States Court of Appeals for the Fifth Circuit
at New Orleans, Louisiana, and the time within which the
appeal must be there docketed, be, and the same hereby is,
extended to and including the 21st day of August, 1968.
This the 27 day of June, 1968.
/s/ H. H. Grooms
UNITED STATES DISTRICT JUDGE.
..ooOo...
93
CLERK'S CERTIFICATE
UNITED STATES OF AMERICA X
X -
NORTHERN DISTRICT OF ALABAMA \
I, WILLIAM E. DAVIS, Clerk of the United States
District Court for the Northern District of Alabama do
hereby certify that the foregoing pages numbered from one
(1) to ninety-seven (97), both inclusive, comprise the
original pleadings in this action and are herewith at
tached as a full, true and correct transcript of the re
cord on appeal in the Matter of SOUTHERN CHRISTIAN LEADERSHIP
CONFERENCE, ET AL., Defendants-Appellants, vs. WILLIAM J.
MAXWELL, Plaintiff-Appellee, Civil Action No. 67-203, Southern
Division, as fully as the same appears of record and on file
in my office.
IN WITNESS WHEREOF, I have hereunto subscribed my
name and affixed the seal of said Court at
Birmingham, Alabama, in said District, on this
the 13th day of August, 1968.
WILLIAM E. DAVIS, CLERK
UNITED STATES DISTRICT COURT.
Bys /s/ Mary L . Tortouce
Chief Deputy Clerk.
[ S E A L
0 F
C O U R T ]
.o.oOo...
94
TRANSCRIPT OF PROCEEDINGS
(Number and Title Omitted) (Filed; July 15, 1968)
"iy\
(3) P R O C E E D I N G S
THE COURTS
Members of the jury, the case we have for trial
is the case of William J. Maxwell, the plaintiff, is this
Mr. Maxwell sitting here?
MR. LORANTs
Yes, it is, Your Honor.
MR. HALLs
Before we go into that, may I approach the
bench?
THE COURT;
Have you announced ready?
MR. HALL;
We have announced ready but there is one item
I would like to take up with Your Honor.
I want to object to the entire venire on the
grounds there are no Negroes on this venire. I want to
interpose an oral objection with permission to follow a
written motion to strike the venire on those grounds.
THE COURT;
This is the first time in the history of this
court that this situation has arisen. I don't know why it
95
has worked out this way. You may make your objection.
MR. HALL:
I would like to make an oral motion to strike
the venire on the ground there is no Negroes on this
venire, and I want permission to file a written motion
setting out those grounds in detail.
(4) THE COURT:
You will be permitted to do that. I will state
this is the first time since I have been here, in almost
fifteen years, that there haven't been any.
MR. HALL:
Your Honor understands my position?
THE COURT:
Yes. I don't know whether it is because Negroes
have been excused. I haven't looked into it.
MR. HALL:
Judge Lynne informed me this is an unusual situa
tion, but I called it to his attention.
(Whereupon, the jury was identified,
qualified and struck, following which counsel
for the respective parties addressed the jury
in opening statements, following which the
following occurred:)
MR. LORANT:
We have some medical records that we might put
96
on and it might save the Court some time.
THE COURT %
You mean medical in the form of a doctor?
MR. LORANT:
The records, and the custodian of those records.
Would it be all right, Judge?
THE COURT s
Yes. This is the Veterans Hospital?
MR. LQRANTs
Yes, sir.
* * * * * * * *
(17) MR. KQPELOUSOSs
Officer Nelson.
W. D. NELSON,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. LORANT:
Q Tell us your name, please, sir.
(18) A W. D. Nelson.
Q Tell us by whom you are employed, and in what
capacity, Mr. Nelson?
A City of Birmingham, Detective.
Q And for what period of time have you been so em
ployed?
A I have been employed with the City sixteen years,
97
and as a detective, four.
Q Do you have occasion, please, sir, to attend
meetings, Church meetings, where there are groups of people
involved in civil rights demonstrations, or civil rights
proponents; do you have occasion in the City of Birmingham
to attend meetings of that sort, please, sir?
MR. HALLs
Just a moment, please, sir.
THE COURT:
Overrule the objection.
Q The Judge says you may answer.
THE COURT:
We are only interested in what may be concerned
here.
MR. LGRANT s
Yes, sir. I am not asking him generally.
THE COURT:
Overrule the objection. Go ahead with your
interrogation,
(19) Q Do you recall, please, sir -- has that
been in your capacity as an employee of the City, as a
City Detective?
A Yes, sir.
Q Has that been part of your duties with the City?
A Yes, sir.
98
Q Do you recall attending a meeting at the Thurgood
A.M.E. Church at Third Avenue and 18th Street, North, in
Birmingham, Alabama?
MR„ HALL:
We object to that.
THE COURT:
What time?
Q Specifically, February 18, 1966?
A Yes, sir.
Q You do have a recollection of that?
A Yes, sir.
Q Will you tell us, please, sir, if you did not
go to the Church sometime during that day, and if it was
in the daytime or evening?
A In the evening.
Q Would you tell us, please, sir, if there were
people gathered in that Church when you went there?
A Yes, sir.
Q Were there a number of Negroes, or whites, or
(20) what?
A There was a number of people. I don't recall
the exact race.
Q All right, sir. Did you, please, sir, on that
occasion, make a notation, make a memorandum of the occa
sion when you attended that meeting?
99
A No, sir, not on that particular night.
Q You did not?
A No.
Q Was there some memorandum made of that particular
meeting by somebody with you on that particular night?
A Yes, sir.
Q You saw them make it at that time?
A Yes.
Q Was it made in your presence at that time?
A Yes; we were together.
Q Will you tell us, please, sir, whether or not
you saw any persons speaking to a group in the Church
there on that occasion?
A Yes, sir.
Q Tell the jury who you saw speak, and what they
were speaking about, and what you heard on that occasion
on February 18, 1966?
(21) A I saw and heard Hosea Williams on that
occasion.
Q And what was it Hosea Williams said?
A They were speaking concerning picketing of Liberty
Supermarket.
Q Who was he speaking to, please, sir?
A The audience.
Q Who was the audience composed of, what group,
100
or members of people?
A The meeting was sponsored by the Alabama Council
on Human Relations, I believe, is the name of it.
Q Did you see at that time some Southern Christian
Leadership Conference brochures or pins on the people?
A I don't recall seeing the pins, no, sir.
Q Did anybody say anything about the Southern
Christian Leadership Conference?
A Hosea Williams was introduced as being, I believe
his title was, Field Secretary of the Conference.
Q At that time did he speak in behalf of the Southern
Christian Leadership Conference to the people?
THE COURTS
That would be a conclusion. He can testify what
was said about the matter.
Q I will ask you, please, sir, if it would refresh
(22) your recollection in connection with that matter to
look at the name on these notes that I have before me.
MR. HALLs
If Your Honor pleases --
THE COURTS
It may be his recollection doesn't need refresh
ing. If it needs refreshing, he can look at it.
Q Would it help you?
101
THE COURT?
Do you have an independent recollection of what
happened there?
A Not totally, no, sir.
THE COURT s
Would you have to refresh your recollection
from the notes that were made as to what happened to com
pletely relate it? Some of the things you remember and
some you don't, is that what you are saying?
A Yes, sir.
MR. HALL:
I would like to know if the officer made these
notes, or if he knows when they were made.
THE COURT:
If there were two officers there and one officer
made the notes, he can look at the notes.
MR. HALL:
The other officer didn't type those.
(23) THE COURT:
Those are pencil notes?
MR. HALL:
Yes. If he can say definitely the officer made
these, he said he made some notes.
THE COURT:
If that doesn't refresh his recollection the
102
notes would not have any place, but if they do refresh
his recollection of what happened, I think he would have
a right to look at the notes to see if has any recollec
tion that he doesn't independently remember.
MR. HALLs
I would request permission to examine the witness
on voir dire.
THE COURT:
He has already stated he didn't make the notes
personally.
MR. HALL *
I want to know who, when and what.
THE COURT %
Who made the notes?
A Detective Cooper.
THE COURTS
He is your partner?
A Partner.
THE COURT;
And you were together?
MR. HALL;
Which notes did he make?
A The pencil notes.
THE COURT;
Do you recognize the handwriting?
103
A Yes, sir.
(24) THE COURT:
Under the circumstances, if he doesn't have an
independent recollection, I don't see why he can’t look
at the notes.
M R . HALL:
We would like to know if Detective Cooper is a
witness in the case.
MR. LORANT:
Yes, sir, subpoenaed, and out in the hall, and
will testify.
MR. HALL:
Detective Cooper can testify what he saw himself.
THE COURT:
This man can refresh his recollection by looking
at the notes made on the occasion. He may not agree with
the notes, but they might refresh his recollection.
MR. RALSTON:
We object to him looking at the notes made by
another detective.
MR. HALL:
We would like to see the notes.
MR. LORANT:
This is a copy of them and we have offered them
to counsel.
104
M R , HALL %
We would like to see the pencil notes. I am
sure they have an exact copy of them.
MR„ LGRANT s
We would be glad to offer these in evidence.
They are an exact copy of the pencil notes, may it please
the Court.
(25) THE COURT;
Let's proceed.
Q Officer Nelson, having reviewed these notes,
could you tell us, please, sir, what preachers you saw
there on that occasion, or what Reverends?
A Reverend Gardner was there, I believe Reverend
Woods was there, Calvin Woods.
Q Did Reverend Gardner undertake to talk about
Liberty at all, Liberty Supermarket?
THE COURT:
I don't know if he has been identified. You
will have to identify him unless you want to connect it
up later on.
M R „ LORANT:
I think we will have to connect it up later on.
Q Who was it that introduced Hosea Williams?
A I believe that was Reverend Gardner.
Q At the time he introduced Hosea Williams, you
105
said something about, who he introduced Hosea Williams as
or what his capacity was. Will you tell the jury again
what he said about him to the group assembled there?
A He was introduced as the Field Secretary of the
Southern Christian Leadership Conference and Martin Luther
King's righthand man.
(26) Q Did he say what he was there doing, Hosea
Williams, when Hosea Williams got up?
THE COURT s
Did Hosea Williams say what he was doing there?
MR. LORANT:
Yes, sir.
A He said he was there to help them,
Q Help them to do what?
A Help them picket, and also they were having a
voter registration drive at that time, and he was assist
ing in carrying out that drive.
Q Specifically as to the Liberty Supermarket, what
did he say?
A He said he was going to lead a march the next day
after the day in question, and asked for volunteers to meet
him at the store.
Q At which store?
A Liberty Supermarket to be picketed.
Q Did he talk to them what he expected Liberty to
106
do. Liberty Supermarket, and what he expected to get for
members of the Negro race from Liberty Supermarket?
A Yes, sir.
Q What did he say?
(27) A He expected Liberty to hire at least fifty
percent Negroes to work the cash registers and other posi
tions in the store.
Q Did he say, please, sir, whether or not the
S.C.L.C. was going to see to it that they either did that
or closed the doors of Liberty?
A He did.
MR. HALL:
We object to leading the witness up to this time.
THE COURT s
You are leading the witness in that manner.
MR. HALL £
Sir?
THE COURT %
Sustain the objection.
Q What else did he say about Liberty, insofar as
Liberty in Birmingham, Liberty Supermarket?
A He just stated if Liberty did not meet the demands
they would close them down, stay with them until they
closed down.
107
MR. LORANT:
I don't have any more questions to ask him in
regard to that particular incident.
Now, this is a Church meeting on February 23rd,
after the incident.
THE COURT :
I don't know that that would be (28) admissible
in evidence.
MR. LORANT:
It connects up again the question of Southern
Christian Leadership Conference, statements made by offi
cials, discussions of Southern Leadership Conference.
THE COURT:
Which is a corporation?
MR. LORANT:
Which is a corporation.
THE COURT:
It has to show a ratification of what was done.
MR. LORANT:
It all arises out of the same action. We are
dealing with the actual corporation.
THE COURT:
That is true, but I will sustain the objection.
Statements of agents of a corporation, after the events,
are not admissible in evidence unless they are principals
108
or alter egos, or unless it shown they were authorized to
make the statements.
MR. LORANT:
Your Honor is not going to allow him to testify?
THE COURT:
I don’t think — this is what happened the next
day?
MR. LORANT:
I think we will be in position to connect it up.
THE COURT:
Once it has gone before the jury it (29) is pretty
difficult to eradicate.
MR. LORANT:
That is all we have to ask him at this time.
CROSS EXAMINATION
BY MR. HALL:
Q Mr. Nelson, how long have you been attending
these meetings, these Church meetings at Negro Churches?
A Approximately two years.
Q In 1966, February, you had just started?
A I believe I started in December of 1965, November
or December.
Q November of '65?
A Yes.
Q And how often do they have this type meeting?
109
A Ordinarily it is just once a week.
Q Once a week? Had you been attending the meetings
approximately once a week since 1965?
A Well, we have a rotating schedule.
Q Now, tell me, were these meetings attended by
local people, for the most part, Negroes who lived here?
A So far as I know, they were.
(30) Q Did you know the person who led these
meetings? Who was in charge of the meeting on February
18th at Thurgood Church?
A Reverend Gardner.
Q And he is a Birmingham Negro?
A He is a local minister here.
Q He was definitely in charge of that meeting?
A Yes.
Q
Woods.
I believe you mentioned Reverend Woods, Calvin
A He was present at the meeting.
Q And the other Negro ministers you saw were
ministers who live here in Birmingham; is that correct?
A To the best of my recollection,,
THE COURT:
Did you personally know Hosea Williams before
this time?
A I had seen him. I know him when I see him, and
110
know his connection.
THE COURT:
You know he went under the name of Hosea?
A Yes, sir.
MR. HALL:
That is all, Mr. Nelson, thank you.
(31) THE COURT:
Come down, Officer Nelson. Unless this officer
is wanted further, we will excuse him. You are excused,
Mr. Nelson.
(Witness Excused)
M R . LGRANT:
Officer Cooper.
BILLY J. COOPER,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. LORANT:
Q Would you tell the jury, please, your name and
address.
A Billy J. Cooper, City of Birmingham, City Detec
tive .
Q For how long have you been employed by the City
as a detective, please, Mr. Cooper?
A Approximately three and a half years as a detec
tive .
Ill
Q Will you tell us in what division or depart
ment you are employed as a detective?
A Special Units Division.
Q Does your department have anything to do with
Negroes, or civil rights, or anything of that sort?
(32) A Yes, sir.
Q Do you recall, please, sir, was that the situa-
tion back in 1966?
A Yes, sir; it was.
Q I will ask you, please, sir, whether or not you
have a recollection of an incident of an occurrence wherein
you attended a meeting in February, 1966?
A Yes, sir; I did.
Q Did you personally make any notes at that time?
A Yes, sir.
Q
THE COURT
I will ask you, please, if these are the notes?
He may have an independent recollection. He
doesn't have to refer to notes if he has an independent
recollection.
Q I will ask you whether or not you have an inde
pendent recollection of what happened on the occasion when
you attended that meeting, or would you need to refresh
your recollection?
A I remember attending the meeting, but I don't
11 2
recall right off each and everything that was said at
the meeting.
Q Did you make notes of what was said, and by
whom that was said, and the incidents that occurred
(33) at the meeting?
A Yes, sir.
Q I will ask you to look at those notes and tell
me whether or not those are the notes you made on the
occasion when you attended the meeting?
MR. HALL;
We object to the witness looking at the notes
at this time without testimony as to what he does remember.
THE COURT;
Do you remember anything particularly that took
place on that night?
A Yes, sir; I do.
THE COURT;
Let's have that, and then you can refresh your
recollection on anything that happened that you don't re-
call.
Q You were in attendance at that meeting?
A Yes, sir.
Q Was that daytime or evening?
A Evening.
Q Where was it?
113
A I don't recall the name of the Church it was
at, but it was in one of the Churches where they have
their meetings. They use different Churches each Monday
night.
(34) Q Do you recall who was there that spoke?
A Reverend Gardner was there, and Hosea Williams
was there. Those two I remember distinctly.
Q Do you know Hosea Williams? Do you know his
relationship or connection with the Southern Christian
Leadership Conference, if any?
A Yes, sir
Q What is that, if any?
A He is a vice-president.
MR. RALSTON:
I object, unless a foundation is laid to show
how he got his knowledge.
THE COURT?
I will permit you to inquire about that, and
if he doesn't know actually, I will exclude it.
MR. LQRANT:
You want him to inquire on voir dire?
THE COURT i
Go ahead with your examination.
Q Did Hosea Williams get up and say anything that
you heard at that time at that meeting to a group of Negro
114
people that were there?
A Yes, sir.
Q Tell this jury what he said.
A To start off with on this particular night,
when (35) he started speaking, he told about the trouble
he had had about getting back to Birmingham that parti
cular night. And he said he had brought five of his staff
members from S.C.L.C. into town with him, and he asked
the congregation for someone to volunteer to put these
people up overnight, to give them a place to sleep.
And they also asked for volunteers from the congregation
to meet him at Liberty Supermarket the following morning
at six a.m. to picket Liberty.
He also said if Liberty did not hire at least
fifty percent of their cashiers, if they did not make at
least fifty percent of them Negroes, they would close
Liberty up, they would have either fifty per cent Negro
or they wouldn't have anything at all.
Q Did he say who he was representing at that time?
A I don't recall from memory we ther he said who
he was representing or not.
Q Did he say anything else about the Southern
Christian Leadership Conference?
A I don't recall from memory.
Q Would it help your recollection to look at your notes?
115
A It probably would. This one item in these notes
(36) that I see that he didn’t mention that. He said
when they got through with Liberty they were going downtown
and straighten Birmingham out. Reverend —
MR. RALSTON :
We would object to that as irrelevant within the
issues in this case.
Q Is that what Hosea Williams said, please, sir,
on that occasion?
A Yes, sir.
THE COURT:
Overrule the objection.
Q Did he ask for volunteers to meet him' at Liberty,
and if so, did he ask the volunteers to indicate who they
would be? Did he ask them to stand up or signify?
MR. HALL:
We object to that. The witness has testified
once to this.
THE COURT:
It is leading.
Is there any other matter in there that refreshes
your recollection?
A There is something that Reverend Gardner said.
THE COURT:
You mean in his introduction of Hosea?
116
A Well, just before Hosea came in he was talking
about the Southern Christian Leadership Conference.
(37) THE COURTS
Do you know what connection he has, or do you?
A Reverend Gardner?
THE COURTS
Yes.
A No, sir; I couldn't say what connection he had.
I know they worked together, but other than that, I don't
know whether he is connected with them or not.
THE COURTS
All right. I don't suppose that would be
material.
Q Have you, on occasion, in your capacity as an
employee of the City of Birmingham, that Special Service
Division, had occasion to know what the connection between
the Southern Christian Leadership Conference and Hosea
Williams is?
A Yes, sir.
Q And you have, on occasion, seen Hosea Williams
himself on many occasions, or one?
A I have seen him on many.
Q What is that relationship, tell us, please, sir,
if you know of your own knowledge?
117
THE COURT :
Have you heard him make statements about his
relationship or not?
A I have heard him introduced as a vice-president
(38) of the Southern Christian Leadership Conference.
MR. RALSTONt
We object to that. If he has knowledge of what
Hosea Williams said about his relationship,, that would be
one thing.
THE COURT:
It is probably part of the res gestae of the
offense. Standing alone it would not be, but other than
that, I think it would be.
Q What is the relationship, please, sir?
A He is a vice-president of it.
Q This is the same Hosea Williams you are talking
about was vice-president of S.C.L.C. that you saw speaking
that night in connection with picketing Liberty Super
market?
A Yes, sir.
Q Did you know at that time whether or not they had
offices located in the City of Birmingham?
A The —
Q S.C.L.C., yes, sir, I mean either temporary, perma-
nent, or some kind of offices that they had.
118
A I know where an office was, but I am not sure
right now under what name it was rendered. I know the
office they were using.
Q When you say office they were using, who were
(39) you talking about?
A The Reverend Gardner and Hosea Williams, and
all of them that would be at these Church meetings.
Q Was that generally among those groups — was
that known to you as a civil rights, as a worker with the
Special Division of the City of Birmingham, as a Southern
Christian Leadership Conference office in Birmingham?
A Yes, sir.
Q What was that address?
MR. RALSTON t
We would like to object to that unless there is
some foundation.
THE COURT;
That would probably be hearsay. I will sustain
the objection to that. That would have to be more definitely
identified.
MR. HALL;
We would like it stricken.
MR. LORANT;
I understood he made some further objection.
119
THE COURT-
Sustain the objection.
Q Do you know, of your own knowledge, whether
they had any offices down there?
MR. HALLs
We object, Your Honor. He just answered the
question.
(40) MR. KOPELOUSOS:
No, he didn't.
MR. HALL:
He said he knew where they met, but he didn't
know whose office it was.
Q You may not know in whose name the lease was, but
who was at the office and who was running the office?
MR. HALL:
We object. He said Hosea Williams and Reverend
Gardner and other people were down there. He wants this
witness to say what he wants him to say.
THE COURT:
He can say who he saw. I assume there was noth
ing on the window or door to indicate whose office it was,
but you just saw some people down there?
A Yes, sir.
Q Where was it?
^ It was on the corner of Fifth Avenue and 17th
1 2 0
Street, North, at that time.
Q City of Birmingham?
A Yes, sir.
Q And the people you saw there were who?
A I have seen Hosea Williams there; I have seen
Reverend Gardner there, and several of the people that
attended meetings regularly, I have seen them there.
(41) M R . LORANT:
No more questions of this witness.
THE COURT %
All right, gentlemen.
CROSS EXAMINATION
BY MR. RALSTON;
Q Mr. Cooper, in your notes, there is nothing in
your notes that indicates Hosea Williams said that S.C.L.C.
was connected with Liberty Supermarket, is there? In fact,
the only reference of S.C.L.C. is in regard to voter
registration drive in your notes.
MR. LORANTs
If he is going to talk about the notes, we ask
they be introduced.
THE COURTS
He has the right to question him about the notes.
He has looked in the notes and he can question him about the
notes without introducing the notes.
121
A Reverend Gardner made one statement that prior
to this particular night that the news media had — ■ was
misinformed and said that the S.C.L.C. was leaving town,
and Reverend Gardner said they were not leaving town.
Q It says specifically in your notes, he said
that King told the staff to remain in Birmingham until
there were 50,000 registered Negroes in Jefferson (42)
County. That immediately follows what you just referred
to?
A That's right, I see it.
Q Were you at any time, Officer Cooper, at Liberty
Supermarket during this period?
A During this incident, I was not.
Q Were you there at any other time?
A I have been there several times.
MR. RALSTON s
No further questions.
REDIRECT EXAMINATION
BY MR. LORANT:
Q He asked you whether there was any reference
to Hosea Williams and Liberty Supermarket in the notes.
MR. RALSTON %
I didn't ask that question.
MR. LORANT:
I understood the question was whether the notes
122
refer to Liberty Supermarket and Hosea Williams.
MR, RALSTON:
Liberty Supermarket and the S.C.L.C.
THE COURT;
I will permit him to repeat it so we will under
stand what the facts are.
MR. LORANTj
He asked with reference to the notes. This is
the specific portion, Your Honor.
(43) A With reference to Hosea Williams and
Liberty Supermarket, Hosea asked for volunteers to meet
him at Liberty at six a.m. tomorrow, the following morn
ing.
Q Now, going on over right before that, please,
sir, going to the paragraph above that, do you see the
time at 8s30 Hosea Williams started talking?
A Yes, sir.
Q Read that, if you would, please, sir.
A At 8s30 p.m. Hosea Williams started talking. He
told what all he had to go through to get back to Birmingham
tonight. He said Liberty was going to have some black
cashiers or no cashiers before they were through with them.
He said they were going to close Liberty's doors unless
they had fifty per cent Negro cashiers, or they would close
Liberty's doors.
123
Q What else did he say about Liberty?
A He said when they got through with Liberty they
were going to move downtown and straighten Birmingham out.
THE COURTS
That was objected to before and I will sustain
the objection to that part of the statement. That seems
to be irrelevant to the issue (44) here.
That is excluded, members of the jury, from your
consideration, and evidence that is excluded, shall not be
considered.
MR. LORANT:
That is all.
RECROSS EXAMINATION
BY MR. RALSTON:
Q My specific question was whether there is any
thing in these notes that anyone said S.C.L.C., not Hosea
Williams, but S.C.L.C. was involved with Liberty Super
market?
A I believe that one time was the only time S.C.L.C.
was mentioned in the notes.
Q Mr. Cooper, are you positive that, now or at any
time Hosea Williams was a vice-president of S.C.L.C.?
A The only way that I know he is is by hearing him
introduced. I have never checked the files to see whether
he was or not.
124
Q So this is just what other people said he was?
A Just the way he has been introduced in these
meetings.
Q You have never heard him say he was vice-presi
dent?
Who introduced him on these occasions, and at
(45) what time as vice-president?
A That particular night I believe Reverend Gardner,
I couldn't be positive, because I have been to these meet
ings on several different occasions, and he would be intro
duced by different people. I am not positive of this parti
cular night.
MR. RALSTON s
No further questions.
THE COURT:
All right. You may come down. If there are no
further questions and no objections, the Witness is ex
cused.
Thank you, Officer.
(Witness Excused)
MR. LORANT:
Will you get Officer James C. Wilson.
J. C. WILSON,
being first duly sworn, testified as follows 2
125
DIRECT EXAMINATION
Q Tell us what your name is, please, sir?
A J. C. Wilson.
Q And tell us in what capacity you are employed?
A City of Birmingham, Police Department.
Q Are you with a specific division or department
(46) of the City?
A Yes, sir. I am a Sergeant in the Patrol Division.
Q Back in February of 1966, were you working with
the City Police Department in any capacity having anything
to do with pickets, or parades, or civil rights, or any
thing of that nature?
A Yes, sir; I was.
Q Will you tell us, please, sir, whether you had
attended, in February of 1966, a meeting just prior to a
Liberty Supermarket incident?
A Yes, sir. I attended a meeting the same night
that this happened.
Q You say you attended a meeting. Will you tell
us where that meeting was?
MR. HALL:
Just a minute.
THE COURT s
What date did this happen?
BY MR. LQRANT:
126
February 21, 1966, in the evening at ten, or
thereabouts.
MR. HALL:
I would like to know what the witness was talk
ing about.
THE COURT :
The 22nd day is what we are talking about.
(47) MR. LORANT:
The 21st day of February of 1966, Your Honor.
THE COURT:
All right, proceed.
Q You did attend a meeting, did you say?
A Yes, sir; I did.
Q Will you tell us where that meeting was?
A It was at St. Paul's Methodist Church on 4th
Court, North, about Third Street.
Q Were you there in your capacity as an officer
working for the City of Birmingham at that time?
A Yes, sir.
Q Will you tell us, please, sir, whether there
was a crowd, or whether there was one or more individuals
there, and if so, how many, and whether they were colored,
or white, and exactly the circumstances that prevailed when
you went down there, please, sir?
MR „ LORANT:
127
A The meeting itself was held in the Church and
we went into the Church itself. In my estimation at that
time, I estimated the attendance at 700 people in the
building at the time we arrived.
Q Let me ask you this. Are you familiar with
Reverend Fred Shuttlesworth?
A Yes, sir.
(48) Q Were you at the time in 1966, and prior
thereto, familiar with him?
