Shuttlesworth v Birmingham AL Petition for Writ of Certiorari

    In the

&uprrmr Court of tljr Imtrts BtuUs
O ctober T erm , 1961- 

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

F. L. S hu ttlesw orth  and Charles B illxjps,

—v.-
Petitioners,

C ity  oe B ir m in g h a m .

PETITION FOR WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF ALABAMA

J ack  G reenberg 
Constance B aker M otley 

10 Columbus Circle 
New York 19, N. Y.

A rth u r  D. S hores 
Orzell B illingsley 
P eter A . H all 
O scar A dams 
J. R ichm ond  P earson

1630 Fourth Avenue, No. 
Birmingham, Alabama

Attorneys for Petitioners

L eroy D . Clark  
J ames M. N abrit, III 

Of Counsel



TABLE OF CONTENTS
PAGE

Citation to Opinions Below ..............................................  1

Jurisdiction ................................................................    1

Questions Presented ..........................................................  2

Constitutional and Statutory Provisions Involved .....  3

Statement of the Case ......................................................  3

How the Federal Questions Were Raised and Decided 
Below .......................................  5

Reasons for Granting the Writ .......................................... 7

Conclusion ...........................................................................  12

T able of A uthorities Cited

Cases

Abie State Bank v. Bryan, 282 U. S. 765, 777, 778 .......  10
Adams v. Saenger, 303 U. S. 5 9 .......................................  10

Briscoe v. State of Texas, 341 So. 2d 432 ....................... 9
Burstyn v. Wilson, 343 U. S. 495 ....................................  11

Chaplinsky v. New Hampshire, 315 U. S. 568 ............... 11
Connally v. General Construction Co., 269 U. S. 385 .... 11 
Cox v. New Hampshire, 312 U. S. 569 ..........................  7

Garner v. Louisiana, 7 L. ed. 207 (1961) ....................... 9

Johnson v. State of Texas, 341 So. 2d 434 ....................  9
Junction R.R. Co. v. Ashland Bank, 12 Wall. (U. S.)

226, 230 .............................................................................  10



11
PAGE

King v. City of Montgomery,------Ala. --------, 128 So.
2d 341 ...............................................................................  9

Kovacs v. Cooper, 336 U. S. 7 7 ........................................  . 7

Monk v. Birmingham, 87 P. Snpp. 538 (N. D, Ala. 1949), 
aff’d 185 F. 2d 859, cert, denied 341 U. S. 940 .......... 10

Railway Mail Ass’n v. Corsi, 326 U. S. 88, 98 (Justice
Frankfurter’s concurring opinion)   ....................... 10

Rucker v. State of Texas, 341 So. 2d 434 ....................... 9

Saia v. New York, 334 U. S. 558 ......................................  11
Schenck v. United States, 249 U. S. 4 7 .... ................ ..... 7,11
Shell Oil v. Edwards, 263 Ala. 4, 9, 88 So. 2d 689 (1955) 10
Smiley v. City of Birmingham, 255 Ala. 604, 605, 52 

So. 2d 710 (1951) ............................................................  10

Terminiello v. Chicago, 337 U. S. 1, 4 ............................  7
Thompson v. City of Louisville, 326 U. S. 199............... 8
Tucker v. State of Texas, 341 So. 2d 433 ....................... 9

Winters v. New York, 333 U. S. 507 ................................  11

Statutes

Fourteenth Amendment to the Constitution of the 
United States, Section 1 ...................... .......................  3

United States Code, Title 28, §1257(3) ..........................  2

General Code of Birmingham of 1944 ............      3

General City Code of Birmingham
§824 ...............................................................................  5
§1436 .............................................................................  5,8

Other Authorities

Pollitt, Duke L. J., Dime Store Demonstrations: Events 
and Legal Problems of First Sixty Days, 315 (1960) .. 8, 9



Ill

INDEX TO APPENDIX
PAGE

Opinion of Cates, Presiding Judge ..............................  la

Order of Affirmance in Shuttlesworth Case................... 3a

Order Denying Application for Rehearing in Shuttles­
worth C ase........................................................................ 4a

Order of Filing in Shuttlesworth Case ......................... 6a

Order Denying Petition for Writ of Certiorari to the 
Court of Appeals in Shuttlesworth C ase................... 7a

Opinion of Price, Presiding Judge in Billups C ase.....  8a

Opinion in Billups Case.............................................   9a

Order Denying Application for Rehearing in Billups 
Case ...................................................................................  10a

Order of Filing in Billups Case ....................................... 11a

Order Denying Petition for Writ of Certiorari to the 
Court of Appeals in Billups Case ....................... ........  12a

Extracts From Transcript of Proceedings ..................  13a



I n  th e

i&tpmtw (Enurt of %  Inttefc
O ctober T erm , 1961- 

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

F. L. S h u ttlesw orth  and Charles B illu ps ,

Petitioners,
—v.—

Cit y  of B ir m in g h a m .

