Wells v. Reynolds Jurisdictional Statement

    In t h e

&vipvmz (tort of tfyt Imtrlt Stairs
October T erm, 1965 

No..................

Samuel B. W ells and D onald Harris, et al.,
Appellants,

—v.—

R obert R eynolds, L aurie P ritchett, and B illy L. Manley,
Appellees.

ON a p p e a l  p r o m  t h e  u n it e d  s t a t e s  d is t r ic t  c o u r t

FOR THE MIDDLE DISTRICT OF GEORGIA

JURISDICTIONAL STATEMENT

Jack G r e e n b e r g  

James M. Nabrit, III 
10 Columbus Circle 
New York, New York 10019

C. B. K ing
221 South Jackson Street 
Albany, Georgia

Attorneys for Appellants

Charles H. J ones, J r. 
Charles Stephen R alston 

Of Counsel



I N D E X

Opinion Below ............. ............................... —~-------------  1

Jurisdiction ................... ....... ...........................---- --------  2

Questions Presented........... ................... ..... ...............—- 3

Statutes Involved .......... .............................. .............—  3

Statement ................. ................ .... ............-.................... -  4

The Questions Are Substantial ...................... ...............  12

Conclusion .........................................................................  28

Appendix: Opinion Below ................... ................. ......... la

Table op Cases

Aelony v. Pace,------F. Supp.------- , 8 R. Eel. L. Eep.
1355 (M. D. Ga., Nos. 530, 531, 1963) ...................... 16

Butts v. Merchants & M. Transp. Co., 230 U. S. 126 .... 22

Cameron v. Johnson, ------U. S. ------- , 33 U. S. L. W.
3395 ............................ ................ ........................ --2 ,14 , 27

Carr v. State, 176 Ga. 55, 166 S. E. 827 (1932) ___  23
Chaplinsky v. New Hampshire, 315 U. S. 568      23

Dalton v. State, 176 Ga. 645, 169 S. E. 198 (1933) -----  23
Dombrowski v. Pfister, 380 U. S. 479 ..... .....2,11,12,13,14,

17,18, 20, 25, 27

PAGE



Douglas v. Jeannette, 319 U. S. 157 ............................... 2

Gitlow v. New York, 268 U. S. 652 ...............................  23

Herndon v. Lowry, 301 U. S. 242 ...................12,14,15,16,
18,19, 20, 23

Jones v. Opelika, 316 IJ. S. 584 (dissenting opinion), 
adopted per curiam on rehearing, 319 U. S. 103 .... 22

Loomis v. State, 78 Ga. App. 336, 51 S. E. 2d 33 (1948) .. 22

Statham v. State, 84 Ga. 17, 10 S. E. 493 (1889) .......  22

Thornhill v. Alabama, 310 U. S. 88 ...............................  21

United States v. Eaines, 362 U. S. 17 ........................... 21

Wells v. Hand, 238 F. Supp. 779 ..... .................................  1
Williams v. Standard Oil Co., 278 U. S. 235 ......... ..... 21, 22
Winters v. New York, 333 U. S. 507 ............................... 20

Federal Statutes:

28 U. S. C. §§1253, 2101(b) ...........................................  2
28 U. S. C. §1343 ................................................   2
28 U. S. C. §§2281, 2284 .....     2
42 U. S. C. §§1971, 1981, 1983 ......................................... 2

ii

PAGE

State Statutes:

Ga. Code Ann. §26-901 
Ga. Code Ann. §26-902

....................3,15,16

....3, 9,10,11,15,16,
18, 23, 24, 25, 26, 27



I ll

Ga. Code Ann. §26-903 ....... ....... ......... ........ ................ 4, 9,15
Ga. Code Ann. §26-904 ........................ ...3, 4, 9,10,11,12,13,

15,16,17,18,19, 21, 
22, 23, 24, 25, 26

Ga. Code Ann. §26-5320 ................ ....................................  22

Other Authority:

Note, 61 Harvard Law Review 1208 ............ ..............  22

PAGE



I n  t h e

(Emtrt of tlj£ linxtvft States
October T erm, 1965 

No..................

Samuel B. W ells and D onald H arris, et al.,

Appellants,
— v .—

R obert R eynolds, L aurie P ritchett, and B illy L. Manley,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF GEORGIA

JURISDICTIONAL STATEMENT

Appellants appeal from the judgment of the United 
States District Court for the Middle District of Georgia 
entered on February 24, 1965, denying their prayer for 
injunctive relief, and submit this statement to show that 
the Supreme Court of the United States has jurisdiction of 
the appeal and that substantial questions are presented.

Opinion Below

The opinion of the District Court for the Middle Dis­
trict of Georgia, Albany Division, is reported in 238 F. 
Supp. 779, under the name Samuel B. Wells, Donald



2

Harris, et al. v. Fred Hand, Jr., et al. A  copy of the opin­
ion, including findings of fact, conclusions of law and judg­
ment, is attached hereto as an Appendix.

Jurisdiction

This suit was brought under 28 U. S. 0 . '§<§,1343(3) and 
(4) and 42 U. S. C. <§§1971, 1981 and 1983. A three-judge 
court was convened pursuant to Title 28 U. S. C. '§‘§2281 
and 2284. The suit was brought to enjoin threatened crimi­
nal prosecutions under Georgia statutes alleged to be un­
constitutional on their face and as applied as abridging 
freedom of speech, assembly, and the right to petition. 
The judgment of the District Court was entered on Febru­
ary 24, 1965 and notice of appeal was filed in that court 
on March 27, 1965. Subsequently, a motion to reconsider 
its opinion was filed in that court on May 17, 1965. On 
May 22, 1965, an application for an extension of time to 
docket the appeal and file the record was made to the 
presiding judge of the District Court pursuant to Supreme 
Court Rule 13(1), and said application was granted on 
May 24,1965. The order provided that the time for docket­
ing the appeal was extended until June 15, 1965. The juris­
diction of the Supreme Court to review this decision by 
direct appeal is conferred by Title 28 U. S. C. <§<§1253 and 
2101(b). The following decisions sustain the jurisdiction 
of the Supreme Court to review the judgment on direct 
appeal to this court: Dombrowski v. Pfister, 380 U. S. 479; 
Douglas v. Jeannette, 319 U. S. 157; Cameron v. Johnson, 
—— u. S .------ , 33 U. S. L. W. 3395.



3

Questions Presented

1. Where appellants have alleged that a criminal statute 
under which prosecutions are threatened is unconstitutional 
on its face, in that it abridges freedom of speech, expression, 
assembly and the right to petition for redress of grievances, 
was the District Court in error in denying injunctive re­
lief on the ground that appellants would sustain no ir­
reparable injury by having their constitutional claims 
adjudicated by the state courts?

2. Was the District Court in error in failing to hold 
that section 26-904 of the Georgia Code, which makes it a 
felony to circulate papers, pamphlets or circulars for the 
purpose of inciting insurrection, riot, conspiracy, or re­
sistance against the lawful authority of the state, is uncon­
stitutional on its face?

3. Was the District Court in error in failing to hold that 
section 26-904 of the Georgia Code was unconstitutional as 
applied to the activities of the appellants, as established 
by the evidence in this case?

Statutes Involved

Georgia Code Ann. Chapter 26-9.

26-901. Definition.- Insurrection shall consist in any 
combined resistance to the lawful authority of the State, 
with intent to the denial thereof, when the same is mani­
fested or intended to be manifested by acts o f violence.

26-902. Attempt to incite insurrection.—  Any attempt, by 
persuasion or otherwise, to induce others to join in any



4

combined resistance to the lawful authority of the State 
shall constitute an attempt to incite insurrection.

26-903. Punishment.—Any person convicted of the of­
fense of insurrection, or an attempt to incite insurrection, 
shall be punished with death; or, if the jury recommend to 
mercy, confinement in the penitentiary for not less than 
five nor more than 20 years.

26-904. Circulating insurrectionary papers.—-If any per­
son shall bring, introduce, print, or circulate, or cause to 
be introduced, circulated, or printed, or aid or assist, or 
be in any manner instrumental in bringing, introducing, 
circulating, or printing within this State any paper, pam­
phlet, circular, or any writing, for the purpose of inciting 
insurrection, riot, conspiracy, or resistance against the 
lawful authority of the State, or against the lives of the 
inhabitants thereof, or any part of them, he shall be pun­
ished by confinement in the penitentiary for not less than 
five nor longer than 20 years.