A Yes, sir.
Q Do you know his relationship, if any, with any
civil rights organization?
A Yes, sir.
Q Will you tell the jury, please, sir, if he was
associated with the defendant in this case, Southern
Christian Leadership Conference?
A Yes, sir.
MR. HALL:
If Your Honor pleases —
MR. RALSTON:
We object unless the foundation is laid.
THE COURT:
I think you should lay some foundation about it.
Q Tell us what has been the nature of your contact
or exposure to Fred Shuttlesworth over the past several
128
years leading up to this incident. Have you had occasion
to see him?
A Yes, sir; I have seen him. I have attended those
meetings numerous and numerous times. On at least, I
would say, half of the meetings I attended, he would be
at the meeting as an officer or speaker, (49) or in some
capacity he would be there at just about all the meetings.
Q For what organization?
THE COURTS
Is this what he said during the course of the
meetings?
A No, sir. I would see him myself.
THE COURT:
I know, but you are testifying as to him being
an officer of the organization. The question is how you
found that out, from what he said?
A Yes, sir.
Q Tell us what he said insofar as his relationship
with Southern Christian Leadership Conference.
A He would identify himself as an officer of the
organization, as well as the Alabama Christian Movement
for Human Rights, and on a lot of occasions, he would re
late incidents where he would attend meetings in different
cities or different locations with the officers who he
would sometimes name.
129
q Officers of Southern Christian Leadership Con
ference?
A Yes, sir, and the Christian Movement for Human
Rights *
Q Was he there on this occasion you are speaking
(50) about at that Church meeting where this 700 number
group you have estimated was there?
A Yes, sir; he was there.
Q Was he introduced by someone at that time?
A I don't remember. He was introduced, but I
don't remember by whom.
Q Did he undertake to speak in behalf of any party?
In other words, did he get up and say who he was, and what
he was going to say or do?
A He made a speech, yes, sir. Actually, the text
of it, I remember writing the letter, but I don't have my
notes with me as to what was said.
Q If I gave you your notes, would it tend to re
fresh your recollection as to what he said?
A Yes, sir.
Q I would ask you, please, sir, to look at these
notes.
THE COURT t
Can you give them a copy?
130
These are not photostatic copies of these, and
they have indicated they don't believe these are true
typewritten copies.
THE COURT:
Let the Court see them. That would be helpful
anyway.
(51) A Yes, sir. This is a letter I wrote my
self.
Q Sir?
A These notes are mine. I wrote them myself on
the night of February 21st.
Q On that occasion did Shuttlesworth speak to the
crowd?
A Yes, sir; he did.
Q Will you tell, us, please, sir, if he said any
thing about the Southern Christian Leadership Conference?
A I don't recall. I don't have anything in here
about the Southern Christian Leadership Conference.
Q Look at the very first paragraph, please, sir.
MR. RALSTON:
Your Honor, he is asking questions about Shuttles
worth, and that is something else.
A This first one that he is referring to is R e v e r e n d
MR. LORANT:
Gardner.
131
q Was Reverend Shuttlesworth there at the time?
A Yes, sir.
q What was it that was said in your presence, and
in the presence of Reverend Shuttlesworth?
MR. RALSTON:
If Your Honor pleases --
THE COURT:
Your memory is confined to this (52) letter he
is offering now?
A Yes, it is before.
THE COURT ;
He can refresh his recollection as to what is
there.
A Reverend Gardner made his remarks prior to Reverend
Shuttlesworth speaking, and he praised the S.C.L.C. and
its personnel very highly, and praised the work they had
accomplished in the South, as well as other parts of the
nation, and the fact that the organizations would have to
combine in order to be more powerful, things to that ef
fect.
Q Was anything said about Liberty Supermarket at
that time?
^ Yes, sir.
Q Tell us what was said about the Liberty Super
market .
132
A They commented on the fact that the market
was being picketed by the members of the organizations,
and they were recruiting members for picket duty.
MR. RALSTON:
Could he clarify who is saying this?
A This is Reverend Gardner at the time, and they
would need all the help they could get as far as the
(5 3 ) pickets were concerned, and they also solicited places
in homes of the members for these people, out of town people
to stay while they were in town. They had some out of town
people coming in and they needed lodging for them.
Q Out of town people for who?
A For the picket duty.
Q Out of town people with what organization?
A
ment.
With the S.C.L.C. and Alabama Christian Move-
Q Did Shuttlesworth then speak?
A Yes, sir; he did.
Q
market?
Did he make any reference to the Liberty Super-
A Yes, sir. He remarked about the pickets and his
movements in the efforts, and discussion that they were
trying to get some colored cashiers placed in the market.
Q
A
The Liberty Supermarket?
He said the pickets -- actually, the position we
133
were in in the Church, I might describe the Church, the
auditorium is on the main floor. There is a stairway
leading to a balcony. There is a siding stairway, and due
to the crowd, we were on the stair- (54) way itself, and
the heavy overflow of people at the Church at times we
were unable to hear everything that was said by Reverend
Shuttlesworth, Gardner and the others, because of the noise
and the PA system at times would go out. So we got it
mostly in sketches. What was said that we didn't hear, I
don't know.
Q Did you hear him say something about the Liberty
picket situation and people staying away, white people or
colored people staying away?
A Yes, sir; there were some remarks made about that
He said white people were staying away because of the
pickets and the colored people were doing likewise, or some
thing to that effect, the business was off.
MR. LORANT s
That is all the questions we have to ask Officer
Wilson.
CROSS EXAMINATION
BY MR. RALSTON %
Q Mr. Wilson, you indicated that you knew Reverend
Shuttlesworth in a number of capacities; is that correct?
A In my capacity, or his?
134
Q His capacity.
A Yes, sir; I know him, yes, sir. He has been
(55) identified by himself through his numerous speeches,
but he is actually president of Alabama Christian Move
ment, and is an officer of the Southern Christian Leader
ship Conference.
Q He was also, for a considerable period of time,
a minister residing in the City of Birmingham; is that
correct?
A Yes, sir.
Q And as such, he participated in many of the activi
ties you refer to?
A Yes, sir.
Q And he would give sermons to his own congrega
tions and other congregations?
MR. KOPELOUSOSj
I object to his sermons unless it has something
to do with the Liberty Supermarket.
THE COURT :
Sustain the objection. He was a preacher, as I
understand.
Q As a preacher in Birmingham, he spoke often on
matters of civil rights; isn't that true?
A Yes, sir.
Q So the mere fact that he spoke of civil rights —
135
Now, with reference to Reverend Gardner, again
in your notes, when he spoke about S.C.L.C., I ~~ (56)
looking at the second paragraph of the typed page, Reverend
Gardner spoke of the new registration places being set up
in Wylam and North Birmingham; is that correct?
A Yes, sir; he did. He mentioned those.
Q He was speaking of voter registration?
A Yes, sir.
Q And he was speaking of the S.C.L.C. and its
officers and personnel in connection with the voter regis
tration drive that had been going on in Birmingham; is
that correct?
A Yes, sir.
Q Also referring to your notes on Reverend Gardner's
speech, there is nothing in your notes that indicates that
Shuttlesworth, Reverend Shuttlesworth was speaking concern
ing Liberty Supermarket with relation to S.C.L.C., the
demonstration?
A No, sir. His speech was made as an individual.
Of course, my knowledge of the fact that he is associated
with them, I was basing it on that knowledge. The fact
that I mentioned about attending the meetings of both
organizations at various times, the locations and dates
and so forth.
136
(57) MR. RALSTON:
No further questions.
REDIRECT EXAMINATION
BY MR. LORANTi
Q Was Reverent J. E. Lowrey there?
A Yes, sir; he was there.
MR. LORANT:
That is all.
RECROSS EXAMINATION
BY MR. RALSTON:
Q That was Reverend Lowrey's Church?
A He is the pastor there, yes, sir.
MR. RALSTON:
That is all.
THE COURT:
You may come down. Officer Wilson is excused
unless there is objection.
(Witness Excused)
MR. LORANT;
We call Reverend J. E. Lowrey as a hostile
witness, may it please the Court.
REVEREND J. E. LOWREY,
being first sworn, testified as follows:
DIRECT EXAMINATION
BY MR. LORANT:
Q State your name, please, sir.
137
A Reverend J. E. Lowrey.
MR. LORANT:
May it please the Court, this wit- (58) ness
is called under the hostile witness rule that is avail
able under the Federal statutes and as so indicated to
counsel he is and will be a hostile witness, and we ask
the Court's indulgence along those lines.
THE COURT t
Go ahead.
Q Are you a minister in Birmingham?
A Yes, sir.
Q Tell us where your Church is.
A St. Paul Church at 15th Street and 6th Avenue,
North.
Q Do you recall where there was a meeting at
your Church with several hundred, maybe 700 people in
connection with the discussion of a Liberty Supermarket
picket back in February, 1966?
A No, sir; I do not.
Q You don't have any recollection of that?
A No, sir; I do not.
Q Has your Church been used as a meeting place
for meetings wherein pickets, or demonstrations, or
paraders, would be meeting for the purpose of going out
and picketing the city, or parading?
13 8
A
A
(59)
In connection with Liberty?
Q Yes* sir*
Not that I recall.
Q Do you recall seeing the officer that just testi
fied just a moment ago that walked out, Officer Williams?
A I didn't see him.
Q You didn't see him? Do you know him?
A Not by name. I know the name.
Q Have you seen any of the officers that have been
in the courtroom?
A Today?
Q Yes, sir.
A I don't recall seeing them.
Q Are you associated with the Southern Christian
Leadership Conference?
A I am a member of the Board of Directors.
Q You are a member of the Board of Directors of
Southern Christian Leadership Conference?
A Yes, sir.
Q Did the Southern Christian Leadership Conference
have a meeting along with some other groups at your Church
in connection with the picketing of Liberty in February,
* 6 6 ?
(60) A Not that I recall.
Q You have a recollection of S.C.L.C. undertaking
139
to seek positions of Negro employees at. Liberty?
A I do not.
Q Do you have a recollection of S.C.L.C. having
some relationship of Negroes with Liberty Supermarket
at all in the past?
A I do not.
Q You have no recollection of it?
A As far as I know, S.C.L.C. has never been in-
volved in any relationship with Liberty Supermarket.
Q They have never had any relationship with Liberty
Supermarket?
A Not that I know of.
Q Have you heard Reverend Shuttlesworth speak?
A Yes.
Q Have you seen Reverend Shuttlesworth down at
Liberty Supermarket?
A
market.
I don't believe I ever saw him at Liberty Super-
Q Have you been down to Liberty Supermarket?
A I have.
Q Have you been down there in your capacity as a
(61) member of the S.C.L.C.?
A I have not.
Q Have you been there in behalf of any organization
group?
140
A I have been down there in behalf of a group of
ministers in this community who are concerned about
employment opportunities.
Q Did you see Hosea Williams?
A Yes.
Q Is Hosea Williams a member of the S.C.L.C.?
A He is an employee.
Q And you saw him on that occasion when there was
some picketing and parading at Liberty Supermarket in
February, '6 6?
A Yes; I believe I saw him down there.
Q Did you see him at any of the Church meetings
just prior to the Liberty Supermarket meeting?
A I really don't recall.
Q The Southern Christian Leadership Conference
undertook to picket the Liberty Supermarket sometime in
1966, didn't it?
A Not to my knowledge.
Q Let me ask you this. Were you served in connec
tion (62) with some court papers by the Liberty Supermarket?
A Yes; I was.
Q And at that time did you see the Southern Christian
Leadership Conference members, or were you served as a
member of the Southern Christian Leadership Conference?
141
I object to that.
THE COURT:
I don't believe that would have anything bear
ing how he was served. It is a question of what he was.
Q Did you go down and do any parading yourself at
Liberty Supermarket?
A Yes, on one occasion.
Q Was that before or after the shooting?
A Before.
Q Before the shooting?
A Yes.
Q And at the time you did that, you were an officer,
I think you said, a secretary?
A No; I didn't say that.
Q What were you?
A I was a member of the Board.
Q Member of the Board, is that the Board of (63)
Directors?
A Correct.
Q Do you recall helping sponsor a conference for
the Southern Christian Leadership Conference in August of
1965?
A Helping sponsor?
MR„ RALSTON:
142
MR. RALSTON;
L object to this. I don't see the relevancy.
MR. LORANT;
THE COURT
I will undertake to show him.
Overrule the objection.
Q You remember there was a convention of the
S.C.L.C.?
A Yes, sir.
Q You attended that conference and convention?
A Yes, sir.
Q You participated in it, did you not?
A Yes, sir.
Q I will show you a brochure and ask you if this
is not a brochure accurately depicting the officers and
directors of the Southern Christian Leadership Conference
in 1965?
A Yes.
Q I will also ask you, please, Reverend Lowrey,
(64) if those officers and members or directors of the
Southern Christian Leadership Conference were not the same
through 1966?
A I don't know. I would have to look.
Q There was not any change insofar as your recollec
tion about it?
143
A I would have to examine it. We have an election
every year.
Q You had an election in August of ’65?
A Yes.
Q And you had an election in August of '6 6 ?
A Yes.
Q There was no change in the officers until there
was an election; you had an election once each year?
A Yes.
Q And there was no change in any of those officers
until August of 1966?
A Not that I know of.
Q I will ask you, please, to look at this and tell
us whether or not the officers, the Executive Board, and
the officials are not accurately reflected in that bro
chure?
A Oh, yes, I know, as far as I know.
(65) Q They are?
A They are.
MR. LORANT:
We offer in evidence, may it please the Court,
a brochure, mark this as our exhibit.
(Plaintiff's Exhibit 1 identified.)
MR. LORANTs
We offer in evidence Plaintiff's Exhibit 1
144
reflecting the officers, directors and executive members
of the association of Southern Christian Leadership Con
ference .
MR. HALL:
May I look at it before we decide whether we ob
ject to it.
Q You said you were down there one day with some
ministers, and on that occasion you were there only with
the ministers?
A That is correct.
Q And you were not picketing or carrying labels
or signs?
A Yes; I was picketing.
Q You were picketing on that occasion?
A Yes.
Q And you were an officer of the Southern Christian
Leadership Conference?
A I was.
(6 6 ) Q Was that night-time or daytime?
A Daytime.
Q Had you been down there in the night picketing?
A No, sir; I don't think I was in the picket line
at night, I don't know. I was down there at night, but I
don't think I was picketing, I don't recall. I may have.
I engaged in picketing at Liberty.
145
Q You say now you may have.
A I don't recall night picketing. I may have.
That has been a long time.
Q I will ask you, please, is that a picture of
you in that photograph?
A Yes. I believe that is the first afternoon I
went down there.
Q That is night-time, isn't it, Reverend Lowrey?
A It seems to me this is the day the ministers went
down there.
Q Do you see any other ministers walking around
with you?
A Yes; I sure do.
Q Any of them behind you?
A Yes.
MR, LORANT:
We offer in evidence, may it please (67) the
Court, this picture.
Q Would you say whether this was night-time or day-
t ime ?
A i don't know. It looks like afternoon. We
went down about three or four o'clock in the afternoon
and may have stayed there until it got dark, I don't know,
I don't remember.
(Plaintiff's Exhibit 2 received in evidence.
146
q Tell us, please, what the relationship of Reverend
Shuttlesworth is with the Southern Christian Leadership
Conference?
A He is Secretary.
Q What is the relationship of Hosea Williams?
A He is an employee, as I stated earlier.
Q What was that relationship in February, 1966?
A The same.
Q Where were the offices of the Southern Christian
Leadership Conference in February, 1966, in Birmingham,
Alabama?
A
Q
A
Q
(68)
Q
Where were they?
Yes, sir.
I am not sure I understand your question.
Did they have offices in Birmingham?
A S.C.L.C. have offices in Birmingham?
Yes, did they, temporary, permanent or otherwise,
in February, '6 6?
A Did any officers come into Birmingham?
Q Did they use any physical facilities of a building
where anybody would come in and talk and use the telephone?
A Yes; I believe they did.
Q Where was that office?
A I believe it was in the Smith Building.
Q 505 or 500 - 17th Street?
147
A That is about right.
Q Is the Southern Christian Leadership Conference,
Inc., a Georgia corporation?
A I think so.
Q Is the principal officer of that corporation
Dr. Martin Luther King, Jr.?
A That is correct.
MR. LGRANT :
We offer in evidence, may it please the Court,
the certificate from the State of Georgia.
You want to examine these certificates?
Under the Act of Congress to establish the
corporation —
(69) MR. HALL t
We have in the file an affidavit of Dr. Andrew
Young setting out the fact that it was a corporation, the
date it was incorporated.
THE COURT :
The certificates can do no harm.
MR. HALL:
It can do no harm except to clutter up the re
cord.
THE COURT:
Overrule the objection if there is any objection.
148
MR. HALL;
We will withdraw it, Your Honor.
(Plaintiff's Exhibits 3 and 4 received in
evidence.)
Q Do you know how many pickets or picketers were
down there on the occasion when that picture reflects you
as being at Liberty?
A No, sir; I don't know how many were there.
Q Do you know whether there was 700, or a thousand,
or fifty?
A If this is the day I think it is —
Q Do you want to see some more of it so you can
study it and decide when it was?
A Does it have the date on it?
Q I am afraid it does not.
A Looking at the picture would not help.
(70) Q For how many days prior to February 21st
had you picketed Liberty?
A I don't recall. I remember picketing on one or
two occasions, but what the dates were, I don't know. The
day we initiated the picketing, a group of ministers went
down, and this, I believe, is that afternoon, went down a b o u t
three or four o'clock in the afternoon and stayed there two
or three hours.
Q There was some picketing that continued prior to
149
the day of the shooting. You had been picketing down there
for some several days?
A Yes.
Q And those several days, were they at least ten
days or two weeks?
A I wouldn't venture an opinion„
Q Several days would be your opinion?
A Yes, sir.
Q That was the Southern Christian Leadership Con
ference attempting to do the picketing at the Liberty
Supermarket on that occasion?
A As I stated earlier, in response to your question,
to my knowledge, the Southern Christian Leadership Con
ference has never engaged in any confrontation at (71)
Liberty Supermarket.
The office that you asked me about that Southern
Christian Leadership Conference established in this com
munity, was established in connection with voter registra
tion duties which resulted in the bringing of Federal
Registrars in this community.
To my knowledge, the Southern Christian Leader
ship Conference has never participated in any activities
with the Liberty Supermarket.
Q The S.CcL.C. has never participated in the picket
ing of Liberty Supermarket?
150
A Not to my knowledge, not as an organization.
Q I show you a brochure and ask you if you don't
recognize that brochure as being one of the brochures
that was circulated in connection with a mass meeting to
be held at your Church, St. Paul C.M.E. Church?
A Well, in the first place —
MR. LORANT:
I asked him specifically and ask the Court to
instruct him to answer.
MR. HALL:
If Your Honor pleases —
MR. LORANT:
This is a hostile witness and we have asked
the witness the question.
THE COURT:
Address your remarks to the Court.
(72) MR. HALL:
This has to do with the day after the shooting.
MR. LORANT:
May it please the Court, we object to counsel
interrupting us in an attempt to establish the prime case
on behalf of the plaintiff. We have a witness that we have
stated he was going to be hostile.
A I am not hostile.
Q You have indicated it.
151
THE COURT;
I will sustain the objection. This was a happen
ing after the event.
MR. LORANT;
Judge, may it please the Court, this specifi
cally shows, if I may point out to Your Honor, Hosea
Williams, of the Southern Christian Leadership Conference.
MR. HALLs
We object to him reading it to the jury. You
might as well let it in.
MR. LORANTs
Picketing at the Liberty Supermarket.
MR. HALL;
You read it to the jury and you might as well
let it go in.
MR. LORANT;
Let it go in then.
MR. HALL;
You put it in.
THE COURT;
Hosea Williams' connection with Southern Christian
Leadership Conference is in evi- (73) dence. This is a
matter that occurred after, and I will sustain the objec
tion.
152
MR. LORANT :
It would be part of the res gestae, may it please
the Court.
THE COURT :
I don't believe it is part of the res gestae.
MR. KOPELQUSOS:
It shows ratification of the events that happened
the day before.
THE COURT:
It says Hosea Williams of S.C.L.C.
MR. LORANT:
That is what it says. It says Hosea Williams
of the Southern Christian Leadership Conference.
MR. RALSTON:
It doesn't indicate ratification.
THE COURT:
I don't believe that would constitute a ratifi
cation. I will sustain the objection.
Q Do you have a recollection of S.C.L.C. under
taking to do any picketing down there?
A I do not.
Q But you were a Board member and you were down
there wearing that placard?
I was.
I was also pastor of St. Paul's Church.
A
153
Q And Hosea Williams had been down there before?
(7 4 ) A Before what?
Q Before the shooting, before the incident.
A Yes o
Q And at the time he was down there, he was on the
payroll of the S.C.L.C.?
A I assume he was.
Q Now, it is the purpose of S.C.L.C. to undertake
to gain equal opportunities for Negroes, is it not?
A Yes.
Q It is the purpose of the S.C.L.C. to undertake
to gain equal hiring in the establishments operated through
out the nation, and specifically the South; that is the
purpose and the aim and the thing that S.C.L.C. undertakes
to do and was doing in February 1966; that is correct, is
it not?
A No; it is not.
Q it is the aim of S.C.L.C. to undertake to for
ward the status and posture of the Negro, including the
Negro worker?
A It is.
MR. HALL;
I object to that line of questioning.
A i can say for Mr. Lorant's benefit that is the aim
of my Church and the N.A.A.C.P.
1 5 4
(75) MR. LORANT:
We are not trying his Church and the N.A.A.C.P.
THE COURT:
Just a minute.
MR. HALL:
It is too vague and has no purpose.
THE COURT:
Overrule the objection.
Q That is the intent of the S.C.L.C.?
A It is.
Q And the S.C.L.C. undertook, prior to the shoot
ing incident at Liberty Supermarket, to gain for Negroes
equal employment opportunities at the Liberty Supermarket?
A As I stated earlier, to my knowledge, the S.C.L.C.
has never at any time, as an organization, participated
in any confrontation or program in an effort to obtain
employment for Negroes at the Liberty Supermarket.
Q Which of the stores has it done that?
A The S.C.L.C.?
Q Yes.
A I know of no program in this community S.C.L.C.,
as an organization, has sponsored with any store.
Q Was Shuttlesworth discussing it in the Churches
prior to the Liberty Supermarket picketing?
A I understand he was.
155
Q Was Shuttlesworth at that time —
I understand he was.
He was what?
Talking at a Church,
Was he a member of the Board of S.C.L.C.?
Yes,
Hosea Williams, payroll?
Was he in the Church?
Yes.
Not to my knowledge.
Did you ever hear Hosea Williams say he was going
to get Negroes hired at Liberty?
A Yes, and on a number of other things.
MR. LORANT:
That is all.
THE COURTS
Anything else you want?
CROSS EXAMINATION
BY MR. HALLs
Q Reverend Lowrey, about three questions.
Were you present on Liberty Supermarket pre
mises on the night of February 22, 1966, at the time when
one William J. Maxwell is alleged to have been shot?
A X was not there when he was shot, no.
Q Do you know of your own knowledge whether Mr.
(76)
A
Q
A
Q
A
Q
A
Q
A
Q
156
(77) Williams, Hosea, was on the premises of the Liberty
Supermarket at that night?
A I haven't the slightest idea.
Q Do you know of your own knowledge whether any
officer or employee of the S.C.L.C. was on the premises of
Liberty Supermarket on that night?
A Not to my knowledge.
Q As a member of the Board of Directors -- how
long have you been a member of the Board of Directors of
the Southern Christian Leadership Conference?
A Several years, almost ever since it was founded.
Q Can you tell us whether or not Hosea Williams
has ever been an officer of any kind in the Southern
Christian Leadership Conference?
A Not to my knowledge. There may have been a time
before he was employed that he was a member of the Board
representing the State of Georgia, but I really don't
know, but at the time when he was employed, he was not
an officer.
Q Can you tell us whether he has been a vice-
president?
A No? he has never been a vice-president.
Q Have you ever heard him introduce himself as a
(78) vice-president of the Southern Christian Leadership
Conference?
IN THE SUPREME COURT OF
THE UNITED STATES
WILLIAM J. MAXWELL, Petitioner
vs,
SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE; et al.» Respondent
Comes now the Petitioner, .WILLIAM J. MAXWELL, by and
through his undersigned attorney, R. Clifford Fulford and
Jerry 0. Lorant, and moves this Honorable Court for leave
to proceed in forma pauperis in accordance with the Federal
Rules of Appellate Procedure and the United States Code.
As grounds for said Motion, Petitioner incorporates here
in by reference the attached affidavit.
I hereby certify that I have served a copy of this Motion
To Proceed In Forma Pauperis on Counsel for the Defendant-
Appellants, Mr. Charles Stephen Ralston, 1905 Market Street,
San Francisco, California, 94103? Mr. Jack Greenberg, 10 Columbus
Circle, New York, New York, 10019? Mr. James M. Nabritt,•III, 10
MOTION TO PROCEED IN FORMA PAUPERIS
Attorney for Petitioner
CERTIFICATE OF SERVICE
1
Columbus Circle, New York, New York, 10019; Mr, Norman C.
Amnker, 10 Columbus Circle, New York, New York, 10019; Mr,
Peter A , Hall, 1630 Fourth Avenue North, Birmingham, Alabama,
35203, by United States Mail, postage prepaid, this the 25th
day of November, 1969,
J^rry O^Lorant,
Attorney for Plaintiff-Appellee
William J. Maxwell
STATE OF ALABAMA,
JEFFERSON COUNTY.
Before me, the undersigned official in and for said County
in said State, personally appeared Jerry O. Lorant, who being
known to me and by me first being duly sworn, on his oath, de
poses and states that he is the attorney for the Petitioner in
the styled cause of William J. Maxwell vs. Southern Christian
Leadership Conference in which William J. Maxwell desires to
petition- this Honorable Court for a writ of certiorari. The
United States Court of Appeals for the Fifth Circuit has vacated
the Judgment rendered in behalf of William J. Maxwell and Ordered
a Judgment entered in behalf of the Defendant, Southern Christian
Leadership Conference. Further that the said William J. Maxwell
is unable to pay or prepay the fees and costs or to give security
therefor? that he does not own cash or checking or savings account,
has not received any income from a business, profession or other
form of self employment or rent payments, interest, dividends
or other source? that he owns no real estate, stocks, bonds,
notes or valuable property excluding ordinary household fur-
nishlngs, that he has dependent upon him a wife and children
and his only source of income is a salary earned by employment
as laborer of to-wit One Hundred Fifteen Dollars ($115.00) per
week. Further, the undersigned believes in good faith and has
also advised William J. Maxwell and William J. Maxwell believes
in good faith that the said William J. Maxwell'is entitled to
relief prayed in a Petition asking the Judgment of the United
States Court of Appeals reversing the Judgment of the United
States District Court be set aside*
Sworn to and subscribed before mo on this the 25th day of
November, 1969.
NOTARY PUBLIC
IK THE SUPREME COURT OF
THE UNITED STATES
WILLIAM J. MAXWELL, Petitioner
vs .
SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE? et al.. Respondent
MOTION FOR INTENTION OF TIME
TO FILE A PETITION FOR A
WRIT OF CERTIORARI
TO THE HONORABLE HUGO L. BLACK, ASSOCIATE JUSTICE OF THE UNITED
STATES SUPREME COURTS
Comes now the Petitioner, WILLIAM J, MAXWELL, by and through
his undersigned attorney, JERRY O. LORANT and R. CLIFFORD FULFORD,
and shows unto Your Honor as follows s
1. Petitioner, William J. Maxwell, recovered a Judgment in
the United States District for the Northern District of Alabama,
against Southern Christian Leadership Conference.
' 2. The United States Court of Appeals for the Fifth Cir-
cult, Case No. 26612, vacated said Judgment and rendered a Judg
ment in behalf of the Defendant.
3. Petitioner represents there is a substantial Constitution'
al question in his case and it will be raised in his Petition.
4, The undersigned represents it is impossible to file
Petitioner's Petition by December 3, 1969, which is the Ninety
(90) Day limit impossed by the Rules of this Honorable Court.
WHEREFORE, PREMISES CONSIDERED, Petitioner prays for a
forty-five day extension to file his Petition, said extension to
date from December 3, 1969. Petitioner prays that if the exten
sion requested is unreasonable, then such time as Your Honor deems
I
reasonable Is requested.
JERRY/ O, LO&ANT,
Attorney for Petitioner-Movant
CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of this Motion
For Extension of Time To File A Petition For A Writ of Certiorari
on Counsel for the Defendant-Appellants, Mr. Charles Stephen
Ralston, 1905 Market Street, San Francisco, California, 94103? Mr.
Jack Greenberg, 10 Columbus Circle, New York, New York, 10019? Mr.
James M. Nabritt, III, 10 Columbus Circle, New York, New York,
10019; Mr. Norman C. Amaker, 10 Columbus Circle, New York, New
York, 10019? Mr. Peter A. Hall, 1630 Fourth Avenue North, Birming
ham, Alabama, 35203, by United States Mail, postage prepaid, this
r»
the 25th day of November, 1969.
Jerry 0. I,6rant,
Attorney for Plaintiff-Appellee,
William J. Maxwell
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WILLIAM J. MAXWELL,
Plaintiff,.
SOUTHERN OmiSTIAS LEADERSHIP GCMRRSMCK,
I3@ fondest.
CIVIL ACTIOS
10. 67-203
MOTION TO DISCHARGE R M V A L
AMD SUPERSEDEAS BOm
Defendant, S©ettam Christian Leadership Coafemsee, by
Its undersigned attorneys » hereby sewe# this Court for aa
order directing the clerk of the Court to discharge £he
n a w s l and supersedeas hoods heretofore filed by defendant,
and is support of said notion would show the .fallowing:
1. This action wmm mmowmt to this Court fron the
Circuit Court of Jefferson County, Alabama. Pursuant to
28 u.S.C. flM6 counsel for defendant filed a hood in the asouat
of five hundred ($908) dollars to cewer costs of thm rmtmm 1,
This bond has not yet been discharged.
2. Following the entering of judgment for plaintiff,
defendant filed its notice of appeal to stay execution of the
judgment and upon tbe order of this Court defendant filed a
supersedeas bend in the sssoimt of $&.§,#©& with defendant as
principal and the Fidelity and Deposit Company of Meryland «
surety.
3. Subsequently, the Baited State* Court of Appeals
for the Fifth Circuit, in a decision and order dated September
2, 1969, reversed the said judgment and vacated it with
directions to enter judgment for the defendant. The iasarfate
of the Fifth Circuit to# issued on Septsnfeer 23, 196$» awl
subsequently was received by this Ctomrt. Thu#* the ©felI.gatioa«
for which the said bends wmm required tops been terminated*
1
2
3
4
5
8
7
8
9
10
11
12
13
14
15
M 8 S 7 0 8 S , defendant Smitfeera Christian leadership
Conference prays that an order Issue directing the clerk of
this Court to discharge both said bonds In accordance with the
mandate of the Court of Appeals.
Respectfully subwdtted *
C M W 5 S svmmi Ralston
1095 Market St.* Suite 418
Saa Francisco, California 94103
PETER A. HALL
If 3® Fourth Awisue, North
Birmingham, Alabama
JACK GKEEHB&RG
J A M S M. MERIT, III
m m m amasses.
W Celuatnia Circle
Mew York, Sew York 10019
Attorneys for !>e fondant
CERTIFICATE OF SERVICE
I hereby certify that * copy of the attached motion was
served o r the plaintiff, Willian J. Maxwell, fey depositing the
same in the Unite! States mail, first class postage prepaid,
addressed to his attorney of record t
Jerry 0. Loraat, Esq.
Loranfc and Bouloukos
1010 Frank Nelson Building
lirsdugha®, Alabama,
this -Mth day of September. 1969.
Attorney for Oafarctdent
OFF ICE OF THE CLERK
SUPREME COURT OF T H E U N I T E D STATES
WASHINGTON, D, C„ 20543
March 3, 1970
Charles S. Ralston, Esquire
1095 Market Street, Suite 418
San Francisco, California 94103
Re: Maxwell v. So. Christian Leadership
Conference, et al., No, 1660 Misc.,
0. T, 1969
Dear Mr. Ralston:
Your application for an extension of time within
which to file the respondents’ brief in opposition to
the petition for a writ of certiorari in the above-
entitled case has been granted and the time has been
extended to and including March 19, 1970.
Very truly yours
John F. Davis, Clerk
Michael Rodak, Jr
Deputy Clerk
Isr
cc: H. Alva Brumfield, Esquire
AIR MAIL
Phone: V/Otth 6-4X77 O * //
M E I L E N PRESS INC
LAW, FINANCIAL & CORPORATE PRINTERS
445 GREENWICH STREET
NEW YORE, N. Y. 10013
N.A.A.C.P. Legal Defense Fund
10 Columbus Circle
New York,, New York
invoice L 4 8 6 5
December 4, 1968
SHIP TO
Re: Maxwell vs. Southern
Christian Leadership
157
A No; I have not.
q Have you ever heard anyone else introduce him as
a vice-president of Southern Christian Leadership Con
ference?
A No, sir.
MRo HALL *
That is all.
THE COURT s
All right. You may come down, and you are ex
cused, unless there is objection.
(Witness Excused)
THE COURT %
We will take a fifteen-minute recess, and you
will not discuss the case while we are in recess, and I
might caution you not to watch any television program or
read any press release about the case.
(Mid-Afternoon Recess)
JAMES R. HUNTER,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. LORANT:
Q Is this Officer Hunter?
(79) A Yes; it is.
Q Tell us, please, Officer Hunter, your full name.
A James R. Hunter.
158
Q
A
Q
And are you with the City of Birmingham?
patrolman, City of Birmingham.
And you have been so employed for some period?
A Yes, sir.
Q How long?
A
Q
About seventeen years.
Were you at the Liberty Supermarket in February,
1966, when there was an incident or occurrence, a year and
a half or two years ago, involving some pickets, or paraders,
or demonstrators, and an incident that developed into a
shooting or something of that sort? Were you down there
on the scene?
A Yes, sir.
Q Tell us if you were standing in the store, or
in the lot, or where you were on the occasion when the
incident occurred, if you were there?
A I was seated in an automobile on the south side
of the building, and the car I was sitting in was facing
west. I was sitting in the back seat.
Q At that time did you see some people parading or
(80) picketing?
A Yes, sir.
Q Would you tell us, please, sir, if there were
numbers of people there?
A Well, there were quite a few people there.
159
q Would you say there were several hundred or more,
or five or six, or whatever it was, a hundred, or what?
A Well, just prior to the shooting, I am going to
guess at maybe 75 or something like that.
Q Just prior to the shooting?
A Yes. They were the ones that were marching around
the sidewalk at the store.
Then there were a number of other people that
were marching four abreast that came marching through the
lot from Fifth Avenue going south toward Fourth Avenue.
Q Was this daytime or night-time?
A Night-time.
Q Was it in the neighborhood of ten o'clock, or
what?
A About ten o'clock.
Q Did you see an automobile start out of the (81)
Liberty parking lot just prior to the shooting?
A i did.
MR. HALL:
May it please the Court, we are going to ask
if the witness cannot actually say what he saw rather than
being directed with leading questions.
THE COURT t
I will overrule the objection. These are pre
liminary questions. Don't lead the witness when you get
160
down to the basic facts.
Q Did you see an automobile?
A Yes, sir.
Q Did you see the occupants of that car? Was it
being driven at that time?
A Yes; it was.
Q Now, tell this jury if you can, please, sir,
the incident, as best you can, and to the best of your
recollection, leading up to the actual shooting or firing
of shots, if you have a recollection of it.
A There were two city detectives and one of the
store men and I were seated in the car. Two of the detec
tives had just driven up, and we had gotten in the car,
and we had heard there was supposed to be a march that
night and we were discussing it, and I said I wonder where
the marchers are, and one of them (82) said there they come
now. And about this time, the car that was in question
was parked right next to our car at an angle, and he backed
out and started to leave the lot headed east going out on
to 13th Street.
THE COURT:
You were watching it?
A I was sitting just about like from here to the
jury.
And these people marching four abreast had crossed
161
the driveway, and his automobile had loud mufflers, and he
had raced his motor a time or two, and when he shot up
to the line of marchers, some of them stopped, the ones
that were to his left, and the rest kept walking, and
they left a space. He drove through the line of marchers.
q Fast or slow?
A He was moving slowly, and when he did that, there
were several people standing off to his left that were not
in the line of marchers, and they hollered something, but
in the car I couldn't hear what they said, but when he got
up to the driveway at 13th Street, cars were circling the
block, driving around continuously around the block, and
he was unable to get out into the line of traffic.
(83) THE COURT s
That was because of cars.
A Yes, sir.
THE COURTS
He had already gone through the line of marchers?
A yes, sir. And he had proceeded up the driveway
going into 13th Street, and these people that had hollered
st him ran up that way, and I looked through the back window
of the car, and X don't know how many people there might
have been, a hundred or two hundred, had his car surrounded,
and I could see the tail lights going like that (demonstrat
ing) , rocking it or something, and I told the people, said
162
that man is going to have some trouble. And I turned around
to open the door, and about that time I heard some shots.
The people that were in the car, the door was
open on the driver's side, and these people on that side
of the car ran in eight or ten feet, and they surged back
toward the car, and he shot several more times. About that
time I started up that way, and the car stopped, and he
got out on the street and went away from the scene.
Q You later saw him at headquarters where he turned
himself in?
(84) A Well, somebody had gotten his tag number
and given it to me, and as soon as I got to a radio, I
called it in and put out a temporary arrest order for him,
and they told me on the radio he was already in custody at
the City Hall; and I was later told he went to the City
Hall and gave himself up. And I didn't see him down there
that day, but I did see him later.
Q Did you hear this man, was it a white man, or
colored man, driving this car you testified about?
A It was a white man.
Q Did you see or hear him do, or offer to do any
thing to any of the people prior — at any time prior to
the incident which you have just testified about?
A No; I did not.
Q And did you say you saw his automobile being
bounced?
163
A Of course, looking out the back window, the tail
lights, each one was going up and down like that, like it
was being rocked or being moved. It wasn't moving for
ward. It was sitting still and the people were all around
his car.
THE COURT t
Were these colored people?
(85) A Yes, sir. There could have been some
white people, but the majority of them when I got up to
the scene, that was all there was there.
Q On this occasion did you see any labels or buttons
on these people?
A Now, this picketing had been going on for some
time, and I had been there everyday, and we had seen some
lapel buttons.
Q I will ask you, please, sir, to look at this
button, if you will, and tell me whether or not the pickets
on that occasion, prior and on the occasion you are testify
ing about the incident of the car and the shooting you have
just testified about, had any lapel buttons on them at that
time, and whether or not you recognize that as a button
they had on?
A Yes, sir. I saw lots of people down there with
buttons like this. In fact, I found some out on the lot
later and had one in my possession for several days.
164
MR. LORANT:
We offer in evidence this button that says
Southern Christian Leadership Conference.
MR. HALLi
I object to that.
THE COURT:
I will overrule the objection.
(8 6 ) (Plaintiff's Exhibit 5 received in
evidence.)
MR. LORANT:
That is all the questions we have to ask him.
CROSS EXAMINATION
BY MR. HALL:
Q Officer Hunter, you worked at Liberty Supermarket
after hours?
A That is correct.
Q How long have you worked down there?
A It is over four years. I don't remember exactly.
Q Were you on duty the night the Negro was allegedly
attacked inside the store and beat up and arrested?
A No, sir; I was not.
Q That was the incident which allegedly started to
picketing, wasn't it?
A That is what I was told. I don't know for a fact.
Q The picketing began — there was an incident in
165
the store sometime in February, 1966, where a Negro
shopper was beat up and arrested; that is correct, isn't
it?
A It is going to be hearsay.
(87) THE COURT;
I think we are going into matters that are not
involved here.
MR. HALL;
All right, sir. We withdraw that.
THE COURT:
Did you see the plaintiff — there was more
than one person shot there, wasn't there?
A I believe about five.
THE COURT;
This is one of the men over there, this tall
heavy man. Did you see him there that night?
A I saw him, but I wouldn't be able --
THE COURT:
How far was he from the place -- was he in
that crowd or some distance away?
A Well, when I got out there where the shooting
took place, there were several laying on the ground, and
I remember one woman down on one knee that was shot, but
with all of these people around, and I was the only one
there in uniform, and this man came up and gave me the tag
166
number, and one of the detectives that was still in the
police car called headquarters and got an ambulance and
some more officers.
I wouldn't be able to identify anyone as being
there specifically and being shot that night. I saw them
all but it was dark, and in the confusion, I wouldn't know
him.
(8 8 ) THE COURT 5
Could you tell about how many shots were fired?
A 1 believe about eight shots altogether.
Q Officer, I believe you say you were parked in a
car on the south side of the main building?
A That is correct.
Q With two detectives?
A Yes, sir.
Q And a white fellow's car who later did the shoot
ing was parked right northwest or next to yours?
A Well, I don't know if you are familiar with
Liberty's lot; I feel sure you are for I have seen you down
there. We were headed west, and his car was parked at an
angle in a southwesterly angle from where we were parked.
Q Were there many cars on the lot that night?
A No, sir, there wasn't. The store was closed
when this happened. They had begun to close at ten.
Q And at the time of this shooting, the store was
closed?
167
A It was closed to business. There could have been
some people inside.
q Nobody could get in?
(39) A I don't believe anybody could get in.
q Had the store announced in the newspaper that
it closed at ten at that time?
MR. LGRANT :
I object to the newspaper.
THE COURT:
He said the store was closed.
Did you see the announcement in the newspaper?
A Yes.
THE COURT:
Overrule the objection.
Q Officer, do you have any judgment about how many
cars were on this lot?
A Well, I am just going to guess --
Q I don't want you to guess. I thought you might
he able to remember.
A I was trying to remember the people there.
There were maybe ten employees in the store, and my car
was there. There were about ten cars there.
Q About ten, including the one of the young man
who did the shooting?
A Yes.
168
Q How long had you been sitting there with the
detective in your car?
A About five minutes, I guess.
Q How long had the young man been sitting there
(90) in his car, do you know?
A No, sir; I don't. I just noticed his car
when he came out the door.
Q But he was sitting there in the car all that time?
You didn't see him get in, did you?
A No, sir; I didn't see him get in.
Q You never did see him get in?
When did you first observe him, when he drove
away?
A That's right, when he started his car.
Q And I believe you say he had a loud muffler on
his car?
A Yes, sir.
Q And he gunned it as he went out toward the east,
but when he moved away, did he go fast or slow, or what
sort of rate did he move in?
A He moved slow.
Q But he did gun his car and it made a loud noise?
A That's right.
Q As I recall your testimony on direct examination,
was that at about the time the marchers appeared at Liberty;
169
is that correct?
A That is correct.
(91) Q There had been no picketers or marchers
there prior to this time?
A Yes. There were picketers there on the side
walk.
Q On the sidewalk?
A If you will let me explain, these marchers were
marching through the driveway at the store.
Q After the store closed?
A That's right.
Q These marchers appeared is when all of this
happened, not when the picketing was going on?
A No, the picketing was already going on.
Q Now, the folks you saw who you say were around
the car, were they picketers, or those that came up to
march?
A I wouldn't say, there were some of both. I have
to not be specific, but there were a number of picketers
in the driveway when the shooting took place that were al
ready there beside the car that left the line of march
that went up beside the ones that left the line of march and
went up there. There were quite a few people.
Q Were there any picketers or marchers arrested
that night that you know of on the scene?
A
170
(92) A If there were, I don't know about it.
Q You don't know of any who were arrested?
A Correct.
Q Did you, by any chance, talk with or observe
the people who had been shot after the shooting?
A I believe I talked to a young boy there to see
how badly he was injured. From the time it happened until
other police officers that were in uniform arrived on the
scene, was just a matter of minutes. From the time it
happened until several policemen that were called were
there, was just two or three minutes.
Q Officer Hunter, I believe somebody asked about
the plaintiff. You did not see him that you know of on
that occasion?
A I saw him, I know, if he got shot, because I saw
all of them, but being able to say specifically he was
the man, I couldn't say that.
Q Tell me this, that east gate, the one that opens
— the east driveway, that is the one that opens on 13th
Street?
A
Q
(93)
Q
there
Yes.
That is the way the young man was driving out?
A That is correct.
You were observing him as he drove out. Were
any cars parked over there at that time?
171
A You are talking about on 13th Street?
Q On the lot, on the Liberty parking lot anywhere
near the east gate.
A I believe there was one.
Q One car?
A It is the best of my recollection there was one
car there.
Q Did you drive your car over to that gate at the
time of your investigation?
A No. I had my private car.
Q I mean did you drive your private car over there?
A No.
Q You got out and walked over?
A I ran up there.
Q Did you see any police officer's car over there
at that time?
A Are you talking about at the time of the shoot-
mg, or afterwards?
Q At the time of the shooting, or right after.
A No, sir; I didn't.
(94) Q At the time of the shooting, was there any
Police officer's car there behind the young white fellow's
car?
A The car we were sitting in was a detective's car.
Q But that was parked over — ■
172
A Parked right in front of the door that goes out
on the 4th Avenue side.
Q But not over near the east gate?
A No.
Q Was there any car — as I understand it, the
young white fellow was in the driveway trying to get out,
he couldn
in?
1t go out because of traffic, and had to go back
A Yes.
Q
caused —
The waving headlights you saw might have been
A Tail lights.
Q -- tail lights, it might have been caused by the
car's motion from something he was doing?
A It could have been. It was dark out there.
Q You cannot say as a matter of fact that the
waving tail lights you saw was caused because somebody was
pushing?
(95)
moving.
A I didn't say that. I said I saw them
Q It could have been because he was gunning his
car back and forth?
A
forth.
I don't think he was moving his car back and
Q No, sir; I didn't ask you that. I just simply
173
asked you if it could be so.
A It could be so.
Q And at that time there was no police car parked
behind him?
A That is correct. There was nothing between him
Q At the time of the shooting, there was no police
car parked there?
A That is correct.
MR. HALLs
I believe that is all.
MR. LORANT:
No more questions.
THE COURT t
All right. You can be excused, Mr. Hunter.
(Witness Excused)
MR. LORANTs
Officer McIntyre.
L. A. MC INTYRE,
being first duly sworn, was examined and testified as
follows:
(96) DIRECT EXAMINATION
BY MR. LORANT:
Q Tell us your name, please, sir.
A L. A. McIntyre.
Q And by whom are you employed?
174
A City of Birmingham.
Q In what capacity, please, sir.
A Detective.
Q Are you with any special division of the City?
A I am in the Burglary Division right now.
Q Back in February, 1966, were you working with
some special division?
A No. I was on burglary.
Q At that time?
A Yes, sir.
Q Do you recall an incident, please, sir, in
February, 1966, that occurred at the Liberty Supermarket
in Birmingham, involving the shooting of paraders or
picketers, or anything of that sort?
A Yes, sir.
Q Would you tell us, please, sir, what time,
roughly, the occurrence happened?
A It was right at ten p.m.
(97) Q Right at ten o'clock?
A Yes, sir.
Q Would you tell us, please, sir, if you were
actually there on the lot or in the store, or where were
you?
A I was on the lot in an automobile, police car,
in front of the Fourth Avenue door.
175
q Tell this jury in your own words, please, Officer
McIntyre, what you saw there immediately prior to some few
moments or minutes over the time leading up to the shoot
ing .
A Well, I was sitting in the police car facing east
in front of the door there, and there was a young man
came out of the store. 1 did not see him go in the store,
but he came out of the store and got into an automobile
parked about 15 or 20 feet from us, and he backed the auto
mobile in front of the police car and he proceeded west.
There was a group of Negroes marching through
the lot from Fifth Avenue to Fourth Avenue, and he blocked
the line with his automobile, and when he did, some people
were hollering at him. And then when he got to the drive
going out, they commenced to rock- (98) ing his car, and
there was some shots rang out and they fell back. And
they surged back to the car again and some more shots
rang out., and at that, time he was able to get out, the
automobile was able to get away from there.
Q Would you tell us whether those people you saw
surrounding that car at that time were white or colored?
A They were colored.
Q Did you later see that man at the City Hall?
A Yes, sir.
Q Did you speak with him at that time, sometime
afterwards?
176
A Not that night, no, sir.
Q Did you observe the speed of the car as it was
progressing out of the parking lot prior to getting to
the line of pickets, or prior to getting to the line of
marchers?
A He was barely moving until then.
Q Did you observe that car at the moment it com
menced its moving heading generally outward; were you pretty
much watching it?
A Yes, sir.
(9 9) Q Did that car, or any occupant of that
car, offer to do anything, or make any outward movement or
threat toward any of the picketers or people there?
A No, sir.
MR. LORANT:
I don't have any more questions to ask the
officer.
THE COURT:
Did you hear the shots?
A Yes, sir.
THE COURT:
How many were fired, in your best judgment?
A In all I would say there were eight or nine shots.
In all you could just hear them first, and the crowd fell
away from the car, and they surged back to the car, and
177
some more shots rang out, and immediately after that he
was able to get out.
THE COURT :
They cleared out?
A The automobile traffic.
THE COURT:
The people hadn't stopped him, but the traffic
had stopped him, and while he was stopped, they came up?
A Yes, sir.
MR0 LORANT:
Was that the regular exit for people to go in
and out?
(100) A Yes, sir, on 13th.
MR. LORANT:
That is all.
CROSS EXAMINATION
BY MR. HALL :
0 Mr. McIntyre, can you tell us whether or not
the store had closed at the time of this shooting?
A No, sir; it had not closed at that time.
Q It hadn't?
A No, sir.
Q Were people going in and coming out of the store
at that time?
A Maybe one or two, there wasn't much.
178
Q There wasn't much?
A I don't remember offhand whether any w e r e going
in or out or not. The only thing I remember, this boy
came out right in front of the police car.
Q Did you see the man get in or out of the car
at any point?
A I didn't see him get out of it.
Q Did you see him get in it?
A Yes, sir.
Q
c a r ?
Do you know where he came from to get in the
( 1 0 1 ) A He came out of the store.
Q He came out of the store and got in the car?
A Yes, sir.
Q And you saw him drive off through the lot?
A Yes, sir.
Q About how many were marching across the lot
when you saw the marchers?
A I don't know. It just had got started. I mean
the line had just come through from Fifth Avenue, and, of
course, just then immediately after that the shooting
started, and it was just a mess.
Q Tell me this. Did he drive through that line of
marchers?
A Yes, sir.
179
Q
A
Q
He drove through the line of marchers?
Yes, sir.
Do you know whether he hit anyone or pushed
anyone aside?
A No, sir. They jumped out of the way.
Q They jumped out of the way and let him through?
A Yes, sir.
Q And is that when they said something to him?
A No, sir. See, when he --
(102) Q What happened when they did that?
A When he approached the line of marchers, he was
barely moving, but he had a straight shift, and you could
hear the motor racing. And he had on mufflers you could
hear the sound of, and he was racing his motor as he eased
toward the line. And there were some young teen-age girls
that stopped, and as he came up on them, one or two, as the
line went on, had to kind of jump out of the way, and he
went through and he was still going slow; and as he gets
to the driveway, he can't get out because of the automo
biles that were circling.
Q What happened then?
A The crowd that got his car —
Q The marchers or pickets?
A The marchers and the crowd on the sidewalk. I
don't know where they all came from, to tell you the truth.
180
Q All of this took place at one time?
A Yes, sir.
Q Did you talk to any of the persons that were shot
that night?
A The first man I talked to, I don't know his name,
(103) he said he got out of his car.
First I asked him where he was shot, and he said
he was shot twice, and X believe he said here and somewhere
else, stomach or chest, and I was trying to gst him to lay
down. He said he got out of his car, and he lived in
Bessemer or the western section — I didn't take notes
but it was either Bessemer or the western section, I don't
remember which one, but I was trying to get him to lay
down.
THE COURT:
Does it look like the person there?
A This first gentleman.
THE COURT;
The plaintiff. Was he a big man?
A He was a big man, but I don't, of course —
MR. LORANT:
He is dressed up in a tie today.
A I couldn't say for sure whether that is the same
one or not.
181
But he was complaining of being shot in two
places?
& Yes, sir. It seems like it was somewhere, and
either in his stomach or in his chest, but I was trying
to get him to lay down.
Q You didn't see, whoever this was that got shot,
you didn't see him before you did talk to him?
(104) A No, sir.
Q Had you been watching that particular section
of the lot immediately prior to the shooting?
A No, sir. Officer Hunter, who works down there,
I stopped by to talk to him a few minutes, and we hadn't
been there, I don't guess, but ten or fifteen minutes, if
that long.
Q Were any of the marchers or picketers arrested
on that particular occasion?
A Not to my knowledge, they weren't.
Q Do you know the Reverend J. E. Lowrey?
A When I see him. I don't know him other than just
seeing him.
Q Did you see him down there on that occasion?
A I don't know, Mr. Hall. I remember seeing Captain
Lay, of course, because he was in uniform, and he and
several others down there had a megaphone or microphone,
THE COURT:
182
whatever you want to call it, and was trying to get the
crowd to disperse. Who the others were, I don't know.
Q Do you know Hosea Williams by sight?
A When I see him I know him, yes, sir.
Q Did you see him at Liberty Supermarket on that
(105) occasion?
A I don't remember it because we were trying to
get the one that was shot to the hospital.
Q I was speaking of prior to the shooting.
A Prior to the shooting?
Q The pickets were already there, they were march
ing around the store?
A No, sir; they weren't marching around the store.
They were on the sidewalk.
Q They were on the sidewalk marching around the
sidewalk?
A Yes, sir.
Q Now, was either Hosea Williams or the Reverend
Lowrey on the picket line?
A I don't know. I didn't observe the picket line.
MR. HALL:
That is all I have.
REDIRECT EXAMINATION
BY MR. LORANT:
Q Was Reverend Gardner down there that you recall,
183
or Reverend Shuttlesworth?
A I don't know. The shooting happened so fast,
and we were trying to get help, and we were trying to
take care of the people that were shot and get (106)
them located in the crowd. There was one lying in front
of the crowd after the police got there between the crowd
and the street, lying on some grass, and we were trying
to get him back behind the crowd so we could get an ambu
lance to him.
Q He asked you something about the man that was
shot, and you said here and in the stomach. Was that near
your automobile?