PETITION FOR WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF ALABAMA

Petitioners pray that a writ of certiorari issue to re­
view the judgments of the Court of Appeals of Alabama, 
rendered on May 30,1961.

Citation to Opinions Below

The opinions of the Alabama Court of Appeals are re­
ported in 134 So. 2d 213 and 134 So. 2d 215 and are set 
forth in the Appendix hereto infra, pp. la, 2a and 8a. The 
denial of certiorari by the Supreme Court of Alabama is 
reported at 134 So. 2d 214 and 134 So. 2d 215.

Jurisdiction

The judgments of the Alabama Court of Appeals were 
entered on May 30,1961 (R. 44).* Appendix pp. 3a, 9a, infra.

* There are separate records for the Shuttlesworth and Billups 
cases. References to both records were made by a single citation 
where the page numbers are the same.



2

Application for rehearing before the Court of Appeals of 
Alabama was denied on June 20, 1961 (Shuttlesworth R. 
48, 49; Billups R. 47). A petition to the Supreme Court of 
Alabama for Writ of Certiorari was denied on September 
25, 1961, and application for rehearing was overruled on 
November 16, 1961 (Shuttlesworth page following R. 49; 
Billups, page following R. 47). The jurisdiction of this 
Court is invoked pursuant to 28 United States Code, §1257 
(3), petitioners having asserted below, and asserting here, 
the deprivation of his rights, privileges and immunities 
secured by the Constitution of the United States.

Question Presented

Alabama has convicted petitioners of “ incit[ing] or aid- 
ting] or abet [ting] another person to go or remain on 
the premises of another after being warned . . The 
record showed essentially that petitioner Shuttlesworth 
“ asked for volunteers to participate in the sit-down demon­
strations” and that petitioner Billups was present at this 
request. There was no evidence that either persuaded any­
one to violate any law, or that anyone following petitioners’ 
suggestions did violate any law, valid under the Fourteenth 
Amendment to the United States Constitution. A Birming­
ham ordinance requires racial segregation in restaurants.

In convicting and sentencing petitioners respectively to 
180 and 30 days hard labor, plus fines, has Alabama denied 
liberty, including freedom of speech, secured by the due 
process clause of the Fourteenth Amendment?



3

Constitutional and Statutory Provisions Involved

This case involves the following constitutional provision:

Section 1 of the Fourteenth Amendment to the Constitu­
tion of the United States.

The case also involves the following provisions of the 
General Code of Birmingham of 1944:

“ Section 824. It shall be unlawful for any person to 
incite, or aid or abet in, the violation of any law or 
ordinance of the city, or any provision of state law, 
the violation of which is a misdemeanor.”

“ Section 1436 (1944), After Warning. Any person 
who enters into the dwelling house, or goes or remains 
on the premises of another, after being warned not to 
do so, shall on conviction, be punished as provided in 
Section 4, provided, that this Section shall not apply 
to police officers in the discharge of official duties.” 

“ Section 369 (1944), Separation of races. It shall 
be unlawful to conduct a restaurant or other place for 
the serving of food in the city, at which white and 
colored people are served in the same room, unless 
such white and colored persons are effectually sepa­
rated by a solid partition extending from the floor 
upward to a distance of seven feet or higher, and un­
less a separate entrance from the street is provided 
for each compartment” (1930, Section 5288).

Statement of the Case

These cases were tried in the Circuit Court of Jefferson 
County sitting without a jury (R. 13) on evidence given 
by a City of Birmingham detective who testified concerning 
what had been placed in evidence at the trial of petitioner



4

Shuttlesworth for this alleged crime in the City Recorder’s 
Court, April 1, 1960. The record of the proceedings (R. 
13-34) is for the greatest part taken up by objections to 
the hearsay nature of the evidence and objections to com­
pelling testimony from defendants in the trespass cases 
themselves. (The former objections were overruled; the 
latter sustained.) The relevant testimony admitted into 
evidence is, however, extremely brief.

In summary, the evidence upon which petitioners Shut­
tlesworth and Billups were convicted of inciting, aiding or 
abetting another to go or remain on the premises of another 
after being warned not to do so was that one, James Glober 
and one, Albert Davis went to petitioner Rev. Shuttles- 
worth’s house on March 30, 1960 (R. 25-26, 28-29), that 
petitioner Billups drove Davis there (R. 28), and that peti­
tioner Billups was present (R. 28), that petitioner Shut­
tlesworth asked for volunteers to participate in sit-down 
demonstrations (R. 25-26, 28-29), that a list, not otherwise 
described, was made (R. 28-29), that Shuttlesworth an­
nounced he would get them out of jail (R. 29), that Gober 
and Davis participated in sit-down demonstrations on 
March 31 (R. 30), and that others who attended the meeting 
at Shuttlesworth’s house participated in sit-down demon­
strations (R. 30-31). The record contains nothing more.*

On this record petitioner Shuttlesworth was found guilty 
as charged and sentenced to 180 days hard labor for the 
city, plus $100.00 fine. Petitioner Billups was found guilty 
as charged and sentenced to 30 days hard labor for the 
city and $25.00 fine.