Statement

Appellants Samuel B. Wells and Donald Harris were 
involved in civil rights activities in Albany, Georgia, in 
1964. Samuel B. Wells is an official of the Southern Chris­
tian Leadership Conference and Donald Harris is a mem­
ber of the Student Nonviolent Coordinating Committee, 
organizations with headquarters in Atlanta, Georgia. These 
organizations were acting together with the Albany Move­
ment, a group composed of citizens of Albany, Georgia, in 
a program designed to obtain equal, rights for Negro citi­
zens of that city.



5

On Saturday, August 15, 1964, a Negro man, Wilmon 
Jones, was shot and killed by a member of the Albany 
Police Force at the Albany City dump (238 F. Supp. 780). 
When appellant Wells heard of the shooting, he conducted 
a brief inquiry and concluded that the killing was unjus­
tified (R. 290). Together with appellant Harris and others, 
he wrote and distributed two leaflets urging Negro citizens 
to attend a meeting that evening at a local church in order 
to take some action to protest the killing1 (R. 291-92).

1 Original copies of the leaflets were introduced as Plaintiffs 
Exhibits A  and B in the hearing below (R. 32-33). Their text 
is as follows:

Leaflet number one:
“ A L B A N Y  P O L I C E  H A V E  

M U R D E R E D  A N O T H E R  N E G R O !
THIS AFTERNOON ANOTHER ONE OF PRITCHETT’S 
GUNMEN SLAUGHTERED A NEGRO MAN, WILBERT 
JONES, OF FRONT STREET.
THIS BLACK MAN, LIKE THE LONG LIST OF OTHERS 
KILLED BY PRITCHETT’S MURDEROUS MOB . . . IN­
CLUDING ONE GUNNED DOWN TWO WEEKS AGO 
IN C.M.E. . . . PLUS HARRIS, ASBURY, MILLER 
AND OTHERS, WAS UNARMED AND IN NO W AY 
BREAKING THE LAW  WHEN HE WAS SHOTGUNNED 
IN THE BACK-
TONIGHT IS THE TIME TO ACT
BLACK MAN * * AREN’T YOU TIRED OF GOING TO 

FUNERALS ?
AREN’T YOU READY TO ACT?

BE AT EUREKA BAPTIST CHURCH * * IN HARLEM * * 
ON JACKSON STREET AT 8 :00 TONIGHT

BE AT EUREKA BAPTIST CHURCH 
TONIGHT IN HARLEM

JACKSON ST. NEXT TO GILES 8:00 p.m.” 
(The Pritchett referred to is the Chief of Police in Albany.)

(footnote continued on following gage)



6

In response to the leaflets a crowd, variously estimated 
as between 100 and 300 persons, gathered at the Eureka 
Baptist Church in the Negro section of Albany, known as 
Harlem (R. 313, 319). The church was selected as a meeting 
place because it had been the scene of an earlier killing of 
a Negro by the Albany Police (R. 316-17). Rev. Wells 
spoke briefly at the meeting, telling the people that he 
was going to go down to the police station to present a 
petition protesting the killing of that afternoon and that 
anyone who wished to might follow him for that purpose2 
(R. 350-51).

Leaflet number two:
“ A L B A N Y  P O L I C E  H A V E  

M U R D E R E D  A N O T H E R  N E G R O !

ALBANY POLICE HAVE KILLED 
TOO MANY NEGROES . . .

. . . REMEMBER HARRIS?

. . . REMEMBER ASBURY?

. . . REMEMBER MILLER?
2 W E E K  A G O  A N E G R O  W A S  S H O T  

I N  T H E  B A C K  I N  C M E . . .
I T  I S  T I M E  T O A C T  !

BE AT EUREKA BAPTIST CHURCH 
TONIGHT IN HARLEM

JACKSON ST. NEXT TO GILES 8 :00 P.M.”
2 The petition taken to the police station was introduced as ap­

pellants’ Exhibit “ C” (R. 34) and reads as follows:
To Chief of Police Lauri Pritchett:

Today another Negro was shot and killed brutally by an 
Albany policeman.

The people of Albany have protested many times the bru­
tality of the men who are supposed to enforce the law of 
our city. The result has always been inaction and evasion, 
all meant to excuse murder.

(footnote continued on following page)



7

Reverend Wells and Donald Harris began walking down 
the street towards the police station, accompanied by ap­
proximately twelve to sixteen persons (R. 307-09). The 
District Court said that a “ considerable number” of the 
audience went with appellants, and that the “ throng” was 
“ sizeable” and was a “multitude.” 238 F. Supp. at 782. 
However, there is no evidence to support these character­
izations. Rev. Wells testified repeatedly that twelve, four­
teen, or sixteen persons accompanied him (Plaintiffs’ Ex­
hibit D, p. 75). The only evidence rebutting this was in 
an affidavit by appellant Harris in which he said there were 
thirty-five to forty persons. At all times, however, this 
group was orderly (R. 6).

When they had proceeded approximately one block, and 
were near the city’s bus station, a number of bottles and 
other missiles were thrown by persons unknown (R. 307-08). 
The testimony conflicted as to the direction from which

Black citizens and thoughtful whites of Albany are angered 
by this latest incident, and we demand that further incidents 
be prevented.

We of the Albany Movement and the Student Nonviolent 
Coordinating Committee have faith and confidence in the phi­
losophy of nonviolence as a means of social protest. We have 
petitioned the city officials of Albany time and time again to 
thoroughly investigate and fairly prosecute those responsible 
for these acts, but our pleas for justice and eradication of 
the brutal and savage tactics used by the Albany Police De­
partment have gone unheard.

What little influence that the nonviolent leaders of this 
community have is quickly ebbing. For the sake of Albany— 
the total community— we demand a complete and thorough 
investigation of this killing and prosecution of the officers 
involved.

THE ALBANY MOVEMENT
SOUTHWEST GEORGIA STUDENT 

NONVIOLENT COORDINATING COMMITTEE



8

these missiles came. Reverend Wells testified that they 
came from a group of persons across the street from his 
group and not associated with them (R. 308, 314-15). A 
police officer at whom some of the missiles were thrown 
testified that they seemed to have come from the direction 
of Reverend Wells’ group, although he could not say for 
certain that they came from any one of the sixteen persons 
carrying the petition to the Chief of Police (Pis. Ex. F, 
pp. 14-16). When a number of bottles broke at the feet of 
Reverend Wells, he decided that it would be dangerous for 
the group to continue walking. Therefore, he immediately 
turned them around and the sixteen persons walked back 
in the direction from which they had come, got into auto­
mobiles, and went by different routes to the police station 
(R. 309-10).

At the station they asked to see Chief of Police Laurie 
Pritchett but were informed that he was out of town. They 
did see the assistant chief and presented him the petition. 
He asked who had written the petition and requested that 
appellants Wells and Harris sign their name to it, which 
they did (R. 299). The group then left the police sta­
tion. Reverend Wells and Donald Harris went to their 
homes and did not participate in any of the events in 
Harlem later that evening (R. 311).

Between the time that appellants turned around at the 
bus station and the time of their discussion with the as­
sistant chief of police, disturbances had broken out in the 
Harlem area. A  large group of persons, mostly Negroes, 
had assembled in the street and were throwing bricks and 
bottles, breaking in windows of stores and looting some of 
them (Pis. Ex. D, pp. 14-15). News of these events arrived 
at the police station at the time appellants and their group 
were there. The assistant chief of police asked them about



9

the events and inquired as to whether they were responsible 
for them. Reverend Wells told him that they had nothing to 
do with it (R. 341). The police were finally able to restore 
order in the Harlem area about two hours later (Pis. Ex. I),
p. 16).

The District Court said that “ it is clear that the acts were 
being committed by those marching with them [appellants] 
or by sympathizers accompanying the marchers.” 238 F. 
Supp. at 782. However, there is no evidence to support this 
statement, either as to the disturbances near the bus sta­
tion or the one later that evening. The officer at the station 
testified that he was not sure from whom the missiles came 
from (see supra). And an officer at the scene of the later 
riot testified that he did not see Rev. Wells at the scene 
(Pis. Ex. D, p. 64) and did not know where the rioters had 
come from (Id., p. 67). Not only is the record devoid of 
evidence that the disturbances were caused by appellants’ 
actions, but Rev. Wells’ testimony was to the effect that he 
feared that the outbreak of violence was imminent because 
of the people’s resentment over what they believed to be 
unwarranted acts of police brutality, and he was trying to 
give them an alternative, peaceful, and nonviolent means of 
protesting to the authorities (R. 329, 344-45).