A As we got out of the automobile, of course, we
headed in going around almost to the driveway, and as I
got out and walked around in front, then I asked if anyone
was shot, and someone said this man here is. And I asked
him where he was shot, and he said he was shot twice, and
it seems like to me it was in here and in here.
Q Assuming it was this man, was he just getting
out of the car?
A This one I talked to that said he was shot twice,
said he was just getting out of an automobile. And I asked
him where he lived, and he told me some address, I remember
that, and I asked him where is that, and he said the western
section, or Bessemer, 1 don't remember which one it was.
184
(107) Q Would you please describe, Mr. McIntyre,
what the rioters, the picketers were doing immediately
after the shooting, so far as what their actions and activi
ties were in the street?
MR. HALL:
May it please the Court --
MR. LORANT:
Part of the res gestae.
MR. HALL:
We object to counsel's use of the word rioters.
MR. LORANT:
We withdraw rioters.
MR. HALL:
We strenuously object, and we move it be stricken
THE COURT:
He has described what he has seen already.
MR. LORANT:
Just afterwards.
THE COURT:
Afterwards ?
MR. LORANT:
A moment or so, or several minutes, part of
this incident, the attitude and action of the paraders or
picketers after the occasion. I think it would all re
flect attitudes, Your Honor^
185
Do you have any further description of what you
saw?
A Right after the shooting?
q Yes, sir.
(108) A Well, we were trying to locate the ones --
I mean, 1 wanted to get the one that was lying between
the grass and the sidewalk.
Q I am talking about the picketers, the ones that
were picketing and demonstrating.
THE COURT:
Were there pickets there or marchers?
A There were pickets before the marchers showed
up.
THE COURT :
But you didn't see any pickets at the time the
shooting occurred?
A They were there.
Q But you don't know whether they were pickets?
A They were walking around with their signs. What
their signs said, I couldn't tell you.
Q What was their attitude? Were they belligerent,
or meek, or humble; what did you observe and see?
MR. HALL:
Your Honor, we object to this.
THE C O U R T i
186
I don't know what this is leading us to.
MR. HALL:
I don't either.
What do you want him to say?
MR. LORANT:
The attitude of the people at the scene sur
rounding this car and on the occasion, what (109) the
demeanor of the people was; whether the thing did, in
fact, go towards constituting what the plaintiff says was
a nuisance, or the situation in which the occurrence that
happened, if he has a recollection of it,
THE COURT:
Do you have any better description than what
you have given?
A I don't know exactly what he wants.
THE COURT:
I think what he is driving at was there a riot
there afterwards? There was a lot of confusion?
A There was confusion, but there was no riot.
THE COURT:
I suspect people were trying to run away with
the shooting going on?
A Not after the shooting. The Negroes joined
hands. See, the police were there almost immediately, and
THE COURTi
187
the Negroes joined hands facing 13th Street like this, the
front row, and not letting anyone through, said they didn't
want any more trouble. Who they were, I don't know.
When I tried to get to the one laying on the
grass I saw their hands like this and one of them said, Boy,
you can't get through, the police is out (1 1 0 ) there, and
I know he was a well-dressed gentleman and had gray hair,
and I said this is an officer.
THE COURT :
That was to keep people from coming in off the
street?
A No, sir, from the street into the Liberty lot
where the police were.
THE COURT:
Were there wounded people outside of that line?
A There was one lying on the grass. I don't know
whether he was shot or not. I went out to see about him.
THE COURT;
Anything else from this witness?
MR. LORANT s
No, sir.
THE COURT:
You may be excused.
(Witness Excused)
* * * * * * * *
188
(113) MR. LORANT:
Take the stand, William.
WILLIAM J. MAXWELL,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. LORANT:
Q William, tell us if this is not William J.
Maxwell.
(114) A Yes, sir; I am William James Maxwell.
Q Where do you live, William?
A 209-C - Eighth Avenue, West.
Q Is that in Jefferson County, Alabama?
A Yes, sir; in Smithfield.
Q William, first of all, you heard Officer McIntyre
testify just a moment ago, you heard this officer that just
testified?
A Yes, sir.
Q Were you the individual, the person he had re
ference to?
MR. HALL:
Your Honor, we object. The officer may have
talked to other people.
THE COURT:
If he can identify the officer that was there,
I think he is entitled to do so.
189
MR * HALL %
He might be able to say whether the officers
spoke to him, but whether he can say he was the one the
officer referred to, I don't know.
THE COURT:
Overrule the objection.
Q The Judge says you may answer.
A Yes, sir.
THE COURT:
You spoke to the officer?
A Yes, sir.
(115) THE COURT:
And he spoke to you?
A Yes, sir.
Q William, how old are you?
A Thirty-five.
Q Are you married?
A Yes, sir.
Q Are you employed?
A Employed at Shaw's Warehouse.
Q Who do you work for over there?
A Mr. Jack Shaw, Jr.
Q And how long had you been working for them prior
to anything happening to you?
A About a year and a half.
190
Q And are you now employed by Mr. Shaw?
A Yes, sir.
Q William, are you a member of any of the organi-
zations, Southern Christian Leadership Conference?
A No, sir.
Q Were you in any way demonstrating, or picketing,
or parading at any time in connection with any of the
incidents inquired about that you have heard so far today?
A No, sir.
(116) Q Had you, sometime in February, do you re
call the date something happening to you in February?
A Yes, sir.
Q Do you know what day it was?
A It was on a Monday, February 22nd.
Q You recall it was the 22nd or 21st? Do you remem
ber exactly what day?
A Yes, sir. I remember exactly the date, February
2 2nd, around ten.
Q Now, William, had you gone in an automobile to
the Liberty Supermarket?
A Yes, sir.
Q What was the occasion -- what were you doing down
at the Liberty Supermarket, going down there to shop?
A
Q
I was going to do a little shopping.
Was anybody with you?
191
A No, sir,
q Did you have any knowledge, did you have any
personal knowledge of any picketing or demonstrating, or
anything of that sort going on at the time you headed to
go down there?
A Yes, sir.
(117) Q You mean when you got down there?
A
there.
Yes, sir, there was pickets when I got down
Q Before you went down to do some shopping, did
you know any was going on down there?
A Yes, sir.
Q Before you headed down there?
A Yes, sir.
Q
MR. HALL:
I am not talking about going in the store.
We object.
THE COURT:
You mean before you left there, you knew there
was pickets down there?
A Yes, sir.
Q Had there been picketing down there for some days
or weeks?
A
Q
Yes, sir.
You continued to shop at Liberty Supermarket?
192
A Yes, sir.
Q When you got down there, were you — did any-
thing happen to you?
A Well, during the time I drove up, didn't nothing
happen to me. I sat in my car five or ten minutes.
Q Sat in your car?
(118) A Yes, sir.
Q You say you were sitting in your car. Did any-
thing occur that attracted your attention while you were
sitting in your car?
A Yes, sir.
Q Did you see some people down there marching and
picketing?
A Yes, sir.
Q Was that the occasion for you sitting in your
car at that time along about ten o'clock on that evening?
A Yes, sir.
Q Did you offer to do anything, or make any threat
or intimidation to any individual at that time or at any
time?
A No, sir.
Q Were you shot?
A Yes, sir.
Q Did the bullet strike you about your body?
A Yes, sir, my left arm.
193
Q What?
A My arm.
Q And where did it go in?
(119) A It went in here.
Q William, were you taken to a hospital?
A Yes, sir. I was taken to University Hospital.
Q And from University Hospital, were you then taken
to some other hospital?
A VA Hospital.
Q Did you stay in the VA Hospital?
A Yes, sir.
Q Do you recall how long you stayed there?
A From February 22nd until April 1st. I got out
and went back on the 6th of April for the second operation.
Q How long did you stay in the second time?
A From the 6th of April until the 4th or 5th of May
Q Have you been back in there since that time?
A I haven't been back in. I go over and have a
checkup once a month for the last past two years.
Q Did the bullet enter your body from the forearm
and at any other place in the body?
A It went in my forearm and came out here and went
in here (indicating).
Q When you say in here, let the record show he is
(1 2 0) showing his left side.
194
A It went in and lodged in the bottom of my stomach.
Q William, were you operated on over there at the
Veterans Hospital?
A Yes, sir.
Q Did you first go in the University Hospital and
spend that evening at the University Hospital?
A Yes, sir, I went in around ten, maybe five after
ten.
Q The next day you were taken to the Veterans
Hospital?
A The same night I was taken to the Veterans Hospital.
Q You are a veteran?
A Yes, sir.
Q William, I am going to ask you whether or not you
were operated on while you were over in the Veterans
Hospital, and if that is not you?
A Yes; that is me.
Q Is that your condition immediately after the
shooting?
A Yes, sir.
(121) Q Did you lay up there in the hospital for
several days?
Did it go on in, as far as you know?
A Yes, sir.
195
MR. LORANT :
We offer in evidence this photograph marked as
Plaintiff's Exhibit 6 .
(Plaintiff's Exhibit 6 received in evi
dence .)
THE COURT :
Let's see the others.
MR. LORANT:
All right, sir. We offer them all in a group,
or bulk, or whatever Your Honor may wish.
THE COURT:
I will overrule the objection to these three and
sustain the objection to the others.
MR. HALL:
We don't have any objection.
(Plaintiff's Exhibits 7, 8 and 9 received
in evidence.)
Q This Plaintiff's Exhibit.7, I show you, this
bandage over that part of the abdomen --
A Yes, sir.
Q Were your intestines exposed at that place?
A Yes, sir.
Q For what period of time did you lay there with
your intestines exposed?
̂ For about a month.
196
Q Were you taking medication at the time, William?
(122) Were you taking medication; in other words, did he
give you medicine for pain?
A Yes, sir. They still do.
Q Do you still have the scars on your body from that
operation?
A Yes, sir. I have scars from here, and I have a
draining tube over here.
THE COURT:
You still have drainage of your side?
A Yes, sir.
THE COURT:
You are going to have a doctor?
MR. LORANTs
Yes, and in view of the fact that with the lady
on the jury, we are not going to expose the body.
Q You still do have those scars?
A Yes, sir. I have two scars here and have a pad
to keep my stomach in.
Q William, do you still have pain from this inci
dent?
A Yes, sir.
Q Do you have difficulty sleeping on occasion?
Does it bother you at night?
A It bothers me at night. I have to sleep on one
197
side all the time.
(123) Q Does it hurt you when you strain yourself
or try to do your work?
A Yes, sir.
Q You are now actively engaged and you do work?
A Yes, sir. I have to.
Q Were you employed on wages or salary?
A I was making wages.
Q How much wages were you making?
A During the time I was making $1.40 an hour.
Q What were you averaging, roughly, per week?
A Well, with forty and a half hours a week, around
seventy-five and $80.00.
Q And do you recall how many weeks it was before
you actually got back to work where Mr. Shaw put you back
on at $75.00 a week?
A It was in June.
Q In June?
A The month of June.
Q In June of the same year? Was it a year and
something?
A In the same year.
Q In other words, from February until June?
(124)
Yes, sir.
Q And Mr. Shaw put you back on in June?
198
A Yes, sir.
Q And you didn't earn any wages from the time of
the incident until June?
A No, sir. The company gave me $25.00 every week
for my wife, and when I got back to work they cut $10.00 a
week out of my check until 1 paid them back.
Q You worked and you paid them off?
A Yes, sir, $386.00.
Q There was $386.00 paid to you while you were off
that you paid back?
A Yes, sir.
Q But your earnings were $75.00 a week, and you were
off from January until June?
A Yes, sir.
Q Do you remember whether it was June 1st, or June
10th?
A
Q
I couldn't tell you the exact date.
You have not been paid any of those wages?
A
A
Q
Q
No, sir.
Did you see the picketers down there that night?
Yes, sir.
Do you remember there were two or three, or (125)
several hundred of them?
A
Q
Well, there were quite a few.
Did you see the automobile that the man that did
199
the shooting was riding in prior to the shooting?
A Yes, sir.
q Was that automobile swarmed around prior to the
actual shooting? Did people surround that car?
A Yes, sir. The car was surrounded by the demon
strators .
Q Were those people white or colored?
A They were all colored people.
Q Did anything happen to that car? Did you see the
car?
A Well, they surrounded the car, and I heard shots
ring out, and I would estimate from four to five shots.
Q Did you then hear some more shots just after
that?
A Yes, sir.
Q And were you shot on the second occasion or on
the first occasion?
A I was shot on the second occasion.
Q And do you have a recollection how far you were
from the shooting at the time — from the car at the (126)
time of the shooting? Could you point it out in the court
room if you have any judgment about it?
A Well, I would say from here to the door.
Q From here to the door, from where you are to the
door leading out into the corridor?
200
A Yes, sir.
Q Was that after you were shot, the occasion when
you talked to Officer McIntyre?
A Yes, sir, after I had got shot.
Q Were you standing near your car all this time?
A Yes, sir.
Q You had been in it prior to the time?
A Yes, sir.
Q Did the picketers or demonstrators do anything
to the car that you saw? In other words, did they shake
the car?
A They were surrounding the car, shaking it.
Q Was there any yelling and hollering going on?
A Yes, sir.
Q Was it loud?
A It was loud. Most of them said, "Get him," "Get
him," "Get him."
Q You had never seen the man that did the shooting
(127) before?
A No, sir.
Q Could you possibly identify him?
A No, sir.
Q You had not participated in any Church meetings
just prior thereto, or several days thereto, or at that
night?
201
A No, sir.
MR. LORANT:
I think that is all. Answer these gentlemen’s
questions.
CROSS EXAMINATION
BY MR. HALL :
Q How old are you now, please, sir?
A I am about 35 years old now.
Q And you are employed at the Sparks Warehouse
Company?
A Shaw Warehouse, 607 Building.
Q How much do you make now a week?
A I make $1.75 an hour now.
Q How much does that average out a week?
A Well, with overtime and all, around $106.00.
Q Do you recall being deposed by me on last Friday?
(128) A Yes, sir.
Q Do you remember me asking you that specific ques
tion?
A Yes, sir.
Q And you told me then it was what?
How much did you tell me then you made per week?
A I told you around $106.00 per week.
Q How long have you been making $106.00 per week?
A About two months now.
202
Q How much did you make before that?
A It was around $75.00 a week.
Q You went from $75.00 to $106.00?
A Yes, sir, with overtime.
Q And what is the nature of your work, what do you
do?
A Well, I drive a truck, drive a motor.
Q Drive a truck, and do you load the truck and un-
load the truck?
A Yes, sir.
Q And do you handle heavy articles?
A My helper does. I have a helper.
Q Do you handle heavy articles?
A I do on occasions.
(129) Q You do, not your helper, you do?
A Yes, sir.
Q This is what you do regularly?
A Yes, sir.
Q Where do you live now?
A 209 Apartment C, Eighth Avenue West.
Q Where did you live before that time?
A 278 Eighth Avenue, North.
Q Did you ever live in East Birmingham?
A No, sir.
Q Did you ever live at 4511 - Ninth Court, North?
203
A Yes, sir. That is in Kingston.
q And your wife's name is Eartha?
A Yes, sir.
q Did you ever live at 937 - 44th Street, North?
A Yes, sir.
q Were you ever arrested for a felony?
A Yes, sir.
MR. LORANT:
Just a minute. I don't see how that could be
material.
THE COURT:
The question of arrest?
Q Were you ever convicted for a felony?
A Yes, sir.
(130) THE COURT:
It depends on what kind of felony. If it is a
felony involving moral turpitude, xt may be material.
Is that what you are referring to?
MR. HALL:
Yes, sir. We are dealing with credibility.
THE COURT:
Let's see what it was.
MR. HALL:
Shall I ask him?
204
THE COURT t
Yes.
Q What was the charge for which you were arrested?
A Transporting.
Q Transporting what?
A Illegal whiskey.
Q Illegal whiskey?
A Yes, sir.
MR. HALL:
Your Honor, you want to rule on that?
THE COURT:
Alabama has held that is not moral turpitude,
but the Federal Courts have held it is, so I will let it in.
Q Were you given a year and a day on that, you
plead guilty to that?
A I plead guilty and Judge King told me if I didn't
do it again, he would drop the sentence.
Q But you did plead guilty to transporting five
(131) gallons of liquor and were given a year and a day
and three years probation?
A Yes, sir.
THE COURT:
That was a State Court offense?
MR. HALL:
Yes, sir.
205
THE COURT :
I don't think it involves moral turpitude in the
State Court.
MR. HALLs
Your Honor, would the place of conviction be
pertinent?
THE COURT :
Yes. As I recall, there is a difference in
the ruling. It primarily involves the matter of hauling
liquor, or possession of liquor.
MR. HALL:
Yes, sir.
THE COURT:
It would primarily relate to the revenue.
Q Have you ever been arrested by the Federal
authorities for a felony?
A For who?
Q For a felony.
A No, sir.
Q How long have you lived on Eighth Avenue, West?
A I have lived on Eighth Avenue about five years.
Q On the night of February 22, 1966, when you went
(132) down to Liberty Supermarket — what time did you get
of£ from work?
̂ At various times.
206
Q
A
Q
were
A
Q
A
Q
A
Q
A
Q
What time did you get off that night?
Around 5:30.
Then when you went down to Liberty Supermarket,
you coming directly from home on that occasion?
Yes, sir.
About what time did you get there?
At Liberty Supermarket?
Yes, sir.
Around ten minutes til ten.
And what did you do when you first got there?
When I first got to Liberty Supermarket?
Yes, sir. Tell us what happened when you got
there?
A When I first got to Liberty Supermarket I had to
wait until the marchers got out of the path and I pulled
in.
Q You came in on 13th Street; is that right?
A I came in on Fifth Avenue and turned right on
13th Street.
Q And then entered from 13th Street?
(133) A That's right.
Q You waited until the pickets got out of the way,
then you drove on to the lot?
A
Q
Yes, sir.
What did you do then?
207
A I parked my car next to the driveway and I con
tinued to sit in my car for five to ten minutes.
Q You sat in the car for five or ten minutes?
A Yes, sir.
Q You just sat there in the car five or ten minutes?
A Yes, sir.
Q Would you care to explain to us this action? You
were going down there — you left home to go down and buy
some groceries?
A Yes, sir.
Q Could it have been fifteen minutes you waited there?
A No; it wasn't fifteen minutes.
Q But it may have been ten minutes?
A Yes.
Q Did anybody molest you while you were there?
A No, sir.
Q Then what happened, tell us what happened?
(134) A Well, while I was sitting in my car, this
white fellow pulled up at the entrance and the pickets sur
rounded his car.
Q Did you see where he came from?
A He came from down in front of the store.
Q You saw his car start up and head that way?
A Yes, sir.
Q Going right ahead.
208
A It got to the entrance of 13th Street and they
surrounded, the pickets surrounded his car.
Q And they started pushing it; is that right?
A They started surrounding his car.
Q I believe you told Mr. Lorant you heard somebody
say, "Get him."
A Yes, sir.
Q What did you do when you heard that?
A I continued to sit in my car.
Q Were you sitting in the car at the time?
A Yes, sir.
Q You were sitting in the car?
A Yes, sir.
Q When you saw this commotion and heard them say,
"Get him," then what did you do?
(135) A I continued to sit in my car.
Q How close were you to this commotion?
A About from here to this door.
Q And then what happened?
A I heard shots ring out.
Q Now, you were sitting in your car when you heard
the shots ring out?
A Yes, sir.
Q Were you sitting in your car when you got shot?
A No, sir.
209
q When did you get out of your car?
A After I figured the shooting was all over, I..stepped
out, and that is when I got shot.
THE COURT:
There were several shots fired the first time?
A Yes, sir.
THE COURT:
Was there enough time for the man to reload, in
your judgment?
A I couldn't say, because it could have been an
automat ic.
THE COURT:
You had enough time to get out of the car?
A I had enough time to get out of the car and get
(136) shot.
Q And you had been sitting there about ten minutes?
A Yes, sir.
Q You saw the man start and you saw the marchers
come, and you saw them surround the car?
A Yes, sir.
Q And you heard them say, "Get him"?
A Yes, sir.
HALL:
That is all, Judge.
2 1 0
That is all.
THE COURT:
Is that all except your doctor?
MR. LORANT :
That is all we have today except for the doctor.
(Witness Excused)
MR. LORANT:
THE COURT:
We won't have time to go further this afternoon
in the case. It is almost recess time.
Now, the jury will be back in the morning at
nine o'clock. We meet every morning, except Monday, at
nine o'clock, and you will not discuss the case with any
one, as I admonished you this morning, and we will be re
cessed until nine o'clock in the morning.
(Daily Adjournment)
(137) MARCH 5, 1968 9:00 A. M.
COURT RECONVENED PURSUANT TO ADJOURNMENT
MORNING SESSION
THE COURT:
You may proceed.
DR. ROBERT ANDERSON,
being first duly sworn, testified as follows:
211
DIRECT EXAMINATION
Q Will you state your name, please, sir?
A Dr* Robert Anderson.
Q And what is your profession, Doctor?
A I am a surgical resident at the University of
Alabama.
Q And, Doctor, would you tell us generally what a
surgical resident is?
A This is a four-year, well, depending on what you
train in, it is a training period after you finish medical
school and internship for specializing in surgery.
Q Would you tell us, please, if you would, just
start in a chronological order and give us the background
of your formal training in your life to this (138) point.
A I graduated from high school in 1956, Parish High,
in Selma, Alabama, and went to the University of the South.
MR. RALSTON %
I. think we can stipulate he is qualified.
MR. LORANT %
I think we want to qualify him.
THE COURT %
You have a right to qualify him. I hope you won't
BY MR. KOPELQUSOS:
Prolong it.
212
If they will stipulate he is a medical expert —
MR. RALSTON:
And a surgical resident.
MR. KOPELOUSOS;
Fine. We will proceed.
Q Did you have occasion to treat the plaintiff in
this case, William J. Maxwell?
A I did.
Q Where did you treat him?
A At the VA Hospital in Birmingham.
Q When is the first time you saw him?
A On the 2nd of February, of 1966.
Q Let me ask you if it wasn't the 22nd?
A The 22nd, excuse me.
Q These are the hospital records if you need them
(139) to refresh your recollection from.
Where did you see the plaintiff in this case?
A I saw him in the Emergency Room at the Veterans
Hospital.
Q Would you describe him when you first saw him,
please, sir?
A Yes. This gentleman had been transferred from
the University Emergency Room. He came over on an ambulance
stretcher. He was in fairly good shape, having sustained
MR. KOPELOUSIS t
213
the wounds that he had„ He had a gunshot wound that went
through and through his left upper arm and into the left
chest, and had signs of interabdominal injury present.
This physical examination is essentially — this
is all the physical examination essentially revealed.
His blood pressure was normal but he did have a
rapid pulse which probably indicated some evidence of bleed
ing.
Q Did you take a history from the patient at that
time?
A Yes, sir, I did, but it was really brief. The
only history we have is that he was shot that night and was
seen in the Emergency Room at the University (140) Hospital
and was transferred because he was a Veteran.
Q Did you undertake to render treatment to the man
at this time?
A Yes; we did.
Q What did the treatment consist of?
A Well, we drew some blood to put in the blood bank
in case we needed blood and started intravenous fluid to
support any drop in blood pressure he might have, and we
started him on antibiotics.
Q Was he admitted to the hospital at that time?
h Yes.
Q Was any surgery or any operations performed?
214
A Yes; there were.
Q Do you have an independent recollection, or can
you tell from refreshing your memory from those hospital
records, as to when the surgery was performed?
A Surgery was performed that night, on the 22nd
approximately, it would be the 23rd by this time.
Q It would be the 22nd, I believe, on a Tuesday,
wasn't it?
A I beg your pardon, the 22nd, right.
Q And what type of operations were performed?
A At the time the patient had this gunshot wound
(141) into his chest we put a tube into his pleural cavity,
which is the cavity between the chest wall and between the
lung itself, and put a tube into this space to prevent any
air or blood and fluid from collecting in this space. And
then we did this under local anesthesia.
Q Doctor, excuse me just a minute. I hate to inter
rupt you.
Let me ask you if this isn't a schematic drawing
which accurately portrays the pleural cavity and would help
you in your explanation to the jury?
A Yes, sir.
Q Would you mark on this what the procedure you just
explained consisted of?
A It is an insertion of the tube through the skin
215
and muscle here into this space. This is the lung opening,
this is the rib cage, there is a tube put into this space
which surrounds the lung, and if there is any blood or air
in here this tube will draw it out if it is in excess.
Q
cavity?
Now, you say you inserted a tube into his pleural
A Yes, sir.
(142) Q How long was that tube left there?
A Approximately three days.
Q Were any other surgical procedures performed at
that time?
A Yes. We explored his abdomen at the time.
Q Would you please, if you would, tell us exactly
what that consisted of?
A The patient was put to sleep and his abdominal
cavity was opened up to examine him for any internal in-
juries.
Q Were there any internal injuries that you found?
A Yes; there were.
Q Could you tell us, please, sir, what they were?
A Well, there was a hole through both sides of his
stomach* There was a hole that went through the distal end
of his pancreas. There was a hole through his large bowel
and one into the vein that drains the left kidney.
Q Doctor, let me ask you if this is a schematic
216
drawing which accurately represents the position of the
organs as they appear in the human body, and would help
you if you could show us on this diagram which entries did
take place. If you could possibly (143) trace the pro-
jectory of the missile that went through the organs.
A The bullet came out of his arm, through his chest
cavity here.
THE COURT;
If you will mark that so they can see it.
A Through his chest cavity, then went through his
stomach, and through his pancreas, which actually comes out
to here; and then the large bowel, which is not shown well,
comes around, and I will just draw it in if I may. It
went through his large bowel and into the vein which drains
the kidney back here in the back.
That is essentially the path of the bullet.
Q If I put little squares on this to show this is
the projectory of the bullet, this would be it; is that
correct?
A Yes, sir.
Q It came right down in here?
THE COURT :
Was the bullet removed?
A The bullet was removed.
Q And it lodged actually in the rear portion of the
217
back, it went right on back in the muscles right (144) next
to the spine, I believe you said?
A Yes.
Q Now, you said that the pancreas was — it entered
the pancreas, stomach, and large colon; is that correct?
A Right.
Q Were any of these organs repaired, or what was
done?
A The hole in the stomach was closed. The end of
the pancreas was taken out, removed along with the spleen
because you remove these in continuity or remove them to
gether. It is hard to take one out without taking out the
other.
The hole in his vein that drains his left kidney
was closed up, was sown over.
The colon, which had a hole through it, was
brought out. The hole was sewed up and then because of
the question of viability, of whether the colon would live
on account of the gunshot wound was brought out on to his
abdominal wall so we could watch it for the next few days.
Q You mean the colon was brought outside his body
and left there for a while; is that correct?
(145) A Correct.
Q Now, Doctor, let me show you Plaintiff's Exhibit
7 and ask you would this right here be where the colon was
2 1 8
left out, where the adhesive appears there?
A Yes.
Q For what period of time was it left there?
A I believe it was left from the 22nd until we
returned it to his abdominal wall on the 4th of April.
Q So it was out approximately two weeks or ten days?
THE COURT t
That would be more than two weeks, if it was the
4th of April. It would be about five weeks.
A Wait a minute, correction.
Q Was it March 4th instead of April 4th?
A Let me refresh my memory a little bit more.
It was the 4th of March it was returned in.
Q And for what period of time did he remain in the
hospital at that time?