* Extracts from the transcript are set forth verbatim in the 
Appendix, infra.



5

How the Federal Questions Were Raised 
and Decided Below

After conviction in the Recorder’s Court of the City of 
Birmingham, petitioners appealed to the Circuit Court of 
Jefferson County for trials de novo, prior to which they 
filed motions to strike the complaint and demurrers al­
leging that §824 and §1436 of the General City Code of 
Birmingham were applied to deprive them of freedom of 
assembly and speech under the Fourteenth Amendment; 
that as applied the ordinances were an enforcement of 
racial segregation and, therefore, a denial of due process 
and equal protection of laws, in violation of the Fourteenth 
Amendment; that the ordinances as applied were so vague 
as to constitute denial of due process of law in violation 
of the Fourteenth Amendment (R. 2-4),

The motions to strike and the demurrers were overruled; 
exceptions were taken (R. 7).

At the close of the State’s evidence, petitioners moved 
to exclude the evidence alleging, among other things, that 
the trespass convictions (which petitioners allegedly had 
initiated) were invalid as based solely on race and, there­
fore, the complaint in this case was a denial of equal pro­
tection of the laws and the right of free speech and assembly 
secured by the Fourteenth Amendment; that the introduc­
tion of the proceedings in Recorder’s Court through hearsay 
evidence constituted a violation of the petitioner’s rights 
under the Fourteenth Amendment (R. 5, 6).

The motions to exclude the evidence were overruled and 
exception taken (R. 7).

At the end of the trial petitioners moved for new trials 
alleging, among other things, that: the ordinance under 
which they were convicted had been applied to deny free­



6

dom of speech, due process and equal protection of the laws 
in violation of the Fourteenth Amendment; that the Court 
erred in overruling the motion to strike the complaint, the 
demurrer, and the motion to exclude the evidence (E. 9-10),

The motions for new trial were overruled (E. 7-8).

Appeals were taken to the Alabama Court of Appeals 
and Assignments of Errors were filed against the action 
of the trial court in overruling the motion to strike the 
complaint (Assignment 1), the demurrers (Assignment 2), 
the motion to exclude the evidence (Assignment 3) and 
the motion for new trial (Assignment 4) (E. 42).

A  full opinion was written by the Court of Appeals in 
SJmttlesworth v. City of Birmingham, 6 Division 802, 
(Shuttlesworth 45-47). In Billups’ case after a brief ref­
erence to testimony thought to implicate him, his conviction 
was affirmed on the authority of Shuttlesworth (Billups 
45, 46).

The Court ruled adversely to all constitutional issues 
raised by petitioners:

“ There is no question of the restriction of any right 
of free speech or other assimilated right derived from 
the Fourteenth Amendment, since the appellant coun­
seled the college students not merely to ask service in 
a restaurant, but urged, convinced and arranged for 
them to remain on the premises presumably for an 
indefinite period of time. There is a great deal of 
analogy to the sit-down strikes in the automobile in­
dustry referred to in National Labor Relations Board 
v. Fan-steel Metallurgical Corp., 306 U. S. 240.

“ As presented by the appellant’s assignments of 
error and brief, the judgment below is due to be

A ffibm ed .”



7

Applications for rehearing before the Court of Appeals 
were overruled (Shuttlesworth 48; Billups 47). Writs of 
Certiorari, sought in the Supreme Court of Alabama were 
denied (Shuttlesworth page after 49, Billups page after 
47). Application for rehearing before the Supreme Court 
of Alabama were overruled (Shuttlesworth 55, Billups 53).

Reasons for Granting the Writ

The court below decided federal constitutional proposi­
tions in conflict with decisions of this Court.

The conviction of petitioners and judgments sentencing 
them to hard labor in jail for 180 and 30 days respectively, 
denied them liberty secured by the due process clause of 
the Fourteenth Amendment to the United States Consti­
tution. This liberty has been taken away solely because 
petitioners exercised Fourteenth Amendment rights of free 
speech and assembly. “ . . . [FJreedom of speech, though 
not absolute, Chaplinsky v. New Hampshire . . . , is never­
theless protected against censorship or punishment, unless 
shown likely to produce a clear and present danger of a 
serious substantive evil that rises far above public incon­
venience, annoyance, or unrest.”  Terminiello v. Chicago, 
337 U. S. 1, 4. Petitioners are not charged with having 
conducted a meeting in an unlawful manner, e.g., by sound 
truck (Kovacs v. Cooper, 336 U. S. 77) or without a permit 
where one was required, Cox v. New Hampshire, 312 U. S. 
569, or under circumstances dangerous to public safety, 
e.g., Feiner v. New York, 340 U. S. 315, but cf. Terminiello 
v. City of Chicago, 337 U. S. 1, or to have spoken or 
met in a manner otherwise illegal. Neither have they been 
punished for crime for having created a clear and present 
danger of a substantive evil which the state has the power 
to prevent. Cf. Schenck v. United States, 249 U. S. 47.



