Wechsler v. County of Gadsden, Florida Brief for Appellants

    Imtrfr Btdtm (Burnt ui Appeals
F if t h  C ibcitit

No. 21,835

S t u a r t  W e c h s l e r , et al., 

—versus—
Appellants,

C o u n t y  of  G ad sd en , F lo rid a ,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION

BRIEF FOR APPELLANTS

D onal C. Collimoee, Jr. 
1293 Post Road 
Fairfield, Connecticut

H oward W. D ixon 
Seybold Building 
Miami, Florida 33132

Earl J ohnson 
625 West Union Street 
Jacksonville, Florida

J ohn L owenthal 
521 Fifth Avenue 
New York, N. Y. 10017

Carl Rachlin 
38 Park Row 
New York, N. Y.

Melvin L. W ulf 
156 Fifth Avenue 
New York, N. Y.

John D ue 
540% W. Brevard 
Tallahassee, Florida

Attorneys for Appellants



I N D E X

Statement of the Case .................................................... 1

Specifications of Error ................................................. - 4

A r g u m e n t

I. The District Court was required to retain juris­
diction upon the allegations set forth in the re­
moval petitions ............   5

II. The prosecutions of appellants should be dis­
missed without further proceedings in the Dis­
trict Court, or, in the alternative, should be 
enjoined................................................................... 13

III. Appellants are at least entitled to a hearing on 
the allegations of their verified removal peti­
tions ......................................................................  14

IY. The authority cited by the District Court does
not support the orders of remand........................ 15

C o n c l u s io n ..................................................   16

A p p e n d ix  of F lo rida  S t a t u t e s  ....................................... 19

T able  of A u t h o r it ie s

Cases:

Baines v. City of Danville, 337 F. 2d 579 (4 Cir. 1964) .. 13 
Baker v. Carr, 369 U. S. 186 (1962) ...........................  10

PAGE



11

Bouie v. Columbia, 378 U. S. 347 (1964) ...................... 12
Brazier v. Cherry, 293 F. 2d 401 (5 Cir. 1961) ........... 9

Council of Federal Organizations v. Bainey,------F. 2d
------(5 Cir. 1964), No. 21795, decided Dec. 28, 1964 .. 14

Dresner, et al. v. Municipal Judge, City of Tallahassee,
------- F. 2 d ------ , decided Aug. 5, 1964 ..... ................ 4,14

Griffin v. Maryland, 378 IT. S. 130 (1964) ..................  10

Hamm v. City of Bock H ill,------U. S . ------- , 85 S. Ct.
384 (1964) ............................... ............................. 12,13,14

Hornsby v. Allen, 330 F. 2d 55 (5 Cir. 1964) ..............  10

Lombard v. Louisiana, 373 H. S. 267 (1963) ..................  10

Monroe v. Pape, 365 IT. S. 167 (1961) .........................  10

NAACP v. Button, 371 U. 8. 415 (1963) ...................... 9
Nesmith v. Alford, 318 F. 2d 110 (5 Cir. 1963), re­

hearing denied 319 F. 2d 859, cert. den. 375 H. S.
975 (1964) ....................................................................  10

Peterson v. City of Greenville, 373 U. 8. 244 (1963) .... 10 
Polito v. Molasky, 123 F. 2d 258 (8 Cir. 1941), cert, 

den. 315 U. S. 804 (1942) ........................................  10

Bachel, et al. v. State of Georgia, ------F. 2 d -------  (5
Cir. 1965), No. 21534, decided Mar. 5, 1965 .......8,13,14

Beynolds v. Cochran, 365 U. S. 525 .............................  14

Shelley v. Kraemer, 334 U. S. 1 (1948) .............. .......  11
Stromberg v. California, 283 U. 8. 359 (1931) ......... . 12

PAGE



Taylor v. Louisiana, 370 U. S. 154 (1962) ..................  10
Thornhill v. Alabama, 310 U. S. 88 (1940) ............... . 12
Townsend v. Sain, 372 U. S. 293 (1963) ....................-  10