A On this initial admission he was in the hospital
from the 22nd of February to April 1st.
Q Now, let me ask you, Doctor, if that was a total
— all the hospitalization that was required as a result
(146) of this gunshot wound?
A He had a second operation which began the 6th of
April.
Q
A
Q
Which, was five days after he was discharged?
Right.
What was the occasion for him being hospitalized
219
on that occasion?
A He had an inf lamination, infection around his colon,
the left side of his colon, which required drainage of
this infection.
Q Did you undertake to treat him at that time?
A Yes; we did.
Q What was the nature of that treatment?
A This was a surgical drainage of this infection.
Q Would you explain to us exactly what you do or
what you mean when you say surgical drainage?
A An incision was made into his left side and
the infected area around the colon was drained with drains
and some necrotic material was moved.
Q When you talk about drains, do you mean something
like a rubber tube is injected into the cavity to drain
stuff out?
A Yes.
(147) Q Do you know for what length of time he
was confined to the hospital on that occasion, the second
hospitalization?
A From the 6th of April until the 4th of May.
Q Do these drainages, or any time you drain — ■ you
put these drains into the cavity, is it done daily, or
weekly, or with what frequency, or is one left in there
the whole time?
220
A Well, there are two types of drainage, one at
the time of the surgical exploration, you can leave drains
in to drain a specific area, and if you want to irrigate
one out, you pull the drains out, and if you want to irri
gate something out, you can put a tube into the drain site
where the drains were and irrigate them out, but essen
tially these holes close over and this is no longer pos
sible.
Q Is there any drainage that still continues as a
result of these surgical procedures?
A Of this patient?
Q Of the plaintiff here.
A He at present, I believe, is having some small
drainage areas resulting from the sutxires used to close
up one of the incisions.
(148) Q Does he go back to the hospital occasionally
to be treated for this?
A He comes in periodically, yes.
Q What services or treatment do you give him on
these occasions?
A We try to get these out by --
Q How do you do this?
A Well, probably the easiest way to do is catch
the suture, which is a circle that is tied, and catch it
with a crochet hook and pull it up and cut the suture.
221
q Doctor, I want to show you a statement for services
rendered by the Veterans Administration Hospital, and ask
you if you will look at that and examine that for me,
please, sir, and ask you if that is not a reasonable charge
for the services rendered by the Veterans Administration
to William Maxwell?
A In my opinion, it is reasonable.
MR. KOPELOUSOS t
We would like to offer this.
(Plaintiff's Exhibit 10 received in
evidence.)
MR. KOPELOUSOS:
Your Honor, at this time I would also like to
offer these schematic drawings which the doctor explained.
(149) (Plaintiff's Exhibits 11 and 12
received in evidence.)
MR. KOPELOUSOS:
Your Honor, we would at this time like to offer
the hospital records of the Veterans Administration.
MR. HALL:
If Your Honor pleases, we don't know exactly
what the records consist of.
THE COURT:
Have you had a chance to go through them?
222
Ordinarily if they pertain to what this doctor
testified, we don’t deny the man was injured, but we would
like to see what they were.
THE COURT:
You made the offer, I believe you made the offer
yesterday and they never did get marked.
(Plaintiff's Exhibit 13 received in
evidence.)
MR. RALSTON:
Does this have material dealing with other situa
tions other than this particular incident?
MR. KOPELOUSOSs
Yes, it does.
MR. RALSTON s
If it can be identified --
THE COURT:
That is a record of this veteran. You keep a
running record and it would just be those parts (150) of
this record that would be applicable to the injury and this
occurrence.
MR. RALSTON:
We have no objection to that if a paper clip could
MR. HALL s
be put on those pages.
223
THE COURTS
The Clerk can mark those. The doctor can indi
cate the part that appertains to this particular occur
rence and the rest of it will be marked, and the jury will
be instructed it has nothing to do with the case rather
than take the record apart and get it scattered.
Q If you would mark that, Doctor, what is the por
tions that only pertain to the injury. I think it is in
chronological order, isn't it?
A I believe from this admission forward,
Q In other words, can we stick a yellow sheet of
paper in here and this would be it?
THE COURT:
In other words, from the yellow sheet of paper
forward.
A Correct,
THE COURT s
Is the one that deals with this occurrence?
A Yes, sir.
THE COURT:
Members of the jury, you will not (151) consider
the other part of the record. We don't like to tear the
record apart because it is a running record of a veteran,
so you will only have before you that part from the yellow
paper to the front.
224
We offer that and the jury can use it at a later
date.
THE COURT:
Anything else?
MR. KOPELOUSOS:
Your Honor, that is all we have of the doctor.
CROSS EXAMINATION
BY MR. RALSTON:
Q I just have a couple of questions.
With regard to the drainage that is in the plain
tiff at this time, is that a permanent condition, or will
that be removed sometime?
A These often come out, these sutures come out
over a period of years and years. Some people carry them
to their grave and some people lose them. As far as his
condition, I can't say one way or the other.
Q You are not able to say whether or not this will
be a permanent condition, it may go for one year or two
years?
(152) A Or may not heal.
Q The other question on the charges to the plain-
tiff, are these charges at the rate a person going to a
regular hospital would pay, or are these different because
it is a Veterans Administration Hospital?
MR. KOPELOUSOS :
225
A I have no idea. The charge at the Veterans
H o s p i t a l , in my opinion, is a reasonable charge.
Q You don't know whether these are standard rates
or different?
A I cannot tell you how they rate it.
Q Dr. Anderson, you testified these were reason
able rates. On what basis did you form that judgment?
A My opinion.
Q Your opinion as a doctor?
A Yes.
Q Have you made these kinds of charges to other
patients in the past?
A I have not.
Q On what information did you base your opinion?
A On the fact that I have been in medical school,
and around the hospitals, and internship, and residency,
and have seen the charges of people and hospital bills
for hospitalization for some time longer (153) and some time
shorter with similar injuries and this seems like it is a
reasonable rate to me.
MR. RALSTON t
That is all.
THE COURT s
If there is nothing further from Dr. Anderson,
is excused.
226
REDIRECT EXAMINATION
Q He asked you about the drainage problem. Isn't
it normal in most situations this thing being two years is
cleared up?
A Not necessarily.
Q Would you say it is more unusual for it to clear
up than for it not to clear up?
A Not necessarily.
MR. KOPELOUSOS:
All right.
(Witness Excused)
* * * * * * * *
(157) JIM CUNNINGHAM,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. LORANT :
Q Would you tell us your name, please, sir?
A Jim Cunningham.
Q And tell us what you do, please, Mr. Cunningham.
A I am in the News Department for W.A.P.I. Televi
sion .
Q Are you presently so engaged as a member of the
television station of W.A.P.I.?
BY MR. KOPELOUSOS t
A Yes.
227
q In your professional capacity, what do you do
with W.A.P.I.?
A I am out in the field most of the time covering
stories of a different nature during the day, and also part
of my job is putting the stories on the air as we cover
the stories and report to the public,
Q And for what period of time have you been doing
this?
A Since about 1961.
Q I will ask you, please, if you had any training
in connection with the profession you engage in?
(158) A I am college graduate. I studied radio
and television management and news coverage at Auburn
University.
Q Have you been with W.A.P.X. all that time?
A I started with W.A.H.O. in Opelika, Alabama.
This is while I was attending Auburn.
Q From that point you have been engaged in the same
business, news coverage and television coverage?
A Yes „
Q Have you had occasion, please, sir, to cover
demonstrations involving civil rights?
A Yes, sir.
Q Have you had occasion to cover demonstrations
involving — or any parades or picketing involving the
228
Southern Christian Leadership Conference at any time prior
to February 21st of 1966?
MR. HALL:
We object to that. It is too vague.
THE COURT t
I will overrule the objection to that question.
Q The judge says you may answer.
A Yes, sir.
Q And for what period of time, please, sir, have
you followed the activities of that group in connec- (159)
tion with picketing or parading or demonstrating?
A Since the early 60's they have been involved in
numerous demonstrations of different types that I have
covered.
My first demonstrations that I covered were at
Tuskegee in the first national demonstration in the State.
They were not specifically involved in those, but since
then. To put a date on it would be difficult.
Q When you state that you cover, I will ask you,
please, sir, are you testifying from your personal atten
dance, observation and knowledge that you personally
gained and garnered in attending these meetings yourself?
A Yes, sir.
Q And have you attended one, two, few, many, or
numerous, or several?
229
A Many on numerous occasions.
q Many on numerous occasions?
A I went to mass meetings and so forth night after
night after night, week after week after week, during the
past year.
Q Did you have occasion to speak with any of the
(160) employees, or directors, or officers of the Southern
Christian Leadership Conference at any of these meetings?
A Yes, sir.
Q Would you tell us who it was you had spoken to?
THE COURTS
I think we had better get down to this meeting.
We can't try every occasion.
MR. LORANTs
I am not undertaking to try every one of them,
Your Honor.
Q Tell us, please, sir, whether or not you recall
an incident that occurred at the Liberty Supermarket some
time in February, 1966, in Birmingham, Alabama.
A Yes, sir, I can recall it quite well.
Q Tell us whether or not you were there at Liberty
Supermarket prior to there being a shooting or an incident
down there on several occasions.
A 1 went to a Church meeting that night, went by
Liberty but I did not stay. I just went by as I had been
230
doing in past weeks. There had been picketing and we went
by to check the present situation, and I left but was
called back after a shooting incident.
Q Had you been to a Church meeting prior to that?
A I was going to Church meetings every night, and
(161) the best I can recall, I went to a Church meeting,
and I believe it was at St. Paul's that night, but I am
not positive. There is about five Churches in the hub that
meetings were held in every night when the racial activi
ties were on the increase.
Q Did you see Hosea Williams there on that occa
sion?
A I saw Hosea and talked with him numerous times
during that period. Now, if I talked to him the night
before, I am not positive that I did. I know I saw
him at six o'clock the next morning and talked to him.
Q And you had seen him prior to that night?
A Yes.
Q But during the several days in that week previous
to the incident?
Had he said to you what he was doing down here?
A Well, one thing he told me, and we have it on
an interview, if I am not mistaken, on film, he said he
didn't think it was right the way the Supermarkets -- he
had some statistics, and he said they had so much Negro
231
business, but they didn't think have a proportion of Negro
cashiers, and he didn't this was right. And he thought
this was injurious, and he felt the Supermarkets should
employ a right amount of Negro cashiers (162) at their
business.
Q Did he say to you the Southern Christian Leader
ship Conference was going to see to it that they did it?
A He spoke at rallies in which he stated they would
close the store down if they didn't get some type of results
from the picketing.
Q Did he say specifically the supermarket that he
had in mind?
A Well, he talked about Liberty, and I had some
pamphlets I had gotten by attending the meeting with
S.C.L.C. and Liberty Supermarket on them. I don't think
there was any doubt that he was involved in his connection
with S.C.L.C.
Q In discussing these items, did he discuss them
directly with you and prior to this actual shooting that
took place?
A I heard him in mass meetings and in our coverage
of news, we talked to these people, because we try to
find out their mood and feeling and position, and just
what the situation is. Sometimes it is various things
said that never happen and are never published. They talk
232
to you, they describe the situation and (163) discuss it
with you, and their feelings, and numerous occasions we
talked to Hosea, and one time Ben Clark and Stony Cook.
Q Did Hosea tell you what he was looking for down
here to happen, if anything, in connection with picketing
of Liberty Supermarket?
A They had said on occasion they would fill the
jails up, and things like that, to achieve their goals.
I don't think they were quite — they talked about picket
ing until they could achieve what they wanted. They laid
down the situation in other instances to achieve their
goal.
MR * RALSTONi
I object to this unless it is connected specifi
cally.
THE COURT:
We are dealing now with an incident that occur
red on the 22nd of February, 1966.
Q Did you see Southern Christian Leadership Con
ference buttons and pamphlets in the hands, or buttons
on the lapels of people picketing Liberty Supermarket your
self on that occasion?
A I saw S.C.L.C. buttons and had a pamphlet that
showed, attend a mass rally.
233
We object to that. No pamphlet has (164) been
in t r o d u c e d . He has referred to it two or three times.
It isn't in evidence.
THE COURT:
You don't have a copy of the pamphlet?
A I don't have it with me.
MR. HALLs
Do you have at your station?
A They are handouts, they mimeograph them by the
thousands and pass them out.
Here is the one on Liberty.
THE COURTS
This is the one that happened afterwards.
MR. HALL:
This is what he is referring to.
THE COURT:
Does the other relate to Liberty? We do have
an issue in this case whether you were doing business.
MR. LORANT:
Yes, sir. They denied they were doing business
in the State of Alabama by that plea, Your Honor.
MR. RALSTON:
I believe that issue was disposed of by Your
Honor's ruling on the motion.
MR. HALL t
234
Let me look at the pre-trial order just a minute.
I think it was. I think it was disposed of at that time.
I don't know whether you offered this or not.
(165) MR. KOPELOUSOS:
Yes, sir; we offer it.
MR. RALSTON;
Your Honor, we are not objecting to offering
this pamphlet.
THE COURT;
This relates to voter registration primarily.
MR. RALSTON;
We will agree to have that in evidence, but
the other pamphlet --
(Plaintiff's Exhibit 16 received in
evidence.)
MR. RALSTON;
I would like to move the witness1 testimony
as to that pamphlet be stricken.
THE COURT:
The jury hasn’t seen that. I will sustain the
objection to it. It was a pamphlet that was prepared
after the shooting event.
MR. RALSTON;
This witness has testified he saw such a p a m p h l e t .
THE COURT;
235
Anything else from Mr, Cunningham?
Q Did you go by the office of Southern Christian
Leadership Conference in Birmingham?
A Yes, sir, quite frequently. In fact, I did it
almost each day for weeks.
Q Where was that office located?
A They had one in a building across from Kelly
Ingram Park at 1414 — I am not sure of the address, (166)
I have been to it so much.
Q Did you see members of the S.C.L.C. working down
there at any time?
A Yes, sir. I talked to Hosea in both places.
Q Hosea Williams?
A And Ben Clark and Stony Cook. Stony ran the
office for them for a while. Ben worked here off and on
for weeks and weeks.
Q Who are these people?
A They identify themselves as being with S.C.L.C.
I think you will find S.C.L.C. where he signed the pamphlets,
voter registration drive.
Q Did he ever indicate to you, in connection with
Liberty Supermarket, he wanted an incident to occur, or
anything of that sort, Hosea Williams?
A I have been on these things for a long time, and
THE COURT t
236
I know that things were very tense at the supermarket. At
several occasions there were quite a few pickets, and maybe
35 of them or so, and --
MR. RALSTON t
This is not responsive to the question.
Q Did you see the S.C.L.C., Ben Clark, and Hosea
Williams, and Stony Cook, down at the Liberty Super- (167)
market with pickets picketing at the Liberty Supermarket
prior to the shooting?
A 1 had seen Hosea and talked to him.
Q Tell us what they were doing at the supermarket?
A They were picketing. They had signs with numerous
things on them, slogans and different things. They would
march around where the driveways were and it became diffi
cult, in some cases, to get cars in and out, and it looked
like there was bound to be an incident sooner or later.
MR„ RALSTON s
We object to that last part.
THE COURT;
Sustain the objection.
Q Do you recall seeing this down there prior to the
actual shooting?
A Yes, sir.
MR. LORANTf'
We offer this photograph as Plaintiff's Exhibit 17.
237
I wish counsel would be instructed to quit
handing these pictures to the jury that are highly pre
judicial .
THE COURT:
That picture was made before the shooting?
A Yes, sir.
(168) THE COURT:
I will overrule the objection.
(Plaintiff's Exhibit 17 received in
evidence.)
MR. HALLs
THE COURT:
That is a representation of what you saw?
A Yes, sir.
MR. HALLs
We have a further objection, unless the person
that was wearing that sign can be identified; not shown
it was taken at Liberty Supermarket.
THE COURT:
I understood Mr. Cunningham said he saw that
sign?
A Yes, sir. We have it on movie film.
MR. HALL:
We would like for Mr. Cunningham to tell us who
it was and who was with him.
238
Overrule the objection.
MR. HALL;
We want an exception, Your Honor.
THE COURT;
All right.
I don’t know who took these pictures. You say
they represent what you saw?
A We have it on movie film I saw personally at
the station. It requires a lot of trouble to project.
THE COURT;
These are not movie shots?
A No, sir. They are still photography shots.
MR. HALL:
Did Mr. Cunningham say he took these (169) pic
tures personally?
A N o ; I did not say that.
MR. HALL:
Do you know who took them?
A No.
MR. HALL:
We object.
THE COURT:
I will overrule the objection. He said he saw
the things down there portrayed by these pictures.
THE COURTS
239
Q I will ask you to look at these photographs.
A There is the tire company across the street from
Liberty, and these are the signs I saw down there on numerous
occasions.
MR. RALSTON:
Some of these we want to object to. They show
no connection at all with the defendant.
THE COURT:
I don't know how many of these he is offering.
Q I am going to ask you, please, sir, Mr. Cunningham,
if these photographs I now show you do not represent pic
tures accurately depicting the scene and circumstances
there prior to the actual shooting, that you have personal
knowledge about and depicting what they show?
A Yes, sir. That shows the picketing there as it
(170) was when I saw it.
Q You have been down there on numerous occasions?
A Yes, sir.
THE COURT:
Are those good representations of what you saw?
A Yes, sir.
MR. RALSTON:
May I conduct a short voir dire?
THE COURT:
All right.
240
VOIR DIRE EXAMINATION
Q How do you know those pictures were taken prior
to the shooting? Do you have any way of knowing how they
were taken?
A There is no time punched in on them.
MR. RALSTON:
Are you able to say those pictures were taken on
any specific day, either before or after the shooting inci-
dent of February 22nd?
A All I can say is it pictorially represents what
I saw before the shooting.
MR. RALSTON:
How do you know they were taken before the shoot
ing rather than after the shooting?
A I don't know that anyone can tell.
(171) THE COURT:
I understood you to say that is what you saw.
A Yes, sir. This represents pictorially what I saw
before the shooting, and there was picketing before and after
the shooting.
Q I am asking you specifically about this picture,
this lady with this sign.
A I can say this one was. I don't know his name,
but he has marched here for years.
BY MR. RALSTON?
241
Can you say this picture with this sign was taken
prior to the shooting at Liberty Supermarket?
MR. KOPELOUSOS %
I object to this question. That is not a pre
dicate or voir dire.
THE COURTS
You can't say when the picture was taken?
A No, sir. I have had a visual picture in my mind
of all .1 saw, and this looks like what I saw.
THE COURTS
Before the shooting?
A Yes, sir.
MR. RALSTON:
I don't think a foundation has been laid to show
these represent an incident before the shooting. They
are like something I saw. I saw (172) people carrying
signs before the shooting. That is clear, but whether he
saw people carrying these signs is not clear.
A With the same slogan.
THE COURT s
I will sustain the objection to these two. Have
you offered all of them?
MR. LORANTs
We will offer them as showing — I understood
MR. RALSTON :
242
this is a pictorial representation of what he saw prior to
the shooting,
THE COURT s
I will overrule the objection to those two and
sustain the objection to these two right here.
MR„ LGRANTs
We except„
(Plaintiffs Exhibits 18 and 19 marked
for identification, and Plaintiff's
Exhibits 20 and 21 received in evidence.)
DIRECT EXAMINATION - Continued
BY MR„ LORANTs
Q Here is another picture I am going to ask you
about.
MR o RALSTONs
Again, Your Honor --
MR. LORANTs
I haven’t asked him yet. I just let you see it.
(173) 0 Do you know Reverend Shuttlesworth?
A Yes, sir.
Q Do you recognize him in that photograph?
A Yes, sir, right here (indicating).
Q Did you see him down at the Liberty Supermarket
either on the evening of the shooting, or any time prior
thereto?
243
A Yes, sir. I was halfway standing on a market
basket cart as he addressed a crowd over a bull horn.
Q Does that picture accurately represent pictorially
what you saw there on the night of the shooting, or prior
thereto, and Shuttlesworth there at that time?
A Yes, sir. This is a shot of the crowd, just one
of them. There is Officer Lay, and one of the other ministers
here.
MR. LORANT :
We offer in evidence that picture, may it please
the Court.
THE COURT:
I will admit it for the sole purpose of show
ing -- coupled with his statement Shuttlesworth was down
there.
(Plaintiff's Exhibit 22 received in
evidence.)
Q Will you indicate with a pen which one is Shuttles
worth?
(174) A (Indicating).
Q I will ask you, please, sir, to look at that
picture and tell us whether or not that represents the
scene at the Liberty Supermarket on the evening of the
shooting?
A There is Ben Clark, and there is Calvin Wood.
244
That is the same night. There is Officer Lay again.
THE COURTS
Was this before the shooting occurred?
A That was moments afterwards.
THE COURT;
Moments after the shooting.
I will overrule the objection and admit it on the
sole ground it shows these people were down there. If you
will mark those you refer to.
(Plaintiff's Exhibit 23 received in
evidence.)
Q Would you indicate those people on there, please?
A (Writing on photograph).
Q Is that the same night?
A That is the same night.
Q Taken a few moments after or just immediately?
A Yes, sir. A large crowd congregated moments
after the shooting and they were right out in front of the
store.
MR. LORANT;
We offer in evidence this exhibit.
(175) THE COURT;
Do you identify anybody in this picture?
A There is a Birmingham Police Officer.
245
THE COURTS
I will sustain the objection.
MR. LORANT:
We except.
(Plaintiff's Exhibit 24 marked for
identification.)
A There is Ben Clark and there is Reverend Gardner.
MR. LORANT:
We offer that as Plaintiff's Exhibit 25.
THE COURT:
If you will mark Reverend Gardner.
A (Indicating).
(Plaintiff's Exhibit 25 received in
evidence.)
MR. LORANT:
Your Honor, I will let you look at these, and
rather than prolong it, we will introduce what Your Honor
says we can rightfully get in and I won't go on and on.
THE COURT:
I don't think this shows anything. These are
apparently photographs taken afterwards.
Q I will ask you, please, sir, if on the occasion
when you went to S.C.L.C.'s office, if you did not pick
up brochures and pamphlets there at the S.C.L.C. office?
I will ask you to look at that one and tell (175) us whether
246
or not you did not pick that up at S.C.L.C.?
THE COURT:
Does that relate to Liberty Supermarket?
MR. LORANT:
It relates to Liberty Supermarket.
I will let Your Honor look at it and see the
extent of the relationship. It is prior to the incident.
A It is also signed by Hosea Williams, one of the
co-signers.
THE COURTS
It does.
MR. LORANTs
It relates to the picketing and purports to
be signed by Hosea Williams and picked up in the S.C.L.C.
office.
THE COURTS
Did you get this at the S.C.L.C. office?
A Yes, sir.
THE COURTS
Overrule the objection. This was before this
incident occurred?
A Yes.
MR. LORANT:
We offer it.
(Plaintiff's Exhibit 26 identified.)
247
MR. LORANT:
For the purpose of the record, we make a proffer
of the movie pictures, the types reflecting pictures of
the stills that have been (177) allowed and introduced in
evidence by the Court prior to the Liberty Supermarket
incident. We make that offer in addition to the testimony.
THE COURT %
The Court is of the opinion that would be cummula
tive evidence and would take the time of the Court and jury
so I will sustain the objection.
MR. LORANT:
We respectfully except to the Court's ruling.
We offer in evidence Plaintiff's Exhibit 26.
(Plaintiff's Exhibit 26 received in
evidence.)
MR. LORANT:
That is all.
CROSS EXAMINATION
BY MR. RALSTON:
Q Mr. Cunningham, you have been covering activities
of civil rights organizations generally in Birmingham for
some period of time in the beginning of 1966; is that
correct?
A Much earlier than that, but during that period
you mentioned, yes.
248
Q Now, you know as a fact that S.C.L.C. was in
volved in voter registration activities in Birmingham at
that time?
A Yes, sir.
(178) Q And that your discussions with Hosea
Williams with regard to his activities were, to a large
extent, particularly prior to any incident at Liberty
Supermarket, connected with voter registration activities;
is that correct?
A Would you word your question again?
Q You discussed these voter registration activities
with Hosea Williams; is that correct?
A Yes, sir; I have, on many occasions.
Q And with other S.C.L.C. workers or people who
represented themselves as S.C.L.C. workers concerning voter
registration activity?
A Yes, sir.
Q And this leaflet that has been introduced as
Plaintiff’s Exhibit 16 refers to those voter registration
activities, does it not?
A Yes, sir.
Q On what night during this period, what nights did
you go to churches to witness meetings from February 18th
through February 27th, specifically?
A You mean specific nights?
249
Q Yes.
A I couldn't give you the exact dates. I attended
(179) meetings every night for weeks, every night they were
held, and it was a long period of time they were held every
night except Saturday and Sunday night.
Q Did you attend the meeting on February 18, do you
recall?
A February what?
Q 18th, which I believe is a Monday.
A Monday was a regular meeting night. Yes, sir, that
is when they had the big meeting. That is usually when they
meet year-round.
Q Now, you identified Hosea Williams as being con
nected with the Southern Christian Leadership Conference?
A Yes, sir.
Q What is your understanding of his connection?
A He was a field representative. I don't mean to
use slang, but just kind of jack of all trades. Whatever
problem arose, he was there to handle it.
Q You knew and he told you he was in Birmingham
for the purpose of conducting a voter registration drive;
is that correct?
A That was one of his purposes, as I understand it.
I don't know what else he was involved in.
(180) Q At any time did you hear Hosea Williams state,
250
or did you hear anyone else state that there was any offi
cial connection with S.C.L.C. with Liberty Supermarket,
did you hear anyone state that?
A Yes, sir. There were times when they discussed
the matter with us.
Q Who made any such statement?
A Well, I talked with Hosea himself.
Q What specific date?
A I couldn't give you the specific date or time
of meeting. We saw him off and on during the day many
days.
Q Was this before or after the shooting?
A Before and after.
Q On the days which you talked with him before,
can you remember what he said to you concerning Liberty
Supermarket?
A That he had been picketing there, and we asked
him •—
Q Who had been picketing there?
A There had been a group picketing there who
Hosea indicated to us, or told me that hey had some in
volvement with, in other words, he said it was S.C.L.C.
(181) Now, the S.C.L.C., sometimes it was good to be in
the S.C.L.C., and sometimes it was good not to be in the
S.C.L.C.
251
I would like to object to that. That is not re
sponsive to the question.
THE COURT:
Sustain the objection. That is exclused.
Q As a matter of fact, Mr. Cunningham, isn't it
true the Liberty Supermarket demonstrations were organized
by local ministers in the Birmingham community?
A They were involved partially in it, yes, sir.
Q I would like you to look at this exhibit that
has been just introduced, this statement that you say you
got at the S.C.L.C. office, isn't it true, other groups
were using that office?
A Yes, one of the offices.
Q That was not exclusively an S.C.L.C. office, was
it?
A One of the offices was and one was not. The
one they had right across from the park up there was
specifically S.C.L.C., but the one over the Acmar office,
they worked out of there often.
(182) Q A number of organizations use the facili
ties there to reproduce statements; is that correct?
A I understand they all worked out of the office.
Q So the mere fact that you picked up a statement
at that office would not necessarily mean it came from
MR. RALSTON s
252
S.C.L.C., it could have been put out by other organizations
or other people in that office?