8

In this case the record demonstrates merely that peti­
tioner Shuttlesworth “ asked for volunteers and that there 
were some volunteers to take part in ‘sit-down’ demonstra­
tions; Shuttlesworth promised to get them out of jail” 
(Opinion of Alabama Court of Appeals, Shuttlesworth v. 
City of Birmingham, App. la ). In the case of Billups, 
the record shows only that Billups drove a student to Shut- 
tlesworth’s home and attended the meeting at which Shut­
tlesworth made the request for “volunteers” (Opinion of 
Alabama Court of Appeals, Billups v. City of Birmingham, 
App. 6a). There is no evidence at all that Shuttlesworth 
requested anyone to perform an unlawful act. The Ala­
bama Court of Appeals states that “ the appellant counseled 
the college students not merely to ask service in a restau­
rant, but urged, convinced and arranged for them to remain 
on the premises presumably for an indefinite period of 
time” (App. la  (emphasis supplied)). The Alabama Court 
of Appeals also held that a “ sit-down” demonstration being 
a form of trespass after warning, denotes violation of 
State law and especially of §1436 of the City Code, supra 
{ibid.).

But the record does not at all support these conclusions. 
See Thompson v. City of Louisville, 326 U. S. 199.

Petitioner Shuttlesworth’s request for volunteers to par­
ticipate in sit-down demonstrations does not on this record 
in any sense at all support a conclusion that he “urged, 
convinced and arranged for them to remain on the prem­
ises presumably for an indefinite period of time.” Nor does 
it support at all a conclusion that he asked them to engage 
in “ trespass after warning.” A “ sit-down” demonstration 
may take many forms. See Pollitt, Duke L. J., Dime Store 
Demonstrations: Events and Legal Problems of First Sixty 
Days, 315 (1960). Such demonstrations are not at all nec­
essarily a crime as this Court demonstrated by its decision



9

in Garner v. Louisiana, 7 L. ed. 207 (1961). Moreover, 
state courts under varying sets of facts have acquitted or 
reversed the convictions of participants in such demon­
strations.

See Pollitt, op. cit. supra, at p. 350 (trespass convictions 
of students convicted in Raleigh, N. C. dismissed); King
v. City of Montgomery, ------  Ala. ------ , 128 So. 2d 341
(trespass convictions for sit-in in private hotel reversed); 
Briscoe v. State of Texas, 341 So. 2d 432; Rucker v. State 
of Texas, 341 So. 2d 434; Tucker v. State of Texas, 341 
So. 2d 433; Johnson v. State of Texas, 341 So. 2d 434 
(convictions of sit-ins for unlawful assembly reversed).

There is no evidence in this record concerning precisely 
the activities petitioners are supposed to have counseled, 
and no evidence concerning the activities in which students 
are supposed to have engaged following petitioners’ advice 
when they participated in sit-ins. But even if one were 
to notice, arguendo, the convictions of Gober, et al., now 
here in No. 694 on Petition for Writ of Certiorari, it is 
respectfully submitted that the demonstrators in those 
cases committed no crimes but were engaged in activities 
protected by the Fourteenth Amendment to the United 
States Constitution. The request for nonsegregated service 
in the face of the Birmingham segregation ordinance did 
not constitute illegal activity by those students when viewed 
in the light of the Fourteenth Amendment to the United 
States Constitution1 for the proprietors were compelled to 
refrain from serving those petitioners by the Ordinance.2

1 Additional reasons demonstrating the unconstitutionality of 
the convictions in Gober are set forth in the petition in No. 694 
to which petitioners here respectfully refer the Court.

2 “ ‘Sec. 369. Separation of races.
It shall be unlawful to conduct a restaurant or other place 

for serving of food in the city, at which white and colored



10

Consequently any “ trespass” that occurred stemmed di­
rectly from the segregation law. Such convictions obvi­
ously were unconstitutional.