United States v. Wood, 295 F. 2d 772 (5 Cir. 1961) .... 8, 9

Winters v. New York, 333 U. S. 507 (1948) .......... 12
Wright v. Georgia, 373 U. S. 284 (1963) .......... .......  10

Yick Wo v. Hopkins, 118 U. S. 356 (1886) .................. 10

Constitution:

First Amendment ........................................................... 6
Fourteenth Amendment ...................................—...... -.... 6,11
Fifteenth Amendment ......................................................  6

Statutes:

28 U. S. C. §1443 .......................................... ................  1, 5
28 U. S. C. §1443(1) ...................................................  8
28 U. S. C. §1443(2) ..........................................   10
42 U. S. C. §§1971 et seq .............. ............................. . 6
42 U. S. C. §1983 ...................   10
42 U. S. C. §1988 ........    9
Florida Statutes:

Section 821.04 ........        11
Section 821.041(1) ................................................... 11,12
Section 821.06 ...................   11
Section 821.07 ......................................................... —2,11

I l l

PAGE



I n t fr i i  C o u r t  n f Kppmlz
F if t h  C ir c u it  

No. 21,835

S t u a r t  W e c h s l e r , et al.,
Appellants,

—versus—
C o u n t y  of G ad sd e n , F lo rid a ,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION

BRIEF FOR APPELLANTS

Statement of the Case

Appellants in these consolidated cases are five Negro 
and two white persons charged with criminal trespass in 
Gadsden County, Florida.

On August 14, 1964, appellants filed verified removal 
petitions in the United States District Court for the North­
ern District of Florida, Tallahassee Division (the “ District 
Court” ). Removal was sought pursuant to 28 U. S. C. 
§1443 (R. 5, 25).

At the time of their arrests, appellants were attempting 
to acquaint Negro citizens of Gadsden County with their 
federal rights to vote, and to encourage them to register 
and vote in federal elections (R. 3, 23).



2

In their verified removal petitions, appellants alleged 
that on August 7, 1964, they were driving along a road 
leading to unenclosed and unposted lands of a farm ex­
ceeding 200 acres. Access to the road was not barred by 
any enclosure, and there were no “ No Trespassing” notices 
posted along the road. Appellants Preston and Green had 
relatives living upon said land, whom Preston and Green 
had previously visited without challenge or objection.

As appellants stopped their automobile to talk with 
Negroes occupying residences adjacent to the road, a 
truck (with a rifle visible in the driver’s compartment) 
pulled alongside, and its driver asked appellants what 
they were doing. Appellants replied that they were work­
ing on voter registration. The truck driver told appel­
lants that they were trespassing; appellants said they did 
not know they were trespassing, and offered to leave im­
mediately; the truck driver replied that appellants were 
going to be put under arrest and that he was going “to put 
the law on” them. Officers of the Sheriff’s office of Gadsden 
County then appeared, arrested appellants, and took them 
into custody (E. 2-3, 22-23).

No summons, complaint, warrant, or other written proc­
ess was ever served on or given to appellants Wechsler, 
McVoy, or Preston. Appellant Wechsler asked the Justice 
of the Peace Court of Gadsden County for a copy of any 
process in the case, but the request was refused (E. 29).

The four juvenile appellants were charged in written 
complaints with “ Trespassing”, but the complaints did not 
specify any statute (E. 10). A representative of appellants 
was told by the Justice of the Peace of Gadsden County 
that appellants were charged with violating Section 821.07 
of the Florida Statutes (E. 21-22).



3

In their verified and uncontradicted removal petitions, 
appellants alleged, inter alia, that their arrests and prose­
cutions “have been and are being carried on with the sole 
purpose and effect of harassing [appellants] and of pun­
ishing them for, and deterring them from, exercising 
their constitutionally protected rights of free speech and 
assembly to protest the conditions of racial discrimination 
which the State of Florida now maintains by statute, ordi­
nance, regulation, custom, usage and practice, and to urge 
Negroes, the victims of this discrimination, to register for 
voting in federal and state elections, free of racial dis­
crimination.” (E. 4-5, 25.)