A I don't believe Mr. Williams would have allowed
anyone to sign his name without his knowledge.
Q His name isn't signed, it is put on there. S.C.L.C.
is not mentioned in that paper at all?
A I will have to see it and look over it closely.
Q I am sorry. I thought I had a copy of that state
ment but the jury is looking at the one in evidence.
I show you this statement, and would you read it
or look at it?
A All right.
Q Is S.C.L.C. mentioned in that statement?
A I don't see where any organization specifically
is mentioned except by the presence of signatures.
Q It says Reverend N. H. Smith, Chairman. Do you
know Reverend Smith?
(183) A I have been to meetings where he has been.
Q He is a local minister here in Birmingham; is
that correct?
A Yes, sir.
Q There is no designation of any affiliation after
Hosea Williams' name?
A No, sir.
Q Just Mr. Hosea Williams?
253
A Yes, sir.
Q Mr. Cunningham, these photographs of persons
with signs, you said you were not able to identify specifi
cally the days on which these photographs were taken?
A N o .
Q You are simply saying this generally looks like
what you saw?
A That depicts the scene as I saw it with my eyes.
Q Now, you don't know who made these signs, do you?
A No, sir, not these specific ones. I have seen
them preparing signs, but I can't say this sign was painted
by such and such a person.
Q You don't know who painted those?
A Who the actual painter was, no, sir.
(184) Q You don't know if they were people con
nected with S.C.L.C.?
A No, sir.
Q You don't know if S.C.L.C. had anything to do
with those signs, those specific signs?
A That can cover a broad amount of territory. What
ho you mean by connected with?
Q I mean you don't know that anyone at S.C.L.C.
painted those signs?
A I don't know which specific person painted the
painting on that piece of cardboard, no, sir, and I am not
254
saying they weren't connected —
q I am just asking you don't know whether anyone
from S.C.L.C. painted those specific signs?
A No, sir.
Q Or any other specific sign?
A Not on these photographs, no, sir.
Q Now, you were not at Liberty Supermarket at the
time of the shooting; is that correct?
A No, sir. I had been and had gone.
Q You say you were at the Church meeting before the
shooting?
A The best of my recollection, I went to the Church
(185) meeting, went by the Supermarket and stayed for a few
minutes, and left and was called back by radio.
Q
1966?
That was on the night of the 22nd of February,
A The night of the shooting.
Q
t ion?
Who was at this Church meeting, in your recollec-
A Quite a few people.
Q Do you remember who addressed the crowd?
A Not specifically. I have covered so many of those
meetings it would be difficult to say. Usually two or
three speakers would address a meeting.
Q You did testify on direct examination you did not
255
see Hosea Williams until six o'clock the next morning?
A That is when I talked to Hosea. I had an interview
with him at six o'clock the next morning for television, and
I remember that specific incident because I remember what he
was wearing, the sweater and so forth, and it was cold, and
that is the first I can vividly remember Hosea. I can pick
him out. I have seen him so many times it is hard to remember.
Q You don't remember seeing him on the night of the 22nd
until six o'clock the next morning?
(186) A X might have seen him.
Q You don't remember seeing him?
A Specifically, no, sir.
Q These pictures were taken after the shooting?
A Yes, sir.
Q How long — how did you hear about the shooting?
A By radio.
Q You had a police radio in your car?
A Our cars are equipped with monitors. Also we have
a bay station which monitors the local station in our normal
coverage of news, and I was radioed on my way home that
there had been an incident at the store, to return, and I
did so.
Q What time was this, do you recall?
A No, sir, the specific time, I don't. The meet
ing usually started at 7s30 and lasted an hour or an hour
256
and a half, and many times they would march together or just
break up. I would say it was before midnight. I feel
it was before midnight.
Q That is when you went down to Liberty Supermarket?
A Yes, it was before midnight, I know, before I
went down, long before that.
Q Do you have any recollection of how long after
(187) the shooting took place that you got down there,
that is, your knowledge of the shooting as you heard over
the radio?
A I heard the dispatcher start immediately rushing
police vehicles into the area of the Liberty Supermarket,
and there were police officers on the scene from the story
that I remember as I covered it, there was police officers
on the scene when the incident happened, and they radioed
headquarters. At that time we couldn't hear what the car
at the scene said, but we could hear the police dispatcher.
The police dispatcher, when he got a call from the scene,
he radioed headquarters and they put a call out to other
cars and I got a call on my radio at the same time some
thing had happened.
Q Then you got back to Liberty Supermarket and
saw people at the scene that you have indicated this is
what you saw in the picture?
A Yes.
257
Q You don't know which of those persons got there
before the shooting or after the shooting?
A No, sir,
Q All you know is what you saw after you arrived?
(188) A Yes.
Q And you saw a large crowd of people?
A Yes, sir. In fact, I was kind of scared when I
got there because there was a large number of police cars,
and the crowd, kind of unruly, it was kind of milling
around, and when you have an incident like this, you don't
know what is going to happen, and it was very touchy when
I got there.
Q Again this was after the shooting had taken place?
A Yes, sir.
Q Now, very briefly, back to the Church meetings.
These Church meetings, a number of subjects would be dis
cussed, wouldn't they, generally?
A Yes, sir.
Q At these meetings you attended, a number of dif
ferent things would be discussed; is that correct?
A Most of the time there was a specific issue like,
as you say, during the voter registration drive, this was
discussed. They had candidates, Colonel Lingo, and
Richmond Flowers, and others appeared and talked to the
group about their position, and they discussed the candidates.
258
(189) During the Liberty situation, there was
some discussion of this.
Q At the meetings you attended in these Churches
there was discussion of the Liberty Supermarket situation
and there was also discussion of the voter registration
drive?
A I would say if Liberty was the key in their minds,
it would be the top thing discussed. If voter registration,
that would be discussed. If there was a boycott of the
stores because there were not enough Negro police officers
in Birmingham, that would be the topic. Usually it was a
key issue involved.
Q To your recollection at these meetings, voter
registration was being discussed and Liberty Supermarket
was being discussed, and perhaps --
A Other things.
Q These meetings weren't just one thing, particularly
the Monday night meetings?
A Monday night was a regular situation. If they
had a meeting during the week, they would say we will meet
tomorrow night at such and such a place. The big drawing
cards were Hosea Williams and Martin Luther King, and they
would print up leaflets at (190) those times and pass them
out, and that is so they would know when the meeting was
going to be had.
2 5 9
Q And at these meetings again, particularly the
Monday night meeting, there was a number of topics dis
cussed?
A Usually there was a key issue, but a number of
things were mentioned.
MR. RALSTON:
That is all, Your Honor.
MR. LORANT:
That is all.
THE COURT:
You may come down, Mr. Cunningham.
(Witness Excused)
THE COURT:
I understand that is your case?
MR. LORANT:
Yes, sir, Your Honor, that is the plaintiff's
case.
MR. RALSTON:
Your Honor, Mr. Hall indicated we would like a
short recess.
THE COURT:
We will take the morning recess at this time,
and we will be in recess for twenty minutes, and you will
not discuss the case with anybody while we are in recess.
(Mid-Morning Recess)
260
THE COURT:
All right. Do you have any evidence?
MR. RALSTON:
Your Honor, we would first like to (191) move
for a directed verdict.
THE COURT:
I will overrule the motion.
MR. RALSTON:
I have a partly written motion.
THE COURT:
I will note that you have presented it and it
will be overruled.
MR. RALSTON:
Reverend Lowrey.
I would like to clarify one thing in my own mind.
On the motion we just made, the complaint as originally
drawn has been amended.
THE COURT:
Yes. I am going to submit it to the jury, my
present intention is, on two counts. He submitted three
counts, but one of them I will disallow. One is Count A
and the other is Count B.
The original counts are not now before the jury.
MR. RALSTON:
That is what I wanted to clarify.
261
THE COURTS
Proceed with your examination.
REVEREND J. E. LOWREY,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. HALL:
Q Will you state your name, please?
A J..E. Lowrey.
Q Are you Reverend J. E. Lowrey?
(192) A Yes.
Q You were previously on the stand?
A Yes.
Q You have been sworn already?
A Yes.
Q Are you a resident citizen of Birmingham, Reve-
rend Lowrey?
A Yes; I am.
Q You have testified previously in this same trial
with reference to certain activities which occurred on or
about February 22, 1966. I believe you have identified
yourself as being present Chairman of the Board of Directors
of Southern Christian Leadership Conference; is that cor-
rect?
A Yes, sir.
Q In 1966, February, were you a member of the Board
262
of Directors of the Southern Christian Leadership Confe
rence?
A I was.
Q Can you tell us, Reverend Lowrey, does your
Board make policies and make decisions for the Southern
Christian Leadership Conference?
A It sets the policy.
(1 9 3 ) Q And the Southern Christian Leadership
Conference is a corporation, is it not?
A Yes.
Q Can you tell this Court and this jury whether
or not Southern Christian Leadership Conference conducted
a boycott against Liberty Supermarket in February, 1966?
MR. LORANT:
Your Honor, that would be a conclusion on the
part of the witness. That would invade the province of
the jury. That is the very guts of this thing we have
offered evidence in for the past entire day, for him to say
whether it did or did not.
THE COURT;
I will permit him to state what, if anything,
they had to do with the matter at Liberty Supermarket.
MR. HALLs
We will withdraw that and rephrase it.
Q I will ask you, Reverend Lowrey, if the Southern
263
Christian Leadership Conference by and through its Board
of Directors or authorized personnel, authorized the
picketing or boycotting of Liberty Supermarket in February,
1966?
A Not to my knowledge.
(194) Q If such had been done, Reverend Lowrey,
would you be aware of it?
MR. LORANT:
Just a minute. That would be a mental operation
and conclusion.
THE COURT:
He said not to his knowledge, and I will sustain
the objection to the question.
Q Reverend Lowrey, I believe you have previously
testified that Hosea Williams was an employee of the
Southern Christian Leadership Conference in February, 1966;
is that correct?
A That is correct.
Q Was he in Birmingham at that time, to your know
ledge?
A During that time he was in Birmingham.
Q Was he here for some purpose, or on some business
for the Southern Christian Leadership Conference?
A Yes. He was assigned here as part of the voter
registration campaign being conducted by S.C.L.C. in the
264
State of Alabama and in Birmingham, in particular, during
the last months of 1965 and the first one or two months
in 1966.
Q Reverend Lowrey, did you — were you yourself
part of any group who was concerned with certain (195)
events which occurred at Liberty Supermarket in February,
1966?
A Yes; I was.
Q Will you tell the Court about this group and what
happened at the time?
A Well, the group was the Ministerial Alliance of
Greater Birmingham and Jefferson County. It was brought
to our attention that an incident had occurred at Liberty
Supermarket on a week-end, I don't recall the dates, a
man and his wife were brutilized and arrested; and the
ministers were very concerned and became engaged in a pro
test against the supermarket, and joined in with one or two
other local groups in seeking redress of these grievances.
We sought not only to protest the treatment of the
customers who happen to be Negroes in the store, but also
to ask the store to grant the privilege of working in the
store to Negro customers who had traded with the store.
Q You say the local Ministerial Alliance?
A Yes, the Interdominational Ministerial Alliance
of Greater Birmingham and Jefferson County.
265
q This was discussed at a meeting of your group?
(196) A It was discussed at a meeting, I don't re
call the dates, X can't be sure whether it was a regular
meeting or called, but it was discussed at the Alliance
meeting.
Q Did the ministers generally negotiate at all with
Liberty Supermarket with reference to this fact?
A Yes. A negotiating committee was established
representatives from the Ministerial Alliance, from the
Birmingham Chapter, and if I am not mistaken, from the
A.M.E. Zion group and A.M.E. ministers group. There were
several ministerial groups, along with the Christian Move
ment that did negotiate with Liberty and carried out the
whole project to its conclusion.
Q Did this group conduct picketing and activities
against Liberty Supermarket?
A Yes, they did.
Q They called for volunteers on the picket line?
A They did.
Q And they did negotiate with Liberty Supermarket
with reference to their grievance?
A Yes.
Q And was some understanding reached with Liberty
Supermarket?
(197) A Yes, Mr. Stignoni.
266
Q Did you eventually enter into an agreement which
was signed by some representative of the Liberty Supermarket
and the Ministerial Alliance?
A The Negotiating Committee. An agreement was
reached with Mr. Stignoni and the Negotiating Committee,
and it was signed.
Q Has Liberty Supermarket lived up to its agree
ment?
A Pretty much so.
Q At that time, the picketing was stopped?
A Yes.
Q Reverend Lowrey, was Southern Christian Leadership
Conference a part of the group that organized to negotiate
with Liberty Supermarket?
A No; it was not.
Q Was it part of the group that entered into negotia
tions with Liberty Supermarket at all?
A No; it was not.
Q Was it a part of the group that picketed Liberty
Supermarket?
A You mean S.C.L.C. as an organization?
Q Southern Christian Leadership Conference as such.
A No, no participation, to my knowledge, as an
(198) organization.
Q When the agreement was signed, was it signed by
267
Southern Christian Leadership Conference at any point for
the citizens of Birmingham?
A Not to my knowledge. It was signed by those of
us who were members of the Negotiating Committee represent
ing these organizations I have mentioned.
Q There has been some testimony that on some occa
sions persons were present in the picket line who wore
certain buttons. May I see this button?
This is Plaintiff's Exhibit 5. Will you examine
that, please, sir? Are you familiar with that particular
button?
A Yes; I have seen this button.
Q Did you at any time see persons in the picket
line or near Liberty Supermarket wearing such a button?
A I really don't recall. These buttons have had, as
I recall, national distribution, and I don't -- I really
don't recall whether I saw them specifically during the
picketing or at other places.
Q What does that button signify necessarily? If a
person should wear that button, does it- indicate he repre
sents Southern Christian Leadership Conference, (199) or
is a member, or what does it represent?
MR. LGRANTt
May it please the Court, I think —
268
THE COURT s
I think we are getting into a field of specula
tion .
I will sustain the objection to that.
Q How were these buttons distributed, Reverend
Lowrey?
A I am sorry, I didn't hear.
Q How were these buttons distributed?
A As I recall, some company gave these buttons, or
somebody sponsored and gave these buttons to S.C.L.C.
I don't recall the details, but they were distributed across
the country at mass meetings to whoever would subscribe to
the ideals of brotherhood with the symbol of the black and
white hands together on the botton.
Q So then it would have been possible for anyone
to get hold of those buttons?
A Oh, yes, they were distributed generally.
MR. HALL;
That is all.
CROSS EXAMINATION
BY MR. LORANTs
Q Did the picketers out there at Liberty Super-
(2 0 0) market that you saw have any buttons on them?
A I don't remember really.
Q You don't know whether you saw any buttons or not?
269
A No * I don't, I really don't.
MR. LORANTs
That is all.
THE COURTS
All right. Come down.
(Witness Excused)
MR. HALLs
Reverend Gardner.
REVEREND EDWARD GARDNER,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. HALLs
Q Reverend Gardner, will you state your name,
please , sir?
A Edward Gardner.
Q Address.
A 6207 Third Avenue, North.
Q Occupation.
A Minister.
Q Minister? Reverend Gardner, are you aware of an
incident which occurred in Birmingham about. February of
1966, involving Liberty Supermarket?
(2 0 1) A Yes, sir.
Q Were you involved in that particular matter, any
matter involving Liberty Supermarket in February, 1966?
270
A Yes, sir.
Q Were you active in organizing or conducting any
protest against Liberty for any reason during that month?
A Yes, sir.
Q Will you tell the Court about it, please?
A We organized, at the 16th Street Baptist Church,
under the name of the Interdenominational Ministerial Alliace
voted there to picket the Liberty Supermarket.
Q The Interdenominational Ministerial Alliance,
would you tell us who they are?
A It is made up of a group of ministers of all de
nominations .
Q Are these ministers Birmingham citizens?
A That's right, Birmingham citizens.
Q They are active pastors of local Churches?
A That's right.
Q Are they all Negroes?
A That's right.
(202) Q And you say that they did decide to picket
Liberty Supermarket?
A Yes, sir.
Q Can you tell us why they reached this decision?
A They reached the decision on account of an inci
dent that happened down at Liberty Supermarket.
Q Will you tell us about the incident?
2 7 1
A
market.
Q
A Negro was beaten up down at the Liberty Super-
Beaten up at Liberty Supermarket?
A That's right.
Q Inside the store?
A Inside the store.
Q And because of this you decided to picket?
A That's right.
Q Did you have any other reason for picketing in
volving jobs or anything else?
A Involving jobs in the Liberty Store was part of
it, too.
Q Now, who was involved in this decision, Reverend
Gardner, making this decision, just the Interdenominational
Ministerial Alliance, or were other people involved, too?
(203) A That's right.
Q I will ask you this, was the Southern Christian
Leadership Conference involved in this?
A Not in this.
Q Were they involved in the picketing of Liberty
Supermarket?
A The 24 ministers started the picketing.
MR. LORANTs
That is not responsive.
Q Was the Southern Christian Leadership Conference
272
involved in picketing Liberty Supermarket?
A No, sir.
Q Were they involved in negotiations with Liberty
Supermarket in any way?
A No.
Q Do you yourself hold any office in the Southern
Christian Leadership Conference?
A No, sir.
Q Did you hold one at that time?
A No, sir.
Q Were you present on the premises of Liberty Super
market on February 22, 1966, when an incident occurred in
volving the shooting of several persons?
A Yes, sir; I was there.
(204) Q How long had you been on the premises when
the shooting occurred?
A I guess about ten minutes, to my best judgment,
after I drove up. I got out of my car, I guess I walked
about probably 35 or 40 feet, and I heard the shooting.
I thought it was fireworks. 1 attached no importance as
a pistol.
Q When you got to the premises, what was going on;
were people picketing the premises when you arrived?
A They were marching.
Q When you say marching, were they picketing around
^he -:p:^ises^ .w'hat waB&osd
haj^bhi?^^0'3 fr®k£9ri 8fiw I os v.sb.ia si/nsvA xld'ix'i 9.d.i bifiwod
A '■teiffe1 m&tfctf£:hr̂ rtd' th¥- LibettyStore-for rkrii'5
P ra yeifr9ififet £ hg*.’s -̂ -l£3 Jfo 2fcJ srij ess .i'n b j.b ijo'v 0 8 0
Q Was the crowd orderly? ?pnxdooria srfd lo amid srii
A. ' Yes, sir,, -dx 3 9 9 d'nbift 1 pxxa ,oM A
Q Were there any policemen present on the premises
that you could see?
A Some was across on the other side of the street
as the marchers were marching on toward Liberty Store for
the meeting.
Q ■ Were all of the marchers Negroes?
(205) A Yes, sir.
Q And the pickets were Negroes?
A Yes, sir.
Q Did you observe any of the pickets or marchers
do anything that you considered disorderly?
A I didn't see anything disorderly.
Q Did you see any of them exhibit any arms, or fire
crackers, or weapons of any kind?
A No.
Q Did you observe a car — I will withdraw that.
Were you looking toward the 13th Street side at
the time of the shooting?
A Well, I was looking toward the Fifth Avenue side,
274
because I parked my car on the Fourth Avenue side walking
toward the Fifth Avenue side, so I was headed toward the
Fifth Avenue direction and I heard the shooting.
Q So you didn't see the car at all at or about
the time of the shooting?
A No, sir; I didn't see it.
Q Can you tell me who instructed the pickets with
reference to their actions on the picket line?
A I was —
(206) MR. LORANT:
That is not responsive and we are going to object
unless it is.
THE COURT:
He hasn't answered the question. Who gave
instructions to the pickets?
MR. HALL:
Yes, sir.
THE COURT:
Overrule the objection.
A I was in charge of the pickets at that time.
Q And what were the instructions with reference
to the actions of the picket line?
A Their instruction was to be non-violent, this
was a peaceful picketing.
Q Did they carry out these instructions, to the best
275
of your knowledge?
A To the best of my knowledge, they did.
Q Were any of the pickets or any of the marchers
ever arrested for disorderly conduct of any kind?
MR. LORANT s
May it please the Court, that is going into ar
rest after the incident, and if we are going to get into
that entire field, we want to open it all the way up.
THE COURT :
Sustain the objection.
Q On the night of February 22, 1966, at about ten
o'clock, can you tell us whether or no any of the (207)
pickets or any of the marchers were arrested for disorderly
conduct of any kind?
A No, sir.
Q Was some understanding finally reached with Liberty
Supermarket which caused cessation of the picketing?
A Yes, sir.
Q And an agreement was signed?
A Yes, sir.
Q Who represented the ministers in signing that
agreement?
A
Q
A
Reverend Lowrey.
Were you a part of the committee?
Yes, sir.
276
Q And who else, anybody else from the Birmingham
ministers p
A The Birmingham ministers member Reverend J. L.
Ware.
Q Who handled the matter for Liberty Supermarket?
A M r . Newton.
Q Mr. Demetrius Newton?
A That's right.
Q He .is a local Negro attorney?
(208) A Yes, sir.
Q And the agreement was drawn up as between you?
A Yes .
Q You had several meetings negotiating this agree-
ment?
A Yes , sir.
Q Did I sit in on some of those meetings?
A No, sir.
MR. HALL J
That is all.
CROSS EXAMINATION
BY MR. KOPELOUSOS t
Q You testified you were out there on the night of
the shooting at Liberty Supermarket; is that correct?
A Yes, sir.
Q I believe you testified you were in charge or you
277
instructed the pickets; is that correct?
A Yes, sir.
Q Now, for what period of time had the picketers
been picketing the Liberty Supermarket prior to this
incident?
A They started on February 18th, 24 ministers
started picketing on February 18th.
(209) Q February 18, 1966, that was four days
prior to this, or three days, whatever it was.
A Yes, sir.
Q And you say the Southern Christian Leadership
Conference had nothing to do with this?
A No, sir.
Q Nothing at ail to do with it?
A No, sir.
Q Now, let me ask you, you say, I believe, it
was the Alabama -- which group was it that sponsored the
picketing?
A The local movement, Alabama Christian Movement
for Human Rights.
Q Are you an officer of that movement?
A Vice-president.
Q At that time were you the executive vice-president?
A Yes, sir.
Q Do you have offices here in Birmingham?
278
A 1616 Fourth Avenue, North.
Q That was the headquarters for that movement?
A Yes, sir.
Q And you had locally staffed people who worked in
that office?
(210) A Yes, sir; we have a local staff.
Q Did you at this office, just prepare publications,
or did you have meetings there, or what did you do?
A We had meetings at the Church.
Q You had what?
A We had meetings at Church.
Q In the course of your operations of the Alabama
Movement for Human Rights, did you have occasion to publish
anything? I mean did you send out letters to people?
A No, sir.
Q You never did anything like that?
A No, sir.
Q And nothing was ever printed at that time?
A The only thing we printed at the time in the of
fice was the placards they used on the picket line.
Q What about press releases, if you had any? Do
you have any of those items there?
A The press releases came when we had the settlement
with Liberty.
Q Your office did prepare a press release at that time?
279
A It was a joint release between the Baptist (211)
ministers and the Interdenominational Alliance and Alabama
Christian Movement.
Q Did that release, in effect, set out exactly
what you did and what happened, give a resume of the events
that occurred?
A The release that we sent out dealing with the
settlement of the Liberty agreement.
Q Let me ask you, Reverend Gardner, if this isn't
that release, if you can identify that for us? Is this
headed the Alabama Christian Movement for Human Rights?
A Yes, sir.
Q And this is you, Reverend Gardner, Executive Vice-
President?
A Yes, sir.
Q It is entitled “A Joint Release."
A Yes, sir.
Q It is a joint release?
A Yes, sir.
Q Reverend Lowrey was president of the Alliance?
A Yes, sir.
Q Let me call your attention to the second paragraph.
If you would, would you read that for us, (2 1 2) please,
sir?
280
MR. HALL i
Just a minute.
MR. KOPELOUSOSi
I offer it in evidence.
THE COURT;
Is it already in evidence?
MR. KOPELOUSOS;
No, sir, it isn't in evidence. He has identi
fied it as being the release covering the history on the
subject. We would like to offer it.
THE COURTS
I don't know whether they are going to object
to it or not.
MR. HALLs
Read this and see if you can identify it. Read
the entire release. Give him a chance to read the whole
release.
MR. LORANT;
May it please the Court, let the Court examine it.
MR. KOPELOUSOS t
He has identified it as being a release being
made, and when it was given, at the end of the negotiations
with Liberty, and he has identified it fully before he ever
saw it.
281
MR. LORANTs
They have gone into it fully.
THE COURTS
I don't think we have to go into the whole re
lease. You can ask him about this particular statement.
Q Let me ask you if this release on here, what
(213) does it say there on the second paragraph there?
A It says --
MR. HALL:
Don't read it. Does Your Honor mean — •
MR. KOPELOUSOS:
I would like to read it for the purpose of im
peachment .
MR. HALL:
Let him read it and see if he can identify it.
THE COURT:
I think that part is probably admissible evidence.
MR. H ALL:
If he can identify it.
MR. KOPELOUSOS:
He has already identified it,
MR. HALL:
He identified his part.
MR. KOPELOUSOS:
He identified the release as being the whole release.
282
Don't argue the case between yourselves, gentle
men. Make your objection.
MR. HALL:
This witness said yes, I recognize that. He
has not read the whole thing. If it is a part --
THE COURT:
That thing was written up afterwards, but you
have the right to ask him about the matter that is related
there.
MR. KOPELOUSOS:
All right, sir, I will.
(214) Q Reverend Gardner --
THE COURT:
For impeachment of the witness. He has testified
heretofore --
MR. KOPELOUSOS:
He has testified heretofore the S.C.L.C. had
nothing to do with this.
THE COURT:
That's right.
Q On Friday morning, February 18th, a half dozen
ministers and representatives of the A.C.M.H., so what is
that, is that the Alabama Christian Movement for Human
Rights, and the S.C.L.C., does that mean the Southern
THE COURT:
283
Christian Leadership Conference?
A I don't recall they were part of this agreement.
Q Met at the A.C.M.H. Office and agreed protesting
action should begin against Liberty. Is that a correct
statement of this release?
A Not to my knowledge, S.C.L.C., to my knowledge,
Alabama Christian Movement and the Ministerial Alliance.
Q Was this release published?
THE COURT :
Of course, that couldn't bind S.C.L.C. by pub
lishing a newspaper release.
MR. KOPELOUSOS:
No, sir, but he has said they weren't involved,
and that is offered for impeachment (215) purposes.
THE COURT 2
That is the only office of it, and you have gone
into the only part that has any material bearing.
MR. KOPELOUSOS:
We would like to offer that portion of it.
THE COURT;
I will sustain the objection to the whole re
lease.
MR. KOPELOUSOS:
We would like to offer the portion that goes to
the impeaching of this witness.
284
I will permit this to come in. When evidence
comes in as impeaching evidence, it goes to the credibility
of the witness, and does not, of itself establish an affirma
tive fact. Actually, the S.C.L.C. didn't publish this thing
MR. KOPELOUSOS:
No, sir; and we don't offer it for that purpose.
THE COURT:
The only sentence you are asking him about is
the one that you have already read?
MR. KOPELOUSOSs
Yes, sir.
THE COURT s
That is the only sentence. You can write it
out and the objection is sustained to the rest of the docu^
ment, and it is admitted purely for (216) the purpose of
impeachment.