Petitioners having met and expressed themselves in a 
manner which was entirely legal and having counseled ac­
tivities which were entirely legal and concerning which 
there is no evidence whatsoever of illegality, were engaged 
in constitutionally protected free expression. Indeed, as 
Mr. Justice Harlan pointed out in his concurring opinion 
in Garner, a lawfully conducted sit-in protest is an exer­
cise of First Amendment and (as against the states) Four­
teenth Amendment rights. Counseling another to engage 
in such activity absent any evidence that illegal conduct is 
sought by the counsellor is a fortiori the exercise of free 
speech.3 Here petitioners did not seek to achieve a sub­

people are served in the same room, unless such white and 
colored persons are effectually separated by a solid partition 
extending from the floor upward to a distance of seven feet 
or higher, and unless a separate entrance from the street is 
provided for each compartment’ ” (1930, §5288).

This ordinance is judicially noticeable by the Alabama courts, 
7 Code of Alabama, 1940, §429(1). See Shell Oil v. Edwards, 263 
Ala. 4, 9, 88 So. 2d 689 (1955) ; Smiley v. City of Birmingham, 255 
Ala. 604, 605, 52 So. 2d 710 (1951). “ ‘The act approved June 18, 
1943, requires that all courts of the State take judicial knowledge 
of the ordinances of the City of Birmingham.’ ” Monk v. Birming­
ham, 87 F. Supp. 538 (N. D. Ala. 1949), aff’d 185 F. 2d 859, cert, 
denied 341 U. S. 940. And this Court takes judicial notice of laws 
which the highest court of a state may notice. Junction B.B. Co. 
v. Ashland Bank, 12 Wall. (U. S.) 226, 230; Abie State Bank v. 
Bryan, 282 U. S. 765, 777, 778; Adams v. Saenger, 303 U. S. 59 ; 
Owings v. Hull, 9 Peters (U. S.) 607, 625.

3 Compare Fiske v. Kansas, 274 U. S. 38, where the criminal 
syndicalism act was held to have been applied unconstitutionally 
where it was not shown that defendants had advocated unlawful 
methods to obtain their goals. In the ease now at bar petitioners’ 
goals were consonant with those of the high aspirations of the 
Fourteenth Amendment. Cf. Bailway Mail Ass’n v. Corsi, 326 U. S. 
88, 98 (Justice Frankfurter’s concurring opinion).



11

stantive evil which the state has a right to prevent, see 
Schenck v. United States, 249 U. S. 47; rather, they sought 
nonsegregated food service in the face of an obviously un­
constitutional Jhcial segregation ordinance in the City of 
Birmingham which asserted a power the state does not 
possess.

Conviction of petitioners under the “ inciting” ordinance 
is even further offensive to the Fourteenth Amendment 
because this ordinance does not reasonably apprise any­
one that to advocate a sit-in protest is a crime. A  statute 
must give fair warning to a defendant of what acts are 
prohibited, Connally v. General Construction Co., 269 U. S. 
385 and where it trenches upon free expression the statute 
must be even more specific. Winters v. New York, 333 
U. S. 507; Burstyn v. Wilson, 343 U. S. 495; Saia v. New 
York, 334 U. S. 558; Chaplinsky v. New Hampshire, 315 
IT. S. 568.



12

W herefore, fo r  the fo re g o in g  reasons, it is resp ectfu lly  
subm itted that the p etition  fo r  w r it  o f  ce rtio ra ri should 
be granted.

R esp ectfu lly  .subm itted,

L eroy D. Clark  
J ames M. N abrit, III 

Of Counsel

J ack  Greenberg 
Constance B aker M otley 

10 Columbus Circle 
New York 19, N. Y.

A rth u r  D. S hores 
O rzell B illingsley 
P eter A. H all 
O scar A dams 
J. R ichm ond  P earson

1630 Fourth Avenue, No. 
Birmingham, Alabama

Attorneys for Petitioners



APPENDIX

Opinion of Cates, Presiding Judge

T he S tate of A labam a— J udicial D epartm ent

THE ALABAMA COURT OF APPEALS 

October Term, 1960-61 

6 Div. 802

F. L. S huttlesw orth  

C ity  of B irm in gham

Appeal from Jefferson Circuit Court 

Cates, Judge:

Appellant was convicted in the Circuit Court of Jefferson 
County of violating § 824 of the General City Code of Bir­
mingham of 1944, which reads as follows:

“It shall be unlawful for any person to incite, or aid 
or abet in, the violation of any law or ordinance of 
the city, or any provision of state law, the violation 
of 'which is a misdemeanor.”

The particular corollary crime of which he was accused 
of inciting others to commit is found in § 1436 of the City 
Code. This section makes it an offense to remain on the 
premises of another after a warning. See James Gober v.
City of Birmingham, 6 Div. 797 (Ms.), ------  Ala. App.
------ , this day decided.

We can only consider one point raised by the assign­
ments of error and the propositions of law and argument, 
i.e., the sufficiency of the evidence to show a violation of 
§ 824, supra.