On the morning of August 18, 1964, appellant Wells was 
arrested upon a warrant sworn out by the appellee, Laurie 
Pritchett, Chief of Police of Albany, Georgia, charging him 
with violations of section 26-902 of the Georgia Code (at­
tempting to incite insurrection) and §26-904 (circulating 
insurrectionary papers) (Pis. Ex. E ). Appellant Wells was 
held in confinement for thirteen days without bail on the 
charge under §26-902, which is an unbailable capital offense 
under Georgia law (see Georgia Code §26-903). On Au­
gust 24, 1965, a commitment hearing was held on the



10

charges against appellant Wells and he was bound over to 
the grand jury on both charges. Subsequently, the charge 
under §26-902 was “no billed” by the grand jury at the 
request of Fred Hand, Jr., Solicitor General, on the ground 
that the statute was unconstitutional. Rev. Wells was then 
admitted to $2,500 bail on the charge under §26-904 (R. 
198). An indictment against Wells for circulating in­
surrectionary papers was handed down by the Dougherty 
County grand jury on May 10, 1965. (See n. 6 infra.)

On August 17, 1964, a warrant was issued upon the affi­
davit of appellee Pritchett for the arrest of appellant Don­
ald Harris on a charge under §26-904 (Pis. Ex. L). To date, 
Harris has not been arrested and during such time as he 
may be present within the State of Georgia he is subject 
to arrest.

On September 15, 1964, after having two petitions for 
removal denied, inter alia, on the ground that no criminal 
prosecution had been begun, appellants filed their complaint 
in this case seeking to enjoin prosecutions under §§26-902 
and 26-904 on the grounds that they were unconstitutional 
on their face and as applied to the activities of the appel­
lants (R. 25). The defendants remaining after changes 
in the parties during the course of the hearing were Fred 
Hand, Jr., Solicitor General of the Albany Judicial Cir­
cuit, for whom has been substituted Robert Reynolds, the 
present Solicitor General; G. S. Thornton, Justice of the 
Peace in the county who issued the warrants involved and 
who has subsequently died (238 F. Supp. 779 at 783); 
Laurie Pritchett, Chief of Police of the City of Albany, 
under whose direction the investigation leading up to the 
issuance of the warrants was conducted and who swore out 
the warrants; and Billy L. Manley, Captain of Detectives



11

in the Albany Police Department, who is responsible for 
the conduct of investigations including the one leading up 
to the warrants and arrests herein.

A  three-judge court was convened and a hearing, which 
by stipulation was on a motion for permanent injunction 
(R. 162), was held. The court denied injunctive relief 
on the grounds that:

(1) All parties agreed that no prosecution could be had 
under §26-902 because of its unconstltutionality and that 
charges under it had been dismissed and assurances made 
that no further prosecutions would be made;

(2) There had been a failure by appellants to show that 
the prosecutions were instigated for the purpose of inter­
fering with the constitutional rights of appellants; and

(3) That even if §26-904, the only section under which 
prosecutions were still pending, were unconstitutional either 
on its face or as applied, the court would refrain from inter­
fering with the state prosecutions since no irreparable in­
jury had been shown. The denial of injunctive relief was 
conditioned on a reduction of the bail required to $1,000, 
which reduction has been made.

A  timely notice of appeal from the decision below was 
filed and a subsequent motion to reconsider the court’s 
judgment in light of this court’s opinion in Dombrowski v. 
Pfister, 380 TJ. S. 479, was denied (Supplemental Record, 
p. 9).



12

The Questions Are Substantial

The initial question involved in this appeal is substan­
tially the same as that raised and decided in the case of 
Dombrowski v. Pfister, 380 U. S. 479, decided by this Court 
on April 26, 1965. In Dombrowski this Court held that 
it was error for a federal three-judge court to refrain from 
deciding a claim that a state statute was unconstitutional 
on its face as abridging freedom of speech. Here, the 
District Court, although it held a hearing, denied injunctive 
relief for reasons similar to those advanced by the lower 
court in Dombrowski in dismissing the complaint. The 
second question involved, whether §26-904 of the Georgia 
Code Annotated is unconstitutional on its face and as ap­
plied, is governed largely by this Court’s determination in 
Herndon v. Lowry, 301IJ. S. 242, that a companion statute, 
§26-902, was unconstitutional.

1. The complaint in this case alleged, inter alia, that:

Sections 26-902 and 26-904 of the Georgia Code are 
unconstitutional both on their face and as applied to 
plaintiffs. Specifically, these statutes and the actions 
of the defendants in enforcing and executing them 
violate the First, Fifth, Eighth and Fourteenth Amend­
ments to the Constitution of the United States in that: 

# # # # *
(b) They abridge plaintiffs’ freedom of speech, press 

and assembly, and their rights to petition lawful au­
thority for a redress of grievance; . . . (R. 25).

In their memoranda of law, plaintiffs argued that §26-904 
was overly broad and vague. Appropriate relief, including



13

an injunction against the threatened prosecutions of plain­
tiffs under these statutes, was requested.

Despite these allegations, however, the court below, in 
refusing the relief requested, declined to express any view 
concerning the constitutionality of §26-904 and stated:

Even if it should ultimately be determined that Georgia 
Code §26-904 as applied to these Plaintiffs is uncon­
stitutional, the Plaintiffs are not without adequate rem­
edy and protection short of the issuance of this Court’s 
injunction. Federal courts of equity have traditionally 
been loathe to restrain criminal proceedings in the 
state courts even on constitutional grounds and all of 
the constitutional issues can be decided in the first 
instance as a matter of course by the state courts. 
(238 F. Supp. 779 at 785.)

The court went on to say that the threat of prosecution 
under a statute alleged to be unconstitutional on its face 
because it abridged freedom of speech, assembly, and the 
right to petition for redress of grievance did not consti­
tute irreparable injury sufficient to warrant injunctive 
relief. Therefore, the case was an appropriate one to 
withhold relief because an indictment could be narrowly 
drawn and the Georgia courts could construe the statute 
so that it would be constitutional.

This conclusion is in direct conflict with this Court’s 
decision in Dombrowski. There, as here, persons threatened 
with prosecution under a state criminal statute attacked it 
on the ground that it was unconstitutional as an abridg­
ment of First Amendment rights. This Court held:

The District Court also erred in holding that it 
should abstain pending authoritative interpretation



14

of the statutes in the state courts, which might hold 
that they did not apply to SCEF, or that they were 
unconstitutional as applied to SCEF. We hold the 
abstention doctrine is inappropriate for cases such as 
the present one where, unlike Douglas v. City of Jean- 
nette, statutes are justifiably attacked on their face 
as abridging free expression, or as applied for the 
purpose of discouraging protected activities.

#  #  *  *  *

Second, appellants have challenged the statutes as 
overly broad and vague regulations of expression. We 
have already seen that where, as here, prosecutions are 
actually threatened, this challenge, if not clearly friv­
olous, will establish the threat of irreparable injury 
required by traditional doctrines of equity. We believe 
that in this case the same reasons preclude denial of 
equitable relief pending an acceptable narrowing con­
struction. 380 U. S . ------ , 14 L. Ed. 2d 22, 30-31.

Under this holding, therefore, the District Court was 
obliged to decide the substantive question raised, and its 
decision must be reversed or vacated and the cause re­
manded on this ground alone. Cameron v. Johnson, ----- -
U. S. - — , 33 U. S. L. Week 3395.3

3 In Cameron, the Court in a per curiam order of five justices 
remanded for reconsideration in light of Dombrowski. Justices 
Black, Harlan, and Stewart would have affirmed, while Justice 
White would have set the case for argument. One of the main 
bases for the dissents was that the justices felt that the statute 
involved in Cameron was clearly constitutional. This case, how­
ever, presents a statute about which there are undeniable questions 
of constitutionality because of Herndon v. Lowry, 301 U. S. 242.



15

2. Appellants also contend that this court should find that 
§26-904 is unconstitutional on its face as abridging freedom 
of speech, assembly and petition in violation of the First 
and Fourteenth Amendments and that it is unduly vague, 
uncertain and broad. This contention raises the question as 
to the extent this case is controlled by this Court’s decision 
in Herndon v. Lowry, 301 U. S. 242. That case held that 
the precursor of §26-902 of the Georgia Code was uncon­
stitutional as violating the First and Fourteenth Amend­
ments.