MR. LGRANT s
Would it be permissible for us to introduce the
part where the sponsors appear?
THE COURT:
Yes. It is dated March 22nd. The one sentence
is admitted on the issue of impeachment only. The Clerk
will write that out and make it available to the jury.
Q Now, Reverend Gardner, on the night in question,
THE COURTS
285
please tell us who was out there.
Let me ask you if Hosea Williams was out there
picketing and demonstrating that night?
A No, sir.
Q Was Fred Shuttlesworth out there picketing and
demonstrating that night?
A Yes, sir; he was there.
Q Do you recognize this button which is Plaintiff's
Exhibit 5?
A Do you have reference —
Q Do you recognize that button?
A I have seen quite a few of these buttons.
Q Do you know what those buttons are?
A They are S.C.L.C. buttons.
Q Did you see any pickets or demonstrators out
(217) there that night wearing these buttons?
A I don't recall that.
Q Have you ever worn one of these buttons yourself?
A No, sir.
Q Are you a member of the Southern Christian Leader
ship Conference?
A Do what?
Q Are you a member — -
A I am a member of the Alabama Christian Movement.
Q Are you not a member of the Southern Christian
286
Leadership Conference?
A Not directly.
Q You are not directly a member?
Let me ask you if you recall in August of 1965
a meeting which was held in Birmingham, Alabama?
MR. HALL:
If Your Honor pleases, we object to that.
THE COURT:
Does he appear anywhere in that pamphlet?
MR. KOPELOUSOS:
Yes; he does.
THE COURT:
You can ask him about his relationship.
(218) MR. KOPELOUSOS:
I asked him, and he denied it.
Q I will ask you if you will look at that pamphlet
and ask you if you weren't a member of the Local Planning
Committee of the S.C.L.C. when they held their national
convention in Birmingham in August, 1965?
A This was through the Alabama Christian Movement.
We were with the S.C.L.C. I thought you were speaking as a
Board member.
Q I was asking you as a member.
MR„ HALL:
Maybe I can clear this up.
287
Just a minute, gentlemen. We are not going to
engage in any sideshow.
You are a member of what organization?
A Alabama Christian Movement for Human Rights.
THE COURTS
Is that affiliated with S.C.L.C., or a subsidiary?
A A local organization.
THE COURTS
It is affiliated?
A Yes.
THE COURT:
And your membership is in that organization
rather than directly in S.C.L.C.?
A Yes, sir.
(219) THE COURTS
All right. That clarifies it.
Anything else from this witness?
MR. KOPELOUSOSs
That is all,
REDIRECT EXAMINATION
BY MR. HALLs
Q Is S.C.L.C. a membership organization?
A No, sir.
THE COURTS
Q Does it have members as such?
288
A No, sir.
Q Alabama Christian Movement for Human Rights, is
that an autonomous organization; it has its own rules and
by-laws and regulations?
A Yes, sir.
Q Has its own Board and officers?
A Yes, sir.
MR. HALL:
That is all.
RECROSS EXAMINATION
BY MR. KOPELOUSOS:
Q Let me ask you if the S.C.L.C. only has paid
members?
A Paid members?
Q Only people who are members of the S.C.L.C., or
just people on the payroll for S.C.L.C.
(220) MR. HALL:
I wasn't quite through.
MR. KOPELOUSOS:
I apologize.
THE COURT:
Go ahead.
REDIRECT EXAMINATION
BY MR. HALL:
Q S.C.L.C. have any kind of membership, as such,
289
other than its officers and employees?
A No, sir.
MR. HALL;
That is all. Now, I am through.
THE COURT:
Go ahead, Mr. Kopelousos.
RECROSS EXAMINATION
BY MR. KOPELOUSOS;
Q In other words, the only people who are with the
S.C.L.C., according to you, are the people who are on the
payroll; is that correct?
A That's right.
Q And you are with an organization known as the
Alabama Movement — •
A Alabama Christian Movement for Human Rights.
Q And you say it is affiliated with the S.C.L.C.;
is that correct?
A That is correct, yes.
MR. KOPELOUSOS;
That is all.
(221) MR. HALL:
That is all.
THE COURT:
All right. You may come down.
(Witness Excused)
290
Do you have any other witnesses?
MR. HALL:
Mr„ Newton.
DEMETRIUS C. NEWTON,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. RALSTON:
Q Mr. Newton, will you state your name for the re
cord?
A Demetrius C. Newton.
Q And what is your occupation?
A I am an attorney.
Q As an attorney, were you employed, or did you
have as a client in 1966, Liberty Supermarket?
A I did.
Q And what was your function? What did you do for
Liberty Supermarket?
A Well, it was sort of -- many things. At the time
I was retained by some of the officers of Liberty Supermarket,
I was retained primarily to (222) arbitrate and negotiate a
dispute, and to end a boycott that was then in process at
the store that we call Liberty Supermarket No. 1.
Q And your function was to handle Liberty S u p e r m a r k e t ' s
side of the negotiations?
THE COURT :
291
A That is correct.
Q In so doing, did you personally negotiate with
the persons representing the other side of the dispute?
A I did.
Q Could you name the organizations and persons with
whom you negotiated?
A I negotiated with a group called the Interdenomi
national Ministers Alliance, and I negotiated with two attor
neys who represented, I gave you the Interdenominational
Christian Alliance, and those attorneys were Peter A. Hall
and Orzell Billingsley, Jr.
Q This organization, is this a local organization?
A As I know it, being a member of the Baptist Church
and my own pastor belonging to it, it is a local organiza
tion comprised of Jefferson County ministers who have
formed into an Alliance, Methodists, Baptists, Episcopal,
Presbyterian and other ministers.
(223) Q At any time did you negotiate with repre
sentatives of the Southern Christian Leadership Conference?
A I did not.
Q To your knowledge, were they involved in this
dispute?
A Not to my knowledge.
MR. RALSTON:
That is all.
292
CROSS EXAMINATION
BY MR. KOPELOUSOS s
Q Mr„ Newton, you said you represented the Liberty
Supermarket at that time?
A Yes, sir; I did.
Q
time?
Were you the sole attorney for Liberty at that
A I was not. Mr. Jim Barton, if my memory serves
me correctly, represented the store generally. Nobody else
participated in these negotiations but me.
Q
too?
You had represented the store on previous occasions
A No, I had not. I was retained just at this parti-
cular instance. I have, subsequent to that time, I have
represented them generally.
Q Prior to this time you had never represented them?
(224) A That is correct.
Q
them?
So far as you know, Mr. Barton had represented
A I know Mr. Barton had represented Liberty Super-
market, but on what other occasions I don't know about.
I know he represented them generally.
Q You said you negotiated with Peter Hall. That
is the same gentleman sitting down here representing Southern
Christian Leadership Conference?
293
A I don't know who he represents in this matter.
Q This is the gentleman sitting at the end of the
table you negotiated with?
A That is one of them.
Q And Orzell Billingsley?
A Yes; he was the other attorney I negotiated with.
I must add at this time most of my negotiation was not done
with any attorneys present.
Q Let me ask you this. I think you said Orzel
Billingsley, is it not true Mr. Hall and Orzell Billingsley
are law partners?
A No; it is not true.
Q Were at that time?
A No. They never have been.
(225) Q Are they associated and work out of the
same office?
A They work out of the same office.
Q Let me ask you, Mr. Newton, if a part of the
settlement that was entered into between Liberty and the
group, whoever they may have been, was the dismissal of
a certain lawsuit that was pending between Liberty Super
market at that time —
A Not as far as my negotiations were concerned.
Q Who negotiated that part of it?
A I can't testify to that, because I don't know what
294
was in existence.
Q Well, do you know what the terms of the settlement
were?
A Yes, those that I negotiated, I do.
Q You said you handled the complete negotiations,
didn't you?
A As far as I know, that is correct. I handled
the negotiations, we had entered into some agreements that
were settled, I thought. I took off for Milwaukee, Wisconsin,
and I was reached by several people representing Liberty
to inform me negotiations had broken down, and finally I
entered an agreement (226) by telephone with several persons
from Wisconsin to Birmingham to Memphis, Tennessee, and the
boycott was finally called off in my absence. That was on
or about the 12th of March, 1966.
Q But you knew Liberty had a lawsuit pending against
someone for $2,000,000, if I am not mistaken, is that not
correct?
A I knew.
Q Did you file that lawsuit?
A No; I did not.
Q Do you know who did file that lawsuit?
A No, sir; I don't.
Q You knew there was a lawsuit pending, a
$2,000,000 libel lawsuit against the Southern Christian
295
Leadership Conference; is that not correct?
MR. HALL;
If Your Honor pleases —
A I did know. The only thing I knew about Liberty
at the time I entered these negotiations being involved,
we were in a position, and when I. say we, I am referring
to the store, we were in a position where we would have to
testify as to some arrests that had been made by the City of
Birmingham, and we discussed that in our negotiations, but
we did not discuss any (227) civil action.
Q Let's get back to the lawsuit now.
A I cannot get to that because I don't know anything
about it.
Q Wasn't it true as part of the settlement negotia
tions — ■
MR. HALL;
If Your Honor please, this witness has said three
times --
THE COURT;
He said he didn't know anything about it, but I
will permit him to ask it once more.
Q Wasn't it part of the settlement between Liberty
and the other parties in this case, a dismissal of a certain
lawsuit that Liberty had pending against the Southern
Christian Leadership Conference?
296
A Not a part of my negotiations. I can't say if
anyone negotiated that. I did not.
Q Who negotiated on behalf of Liberty?
A As far as I know, as far as ending the boycott,
I handled it.
Q You knew there was a lawsuit pending at the time
you entered the negotiations?
A I did not, anything other than the criminal action.
(228) Q I just asked you if you knew there was a
lawsuit pending?
A I did not.
Q You did not know anything about a $2,000,000 law
suit pending by Liberty?
A No.
Q Let me ask you if you knew anything about a tempo
rary restraining order filed by Liberty?
A I knew something about a restraining order and I
got it from whatever this Federal group is called who
comes in and tries to negotiate disputes. A special friend
of mine with Community Relations Service, he discussed it
with me after having discovered I represented Liberty, but
I did not deal with them.
Q You did not know anything about a temporary re
straining order entered by the Federal Court?
A I said I knew it secondhanded. This gentleman
297
came to talk to me after having had some conversation with
Judge Clarence Allgood, and he talked to me about it. I
never saw it.
Q As part of the settlement between Liberty and the
picketers and protesters, was that temporary restraining
order dissolved?
(229) A It was not discussed in our formal agree
ment, but we did discuss it, as I recall it, In the presence
— there was so many conferences during this time. I seem
to recall one conference where it was discussed with the
Community Relations group, and if I am not mistaken, that
part was settled between the United States District Judge
and the Community Relations Service, not me.
Q Wasn't that the Southern Christian Leadership Con
ference that was involved?
A I don't know. I never saw the injunction, and I
don't know.
Q If I show you a copy of an order, of a temporary
restraining order, can you identify it?
A I can recognize a TRO when I see one, because I
have seen many, but I wouldn't be able to recognize this
as one I saw, because I told you I did not see it.
THE COURT:
I don't think we need to waste any time on it when
he said he didn't see it and didn't know anything about it.
298
MR. KOPELOUSOS:
That is all we have.
THE COURT:
All right, you may come down, Mr. (230) Newton.
(Witness Excused)
MR. RALSTON:
Mr. Armstrong.
SIMON ARMSTRONG,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. RALSTONs
Q Mr. Armstrong, could you give your full name to
the Court, please?
A My full name?
Q Yes.
A Simon Armstrong.
Q Where do you live, Mr. Armstrong?
A 430 - 10th Avenue, North.
Q Birmingham?
A Birmingham.
Q What is your occupation?
A I am on pension now. At the time I was working
at Burger Rest Home on 78 Highway.
Q Mr. Armstrong, I would like to call your attention
to February, 1966, and ask you whether or not you were involved
299
in any picketing or demonstrations at (231) Liberty Super
market?
A That's right.
Q And specifically, the date of February 22nd, when
there was a shooting at Liberty Supermarket, were you there?
A Yes.
Q Why did you go to picket Liberty Supermarket, Mr.
Armstrong?
A Why did I do what?
Q Why did you go to picket Liberty Supermarket; what
was the reason for doing it?
A What was my reason for doing it?
Q Yes, sir.
A Well, my pastor and a bunch of preachers was doing
the picketing, and I heard what had happened, what it was all
about, and I volunteered and went and picketed.
Q This was because you had heard your pastor and
local ministers ask for people to picket?
A Yes.
Q Do you know what the demonstrations were about,
what had occurred at Liberty Supermarket?
A I know what they said it was about, from violence
(232) — what it started about, a man and his wife were mis
treated in Liberty Store.
Q Now, on the night of the shooting, about what time
300
do you recall you went down to Liberty Supermarket?
A Well, about eight, around eight o'clock, I believe
it was, or in that vicinity. It was seven or eight o'clock,
in that vicinity.
Q When you went down there, were you carrying a
picket sign?
A I went down and got a picket sign.
Q Who gave you the picket sign?
A I couldn't tell you.
Q Just someone?
A Someone that was there I relieved, and they gave
me one.
Q Where were you picketing?
A Where was I picketing?
Q Yes.
A On the Fifth Avenue side. I had that side.
Q You were picketing on Fifth Avenue?
A Fifth Avenue.
Q Between 12th and 13th Street?
(233) A That's right.
Q Now, did you, at any time —
THE COURT %
You mean you were picketing along the sidewalk,
or on the property?
A No; I was on the sidewalk. We had orders to get
301
off the property, not picket the property, It was on the
sidewalk.
Q During the time when you were picketing, did an
automobile come out of the parking lot at Liberty Super
market?
A No. I had stopped picketing then.
Q And where had you gone then?
A We had put up our picketing tools and I was
standing down on Fifth Avenue and 14th Street waiting for
the Church committee, they were going to picket, to come
down and have a prayer service. The picketing was over
and the Church had turned out, our people, and they come
by and they had come around picketing, they had come around
the supermarket. I will say this is the sidewalk, and this
car come out, as the car come out of Liberty —
Q Out of the parking lot?
A Out of the parking lot.
(234) Q Where were you going?
A I was walking on up, and I got up just a little -
he got up there before I stopped.
Q You were walking on the sidewalk?
A On the sidewalk, and I stopped, and my mind said,
I sort of said to myself —
MR* LORANT;
Your Honor
302
Just tell what you did. You were still on the side
walk?
A On the sidewalk.
THE COURTS
Was the car on the sidewalk?
A He had me blocked on the sidewalk.
THE COURT:
He was on the sidewalk?
A Yes, sir.
THE COURT:
Then you went up to where it was?
A Yes, sir.
THE COURT:
Pick up there. You can't tell what you said to
your mind. Undisclosed mental operations are not admissible
in evidence.
A And I was six feet from the car where I stopped,
where he had blocked me.
Q Could you see why the car had stopped?
A No; I couldn't, see why the car had stopped, but
(235) he had done run up close enough to me --
MR. LORANT:
May it please the Court —
THE COURT:
303
Was there other traffic along the street?
A Yes, sir.
THE COURTS
Had he gotten out to the curbline?
A Yes, sir, and was in position to stop.
THE COURTS
He was setting stopped at the curbline?
A Yes, sir.
Q When you came up to the car, were other people
with you?
A Yes, sir. There was a bunch of us coming up
there.
THE COURTS
You were with the Church people?
A Yes, sir. All the Church people come up there.
Q And you were walking along the sidewalk toward
prayer meeting?
A Yes, sir. They were over at the prayer service.
They had done stopped over there. I was going there to
lead the prayer service. Nothing had happened, everything
lovely.
Q What did the crowd do when it came up to the car?
A The car that had us blocked?
(236) Q Yes.
THE COURT s
3 04
A We had to stop because we weren't allowed to go
on Liberty property.
Q Did you see anybody in the crowd touch this auto
mobile?
A No.
Q You were five to six feet away from the automobile?
A I am five or six feet away from the car.
Q Did you hear anybody yell at the driver?
A No. Everything was lovely, everything was perfect.
I had done got lined up for what I was going to start off
with prayer service.
Q What happened then?
A I got up to the car. You want me to stand up,
Judge?
THE COURT t
Yes, if you need to.
A Well, I got about six feet from the car, and I
had my Bible on the side here and standing up there waiting
for him to pass by. That is why I was standing, waiting
for him to pass by, and all I heard was one pistol fire, "Dow",
"Dow, 11 and I said, oh, Lord, I am shot.
(237) And he went back to Fifth Avenue where I
was, and the first man I saw came up in an automobile, I
asked him will you take me to the doctor, I am shot. He
said, no, I can't take you, let the police take you.
305
At that time there was a bunch of police, I reckon
ten or fifteen police here and there when I walked back
where I was shot, and everybody was standing, and the police
said what is all of this, you already got the police here
already. They were standing there with different ones.
Q Were you seriously injured, Mr. Armstrong?
A No, I wasn't seriously, but God didn't let it be
seriously.
Q It went in and came out?
A Yes, sir. And I said nobody doesn't care but God.
THE COURTi
At the time that shooting started, did you see
anybody rocking that car?
A No; I did not, and I was standing right in front
of the car, and I didn't see it. I won't say it didn’t
happen, but I didn't see it.
THE COURT:
Were you about the closest person (238) to the
car?
A Now, I don't know, Judge, I couldn't tell you
whether I was the closest person, I don't know.
Q But you were five or six feet away?
A I was five or six feet away.
Q Did you hear anybody shout?
306
Did you hear anybody shout, "Get him"?
A No, no bad language.
THE COURT;
No shouting at all?
A No, sir, at the time we got shot.
THE COURT:
He hit you?
A Hit me, and it said, "Dow, Dow, and Dow, Dow, Dow,
Dow." The police said eight shots were fired. I don't
remember.
THE COURT:
Did you hear a second bunch of shots?
A No, this was Dow, Dow, Dow, Dow, Dow, Dow.
MR. RALSTON ;
That is all.
THE COURT;
All right, Mr. Kopelousos, you want to ask him
any questions?
MR. KOPELOUSOS;
Just a very few, Judge.
(239) CROSS EXAMINATION
BY MR. KOPELOUSOS;
Q Mr. Armstrong, have you talked to anybody about
THE COURT 5
this case?
A About what?
Q Talked to anybody about the testimony you have
given today?
A
fore.
I talked to the Judge when we had a meeting be-
Q Have you talked to anybody about what you were
going to testify?
A I did not swear to anything that wasn't true.
Q I understand that, but did you talk to anybody
about this case?
A When?
Q Any time before you testified, the last few days
A Oh, I talked what I am going to tell the truth
about it is what I am going to tell.
Q Who did you talk to about it?
A I don't know.
Q Did you talk to the lawyer about it?
A
you.
Yes; I told him what happened, just what I told
(240) Q And you talked about it yesterday and thi
morning, and down to the present; is that correct?
A I talked about it.
Q Which Church do you go to?
A St. James Baptist Church.
Q Where is that located?
308
A I have been there since I was converted. Sixth
Avenue and 11th Street. I am a Deacon and a Sunday School
teacher.
Q Who is the preacher?
A Reverend C. W. Seward.
Q Let me ask you, do you see that button right
there in front of you? Do you know about this button?
Have you ever seen this button before?
A No; I have never seen that before.
Q You have never seen a Southern Christian Leadership
Conference button before?
A No. That is something I don't know nothing about.
I don't ask questions and I don't read about it. The
Christian Movement is what I know about.
Q The Alabama Christian Movement of Human Rights?
A Yes. That is the reason I went on the picket
line.
(241) Q Do you know about Martin Luther King?
A I have seen him, a great Christian leader, sure,
I have seen him.
Q Out there that night, about how many people were
out there that night?
A I couldn t tell you. There was a bunch of people.
Q Do you know all of those people out there?
A No. I don't know all the people in my Church.
309
M R . KOPELOUSOS:
That is all I have, Your Honor.
THE COURT:
Anything else?
MR. RALSTON:
No, sir.
THE COURT:
All right. You can come down. You may be excused.
(Witness Excused)
MR. HALL:
Rosa Small, please, sir.
ROSA SMALL,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. HALL:
Q Will you state your name, please, ma'am?
A Rosa Small.
Q Where do you live, Mrs. Small?
(242) A 1533 Druid Hill Drive.
Q That is here in the City of Birmingham?
A Yes, sir.
Q Do you work?
A No, sir.
Q Are you a member of any Church?
Yes, sir.A
310
Q What Church do you go to?
A Galilee Baptist Church.
Q Who is your minister?
A R. H. Tompkins.
Q Mrs. Small, I want to direct your attention to
the night of February 22, 1966. Do you remember that
night?
A Yes, sir.
Q Were you at or near Liberty Supermarket on that
night when some people allegedly were shot?
A Yes, sir.
Q Will you tell us where you were with reference
to Liberty Supermarket when this incident occurred?
A 1 was sitting on 13th Street right across from
the market in a car.
Q You were sitting in a car on 13th Street?
(243) A Yes.
Q Right across in front of the market?
A Yes.
Q How close were you at or near the driveway that
drives off the market premises?
A
of 13th.
I was direct in front of the driveway coming out
Q You were directly across in front of the driveway
that comes off the Liberty Supermarket premises?
311
A Yes, sir.
Q You were sitting in your car. Who was sitting
there with you?
A A man was there with me.
Q You were just sitting there looking, or were you
about to get out?
A I was fixing to get out.
Q And had you been to Church that night?
A Yes.
Q What Church had you been to?
A Out here on Fourth Court.
Q St. Paul's?
A Yes.
Q And you were coming down to Liberty Supermarket.
(244) About what time of night was it, do you recall?
A I would say around ten or ten-thirty.
Q You had just pulled up and were about to get out
of your car?
A Yes, sir.
Q Then what happened, can you tell the Court?
A I heard a car start up and race the motor real loud,
and he pulled up —
Q When you heard him start up and race the motor
real loud, did you look up to see where it was?
A Yes, sir.
312
q You did look up and saw the car?
A Yes „
Q Tell us what happened.
A And he pulled up, and he be letting it up real
fast, and he pulled back up and started shooting.
THE COURT s
You say he pulled up and back up and then started
shooting?
A He pulled up, then put it in reverse and pulled
up and started shooting.
Q When you say he pulled up, you say you heard the
car start up and heard the motor race real fast?
A Yes, sir.
(245) Q Did he pull up to the driveway of 13th
Street?
A
Q
A
Q
A
Q
He pulled up real fast, and he backed up.
And then he pulled back up in the driveway?
Yes.
You were looking right at him?
Yes.
Were there any people close to him when he started
shooting?
A Wasn't anybody close to the car. They were on
the side.
Q About how close to him were they?
313
A I would say about as close as the wall.
Q Did you see anybody put their hands on that
gentleman's car?
A I didn't.
Q Did you see anybody throw anything at him, or
shoot at him, or attack him?
A I did not.
Q Did you see any members of the crowd, or hear them
shout any epithets there at the man?
A I heard them say somebody done got shot, and some
body said get the tag number.
THE COURT:
Did you hear anything before the (246) shooting?
A I didn't hear nothing before the shooting.
Q How close to the shooting would you say you were,
in your best judgment?
A I guess about as close as that green thing.
Q About as close as that green thing?
A I was across 13th Street, and he wasn't quite
up to the driveway.
MR. HALL:
Could we stipulate that is maybe sixty feet?
THE COURT:
It looks like it is about forty feet.
314
MR• HALL %
Let the record show it is forty feet.
That is all we have.
CROSS EXAMINATION
BY MR. LORANT %
Q Rosa, do you know what grand larceny is?
MR. RALSTON;
We would like to object to the witness being ad
dressed by her first name.
Q Mrs. Small, do you know what grand larceny is?
A Yes.
Q Have you been convicted of it?
A Yes.
MR. LORANTt
No more questions.
(247) MR. HALLs
That is all.
THE COURT t
When was that?
A About ten years ago.
THE COURTS
All right. You can come down.
(Witness Excused)
MR. HALLs
Pauline Hall.
315
PAULINE HALL,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. HALL:
Q Will you state your name and address?
A Pauline Hall, 3729 Pike Avenue, Southwest.
Q Are you employed anywhere?
A No.
Q
A
Q
A
Q
market
A
Q
(248)
Are you a member of any Church?
New Hope Baptist Church.
Do you recall the night of February 22, 1966?
Yes, sir.
On that night were you at or near Liberty Super
in the City of Birmingham?
Yes, sir.
About what time of the night were you there?
A About ten, I imagine, I really don't know
what time it was.
Q Were you present when some people were allegedly
shot on the premises there?
A Yes, sir. I was across the street.
Q You were across the street?
A Yes, sir.
Q Which street?
A Across 13th Street.
316
Q 13th Street?
A Yes, sir.
Q Were you standing there or in a car?
A I was sitting in a car.
Q What was your reason for being there?
A Looking at the people march.
Q You had come down just to observe?
A Yes, sir.
Q When you were looking at the driveway that leads
off of Liberty premises on to 13th Street when allegedly a
man in an automobile shot some people, is that where you
were looking?
A Yes, sir. I heard the shots.
Q You heard the shots?
(249) A Yes, sir.
Q You did not see the shooting?
A No, sir.
Q Now, were you observing the crowd immediately be
fore you heard the shots? Did you look at the pickets
immediately before you heard the shots?
A Yes, sir.
Q Was there any violence, or any disorder among
pickets at that time?
A I couldn't see it if it was.
Q Did you hear the pickets, any of the other -- were
317
there any Negroes on the premises at that time?
A Yes; there was.
Q Did you see them attack anyone?
A No, sir; I didn't.
Q Did you hear them abuse anyone, verbally, or shout
anything?
A No, sir.
Q You did not see the man when he did the shooting?
A No.
Q You did not see a car drive up to the driveway?
A No, sir; I didn't.
MR. HALL:
That is all.
(250) MR. KOPELOUSOS:
That is all.
THE COURT:
You can come down, you are excused.
(Witness Excused)
MR. HALL:
One other witness, Minnie Embry.
MINNIE EMBRY,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. HALL:
Q Will you please state your name and address?
318
A Minnie Embry, 1533 Druid Hill Drive.
Q That is here in the City of Birmingham?
A Yes, sir.
Q Are you employed?
A No, sir.
Q You don't work? You are a housewife?
A Yes, sir.
Q Did you say yes you worked, or no?
A No.
Q Are you a member of any Church?
A Yes, sir.
Q What is your Church?
A Galilee Baptist.
(251) Q Who is your minister?
A Reverend R. H. Tompkins.
Q I direct your attention to the night of February
22, 1966. Do you recall that date?
A Yes, sir.
Q Were you at or near the premises of Liberty
Supermarket at any time on that day?
A Yes, sir.
Q About what time of day was it?
A I don't know exactly what time it was.
Q Was it day or night?
A It was at night, I think about 9 s 30 or lOsOO o ' c l o c k
319
q What were you doing there?
A I was going across the exit of 13th Street side
to get in the line.
q To get in the picket line?
A Yes, sir.
Q You were going across the exit of 13th Street
side to get in the picket line?
A Yes, sir.
Q And what happened at that time?
A I heard a car motor, and when the car pulled out,
(252) I had crossed some exit, and there was some shooting,
about five shots, and I looked back, and I went over there
and the car pulled out and went up 13th Street.
Q When you were crossing the exit, did you see the
car pull up there to the exit? Did you look at it?