2a

Opinion of Cates, Presiding Judge

The statement of the case set forth in appellant’s brief 
(which we are entitled to rely upon without regard to the 
record itself in civil cases) is that Shuttlesworth asked for 
volunteers, and that there were some volunteers to take 
part in, ‘sit-down’ demonstrations; Shuttlesworth promised 
to get them out of jail.

The appellant’s argument on this point deliberately 
evades the effect of the word “ incite” in the city ordinance, 
and deals solely with the joint responsibility of an aider 
and abetter. It is sufficient to answer this argument by a 
quotation from Jowitt’s Dictionary of English Law, p. 953:

“ Everyone who incites any person to commit a crime 
is guilty of a common law misdemeanor, even though 
the crime is not committed. If the crime is actually 
committed, he is an accessory before the fact in the 
case of felony, and equally guilty, in the case of treason 
or misdemeanor, with the person who commits the 
crime.”

A  sit-down demonstration being a form of trespass after 
warning, denotes a violation of both State law and especially 
of § 1436 of the City Code, supra.

There is no question of the restriction of any right of 
free speech or other assimilated right derived from the 
Fourteenth Amendment, since the appellant counseled the 
college students not merely to ask service in a restaurant, 
but urged, convinced and arranged for them to remain on 
the premises presumably for an indefinite period of time. 
There is a great deal of analogy to the sit-down strikes in 
the automobile industry referred to in National Labor Rela­
tions Board v. Fansteel Metallurgical Corp., 306 U. S. 240.

As presented by the appellant’s assignments of error and 
brief, the judgment below is due to be

A ffirm ed .



3a

T h e  S tate of A labama— J udicial D epartment

THE ALABAMA COURT OF APPEALS 

October Term, 1960-61 

6 Div. 802

F . L. S h u ttlesw obth

--- V.---

C ity  of B irm in g h am

Order of Affirmance in Shuttlesworth Case

Appeal from Jefferson Circuit Court

November 2,1960 
Certificate F iled

January 26,1961 
T ranscript F iled

April 18,1961
Come the parties by attorneys, and argue and submit this 

cause for decision.
May 30,1961

Come the parties by attorneys, and the record and matters 
therein assigned for errors being submitted on briefs and 
duly examined and understood by the court, it is considered 
that in the record and proceedings of the Circuit Court there 
is no error. It is therefore considered that the judgment of 
the Circuit Court be in all things affirmed. It is also con­
sidered that the appellant pay the costs of appeal of this 
court and of the Circuit Court.



4a

T h e  S tate of A labama— J udicial D epartm ent

THE ALABAMA COURT OF APPEALS 

October Term, 1960-61 

6 Div. 802
----------------------------- ----------------- -— ------------

F. L. S h u ttlesw orth

Order Denying Application for Rehearing
in Shuttlesworth Case

— v .—

C it y  of B irm in g h am

Appeal from Jefferson Circuit Court 
June 14,1961

Now comes appellant, in the above styled cause, and re­
spectfully moves this Honorable Court to grant appellant 
a rehearing in said cause, and to reverse, revise and hold 
for naught its Judgment rendered on to-wit, the 30th day 
of May, 1961, and affirming the Judgment of the Circuit 
Court of Jefferson County, Alabama, and to enter an Order, 
reversing said Judgment.

A rth u r  D. S hores 
Orzell B illingsley , J r . 
P eter A . H all 
O scar W . A dams, J r .
J. R ichm ond  P earson

Attorneys for Appellant
June 20,1961

It is ordered that the application for rehearing be and 
the same is hereby overruled.

Cates, Judge.



5 a

Order Denying Application for Rehearing in 
Shuttlesworth Case

June 20,1961

O n  B ehearing

Cates, Judge:

The application for rehearing in this case is supported 
by a brief which contains two propositions of law, both of 
which are predicated on the appellant’s having been con­
victed under §1436 of the General City Code of Birming­
ham.

This appellant was convicted of inciting others to violate 
§ 1436. The propositions accordingly have no bearing on 
the facts.

A pplication  Overruled.



6a

S ix t h  D ivision

No. 764

Ex P arte F. L. S hu ttlesw orth  

IN THE SUPREME COURT OF ALABAMA

Order of Filing in Shuttlesworth Case

F. L. S hu ttlesw orth  

C ity  oe B irm in g h am

Appellant

Appellee

A rth u r  D . S hores 
P eter A . H all 
Orzell B illingsley , Jr.
J. R ichm ond  P earson 
Oscar W . A dams, J r.

Attorneys for Appellant
July 5,1961

S ubmitted  on B riefs

September 25,1961

W rit  D e n ie d : No Opinion

October 4,1961

A pplication  for R ehearing  F iled 

A pplication  for R ehearing  Overruled

November 16,1961



7a

Order Denying Petition for Writ of Certiorari to 
the Court of Appeals in Shuttlesworth Case

THE SUPREME COURT OF ALABAMA 

Thursday, November 16,1961

The Court met pursuant to adjournment

Present: All the Justices 

(Lawson’s Division Sitting)

6th Div. 764

Ex Parte:
F. L. S h u ttlesw orth ,

Petitioner.