Both sections 26-902 and 26-904 are part of Chapter 26-9 
of the Georgia Code which deals with insurrection and 
attempts to incite insurrection. Section 26-901 defines in­
surrection to ‘ 'consist in any combined resistance to the 
lawful authority of the State, with intent to the denial 
thereof, when the same is manifested or intended to be 
manifested by acts of violence.” Section 26-902 defines an 
attempt to incite insurrection as an attempt “ to induce 
others to join in any combined resistance to the lawful 
authority of the State.” Section 26-903 provides that insur­
rection and the attempt to incite insurrection shall be a 
capital offense, and finally, section 26-904 makes it a crime 
to “bring, introduce, print, or circulate,” or cause or aid 
or assist in introducing, circulating, or printing any writing 
for “ the purpose of inciting insurrection, riot, conspiracy, 
or resistance against the lawful authority of the State.” 4

4 At the time of Herndon, these provisions appeared as sections 
55 to 58 of the Georgia Penal Code. The full texts of sections 26-902 
and 26-904 are as follows:

26-902. Attempt to incite insurrection.— Any attempt, by 
persuasion or otherwise, to induce others to join in any com­
bined resistance to the lawful authority of the State shall con­
stitute an attempt to incite insurrection.

(footnote continued on following page)



16

In Herndon v. Lowry the Court found that the words 
“ to incite insurrection,” found in §26-902 and defined there 
and in §26-901, were overly broad and vague, giving no 
warning of the conduct proscribed. Therefore, the section 
was unconstitutional because it seriously impinged on legiti­
mate free speech activities.

In the present ease, the court and the parties below recog­
nized that §26-902 was clearly unconstitutional because of 
the decision in Herndon.5 Thus it necessarily recognized 
that that part of §26-904 which made it a crime to circulate 
any writing for the purpose of inciting insurrection was 
also unconstitutional. Despite this, the court indicated that 
§26-904 could be upheld because the part of the section mak­
ing it a crime to circulate papers for the purpose of incit­
ing riot, conspiracy or resistance against the lawful au­
thority of the state could be construed to be independent of 
the insurection provision and thus could be found to be 
constitutional. Although the warrants under which Rever­
end Wells was arrested and Donald Harris was threatened 
with arrest were for “ circulating insurrectionary papers” 
the court said that the prosecutor still might prepare an

26-904. Circulating insurrectionary papers.— If any person 
shall bring, introduce, print, or circulate, or cause to be intro­
duced, circulated, or printed, or aid or assist, or to be in any 
manner instrumental in bringing, introducing, circulating, or 
printing within this State any paper, pamphlet, circular, or 
any -writing, for the purpose of inciting insurrection, riot, con­
spiracy, or resistance against the lawful authority of the State, 
or against the lives of the inhabitants thereof, or any part of 
them, he shall be punished by confinement in the penitentiary 
for not less than five nor longer than 20 years.

5 Another district court reached the same conclusion and enjoined
criminal prosecutions under §26-902 in Aelony v. Pace, ------  F.
Supp. -------, 8 Race Rel. L. Rep. 1355 (M. D. Q-a., Nos. 530, 531,
1963).



17

indictment which charged only incitement to riot, and such 
an indictment and a conviction under it -would be valid. 
238 F. Supp. at 785.6

6 The court below, by discussing the statute in terms of such hypo­
thetical occurrences, was in conflict with the decision in Domirow- 
ski. There, this Court said:

In considering whether injunctive relief should be granted 
a federal district court should consider the statute as of the 
time its jurisdiction is invoked, rather than some hypothetical 
future date. 380 U. S. — —, 14 L. Ed. 2d 22, 31.

During the time this jurisdictional statement was being prepared 
by counsel for appellants, it came to their attention that on May 
10, 1965, the following indictment was handed down solely against 
appellant Wells by the Dougherty County grand jury, charging 
him under §26-904:

The grand jurors, selected, chosen and sworn for the County 
of Dougherty, to w it: [names of grand jurors omitted] In the 
name and on behalf of the citizens of Georgia, charge and ac­
cuse S. B. Wells with the offense of circulating insurrection 
papers for that the said accused, in the county aforesaid, on 
the 15th day of August, in the year of our Lord, Nineteen 
Hundred Sixty-Four, with force and arms, and unlawfully, did 
then and there introduce, bring, print and circulate, and did 
cause the same to be brought, introduced, printed and circu­
lated, and did assist in bringing, introducing, printing and 
circulating, within the county and State aforesaid certain 
papers, pamphlets, cards, sheets, circulars, magazines, books, 
and writing for the purpose of inciting insurrection, riot, con­
spiracy, and combined resistance to and against the lawful 
authority of the State of Georgia and against the lives of the 
inhabitants thereof, with intent to incite insurrection and to 
abolish, defeat, and overthrow by acts of violence the lawful 
authority of the State of Georgia, said insurrectionary litera­
ture being as follows, to w it:

Attached are exhibits “A ” and “B” all contrary to the laws 
of said State, the good order, peace and dignity thereof.

Robert W. Reynolds 
Solicitor General

Exhibits “A ” and “B” are copies of the leaflets introduced in this 
case as plaintiffs’ exhibits “A ” and “B” and reproduced in n. 1,



18

In view of the actual basis of its decision, the lower 
court’s discussion of the statute was dicta. However, it 
indicates clearly the conclusion that would be reached were 
this case merely remanded for reconsideration in light of 
Dombrowski. This is particularly true since the lower court 
has already denied a request by appellants to reconsider 
its opinion because of Dombrowski and to decide the con­
stitutional issue. Therefore, this court should reach and 
decide the questions raised; first, whether the entire statute 
is unconstitutionally vague on its face; and second, assum­
ing that the statute without the words “ inciting insurrec­
tion” would be valid, whether those words can constitu­
tionally be severed from the rest of the statute and the re­
mainder upheld.

A. Appellants argue that §26-904 in its entirety is un­
constitutional for the same reasons §26-902 was so found 
in Herndon v. Lowry. There, the court said:

The Act does not prohibit incitement to violent inter­
ference wtih any given activity or operation of the 
state. By force of it, as construed, the judge and jury 
trying an alleged offender cannot appraise the circum­
stances and characterization of the defendant’s utter­

supra. The name of appellee Laurie Pritchett, as well as that of 
appellee Reynolds appears on the indictment.

A motion for a stay of any prosecution under the indictment, 
pending final disposition of this ease, was filed in the court below 
on June 14, 1985, with a certified copy of the indictment attached. 
Notice has been given to the court below to make the motion part 
of the record in the case in this court.

The handing down of the indictment by the grand jury is not a 
bar to the federal courts granting relief since it was done after the 
filing of the complaint herein. Dombrowski v. Pfister, 380 U. S. 479, 
14 L. Ed. 2d 22, 27, n. 2. To date, there is no indictment against 
appellant Harris.



19

ances or activities as begetting a clear and present 
danger of forcible obstruction of a particular state 
function. Nor is any specified conduct or utterance of 
the accused made an offense.

The statute, as construed and applied, amounts merely 
to a dragnet which may enmesh anyone who agitates 
for a change of government if a jury can be persuaded 
that he ought to have foreseen his words would have 
some effect in the future conduct of others. No reason­
ably ascertainable standard of guilt is prescribed. So 
vague and indeterminate are the boundaries thus set 
to the freedom of speech and assembly that the law 
necessarily violates the guarantees of liberty embodied 
in the Fourteenth Amendment. 301 U. S. 261-264.

This criticism, which clearly applies to the words “ inciting 
insurrection” in §26-904, applies with equal force to the 
rest of the statute. The statute cannot reasonably be 
construed to reach riot or conspiracy per se, as contended 
by the lower court. Bather, what was intended was to pun­
ish “ riot, conspiracy or resistance against the lawful au­
thority of the state,'” with the final clause modifying “ riot” 
and “ conspiracy” as well as “ resistance.”

Therefore, the basic element involved in all crimes pun­
ishable under the section, as well as in all crimes punishable 
under chapter 26-9 as a whole, is the incitement of violent 
resistance against the lawful authority of the state. And, 
as the court held in Herndon, the statute is therefore im­
permissibly vague since it is not directed toward any 
specific state function or activity. It leaves it to the specu­
lation of persons engaged in free expression, and of prose­



20

cutors and juries, what kind of speech is intended to be 
reached.

It is the uncertainty as to scope and the resulting in­
hibitory effect on free speech that renders the statute 
unconstitutional. As this Court has stated, citing Herndon 
v. Lowry:

It is settled that a statute so vague and indefinite, 
in form and as interpreted, as to permit within the 
scope of its language the punishment of incidents 
clearly within the protection of the guarantee of free 
speech is void, on its face, as contrary to the Four­
teenth Amendment . . .  A  failure of a statute limiting 
freedom of expression to give fair notice of what acts 
will be punished and such a statute’s inclusion of pro­
hibitions against expressions, protected by the prin­
ciples of the First Amendment, violates an accused’s 
rights under procedural due process and freedom of 
speech or press. Winters v. New York, 333 U. S. 507, 
509-10.