The removal petitions alleged in detail the denial and 
deprivation, in the state courts and by virtue of state legis­
lation, of civil rights protected under federal law. Particu­
lar allegations are mentioned hereinafter in the Argument.

Notices of the removals and copies of the removal peti­
tions were personally served upon the Prosecuting Attor­
ney of the Juvenile Court and the Justice of the Peace 
Court for Gadsden County.

The Justice of the Peace Court, after acknowledging ser­
vice of the notice and removal petition upon him, never­
theless purported to try, convict, and sentence appellants 
Wechsler, McVoy, and Preston on August 15, 1964 (E. 
31-33).

On August 17, 1964, appellants Wechsler and McVoy 
petitioned the District Court for writs of habeas corpus, 
on the ground that the removals had divested the state 
court of jurisdiction. The petitions for writs were granted, 
and the Sheriff of Gadsden County was directed to release 
said appellants; but at the same time, the District Court,



4

Carswell, J., sua sponte, without notice to any of the appel­
lants and without any hearing on their removal petitions, 
entered orders remanding the causes of all seven appellants 
to the state courts in Gadsden County, citing as authority 
Dresner, et al. v. Municipal Judge, City of Tallahassee,
------F. 2 d ------- , decided by this Court on August 5, 1964
(E. 12, 34).

Appellants’ attorneys immediately moved the District 
Court for an order staying further proceedings in the state 
courts pending the filing of notice of appeal from the orders 
of remand. The District Court denied the motion (E. 13, 
35), but this Court granted a stay.

Specifications of Error

The District Court erred in :

(1) failing to retain jurisdiction upon the allegations 
set forth in the removal petitions;

(2) failing to dismiss or enjoin the prosecutions of ap­
pellants without further proceedings;

(3) remanding without a hearing;

(4) concluding that remand was in the interests of jus­
tice and sound judicial administration and in accordance 
with the authority cited by the District Court.



5

A R G U M E N T

I.

The District Court was required to retain jurisdic­
tion upon the allegations set forth in the removal peti­
tions.

The District Court, in granting the petitions of appel­
lants Wechsler and McVoy for writs of habeas corpus, 
acknowledged that their cases had been removed from the 
state court in compliance with the federal removal statutes 
(R. 32-33). The cases of all seven appellants were re­
moved in the same proper manner and upon .substantially 
identical allegations.

Jurisdiction of these removed cases vested in the Dis­
trict Court not through the court’s discretion, but as a 
matter of right of the appellants. The District Court has 
no discretion to refuse to entertain jurisdiction over cases 
properly removed upon adequate allegations.

The verified removal petitions state removal claims cog­
nizable under both subsections (1) and (2) of 28 U. S. C. 
§1443 (1958).*

# “ §1443. Civil rights cases
Any of the following civil actions or criminal prosecutions, 

commenced in a State court may be removed by the defendant 
to the district court of the United States for the district and 
division embracing the place where it is pending:

(1) Against any person who is denied or cannot enforce 
in the courts of such State a right under any law providing 
for the equal civil rights of citizens of the United States, or 
of all persons within the jurisdiction thereof;

(2) For any act under color of authority derived from any 
law providing for equal rights, or for refusing to do any act 
on the ground that it would be inconsistent with such law.”



6

The removal petitions alleged the denial, by state offi­
cers in state courts and by virtue of state legislation, 
of appellants’ equal civil rights under 42 U. S. C. §§1971 
et seq. and the First, Fourteenth, and Fifteenth Amend­
ments.

The removal petitions alleged specific facts respecting 
the arrests of appellants for criminal trespass, including 
allegations that appellants were, when arrested, seeking 
to acquaint Negro citizens with their federal rights to 
register and vote. The petitions stated that criminal pro­
ceedings charging appellants with such trespass were 
pending against appellants in the Juvenile Court and the 
Justice of the Peace Court of Gadsden County, Florida. 
(R. 1-3, 21-23.)