P etition  for W rit  of Certiorari to th e  C ourt of A ppeals

(R e : F. L. S hu ttlesw orth  v . City  of B ir m in g h a m ) 
Jefferson Circuit Court

I t is hereby ordered that the application for rehearing 
filed on October 4, 1961, be and the same is hereby over­
ruled.

L ivingston , C.J., L aw son , S takely  and M errill, JJ.,
concur.



8a

Opinion of Price, Presiding Judge in Billups Case 

May 30,1961

T he  S tate of A labama— J udicial D epartm ent

THE ALABAMA COURT OF APPEALS 

October Term, 1960-61 

6 Div. 795

Charles B illups

Cit y  of B irm in g h am

Appeal from Jefferson Circuit Court 

P rice, Judge:

This is a companion case to that of F. L. Shnttlesworth 
v. City of Birmingham, 6 Div. 802.

The facts set out in the Shuttlesworth case are adopted 
as the facts of this case, with this additional statement: 
“ On March 30, 1960, Rev. Billups went to Daniel Payne 
College in a car, where he picked up one James Albert 
Davis, a student, and carried him to the home of Rev. F. L. 
Shuttlesworth, where several people had gathered, among 
them Rev. Shuttlesworth, his wife, and several other stu­
dents from Daniel Payne College. Rev. Billups was also 
at said meeting.” Under this testimony the jury was fully 
justified in finding that this defendant was part and parcel 
of the entire scheme.

On the authority of Shuttlesworth v. City of Birming­
ham, supra, the judgment is due to be, and hereby is, af­
firmed.

A ffirm ed .



9a

Opinion in Billups Case

T h e  S tate of A labama— J udicial D epartm ent

THE ALABAMA COURT OF APPEALS 

October Term, 1960-61 

6 Div. 795

Charles B illups

City  of B irm in g h am

Appeal from Jefferson Circuit Court

November 2,1960 

Certificate F iled

January 26,1961 

T ranscript F iled

April 18,1961

Come the parties by attorneys, and argue and submit 
this cause for decision.

May 30,1961

Come the parties by attorneys, and the record and mat­
ters therein assigned for errors being submitted on briefs 
and duly examined and understood by the court, it is con­
sidered that in the record and proceedings of the Circuit 
Court there is no error. It is therefore considered that 
the judgment of the Circuit Court be in all things affirmed. 
It is also considered that the appellant pay the costs of 
appeal of this court and of the Circuit Court.



10a

Order Denying Application for Rehearing 
in Billups Case

T h e  S tate of A labama— J udicial D epartm ent

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 795

Charles B illups

— Y.—

C ity  of B irm in g h am

Appeal from Jefferson Circuit Court 
June 14,1961

Now comes appellant, in the above styled cause, and re­
spectfully moves this Honorable Court to grant appellant 
a rehearing in said cause, and to reverse, revise and hold 
for naught its Judgment rendered on, to-wit, the 30th day 
of May, 1961, and affirming the Judgment of the Circuit 
Court of Jefferson County, Alabama, and to enter an Order, 
reversing said Judgment.

A rth u r  D. S hores 
Orzell B illingsley , J r. 
P eter A . H all 
Oscar W . A dams, J r.
J. R ichm ond  P earson

Attorneys for Appellant

June 20,1961

It is ordered that the application for rehearing be and 
the same is hereby overruled.

P er Cu ria m .



11a

Order of Filing in Billups Case

S ix t h  D ivision 

No. 763

Ex P arte : Charles B illups 

IN THE SUPREME COURT OF ALABAMA

Charles B illups

— v s .—
Appellant

C ity  of B irm in g h am

Appellee

A rth u r  D . S hores 
P eter A . H all 
Orzell B illingsley , J r. 
Oscar W. A dams 
J. R ichm ond  P earson

Attorneys for Appellant.

July 5,1961,— Submitted on Briefs

Sept. 25,1961,—Writ denied: No opinion

Oct. 4,1961,—Application for Rehearing filed

Nov. 16,1961,—Application for Rehearing Overruled



12a

Order Denying Petition for Writ of Certiorari to 
the Court of Appeals in Billups Case

THE SUPREME COURT OF ALABAMA 

Thursday, November 16,1961

The Court met pursuant to adjournment

Present: All the Justices 

(Lawson’s Division Sitting)

6th Div. 763

Ex Parte:
Charles B illu ps ,

Petitioner

P etition  for W rit  of Certiorari to th e  Court of A ppeals

( R e :  Charles B illups  v . City  of B ir m in g h a m ) 
Jefferson Circuit Court

I t is hereby ordered that the application for rehearing 
filed on October 4, 1961, be and the same is hereby over­
ruled.