Section 26-904 falls clearly under this rule, since in this 
case appellants are threatened with prosecution under it, 
although they have been guilty of nothing more than dis­
tributing leaflets calling a meeting to protest what they 
believed to be police brutality, and subsequently peacefully 
presenting a petition calling for corrective action to the 
public authorities.

In addition, because the statute encompasses constitu­
tionally protected speech, it can be challenged by appellants 
even if it were assumed their acts might have been validly 
proscribed by a statute more narrowly drawn. Dombrowski



21

v. Pfister, 380 IT. S. 479, 14 L. Ed. 2d 22, 28; Thornhill v. 
Alabama, 310 II. S. 88, 97-98.

B. Appellants further contend that §26-904 cannot be 
construed so as to sever its unconstitutional and constitu­
tional provisions. It should be noted that the District Court 
advanced the argument that the unconstitutional part of 
§26-904 might be severed from constitutional ones on the 
assumption that an indictment might be drawn up for dis­
tributing writings for the purpose of inciting riot. As noted 
in n. 6, supra, the state subsequently indicted appellant 
Wells for distributing papers for the purpose of inciting 
an insurrection. This demonstrates that Georgia does not 
consider the statute to be severable, but rather to be a 
unitary statute directed, as are the other sections of Chap­
ter 26-9, against “ insurrection.” Thus, §26-904 should be 
held unconstitutional as a whole for the reasons advanced 
above.

However, assuming as did the court below, that an indict­
ment for inciting to riot might still be handed down against 
appellant Harris, appellants maintain that the unconstitu­
tional incitement to insurrection language cannot be severed 
from the remainder, and the entire section must fall. To 
allow severability would result in a construction which 
would itself render the section unconstitutionally vague 
and incapable of giving sufficient warning of the conduct 
proscribed. Cf. United States v. Raines, 362 U. S. 17, 22-23.

It is established law that there is. a presumption against 
the severability of a statute, and that the legislature in­
tended that a statute operate in its. entirety, unless it has 
indicated otherwise by a severability clause. Such a clause 
is not present in §26-904. Williams v. Standard Oil Co., 278



22

IT. S. 235, 241-242. The presumption obtains even where, by 
severing one provision of a criminal statute, the rest of it 
might be upheld, since penal provisions must be construed 
strictly.7 See Butts v. Merchants & M. Transp. Co., 230 
U. S. 126. Cf. Williams v. Standard Oil Co., supra.

As shown supra, §26-904 is part of a chapter whose pur­
pose is to deal specifically with insurrection and attempts 
to incite insurrection. Therefore, the section itself, on its 
face and from its context, demonstrates a clear legislative 
intent to deal in all its parts with First Amendment activi­
ties which it was believed would promote insurrectionary 
acts. Similarly, it is clear that the statute was not intended 
to reach riot or conspiracy per se. Rather, it seeks to punish 
the incitement of riots “ against the lawful authority of the 
state,” i.e., those that are part of an insurrection.8 * 10

The conclusion that 26-904 is in its entirety inextricably 
bound up with the offense of insurrection is supported by

7 The presumption of nonseverability is particularly strong in the 
ease of a statute which infringes in part on the rights of free ex­
pression. It has been held by this court that where part of a statute 
violates First Amendment rights and its sections are so interrelated 
as to be substantially one, they should be judged on their face as a 
unit. See Jones v. Opelika, 316 U. S. 584, 611, 615, n. 5 (dissenting 
opinion), adopted per curiam on rehearing, 319 U. S. 103; Note, 
61 Harvard Law Review 1208 n. 3.

8 An entirely separate section of the Georgia Code reaches riot 
per se. Georgia Code Annotated §26-5320 states: “Riot—Any two 
or more persons who shall do an unlawful act of violence or any 
other act in a violent and tumultuous manner, shall be guilty of 
a riot and punished as for a misdemeanor.” Prosecutions have 
been brought for incitement to riot under this section whereas none 
have been brought under 26-904. See Loomis v. State, 78 Ga. App.
336, 346, 51 S. B. 2d 33, 43 (1948); Statham v. State, 84 Ga. 17,
10 S. E. 493 (1889).



23

the construction of the statute (then section 58 of the 
Georgia Penal Code) by the Supreme Court of Georgia in 
the eases of Dalton v. State, 176 Ga. 645, 169 S. E. 198 
(1933), and Carr v. State, 176 Ga. 55, 166 S. E. 827 (1932). 
In the latter case the court adopted as part of its opinion 
the opinion in Gitlow v. New York, 268 U. S. 652, and quoted 
in part:

“ And a state may penalize utterances which openly 
advocate the overthrow of the representative and con­
stitutional form of government of the United States 
and the several States, by violence or other unlawful 
means. . . . By enacting the present statute the State 
has determined, through its legislative body, that utter­
ances advocating the overthrow of organized govern­
ment by force, violence and unlawful means, are so 
inimical to the general welfare and involve such danger 
of substantive evil that they may be penalized in the 
exercise of its police power.” Carr v. State, 166 S. E. 
827, 829.

Thus, the Supreme Court of Georgia has held that §26- 
904 as a whole is part of the same statutory scheme of regu­
lation as that struck down in Herndon v. Lowry, and it must 
fall along with §26-902.® 9

9 The Georgia Court’s interpretation precludes any construction 
by a federal court that severs the provision of the section, since 
it is a settled rule of law that a federal court cannot disregard 
the interpretation of a state statute by a state court, even if it 
might thereby save the statute. Therefore, cases such as Chaplinsky 
v. State of New Hampshire, 315 U. S. 568, are not in point. There 
the state court had said that the provisions of the state statute 
were severable.



24

3. The final question presented by this appeal is whether 
the District Court erred in not holding that §26-904 was ap­
plied for the purpose of discouraging constitutionally pro­
tected rights. Appellants alleged in their complaint:

Defendants are well aware that §26-902 has been de­
termined unconstitutional, by the United States Su­
preme Court and this Court [see Herndon v. Lowry,
301 U. S. 242 (1937); Harris, et al. v. Pace, et a l , ------ -
F. Supp.------  (1963)] but, nevertheless have arrested
and threatened the arrest of the plaintiffs Harris and 
Wells. This threatened attempt to enforce and execute 
this statute, as well as §26-904 against plaintiffs, is . . . 
part of an overt scheme and plan by defendants, and 
others, acting in concert, and in violation of 42 U. S. C. 
§§1971, 1981 and 1983 to oppress, threaten and intimi­
date citizens of the United States, including plaintiffs, 
who are engaged in the exercise of rights, privileges 
and immunities guaranteed by the Constitution and 
laws of the United States (R. 26).

The lower court decided, after considering the constitu­
tionality of the application of §§26-902 and 26-904, “ [I]t  is 
apparent that this court’s injunction to restrain these de­
fendants, or any of them, from the further use of §26-902 is 
neither necessary nor needed.” 238 F. Supp. at p. 785. 
Further, that “ [e]ven if it should ultimately be determined 
that Georgia Code §26-904 as applied to these plaintiffs is 
unconstitutional, the plaintiffs are not without adequate 
remedy and protection short of the issuance of this Court’s 
injunction.” [Id.] Appellants were thus required to submit 
their federal constitutional claims to state court determi­
nation.



25

The lower court’s opinion, in refusing to enjoin further 
enforcement of §26-904, as unconstitutionally applied, 
squarely rejects this court’s decision in Dombrowshi v. 
Pfister, supra. There, it was decided that where state stat­
utes were unconstitutionally applied for the purpose of 
discouraging protected conduct, federal injunctive relief 
against further state prosecution was appropriate. A con­
trary view, as this court pointed out in Dombrowshi, would 
subject appellants to continued bad faith prosecution, even 
after substantial federal rights had been invaded.

Appellants’ contentions, that both §§26-902 and 26-904 
were being applied in bad faith, and to discourage engage­
ment in protected activity, were wholly supported by the 
record below.