Appellants then alleged that their arrests and prosecu­
tions were for the sole purpose of harassing and punishing 
appellants for, and deterring them from, exercising their 
protected civil rights (R. 4-5, 25). Specifically, appellants 
alleged the following in their removal petitions:

The acts for which appellants are being held to an­
swer as offenses, insofar as the offenses charged have 
any basis in fact, are acts in the exercise of appel­
lants’ rights of freedom of speech, assembly, and peti­
tion guaranteed by the First and Fourteenth Amend­
ments and 42 U. S. C. §1983 (1958), and of their 
privileges and immunities guaranteed by the Four­
teenth and Fifteenth Amendments, and 42 U. S. C. 
§§1985 and 1971 (1958) to disseminate information con­
cerning the rights of Negroes to register and vote in 
federal elections without abridgement by reason of 
race, and to urge qualified Negroes to register and vote 
(R. 3-4, 24).



7

Conviction of appellants on such charges would pun­
ish them for the exercise of rights, privileges, and 
immunities secured by the federal Constitution and 
laws, and deter appellants and others from the future 
exercise of such rights, privileges, and immunities 
(R. 4, 24).

Insofar as the offenses charged against appellants 
are based on allegations of conduct not protected by 
the federal Constitution and laws cited, those allega­
tions are groundless in fact; there is no evidence on 
which appellants may be convicted consistent with the 
due process requirements of the Fourteenth Amend­
ment (B. 4, 24).

Section 821.07 of the Florida Statutes is unconstitu­
tional on its face, in that it is too vague, indefinite, 
and uncertain adequately to apprise appellants before­
hand of the nature of the conduct condemned by the 
statute, and thus fails to meet the due process require­
ments of the Fourteenth Amendment (E. 5, 25).

Said Florida statute as sought to be applied con­
demns conduct expressly protected by the First, Four­
teenth, and Fifteenth Amendments (R. 6, 26).

“The County of Gadsden, through its prosecutor and 
police officers, and under the guise of prosecuting peti­
tioners for trespass is in fact, using and abusing its 
laws in an attempt to deprive petitioners of the equal 
protection of the law and deprive them of their rights 
guaranteed to them by the First, Fourteenth, and 
Fifteenth Amendments to the Constitution of the 
United States.” (R. 5, 25.)

Appellants are unable to enforce their federal rights 
in the courts of Florida, particularly in Gadsden 
County, because those courts are hostile to appellants 
by reason of appellants’ race and advocacy of the end



8

of racial segregation, and because those courts enforce 
the policy of racial discrimination in violation of 42 
U. S. C. §1981 and the Fourteenth Amendment (R. 6-7, 
26-27).

On the allegations in the verified removal petitions, 
removal is clearly required under 28 U. S. C. §1443(1).
Rachel, et al. v. State of Georgia,------F. 2 d -------  (5 Cir.
1965), No. 21534, decided March 5, 1965.

In both Rachel and the case at bar, appellants alleged 
that they have been denied or cannot in the state courts 
enforce their rights under laws providing for equal civil 
rights, because of prosecutions in the state courts for tres­
pass under state legislation. This Court held in Rachel that 
such allegations compel removal. The allegations in the 
case at bar are no less adequate and substantial than those 
in Rachel, and similarly compel removal.

Among the rights asserted by appellants at bar is the 
right to be free of state prosecution designed to interfere 
with the rights of Negro citizens to register and vote. Such 
a right was upheld by this Court in United States v. Wood, 
295 F. 2d 772 (5 Cir. 1961), enjoining the state prosecution 
of a field worker engaged in encouraging Negro citizens to 
register and vote, even though the field worker was not him­
self qualified to register and vote in the county, and even 
assuming that he would receive a fair trial in the state 
courts and would possibly be acquitted. This Court said:

“ The legislative history of [42 IT. S. C.] section 1971 
would indicate that Congress contemplated just such 
activity as is here alleged—where the state criminal 
processes are used as instruments for the deprivation 
of constitutional rights.” 295 F. 2d at 781.



9

Similarly in the case at bar, appellants alleged, with­
out contradiction, that they were arrested and were being 
prosecuted because of their activity in encouraging voter 
registration, and that the state criminal processes were 
thus being used as instruments for the deprivation of 
constitutional rights.