A No, sir; when I heard the motor, I seen the car
over when it pulled out of the parking place. It was on
the lot.
Q Then the car came on up to this exit?
A Yes, sir.
Q When the car got to the exit, where were you?
A Across the exit and going up 13th Street toward
Fourth Avenue.
Q Going south toward Fourth Avenue?
A Yes „
320
Q So you had crossed the exit and were on the side
walk?
A
Q
far were
A
Q
A
(253)
car?
Yes, sir.
When the car pulled up to 13th Street, about how
you from the car?
I might have been about 50 feet.
About 50 feet?
Yes, sir.
Q Did you see anyone at that time touch that
A
Q
A
Q
the
A
Q
A
Q
that
A
MR.
No, sir; I didn't.
Was any disorder on the picket line at that time?
No, sir.
Did you hear anyone curse, or abuse, or yell at
driver of that car?
No, sir.
Did you yourself get shot?
No, sir.
But you do know some other people were shot on
occasion?
Yes, sir.
HALL:
That is all.
THE COURT s
Did you see anybody shaking the car?
A No, sir; I didn't.
321
THE COURT s
Did you see the man pull up, and then move back,
or did you just see him move up?
A I just seen him pull up.
THE COURT:
You heard the shots?
A Yes, sir.
THE COURT 2
Did you see him pull the gun out, or point the
gun?
A No, sir. My back was turned.
(254) THE COURT:
Any questions?
MR. LORANT:
No, sir.
MR. HALL:
That is all.
(Witness Excused)
MR. HALL:
That is all, Your Honor.
THE COURT:
We are going to recess. Does that conclude your
case?
MR. HALL:
Yes, sir.
322
THE COURTS
Do you have anything in rebuttal?
MR. LORANTs
No, sir.
THE COURT:
Both parties rest. We will recess until Is20.
(Noon Recess)
MARCH 5, 1968 ls20 P. M.
MR. RALSTON:
I would like preliminarily to make two motions,
one is a motion to amend our answer to conform to the proof
alleging contributory negligence and the assumption of risk
on the part of the plaintiff.
THE COURT:
The amendment will be allowed.
I will be glad to discuss with you whether that
answer is proper in this case, whether or not you have
proven it. You have a general denial which puts the
(255) burden of proof on the plaintiff, and I would be glad
for you to point out where there is contributory negligence
involved.
MR. RALSTON:
You want me to speak to that at this time?
THE COURT:
Yes.
323
MR. RALSTON:
We feel under the general principles of the Nui
sance Law, if a person voluntarily places himself in a
situation where he suffered an injury, where he foresaw,
or by the exercise of reasonable care might have foreseen
he would sustain injury, that is a defense, and we contend
the proof here, the testimony of the plaintiff himself, at
least, raises a serious question by getting out of the auto
mobile when he had even heard the shots, sitting where he
was, sitting there watching for ten minutes the activities
that were going on, and sitting there where he should have
known there would be trouble, particularly after he heard
the shots, and getting out of the car, and putting himself
out of the car where he may not have been injured if he re
mained seated where he was.
THE COURT:
That would be applicable only to the (256)
nuisance count. The nuisance count has to be based upon
negligence before the plea of contributory negligence will
lie to it.
MR. RALSTON:
Yes, sir. I believe, though, looking into the
law, that if there is a nuisance that exists, and that if
the defendant or plaintiff was seeking to receive damages as
a cause, or because the nuisance is there, sees it and
324
voluntarily enters into a situation where he could be in
jured by it, •— -
THE COURT:
I will submit that to the jury and let the jury
pass on it.
MR. RALSTON:
The other matter is a renewal of our motion for
a directed verdict.
THE COURT:
I will take that under advisement. You may pro
ceed with the argument.
(Whereupon, counsel for the respective
parties addressed the jury in argument, follow
ing which the Court charged the jury as follows:)
THE COURT:
ORAL CHARGE OF THE COURT
Members of the jury, after the evidence is closed,
and after the arguments have ended, it becomes the duty of
the Court to instruct (257) the jury as to the law appli
cable to the facts and evidence and issues in the case.
The plaintiff has filed a lawsuit here against
Southern Christian Leadership Conference, a Corporation.
He has stated his complaint in two counts. One of these
counts is based upon what is known in law as nuisance, and
the other is based upon what we call negligence.
325
The defendant has filed a plea of the general
issue to both counts, to each count. The general issue
is nothing more than a general denial, and that issue, the
general issue, places upon the plaintiff the burden of
proof to establish one or more of these counts. It places
upon him the burden of establishing, if he wishes to recover
under the nuisance count, that count, or if he wishes to
recover under the count of negligence, that count. By
burden of proof,we mean the necessity or duty of affirma
tively proving a fact or facts on an issue raised between
the parties to the cause.
The defendant has interposed a special defense
to each one of these counts, and the special defense is that
of contributory negligence. Contributory (258) negligence
would constitute a defense to the charge of negligence,
if the contributory negligence of the plaintiff, if you
find that there was contributory negligence on his part,
proximately contributed to his own injury and damage. It
may or may not constitute a defense to the count based
upon nuisance, and I will explain that to you shortly.
The burden of proof is upon the defendant with
respect to these special pleas of contributory negligence.
That is to say the burden of proof is upon the defendant
to reasonably satisfy you of the material allegation or
charge of contributory negligence.
3 26
The burden of proof is upon the plaintiff to rea
sonably satisfy you of the material allegations of each
count of the complaint which he has filed against the de
fendant in this case.
In the count based upon nuisance, I will read
parts of it so you will understand the import.
"The plaintiff avers that on, to-wit, and on and
prior to February 21, 1966, at, to-wit, the premises known
as Liberty Supermarket, 420 North 13th Street, Birmingham,
Jefferson County, Alabama, undertook to picket — " he
left out the word defendant, (259) "The defendant under
took to picket, parade and demonstrate against Liberty
Supermarket and did thereby cause an incident, to-wit,
a riot and shooting that resulted in plaintiff being shot
and caused the plaintiff the following injuries."
Then there is a detail of the injuries which I
will not read to you. You have heard the evidence in re
gard to those injuries.
"The plaintiff avers his injuries and damages
were caused as a result of a nuisance, to-wit, brought
about by the picketing and parading and demonstrations
of the defendant and diverse persons brought together at
said time and place by the defendant to parade and picket
and demonstrate; and that said picketing and parading and
demonstrating caused the eruption of violence which
327
constitute, to-wit, said nuisance and caused the plaintiff
to suffer the injury and damages as aforesaid. Plaintiff
avers his injuries and damages are the proximate conse
quence of the nuisance as set out here and above.”
The Legislature of Alabama has defined nuisance,
Title 7, Section 1081, of the Code of Alabama, provides,
"A nuisance is anything that worketh hurt, (260) incon
venience, or damage to another; and the fact that the act done
may otherwise be lawful does not keep it from being a
nuisance. The inconvenience complained of must not be
fanciful, or such as would affect only one of a fastidious
taste, but it should be such as would affect an ordinary
reasonable man.”
Now, Section 1084 says, "Nuisances are either
public or private. A public nuisance is one which damages
all persons who come within the sphere of its operation,
though it may vary in its effects on individuals. A private
nuisance is one limited in its injurious effects to one or
a few individuals. Generally, a public nuisance gives no
right of action to any individual, but must be abated by a
process instituted in the name of the State. A private
nuisance gives a right of action to the person injured."
Section 1086 says thiss "If, however, a public
nuisance causes a special damage to an individual, in which
the public do not participate, such special damage gives a
3 28
right of action.” Then 1087: "A private nuisance may in
jure either the person or property, or both, and in either
case a right of (261) action accrues.”
So there you have the definition of nuisance and
the type of nuisances.
Of course, the plaintiff has to establish this
to begin with to your reasonable satisfaction; that it was
the Southern Christian Leadership Conference that was in
volved here. It doesn't mean they have to be exclusively
involved. They had to be acting in some capacity there
before they would be liable. It is a corporation, and a
corporation is an artificial being, invisible, intangible,
existing only in contemplation of law, and it can act only
through agents.
You have heard the evidence in the case. I am
going to submit to you for your determination whether or
not the Southern Christian Leadership Conference, the defen
dant here, was involved in the situation that I have out
lined to you. If they were not, if they were not there by
agent, or by some act or deed, then the plaintiff would
have no right of recovery either in negligence or nuisance,
and it would be your duty to return a verdict for the defen
dant in the case.
If, on the other hand, you are reasonably satis-
(262) fied from the evidence that the Southern Christian
329
Leadership Conference was partially, at least, responsible
for what happened down there, then you would have to go
a step further. You would have to determine whether or
not what happened was the proximate cause of the acts that
the Southern Christian Leadership Conference did, or
caused to be done.
Proximate cause, the burden of proof rests upon
the plaintiff with respect to proximate cause. What do we
mean by proximate cause. Proximate cause is the direct
moving cause which, in the natural and logical and probable
sequence of events produces the injury, and without which
the injury would not have resulted. If there was some
intervening cause that caused it, the proximate cause would
not be shown. Now, that is true both as to negligence
and as to nuisance. This element is an ingredient of the
plaintiff's proof, he has to prove it.
If these people were down there and you are rea
sonably satisfied that the Southern Christian Leadership
Conference was partially responsible for the picketing
and what happened down there, and a man comes along and
commits a criminal act, just because (263) he doesn't
like the pickets down there, then there is no reason
why the Southern Christian Leadership Conference should be
responsible for this matter. It doesn't make any difference
whether they had a permit or not. If I am driving my car
330
down the road and I don't have a driver's license, and I
hurt somebody, you can't urge before a jury 1 did not
have a driver's license. That isn't the issue. The issue
is whether or not I was guilty of negligence in that case.
You have two issues, whether this Southern Christian
Leadership Conference was guilty of a nuisance and whether
or not that nuisance proximately contributed to this man's
injuries and damages; and, secondly, whether or not they
were guilty, or the defendant was guilty of negligence, and
whether or not that negligence proximately contributed to
the plaintiff's injury and damages. An intervening indepen
dent criminal act would not be the proximate result of this.
On the other hand, if they started an involvement,
a riot, or something, and a man started shooting, that would
be something different. You have heard the (264) evidence
in this respect.
The second count of the complaint, as I said,
is based upon negligence. I will read the pertinent portion
of the complaint.
The plaintiff avers that the defendant on this
date undertook to picket and demonstrate at, to-wit, the
Liberty Supermarket at 421 North 13th Street, Birmingham,
Jefferson County, Alabama, and that the defendant at said
time and place negligently allowed said pickets and demon
strators to erupt into violence, that the defendant was
331
negligent in failing to adequately provide safeguards, in
cluding to-wit, control and maintenance of the pickets
and paraders for the proper protection of members of the
public which might be injured as a result of any violence
that might erupt, and defendant knew, or had reason to be
lieve, or with reasonable diligence would have known that
said picketing and parading at said time and place as afore
said would erupt into violence and create a near riot and
that great danger to the life and limb of the public includ
ing the plaintiff would be attended to said picketing,
parading and demonstrating if said picketing, parading and
demonstrating (265) were not protected by said defendant
to proper controlling said picketing, parading and demon
strating. "
And he charges his injury proximately resulted
from the negligence of the defendant as aforesaid. You
will keep in mind the definition of proximate cause. It
is the direct moving cause, which in the natural and probable
and logical sequence of events, without the intervention
of any independent cause, produce the injury and without
which the injury would not have occurred. That definition
is applicable both with respect to the nuisance count and
with respect to the negligence count.
I might state to you the mere filing a complaint
does not establish anything in a case. The complaint is the
332
vehicle by which, or the instrument by which a person comes
in and states his claim in court. The mere fact that an
incident has happened and somebody has been injured does
not give rise to a presumption of negligence or to a pre
sumption of a nuisance. These matters have to be estab
lished by proof to the satisfaction of the jury from the
witness stand.
With respect to both of these counts, the defen
dant has pleaded contributory negligence. They (266) say
that William Maxwell did not use the degree of care he
should have used, and that this proximately contributed
to his own injury and damage. Of course, if that was the
case, that would constitute a complete defense to the charge
of negligence because we don't have the rule of comparative
negligence in this State; that is to say, we will figure up
who was mostly at fault and apply the percentage and take a
vote for the balance. That rule does not prevail in this
State. If a man is guilty of contributory negligence which
contributes, to any extent, to his own injury and damage,
that bars him from a recovery.
With respect to the nuisance count, it may con
stitute a defense, depending upon whether or not the nuisance
was basically grounded upon negligence, and I will read an
Alabama case to you. If that was the case, contributory
negligence would be a defense to the charge of nuisance.
333
The Alabama Supreme Court has made some declara
tions with respect to this matter that I will read to you.
This Court, although it is a Federal Court, is controlled
by the basic law as announced by the Supreme Court of
Alabama.
(267) In 245 Alabama at page 70 the Supreme Court
states this:
"Negligence and nuisance are distinct torts.
They may be different in their nature and consequences.
But in either event there must be a breach of duty owing
by defendant to plaintiff."
That is to say there must be a breach of duty,
and the plaintiff must establish that breach of duty, and
he must show damages proximately resulting therefrom.
The liability for negligence is based on a want of proper
or due care. I might give you. the definition of negligence
at this point.
Negligence is the doing of that which an ordinary
prudent person would not do under the same or similar cir
cumstances, or the failure to do that which an ordinarily
prudent person would do under the same or similar circum
stances .
The Court says: "The liability for negligence
is based on a want of proper care. And as a general rule
liability for nuisance does not depend upon the question of
334
negligence, and may exist although there is no negligence.
However, a nuisance may be and frequently is the conse
quence of negligence, or the (268) same acts or omissions
which constitute negligence may give rise to a nuisance."
The Court goes ahead and says: "if defendant's acts are
inherently wrongful or in violation of law and create a
nuisance, regardless of the diligence observed, there is
no element of negligence necessary. But if defendant's
affirmative conduct did not constitute a nuisance, and it
was not prohibited by law, but the nuisance arose because
of some omission to act, then it is based on a negligent
or intentional omission of that duty, and does not exist
if defendant exercised due care under all circumstances."
Then the Court describes this question of contri
butory negligence and says this %
"As to contributory negligence, the authorities
are uniform that, generally speaking, one is not precluded
from recovering damages which are the proximate result of
an absolute nuisance (that is a nuisance, the substance
of the wrong in respect of which is not negligence) by the
fact that the exercise of ordinary care on his part he could
have avoided the injury. But the rule is different when
the claim is inherently based on negligence. And in (269)
all such cases ordinary care is measured by the danger and
its surroundings."
335
So, in determining whether or not the plea of
contributory negligence is applicable, you have to deter
mine the nature of the nuisance involved, if there was a
nuisance. If there was no nuisance, you don't get to it.
Was there a nuisance that was inherently wrong as to which
negligence would be no defense, or was there a nuisance of
negligence. If so, then the plea of contributory negligence
would be applicable if you are reasonably satisfied that
there was contributory negligence involved.
Now, you can see it gets to be a right compli
cated problem, but nevertheless, there is a reasonable
solution if you apply your common sense to it.
So, members of the jury, I have given you the gist
of the complaint in the case, and I have tried to state to
you the law as applicable to the facts. You are the judges
of the facts in the case. You will consider all the evi
dence in the case, all the evidence that has come before
you either from the mouths of witnesses or the exhibits
which have been offered in evidence.
(270) If, after considering all of the evidence
in the case you are not reasonably satisfied from the
evidence that the plaintiff is entitled to recover, then
it would be your duty to return a verdict for the defendant
in the case. Or if you are reasonably satisfied from the
evidence that the defendant was guilty of a nuisance or was
336
guilty of negligence, but that the plaintiff himself was
guilty of negligence which proximataly contributed to his
own injury and damages, then he could not recover with
respect to the negligence count, and if you are satisfied
that the nuisance here arose out of negligence, he could not
recover as to the nuisance count, and it would likewise
be your duty to return a verdict for the defendant in the
case.
If, however, on the other hand, you are reason
ably satisfied that the defendant was guilty of a nuisance,
or was guilty of a negligence, or was guilty of both, then
it would be your duty to return a verdict accordingly.
If you find for the plaintiff in the case, then
you would come to the question of damages. The damages
awarded in a case of this kind are what is (271) known as
compensatory damages, such sums as will compensate the
plaintiff for the loss sustained with the least burden
to the defendant, consistent with the idea of fair compen
sation. Your damages would be damages that are reasonable,
and not speculative or remote. You would be entitled to
award the plaintiff damages for physical and mental pain
and anguish which he has suffered, or which you are rea
sonably satisfied from the evidence he will likely and
probably suffer in the future. You would be entitled to award
him any sums he has lost in wages from his work, and you would
337
further be entitled to award him the expenses that he has
incurred in medical and hospital treatment that you con
sider are reasonable in amount. You would not, of course,
award him any damages for attorney's fees, because attor
ney's fees are not recoverable in an action of this kind.
They can only be recoverable in a contract, or where there
is a statute involved.
I might state to you we have had an expert, a
doctor, testify here. A doctor is an expert, they admitted
that he was an expert. The extent of the experience of an
expert goes to the weight you will (272) give to his testi
mony. If an expert expresses an opinion as distinguished
from a fact, the jury is not bound by the opinion. You
have the right to consider the opinion, but you are not
concluded by the opinion. But if he testified as to a fact,
he said the man has a hole in his stomach, that is a fact,
and that evidence would be taken like any other witness
in that respect.
Now, this jury is the judge of the weight of
the evidence in the case, and you are also the judges of
the credibility you will give to a witness who has testi
fied. In judging those matters, of course, you would want
to consider a witness' intelligence, apparent intelligence
or lack of intelligence, the relationship, if any, the
witness has to a party in the case; the interest of a witness,
338
if there is an interest in the result of the case; the bias
or prejudice, if any, against any party in the case; the
demeanor of the witness who has testified on the witness
stand; his opportunity to know and to understand as applied
to the facts in the case; the extent to which a witness'
testimony is corroborated or contradicted, or impeached,
if such is the case; the (273) consistencies and discre
pancies in a witness' testimony if there are such.
These are all matters proper for your considera
tion .
You will try to reconcile all of the testimony
so as to make all the witnesses speak the truth, if it is
possible for you to do so. If it is not possible for you to
do so, it would be up to you to say what evidence you will
accept and what you will reject as being irreconcilable.
Every witness is presumed to speak the truth, but if you
are reasonably satisfied any witness has wilfully and cor
ruptly sworn falsely as to any material fact, you, in your
sound judgment, may disregard such witness' testimony in
its entirety.
You will not consider any evidence which has
been excluded from your consideration. Your verdict must
be based upon the facts, upon the evidence, and reasonable
inferences from the evidence.
You bring into the jury box your everyday experience
339
gained in a lifetime of following the pursuits in which you
are engaged in the communities where you live, and this
experience enables you to be judges of the facts and credit
you will give to a witness' testimony, but it does not
mean you can (274) go outside the evidence and consider
matters that are not reasonably inferred from the evidence.
You should not base a verdict upon sympathy and prejudice.
If a verdict is to be based upon sympathy and prejudice,
there is no need to take testimony. We would just have
fixed opinions and render a verdict accordingly.
There has been mentioned in this case Martin
Luther King, and Hosea Williams and Shuttlesworth, in con
nection with the Southern Christian Leadership Conference.
You can't return a verdict based upon the fact that those
men are connected with this organization. They are not
sued here. You base your verdict upon what the evidence
shows here and what the law is as applied to the evidence
as the Court has given it to you.
I might state to you if you find for the plain
tiff in the case it would not be proper for you to return
what is known as a quotient verdict. A quotient verdict
is one where the jury agrees in advance to abide the re
sults of the following computation. That is each juror
writes down the sum he wishes to award by the verdict, and
these amounts are added together and the total is divided
340
by twelve, (275) and the quotient, or the amount thus ar
rived at, being the verdict of the jury. That is not a
valid verdict. You could have a quotient verdict where
some of the jurors said we won't give anything, we'll put
down a zero, and the others said we will give so much,
you would add them up and divide by twelve, it would still
be a quotient verdict. If you agree in advance, that would
be an illegal verdict.
Let me give you two charges that are correct
statements of the law and are requested by the plaintiff
and are to be taken in connection with the Court's oral
charge.
"I charge you, members of the jury, that the doc
trine of private nuisance rests on the ancient maxim that
persons are to use their own rights or property in such a
manner as not to work hurt to another."
I believe that is the only one I will give here.
MR. RALSTON:
Your Honor, the defendant has one requested charge.
THE COURT :
It comes a little bit late.
MR. RALSTON:
It has to do with the authority.
THE COURT:
We don't go by the preponderance of (276) evidence
341
rules here. It is reasonably satisfied, and your charge
is drawn on the preponderance of the evidence rule.
The Clerk has, for your convenience, prepared
two forms of verdict.
Now, if after considering all the evidence and
all the issues in the case, you are not reasonably satis
fied that the plaintiff is entitled to recover, the form
of your verdict will be: We, the jury find for the de
fendant Southern Christian Leadership Conference, and one
of your number sign as foreman.
If, on the other hand, you are reasonably satis
fied that the plaintiff is entitled to recover, the form
of your verdict will be; We, the jury, find for the plain
tiff William J. Maxwell and against the defendant Southern
Christian Leadership Conference and assess his damages
at blank dollars, and one of your number will sign the ver
dict as foreman.
I am going to ask you to return a special verdict
if you find for the plaintiff. If you find for the defen
dant you don't get to this document at all. If you find
for the plaintiff I will ask you to render this special
verdict: Our verdict includes damages (277) based upon a
nuisance, yes or no. Our verdict includes damages based
upon negligence, yes or no.
As I stated to you, if you find for the plaintiff
342
you would, be authorized, in your sound discretion, to find
for the plaintiff on one or the other or both, so I will
ask you to answer those questions.
Any exceptions to the Court's oral charge, or to
the written charge?
MR. RALSTON:
We would like to except to the denial of this,
or ask it be modified to deal with, as I said, the main
defendant is to have authority.
THE COURT:
I think I gave the substance of that in my oral
charge.
MR. RALSTONs
You did speak of the corporation, but not whether
specific acts or an act was done under the authority given
by the corporation.
THE COURT:
I will give you this as an oral charge. The
defendant in this case is a corporation. Since a corpora
tion can act only through its officers, or employees, or
other agents, the burden is on the plaintiff to establish
to your reasonable satisfaction from the evidence in the
case that the negligence or other wrongful act of one or
more officers, or (278) employees or other agents of the
defendant was a proximate cause of any injuries and consequent
343
damages sustained by the plaintiff.
In addition, the burden is on the plaintiff to
establish to your reasonable satisfaction from the evi
dence in the case that any act or conduct of any officer
or employee of the defendant w a s an act done under autho
rity of the defendant corporation. The mere fact that a
person involved in the demonstrations or picketing involved
in this case was an officer or employee of the defendant
is not sufficient. It must appear that his acts were within
the scope of his employment or within the performance of
his duty as authorized b y t h e c o r p o r a t i o n .
MR. LORANT:
The plaintiff is entirely satisfied with the
Court's charge.
THE COURT:
It is recess time for the jury. You can take a
fifteen-minute recess and come back and Mr. Buttram will take
you back to the jury room for you to begin your delibera
tions.
Don’t discuss the case until you get in the jury
room.
( M i d - A f t e r n o o n R e c e s s )
( 2 7 9 ) ( W h e r e u p o n , a t 3 : 5 5 p . m . , t h e j u r y r e t u r n e d
to the c o u r t r o o m w h e r e t h e f o l l o w i n g o c c u r r e d : )
344
THE COURTS
Mr. Foreman, do you have some further question
you want to ask the Court about?
MR. FOREMANS
Yes, sir. We have found we need additional in
structions on your interpretation of the word proximate
consequence.
THE COURT s
Proximate consequence?
THE FOREMAN;
As it has to do — the word I am reading is proxi
mate consequence. .We are finding ourselves using the word
proximate consequence. I presume they are synonomous.
THE COURT;
They are synonomous and proximate result is
sometimes used in the place of it.
THE FOREMAN;
We have a question that has to do with injuries
and damages that are the proximate consequence of certain
acts.
THE COURT;
These terms are used interchangeably, proximate
cause, proximate consequence and proximate result. Now,
proximate cause, we will say, it is defined as the direct
moving cause as distinguished from the remote cause. The
345
direct moving cause which, (280) in the natural and logical
and probable sequence of events, without the intervention
of any new or independent cause, produces the injury, with
out which the injury would not have occurred.
The defendants claim that this man's shooting
into this crowd was an independent cause, and that what
they were doing there had no relation to it. The plaintiff
says there was a riot going on and it did have some rela
tion to it.
Suppose the man was going down the street and
he just pulled out a revolver and shot into the crowd.
That wouldn't, be the proximate cause. His acts would be
the direct cause of the injury, but the proximate cause of
people going along there doesn't have anything to do with
it.
You heard the evidence. This man was going out
the exit. Apparently he stopped for the traffic. There
is some evidence he backed up, and there is evidence he
apparently pulled out a revolver and began shooting. The
plaintiff contends they were rocking the car, and the
defendant said no, they weren't rocking the car, they just
came up, and if this was an independent criminal act of
this man, (281) what the Southern Christian Leadership
Conference did would not be the proximate cause of the in
jury.
346
Does that help you?
A JURORs
Yes.
THE FOREMANS
The word proximate can be paraphrased with natural,
proximate and probable.
THE COURT:
Yes.
Of course, the Southern Christian Leadership
Conference would not be responsible for that unless, in
some way what they did contributed to the fact which caused
this man's injury.
A JUROR:
May I inquire if my cohorts understand?
THE COURT:
You understand? That is as plain as we can make
it, and I want all of you to understand. Proximate con
sequence, proximate cause, proximate result mean the same
thing in legal terminology.
(Whereupon, at 4s00 p.m., the jury retired
to further deliberate, and at 5:10 p.m., the
jury was brought into the courtroom, where the
following occurred;)
THE COURT;
Mr. Foreman, you haven't been able yet to reach
347
a verdict?
(282) THE FOREMAN:
We have no verdict. We are approaching this matter
on a step by step basis, and at this point out of five poten
tial steps we have passed on two of them.
THE COURT:
I am glad you are taking your time and are doing
it the way it should be done. I am going to excuse you
until nine o'clock in the morning. In the meantime, don't
discuss the case with anybody or out of the jury room. In
the morning go directly to the jury room, so you will be
recessed until nine o'clock in the morning.
A JUROR:
Judge, you made a comment several times during
the course of the trial, and this is for the next two weeks,
you have said don't discuss this. Do you mean not amongst
yourselves or anybody else?
THE COURT:
Not amongst yourselves or anybody else, until
you get in the jury room and begin your deliberation.
(Whereupon, court was adjourned.)
(283) CERTIFICATE
STATE OF ALABAMA )
JEFFERSON COUNTY )
I, Thomas P. Meador, Official Court Reporter of
348
the United States District Court, Birmingham, Alabama,
do hereby certify that I reported in shorthand the fore
going proceedings at the time and place stated in the
caption hereof; that I later reduced my shorthand notes to
typewriting, or under my supervision, and the foregoing
pages contain a full, true and correct transcript of the
proceedings as herein set out.
OFFICIAL- COURT REPORTER.
. . . 0 O 0 . . .
A. B. LETTER SERVICE
327 Chartres Street
New Orleans, La. 70130