First, the record clearly shows that the handbill distribu­
tion by appellants Wells and Hand was not to urge “ riot­
ing” or “ insurrection,” as charged in the warrant,10 but, as 
even the lower court states, merely to urge a meeting at 
Eureka Baptist Church (283 F. Supp. p. 782). No handbills 
were distributed during the meeting (R. 323), nor even 
referred to (R. 323), and only the petition, later presented 
to Assistant Chief Summerford, was read by Wells during 
Ms speech (R. 350). Wells at no time advocated destrue-

10 The state arrest warrant charged Wells with both offenses 
(26-902 and 26-904),in essentially the same language:

26-902 Ga. Code. Attempt to incite insurrection; and
26-904 Ga. Code, Circulating insurrectionary papers.
Subject did circulate papers attempting to incite insurrec­

tion Ga. Code 26-902 also attempting to incite insurrection 
at a meeting at Eureka Baptist Church on South Jackson 
Street 8/15/64. Subject did incite enough to the extent riot­
ing in Harlem, breaking windows out of several store fronts 
and causing considerable damage by Rock and Bottle: 
Throwing (Pis. Ex. E).



26

tion of property, and his uncontradicted testimony was that 
he advocated only the petition’s presentation as an appro­
priate form of protest:

I would rather for them to go down and peacefully pro­
test than to do anything otherwise. That’s what causes 
other things, is because you don’t have any way to let 
out your expressions; . . . (E. 329).

Nor, during the procession from the church to the police 
station, did Wells or Harris advocate or commit any vio­
lence (see findings 283 F. Supp. at p. 782). And, although 
the lower court found that violence was committed by those 
marching with appellants, or sympathizers, there was no 
evidence in the record to support that conclusion. (See 
Statement, supra, pp. 7-9.)

Second, with full knowledge of these facts, gathered from 
“ reports” received from officers (R. 220), Chief Pritchett 
caused the arrest of appellants Wells and Harris, and Nick 
Louketas under §§26-902 and 26-904, and although there 
were numerous arrests on charges of looting, burglary and 
“ for investigation,” there were no other arrests under 
either of these statutes. In fact, only these three, who made 
the actual presentation of the petition at the police station, 
were charged under'§§26-902 and 26-904 (Wells and Harris 
had signed the petition at the insistence of the assistant 
chief of police).

Wells and Louketas served 13 and 5 days respectively, 
awaiting state prosecution under 26-902 which was known 
by the Chief of Police to be invalid.11 And, although the

11 In the commitment hearing of appellant Wells, conducted 
before defendant G. S. Thornton, Chief Pritchett was asked by



27

lower court found that evidence that the arrests were made 
with “ some information” of the invalidity of one of the 
statutes (26-902) it concluded that this did not establish 
that appellant’s constitutional rights had been deprived 
with “ deliberate intent.” But, the initial prosecution under 
both statutes, combined with Wells’ continued incarceration 
after Chief Pritchett had been placed on notice of the stat­
ute’s invalidity, were obviously designed to discourage 
further presentations of the kind Wells had made.

Thus, on the record, remission of appellants to state trial 
would subject them to the same continued harassment pros­
ecution which this court condemned in Dombrowski v.
Pfister, supra; and, Cameron v. Johnson, —— U. S. ------ ,
33 U. S. L. Week 3395.

one of plaintiffs’ counsel whether he wasn’t aware that the statute 
(26-902), under which the warrant issued, had been declared 
unconstitutional:

Q. Now the fact that you have read that the holding of 
the Federal Tribunal has declared that this law is unconsti­
tutional, would that make any difference with reference with 
reference [sic] to your deciding to withdraw the warrant? 
A. With Judge Tuttle—did he sign it—Judge Tuttle ruling 
it was unconstitutional. I suppose he did, I didn’t see him 
sign it,—it wouldn’t make any difference to me.

Q. Even if this was true, it would make no difference to 
you? A. As I say, attorney, I don’t know whether it is 
unconstitutional or not when the Courts rule on it.

Q. But you didn’t answer my question, Chief, would it 
make any difference to you? A. It wouldn’t make any dif­
ference to me (Pis. Ex. D, p. 8).



28

CONCLUSION

It is respectfully prayed that the Court should review 
the judgment o f  the District Court and enter a judg­
ment reversing the decision below.

Respectfully submitted,

Jack Greenberg 
James M. Nabrit, III 

10 Columbus Circle 
New York, New York 10019

C. B. K ing
221 South Jackson Street 
Albany, Georgia

Attorneys for Appellants

Charles H. J ones, J r. 
C ttart.e s Stephen R alston 

Of Counsel



A P P E N D I X



la

APPENDIX

Opinion of the Court Below

UNITED STATES DISTRICT COURT

Middle District Georgia, Albany Division 

Feb. 24, 1965 

Civ. A. No. 821

Samuel B. W ells, D onald H arris et al.,

Plaintiffs,
— v .—

F red H and, Jr., individually and as Solicitor General, 
Albany Judicial Circuit, et al.,

Defendants.

B e f o r e  :
B ell, Circuit Judge,

and B ootle and E lliott, District Judges. 

E lliott, District Judge:

In attempting to make an arrest of a Negro man on 
August 15, 1964 a member of the City Police force of the 
City of Albany, Georgia fired a shot which resulted in the 
death of the man sought to be arrested. Neither the Plain­
tiff Wells nor the Plaintiff Harris witnessed this incident, 
but, based on “ reports” which they heard concerning the 
matter, they concluded that the officer was guilty of



2a

“murder” and they decided that they would do something 
about it. During that afternoon they prepared two hand­
bills and distributed them widely in the Negro community 
in the City of Albany. The first handbill was as follows:

“ALBANY POLICE HAVE MURDERED 
ANOTHER NEGRO!

THIS AFTERNOON ANOTHER ONE OF PRITCH­
E T T ’S GUNMEN SLAUGHTERED A NEGRO MAN, 
W ILBERT JONES, OF FRONT STREET.

THIS BLACK MAN, LIKE THE LONG LIST OF 
OTHERS KILLED BY PRITCH ETT’S MURDER­
OUS MOB . . . INCLUDING ONE GUNNED DOWN
TWO W EEKS AGO IN C.M.E____ PLUS HARRIS,
ASBURY, MILLER AND OTHERS, W AS UN­
ARMED AND IN NO W AY BREAKING THE LAW  
WHEN HE WAS SHOTGUNNEDIN THE BACK.

TONIGHT IS THE TIME TO ACT

BLACK MAN * * AREN’T YOU TIRED OF 
GOING TO FUNERALS ?

AREN’T YOU READY TO ACT!

BE AT EUREKA BAPTIST CHURCH * * IN 
HARLEM * * ON JACKSON STREET 

AT 8:00 TONIGHT

BE AT EUREKA BAPTIST CHURCH 
TONIGHT IN HARLEM

JACKSON ST. NEXT TO GILES 8:00 p.m.”

(The Pritchett referred to is the Chief of Police of 
Albany.)



3a

The other handbill was in this fashion:

“ ALBANY POLICE HAVE MURDERED 
ANOTHER NEGRO!

ALBANY POLICE HAVE KILLED TOO MANY 
NEGROES . . .

. . . REMEMBER HARRIS'?

. . . REMEMBER ASBURY?

. . . REMEMBER M ILLER!

2 W EEKS AGO A  NEGRO W AS SHOT IN THE 
BACK IN CME . . .

IT IS TIME TO ACT!

BE AT EUREKA BAPTIST CHURCH 
TONIGHT IN HARLEM

JACKSON ST. NEXT TO GILES 8:00 P.M.”