On the basis of the record in this Court and in view of 
the circumstances prevailing in Gadsden County, it is most 
unlikely that, if the state prosecutions of appellants are 
allowed to proceed, significant further Negro registration 
will take place. Negroes who have lived all their lives under 
the white supremacy conditions obtaining in Gadsden 
County can hardly be expected to register and otherwise 
exercise their rights and privileges of citizenship if the only 
persons who come to apprise them of those rights and en­
courage them to exercise those rights thereby incur arrest 
and prosecution in state courts. These harassing prosecu­
tions not only intimidate the Negro citizens of Gadsden 
County, but also deprive them of the aid and encourage­
ment of the only persons who have ventured to apprise 
them of their rights.

If these trespass prosecutions of appellants were al­
lowed to continue, the civil rights of Negro citizens of 
Gadsden County to register and vote would be reduced to 
a meaningless nullity. Federal courts have statutory au­
thority to shape an appropriate remedy for the vindication 
of civil rights. 42 U. S. C. 1988 (1958); Brazier v. Cherry, 
293 F. 2d 401 (5 Cir. 1961). The courts accord such vital 
rights as those to register and vote the protection neces­
sary to their preservation. United States v. Wood, supra 
p. 8; see also, e.g., NAACP v. Button, 371 U. S. 415 (1963).



10

Appellants also allege requisite jurisdictional facts for 
removal under 28 U. S. C. §1443(2), to wit, that appellants 
were arrested for exercising their rights to free speech 
and other equal rights under the federal Constitution and 
laws, that appellants’ arrests were effected for the sole 
purpose of furthering racial discrimination, and that ap­
pellants cannot enforce their equal civil rights in the state 
courts because Florida and its courts by statute, ordinance, 
regulation, custom, usage and practice support and main­
tain a policy of racial discrimination. Taylor v. Louisiana, 
370 U. S. 154 (1962); see also Wright v. Georgia, 373 U. S. 
284 (1963); Lombard v. Louisiana, 373 U. S. 267 (1963); 
Peterson v. City of Greenville, 373 U. S. 244 (1963); Griffin 
v. Maryland, 378 U. S. 130 (1964).

The District Court has the power to receive evidence 
and try the jurisdictional facts. Polito v. Molasky, 123 F. 2d 
258 (8 Cir. 1941), cert, denied 315 U. S. 804 (1942). See 
also Townsend v. Sain, 372 U. S. 293, 313 (1963).

Claimed denials of the full enjoyment of equal civil rights 
by state officers acting under color of law are cognizable in 
the United States District Courts as matters of first impres­
sion. Yick Wo v. Hopkins, 118 U. S. 356 (1886); Baker v. 
Carr, 369 U. S. 186 (1962); Monroe v. Pape, 365 U. S. 167 
(1961); Hornsby v. Allen, 330 F. 2d 55 (5 Cir. 1964).

The arrests of appellants under the circumstances in 
this case also violated their civil rights, contrary to 
42 U. S. C. §1983, to freedom from unlawful arrest, freedom 
of speech, and freedom of association. Nesmith v. Alford, 
318 F. 2d 110, 124 (5 Cir. 1963), rehearing denied 319 F. 2d 
859, cert, denied 375 U. S. 975 (1964).

The employment of state judicial power together with 
county sheriffs and prosecutors to enforce the racial dis­



11

crimination shown here constitutes such application of 
state power as to bring to bear the guarantees of the 
Fourteenth Amendment. Shelley v. Kraemer, 334 TJ. S. T 
(1948).

No warrants or other process in the state court pro­
ceedings were ever served upon or given to the adult ap­
pellants ; and the complaints against the juvenile appel­
lants charge “ Trespassing” but do not specify any statute. 
These circumstances are alone sufficient ground for dis­
missal of the proceedings against appellants.

The Justice of the Peace Court of Gadsden County told 
a representative of appellants that they were charged with 
violating Section 821.07 of the Florida statutes (R. 21-22). 
Assuming that such oral communication would be sufficient 
to satisfy due process requirements of notice to appellants, 
Section 821.07 does not set forth or define the crime of 
trespass, but simply provides that the requirement of post­
ing notices in conspicuous places around the enclosure1 of 
enclosed lands, in order to obtain the benefit of the statutes 
prohibiting trespass on enclosed lands, shall not apply to 
tracts of land not exceeding 200 acres on which there is a 
dwelling house.