In response to the urging of the handbills a crowd gath­
ered at the street corner near the Baptist Church mentioned 
at the appointed hour of 8 :00. This was on Saturday night 
near the center of what is known as “ Harlem” and in an 
area where there is normally considerable pedestrian and 
automobile traffic and at a time when a street corner orator 
would be likely to attract attention. The Plaintiff Wells 
rented a microphone and loud speaker and addressed the 
crowd assembled, which he estimated to be between 200 and 
300 persons. The gist of his speech was to remind the 
crowd of the details of what he considered to be police 
atrocities against members of the Negro race and his re­
marks were in the same general tone as suggested by the 
handbills previously distributed. He urged the crowd to do



4a

something about it and he stated that he had prepared a 
petition which he was going to present to the Chief of 
Police at the City Hall and that he was going to march 
from the meeting place down to the City Hall for that pur­
pose, and he invited the crowd to go with him. He then set 
out on foot to march to the City Hall and a considerable 
number of his audience, being thus agitated and urged, pro­
ceeded to go with him. From the evidence it is difficult to 
determine with any degree of certainty how many there 
were in this throng, but it is clear that the number was 
sizeable. The Plaintiff Wells led the march and the Plain­
tiff Harris brought up the rear. Being thus shepherded the 
multitude set out for the City Hall, which was some blocks 
away. As might be expected, the march was attended by 
considerable commotion, and before reaching the an­
nounced destination bottles, stones and bricks were being 
hurled, plate glass windows in business establishments 
were being knocked out, citizens were being threatened and 
the peace and security of the entire area through which the 
procession was passing was being disrupted. There is no 
evidence that the Plaintiffs Wells and Harris committed 
any of these acts of violence but it is clear that the acts 
were being committed by those marching with them or by 
sympathizers accompanying the marchers. After having 
proceeded some distance on the way the Plaintiff Wells 
and the Plaintiff Harris decided for some reason to go 
back to the original meeting place and make the trip by 
automobile and this they did with a small group. After they 
withdrew, acts of vandalism and looting were widespread 
in the area into which the crowd had been led and these 
acts were directed toward business establishments either 
owned or operated by white persons. Principal victims



5a

were a jewelry store, a liquor store, a loan company, a drug 
store and a bus station. Physical damages amounted to 
several thousand dollars. It was not until some two and 
a half hours later that a semblance of order was restored 
in that section of the community. A number of arrests were 
made for burglary, looting, assaults and related offenses. 
In the meantime Plaintiffs Wells and Harris, together with 
a small group, had gone to the City Hall where the Police 
Headquarters are located to present their written com­
plaint to the Chief of Police, Mr. Pritchett. They learned 
that the Chief was out of town and they presented their 
complaint to the Assistant Chief, Mr. Summerford. He 
received the complaint and stated to the group that he 
would hand it to Chief Pritchett upon his return to the 
city. It was during the time when the Plaintiffs Wells and 
Harris were in conference with the Assistant Chief that the 
reports began coming in to headquarters concerning the 
damage and looting in the area from whence the Plaintiffs 
had recently come and the Assistant Chief inquired of Wells 
and Harris whether their group was responsible for that 
activity. The Plaintiffs disavowed any responsibility in the 
circumstances.

Based upon subsequent investigation the Chief of Police, 
Mr. Pritchett, made affidavit before G. S. Thornton, Justice 
of the Peace, that a warrant might issue for the arrest of 
the Plaintiff Wells for violation of § 26-902 of the Georgia 
Code, attempting to incite insurrection, and also for viola­
tion of § 26-904 of the Georgia Code, charging him with 
circulating insurrectionary papers.1 By virtue of the war­

1 “ § 26-902. Attempt to incite insurrection.—Any attempt, by 
persuasion or otherwise, to induce others to join in any combined 
resistance to the lawful authority of the State shall constitute an 
attempt to incite insurrection.”

“ § 26-904. Circulating insurrectionary papers.—If any person 
shall bring, introduce, print, or circulate, or cause to be introduced,



6a

rants so issued the Plaintiff Wells was taken into custody 
and he was detained for thirteen days without bond, the 
offense described in § 26-902 being a non-bailable offense. 
Upon investigation, the Solicitor General, Mr. Hand, 
who would be the state prosecutor of the offenses, con­
cluded that the Plaintiff Wells could not be prosecuted 
under §26-902 and he directed that the Plaintiff Wells be 
released from any charge under that section, whereupon 
the Plaintiff Wells was released on $2,500.00 bond with 
respect to the charge pending against him under the provi­
sions of § 26-904. No charge has ever been made against 
the Plaintiff Harris for violating § 26-902. He has been 
charged by warrant with violating § 26-904 and bond has 
been set at $2,500.00. The Plaintiff Harris has never been 
taken into custody under this warrant, so the Plaintiff 
Harris has never been jailed and the Plaintiff Wells has not 
been in custody since August, 1964. As heretofore indi­
cated, all of the matters related took place in August, 1964.

On September 15, 1964 the Plaintiffs filed the complaint 
which is now before us under the provisions of Title 42 
U. S. C. §§1971, 1981 and 1983, by which they sought to 
have a three-judge district court convened pursuant to 
Title 28 U. S. C. §§ 2281 and 2284. By subsequent amend­
ment Plaintiffs also invoked the provisions of Title 28 
U. S. C. §1343(3) and (4).

circulated, or printed, or aid or assist, or be in any manner in­
strumental in bringing, introducing, circulating, or printing within 
this State any paper, pamphlet, circular, or any writing, for the 
purpose of inciting insurrection, riot, conspiracy, or resistance 
against the lawful authority of the State, or against the lives of 
the inhabitants thereof, or any part of them, he shall be punished 
by confinement in the penitentiary for not less than five nor longer 
than 20 years.”



7a

This complaint as originally filed contained a number of 
allegations for which there is no support in the record and 
joined a number of defendants who have since been stricken 
as parties. Originally the Mayor and all of the members of 
the City Council of the City of Albany were named as 
parties defendant. The City of Albany itself as a body 
corporate was also named a party defendant. The Sheriff 
of Dougherty County was also named. No evidence of any 
nature connected these defendants with the matter under 
consideration and the City of Albany and the Mayor and 
the several members of the City Council were stricken as 
parties Defendant on motion of the Defendants and the 
Sheriff of Dougherty County was stricken as a party De­
fendant on motion of the Plaintiffs. One additional Defen­
dant, Billy L. Manly, Captain of Detectives, was added by 
amendment to the original complaint. The Defendants re­
maining in the case are Fred Hand, Jr., Solicitor General 
of the Albany Judicial Circuit,2 G. S. Thornton, Justice of 
the Peace in Dougherty County,3 Laurie Pritchett, Chief 
of Police of the City of Albany and Billy L. Manly, Captain 
of Detectives in the Albany Police Department. As orig­
inally filed, the complaint prayed for an injunction to issue 
restraining the Defendants “ from denying plaintiffs, or 
members of the class on whose behalf plaintiffs sue, the 
right to participate in the solicitation, promotion, and en­
couragement of others to register and vote” . It also asks 
this Court’s injunction to restrain the Defendants “ from 
denying plaintiffs, and the members of their class the right

2 We judicially notice the fact that Mr. Hand no longer holds 
office as Solicitor General of the Albany Judicial Circuit.

3 We judicially notice the fact that Judge Thornton is now 
deceased.



8a

to conduct peaceful public assemblies, or meetings to pro­
test against state-enforced segregation, or any unlawful, 
unwarranted or arbitrary abuses of state power” .

Upon the hearing on this matter no evidence whatever 
was presented showing any denial on the part of these 
Defendants, or anyone else for that matter, of the right 
of the Plaintiffs to participate in political activities, includ­
ing the right to register and vote, and at no time during 
the hearing was any evidence offered or any suggestion 
made that there was any issue of segregation of the races 
involved here. This leads us to conclude that these allega­
tions were either made carelessly or for the purpose of 
window dressing, and no further consideration will be given 
to those contentions.

The only matter of substance in this case is the contention 
made by the Plaintiff s that Georgia Code §§ 26-902 and 
26-904 are unconstitutional and that all of these Defendants 
were well aware of that fact, but nevertheless the De­
fendants entered into an “ overt scheme and plan” , “ acting 
in concert” , to deprive the Plaintiffs of their constitutional 
rights and privileges, using these statutes for that purpose.

Assuming the burden of proving this contention, the 
Plaintiffs ask that this Court enjoin the Defendants from 
further enforcement of these statutes and from further 
prosecution of the criminal actions against the Plaintiffs 
Wells and Harris based upon the warrants issued as here­
tofore described.

It appears to be conceded by all concerned that no prose­
cution may be had under Georgia Code § 26-902 in the light 
of the decision by the United States Supreme Court in 
Herndon v. Lowry, 301 U. S. 242, 57 S. Ct. 732, 81 L. Ed. 
1066 (1937), but the evidence before us would not justify a



9a

finding that the Defendants were well aware of that decision 
and nevertheless entered into a scheme between themselves 
to cause an arrest to be made for the purpose of depriving 
the Plaintiff Wells of his constitutional rights. The Chief 
of Police who swore out the warrant based on Code § 26-902 
against Plaintiff Wells may have had some information 
concerning the invalidity of that Code Section, but he is 
not a person versed in the law and it would require specu­
lation on our part to conclude that his action in using an 
invalid statute was with deliberate intent to deprive the 
person arrested of some constitutional right. The Defen­
dant Manly simply made an investigation in his capacity as 
Chief of Detectives and the Justice of the Peace, Judge 
Thornton, issued the warrant in the same routine fashion 
in which warrants are usually issued by a Justice of the 
Peace and the Defendant Hand, the Solicitor General, is 
not shown to have even had any connection with the matter 
until several days after the warrant had been issued when 
it became a state court concern, and when he determined 
that § 26-902 had been held to be unconstitutional he di­
rected that the charges pending against the Plaintiff Wells 
based upon § 26-902 be abandoned, and subsequently he 
caused the Grand Jury to return a no-bill in that connec­
tion. As soon as the Solicitor General advised Mr. Pritchett 
that proceedings could not be had under § 26-902 the Police 
Chief abandoned any thought of further prosecution and 
the Plaintiff Wells was released from custody. All of this 
was. accomplished before this complaint was filed and none 
of these circumstances indicate to us the existence of a 
scheme or a plan among these Defendants as charged in 
the complaint. Further, during the course of the hearing 
on this matter Chief Pritchett testified that he had no inten­



10a

tion of making any further arrests based upon § 26-902, and 
Solicitor General Hand has made it clear to this Court from 
the inception of this matter that he has no intention of 
prosecuting any such case. It is apparent that this Court’s 
injunction to restrain these Defendants, or any of them, 
from the further use of § 26-902 is neither necessary nor 
needed.4

With regard to the charges pending against the Plaintiffs 
Wells and Harris based upon the alleged violation of 
Georgia Code § 26-904, we are asked by the Plaintiffs to en­
join further prosecution in the state court based on this 
Code Section on the ground that this section is also uncon­
stitutional. The theory of the Plaintiffs is that § 26-904 is 
related to § 26-902 and since § 26-902 is unconstitutional it, 
therefore, follows that § 26-904 is likewise invalid. We do 
not think that this necessarily follows. It is true that both 
of these sections relate to the subject of “ insurrection” , but 
these Code sections were not enacted at the same time as 
companion measures, they do not prescribe the same penal­
ties and § 26-904 embraces matters not dealt with by § 26- 
902.

Under the provisions of § 26-904 prosecution can be had 
for matters having to do with subjects other than insurrec­
tion and the offense is not simply the circulating of papers 
but the doing of those acts for the purpose of inciting in­
surrection, riot, conspiracy or resistance against the lawful 
authority of the state, or against the lives of the inhabitants 
thereof. Assuming a properly prepared indictment under 
this section, the prosecutor would only have to prove the

4 The facts recited in this memorandum opinion are to be con­
sidered as findings of fact within the meaning of Rule 52, F. R. 
Civ. P.



11a

purpose of inciting one of those proscribed activities. It 
could be simply riot. It is true that the warrant which was 
issued in these cases by the Justice of the Peace refers to 
“ insurrectionary papers” by which it is claimed the De­
fendants “ attempted to incite insurrection” , but in Georgia 
the true character of a criminal accusation or indictment is 
not fixed by the denomination of the crime given to it by the 
pleader, but rather by the particular allegations of the in­
dictment, that is to say, the name which is given to the crime 
which is charged in the accusation or indictment does not 
characterize the offense but the nature of the crime is de­
termined from the description of the crime alleged to have 
been committed. Owens v. State, 92 Ga. App. 61, 87 S. E. 
2d 654; Brusnighan v. State, 86 Ga. App. 340, 71 S. E. 2d 
698. Neither of these Plaintiffs has yet been indicted by 
the Grand Jury. If they are indicted that part of the indict­
ment which would ultimately control would be the factual 
allegations set out in support of the alleged violation of the 
statute and that portion of the indictment could just as well 
establish a charge of inciting a riot as inciting to insurrec­
tion. This Court at this stage of this matter refrains from 
expressing any view concerning the constitutionality of 
Georgia Code § 26-904 having in mind that a presumption 
of constitutionality attaches to all state statutes and if any 
state of facts reasonably can be conceived that will sustain 
the statute as against an alleged violation of the federal 
Constitution the existence of that state of facts, must be 
presumed. Spahos v. Mayor, etc. of Savannah Beach, 207 
F. Supp. 688 (D. C. Ga., 1962), affirmed 371 U. S. 206, 83 
S. Ct. 304, 9 L. Ed. 2d 269.

Even if it should ultimately be determined that Georgia 
Code § 26-904 as applied to these Plaintiffs is Unconstitu­



12a

tional, the Plaintiffs are not without adequate remedy and 
protection short of the issuance of this Court’s injunction. 
Federal courts of equity have traditionally been loathe to 
restrain criminal proceedings in the state courts even on 
constitutional grounds when all of the constitutional issues 
can be decided in the first instance as a matter of course by 
the state courts. Douglas v. City of Jeanette, 319 U. S. 157, 
63 S. Ct. 877, 87 L. Ed. 1324 (1943). In the absence of an 
affirmative showing to the contrary this Court cannot an­
ticipate erroneous action by the state trial and appellate 
courts and we should not do so for considerations of both 
law and policy, the policy referred to being the desirability 
of avoiding wherever possible conflicts between the state 
and federal judicial systems.

.. “ Ordinarily, there should be no interference with such 
(state) officers; primarily, they are charged with the 
duty of prosecuting offenders against the laws of the 
state, and must decide when and how this is to be done. 
The accused should first set up and rely upon his de­
fense in the -state courts, even though this involves a 
challenge of the validity of some statute, unless it 
plainly appears that this course would not afford ade­
quate protection. The Judicial Code provides ample 
opportunity for ultimate review here in respect of fed­
eral questions. An intolerable condition would arise, 
if, whenever about to be charged with violating a state 
law, one were permitted freely to contest its validity 
by an original proceeding in some federal court.” Fen­
ner v. Boykin (1926), 271 U. S. 240, 243, 46 S. Ct. 492, 
493, 70 L. Ed. 927.



13a

There has been no showing here that these Plaintiffs will 
not be afforded adequate protection with respect to their 
contentions in the state court. As already noted, the alleged 
invalidity of a state law is not of itself grounds for equi­
table relief in a federal court. The controlling question is 
whether the Plaintiffs have made a sufficient showing that 
the need for equitable relief by injunction is urgent in order 
to prevent great and irreparable injury. American Fed­
eration of Labor v. Watson, 327 U. S. 582, 66 S. Ct. 761, 90 
L. Ed. 873 (1946). The injunctive relief sought in this com­
plaint against the enforcement of a state penal statute, even 
if that statute is contrary to the federal Constitution, must 
be measured by the extraordinary circumstances rule and 
considerations of whether the danger of irreparable loss is 
both great and immediate. The mere fact that the Plaintiffs 
may be convicted in the state court does not create such 
extraordinary circumstances as would justify an injunction 
and it has been frequently held that a federal court should 
not ordinarily interfere with state officers charged with the 
duty of prosecuting offenders against state law.

“ That equity will stay its hand in respect to criminal 
proceedings, always when they are pending, and ordi­
narily when they are threatened, is a rule of wide and 
general application under our legal system. * * It is 
a principle expressing a sound policy that the processes 
of the criminal law should be permitted to reach an 
orderly conclusion in the criminal courts where they 
belong.” Ackerman v. International Longshoremen’s 
& Warehousemen’s Union, 187 F. 2d 860, 868 (9 Cir., 
1951), cert. den. 342 U. S. 859, 72 S. Ct. 85, 96 L. Ed. 
646.



14a

There are no circumstances in this case which create a 
great and immediate danger of irreparable loss to the 
Plaintiffs Wells and Harris. Neither of them is being held 
without bond, neither of them is in jail, neither of them is 
without remedy in the state court, neither of them has been 
deprived of any right of defense in the state court. Indeed, 
there is no showing that either of them will be damaged in 
any way beyond the normal concomitants of a criminal 
prosecution. The plaintiffs simply desire that this Court 
determine a constitutional question which, in the view of 
this Court, should be first considered by the state court.

We note that the Plaintiffs suggest that although the 
Plaintiff Wells is free from custody on a $2,500.00 bond, his 
bondsman might surrender him, and that although the 
Plaintiff Harris has never been arrested, if he were ar­
rested he might be unable to make a bond in the amount of 
$2,500.00, and in the event these things happened this would 
result in the Plaintiffs being held in jail pending the de­
termination of the legal issue which they raise concerning 
the constitutionality of the applicable statute. The possi­
bility of this happening can be minimized by a reduction in 
the bonds required of Wells and Harris to a lesser figure 
than that now assessed by the state authorities.

Accordingly, and for the reasons indicated, all of the 
prayers for injunctive relief are denied, provided the De­
fendants or their successors in office shall accomplish a re­
duction in the bonds assessed in the case of the Plaintiff 
Wells to an amount not exceeding $1,000.00 and in the case 
of the Plaintiff Harris to an amount not exceeding $1,000.00.



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