In Section 821.04, the crime of trespass is defined as the 
willful entry, with the view of trespassing, upon any en­
closure of another without prior permission of the owner 
or occupant. Section 821.06 provides that such enclo­
sure must be conspicuously posted with notices. Section 
821.041(1) provides that unauthorized entry “upon any 
legally enclosed and legally posted land shall be prima 
facie evidence of the intention of such person to commit 
an act of trespass . . .  .”



12

The combined effect of those statutes is that if a person 
enters an enclosed tract of land on which there is a dwell­
ing house, but which tract of land is not posted, the person 
may be committing trespass if the tract of land is less 
than 200 acres, but not if it exceeds 200 acres. Whether 
the prima facie evidence rule of Section 821.041(1) would 
apply to an unposted tract not exceeding 200 acres, in 
view of the explicit reference in Section 821.041(1) to 
“ legally posted land”, is not clear. For a statute to re­
quire a defendant to determine at his peril either the acre­
age of a tract or the applicability of the prima facie 
evidence rule is plainly not consistent with due process 
requirements of clarity and certainty.

Moreover, the criminal trespass proceedings against ap­
pellants in this case penalize actions that were expressive 
of claims and of views. Stromberg v. California, 283 U. S. 
359 (1931); Thornhill v. Alabama, 310 U. S. 88 (1940). The 
requirements of statutory clarity are in such cases higher 
than in the general case. Winters v. New York, 333 U. S. 
507 (1948).

The prosecutions of appellants for violation of the Flor­
ida trespass statutes in the circumstances of this case would 
not be consistent with the requirements of due process. 
Bouie v. Columbia, 378 U. S. 347 (1964); Hamm v. City 
of Rock H ill,------U. 8 . ------- , 85 S. Ct. 384 (1964).



13

II.

The prosecutions of appellants should be dismissed 
without further proceedings in the District Court, or, 
in the alternative, should be enjoined.

The same allegations that established the jurisdictional 
facts for removal also require dismissal of the prosecutions 
rather than further proceedings in the District Court.

The allegations in the removal petition were verified and 
uncontradicted. The District Court acknowledged that the 
removals were proper, and that the Justice of the Peace 
of Gadsden County nevertheless thereafter purported to 
try two of the appellants (R. 32-33). The record is thus 
already replete with sworn and uncontroverted statements 
of fact, and with recognition by the District Court of facts 
and conduct by state officials, proving the unlawful pur­
poses of the arrests and prosecutions of appellants. The 
present record is more than sufficient to require dismissal 
of the prosecutions without further proceedings in the 
District Court. Rachel, et al. v. State of Georgia, supra 
p. 8, at page 15; Hamm v. City of Rock Hill, supra p. 12.

As alternative relief in their removal petitions, appel­
lants requested an injunction against the state court prose­
cutions. Such injunction is entirely warranted by the facts 
and circumstances. See, e.g., Baines v. City of Danville, 
337 F. 2d 579, 589 (4 Cir. 1964), in which the Court said:

“ The Removal Acts, for instance, contain no reference 
to injunctions, but the power to enjoin a continuation 
of state court proceedings is an obvious corollary of 
the power to remove the action from state to federal 
jurisdiction.”



14

III.

Appellants are at least entitled to a hearing on the 
allegations of their verified removal petitions.

Since the removal petitions alleged facts which, if true, 
sustain the removals and require dismissal of the state 
court prosecutions, it necessarily follows—and it is the law 
—that appellants at the very least are entitled to a hearing 
in the District Court to prove their allegations. Rachel, 
et al. v. State of Georgia, supra p. 8; Hamm v. City of 
Rock Hill, supra p. 12.

In remanding without a hearing, the District Court de­
nied appellants their right to invoke federal jurisdiction. 
Such a denial without a hearing violates due process of law. 
Reynolds v. Cochran, 365 U. S. 525 (1961); Council of Fed­
eral Organizations v. Mize, 339 F. 2d 898, 901 (5 Cir. 1964).

The orders of remand by the District Court sua sponte, 
without any hearing and without allowing arguments to 
explore and clarify the issues for the appellate record, 
constitute prejudicial error properly reversible by this 
Court.



15

IV.

The authority cited by the District Court does not 
support the orders of remand.

Contrary to the District Court’s conclusion, and as dem­
onstrated by the facts and authorities cited hereinabove, 
the interests of justice and sound judicial administration 
plainly compel removal and dismissal of the state court 
prosecutions. ,

The District Court, in its orders of remand, cited Dres­
ner, et al. v. Municipal Judge, City of Tallahassee, decided 
by this Court on 'August 5, 1964. In that ease, the District 
Court was directed to modify its order in connection with 
applications for habeas corpus. That case has no bearing 
on the issues now before this Court.



16

CONCLUSION

The orders of remand should be reversed and the 
cases returned to the District Court with directions to 
dismiss the prosecutions without further proceedings.

Respectfully submitted,

D onal C. Collimore, Jr. 
1293 Post Road 
Fairfield, Connecticut

J ohn  L ow enthal 
521 Fifth Avenue 
New York, N. Y. 10017

H oward W. D ixon 
Seybold Building 
Miami, Florida 33132

Carl R achlin  
38 Park Row 
New York, N. Y .

E arl J ohnson 
625 West "Union Street 
Jacksonville, Florida

Melvin L. W ulf 
156 Fifth Avenue 
New York, N. Y.

J ohn  D ue
5 4 0 W.  Brevard 
Tallahassee, Florida

Attorneys for Appellants



17

Certificate of Service

This is to certify that on the 16th day of April, 1965, I 
served a copy of the foregoing Brief for Appellants upon 
H. T. Reynolds, Juvenile Court, Gadsden County, Quincy, 
Florida, and William D. Lines, Prosecuting Attorney, 
Gadsden County, Quincy, Florida, by mailing a copy 
thereof to each of them at their above respective addresses 
via U. S. mail, postage prepaid.

Attorney for Appellants



19

APPENDIX OF FLORIDA STATUTES

821.04 T respass  o n  en clo su r e

No person in this state shall willfully, and with the view 
of trespassing, enter any enclosure of another or enter 
upon any tract of land bounded or entirely surrounded by 
sea, gulf, bay, river, or by creeks or lakes, without per­
mission of the owner or occupant, authorized to give such 
permission, being previously obtained, and every person 
so trespassing shall be imprisoned not to exceed ninety days 
or fined not exceeding fifty dollars.

821.041 U n a u t h o r ize d  e n t r y  o n  l a n d ; p r im a  eacie

EVIDENCE OF TRESPASS

(1) The unauthorized entry by any person into or upon 
any legally enclosed and legally posted land shall be prima 
facie evidence of the intention of such person to commit 
an act of trespass and. of intent to commit any other act 
pertaining to said land, the improvements thereto or growth 
thereon, committed while within said enclosure.

821.06 L an ds  m u s t  be  posted

The provisions of §§ 821.04 and 821.05 shall not apply to 
lands which have not been posted in at least three conspicu­
ous places around the enclosure, where it is enclosed by a 
fence, or lands which have not been posted in conspicuous 
places every eight hundred yards where the same is bounded 
or formed by a sea, gulf, bay, river, creeks or lakes, and 
when so posted as herein provided, such sea, gulf, bay, 
river, creeks or lakes shall be taken and considered as an 
enclosure. The parties posting the notices or those present 
at the time of posting such notices shall be competent to



2 0

prove the posting. Such notices shall be kept in position 
where they can be seen.

821.07 P o stin g  c e r t a in  en closed  l a n d  n o t  n e ce ssar y

It shall not be necessary to give notice by poster on any 
enclosed tract of land not exceeding two hnndred acres 
on which there is a dwelling house, in order to obtain the 
benefits of the statutes of this state prohibiting trespass 
on enclosed lands.



38