L ivingston , C.J., L aw son , S takely  and M errill, JJ.,
concur.



13a

“ Q. Mr. [detective] Pierce, were you present in the 
City’s Recorder’s Court, the Honorable William Con­
way presiding, on the evening of April 1, 1960 at which 
time Rev. F. L. Shuttlesworth, or F. L. Shuttlesworth, 
was on trial for violation of a City Ordinance?

“ A. Yes, sir, I was there.
“ Q. On that occasion did a James Gober make any 

statement under oath and in the presence of the de­
fendant Shuttlesworth, in the presence and hearing 
of the defendant Shuttlesworth, and in the presence 
and hearing of his counsel on that occasion?

“A. Yes sir, he did” ,(R. 17-18).
* * * * *

■ “ The Court: May I inquire whether the witness 
heard James Gober in the presence of defendant Shut­
tlesworth say anything about where he had been the 
afternoon before or two days before, whether it was 
the 30th or 31st or the 1st of April” (R. 21)? 

* * * * *
“ A. I heard him testify that he was a student at 

Daniel Payne College”  (R. 21).
* * * * *

“ Q. Did he say where that place wms on March 30th 
he went (R. 25) l

“A. He said he went to Rev. Shuttlesworth’s house.
“ Q. Did he make any remarks as to who was present 

when he arrived at Rev. Shuttlesworth’s house ? *

Extracts From Transcript of Proceedings*

* This constitutes all of the testimony introduced in evidence 
except for material which is repetitive or introductory.



14a

“A. He said there were several people present. He 
named Rev. Shuttlesworth and the Rev. Billups. Said 
they were there.

“ Q. Hid he mention that either Rev. Shuttlesworth 
or Rev. Billups made any statement there on that 
occasion!”

*  *  *  *  #

“A. He testified that the sit-down demonstrations 
was discussed at the meeting.

“ Q. Did he state whether or not Rev. Shuttlesworth 
participated in that discussion of the sit down demon­
stration!

“A. He testified the meeting was in the living room 
of Rev. Shuttlesworth’s house and that Rev. Shuttles­
worth participated in the discussion about the sit-down 
demonstrations” (R. 25-26).

*  *  *  *  #

“ Q. Did the witness say that Shuttlesworth sought 
volunteers for this demonstration, this sit in demon­
stration!”

* * # # #
“A. He testified that Rev. Shuttlesworth asked for 

volunteers to participate in the sit-down demonstra­
tions (R. 26).

“ Q. Did I understand you correct, Mr. Pierce, to say 
that he stated Rev. Billups was there at this meeting 
also!”

#  *  *  *  *

“A. He stated that Rev. Billups was there in the 
meeting (R. 27).

“Q. Did he make any reference to any list being 
made at this meeting held at Rev. Shuttlesworth’s 
house!

“A. He did.”

Extracts From Transcript of Proceedings

* * * * *



15a

“A. He testified that there was a list made but he 
didn’t know who made the list.”

 ̂ ^
“ Q. I will ask you, Mr. Pierce, if on this same evening 

of April, 1960 in the presence and hearing of. Rev. 
Shuttlesworth and Rev. Billups if James Albert Davis, 
while under oath, made any statements concerning this 
meeting held at Rev. Shuttlesworth’s house” (R. 28) 1 

# # # =£ #
“A. He did.
“ Q. Will you tell the Court what, if anything, he 

said on this occasion that took place at the house of 
Rev. Shuttlesworth at this hearing or discussion where­
in both Rev. Shuttlesworth and Rev. Billups were 
present.”

*= # * # #
“A. He testified that Rev. Billups came to his school, 

Daniel Payne College, in a car and carried him to 
Rev. Shuttlesworth’s house. He further testified that 
when he arrived there there were several people there, 
among which was Rev. Shuttlesworth and Rev. Shut­
tlesworth’s wife and a number of other students from 
Daniel Payne College. He testified that in response to 
Rev. Shuttlesworth asking for volunteers to participate 
in the sit-down strikes that he volunteered to go to 
Pizitz at 10:30 and take part in the sit-down demon­
strations. He further testified that a list was made 
but he didn’t know who made the list. He thought the 
list was compiled by— ” (R. 28-29).

* * # * #
“A. He said he didn’t know’ or wasn’t sure who made 

the list and he testified that Rev. Shuttlesworth didn’t 
say that he would furnish Counsel but told him or made

Extracts From Transcript of Proceedings



16a

the announcement at that time that he would get them 
out of jail.”

* * * * *
“ Q. Do you know it to be a fact that a number of 

boys— or I will put it this way. Do you know it to be 
a fact that James Gober and James Albert Davis did 
participate in sit-down or sit-in demonstrations on the 
day of March 31,1960 (R. 30) ?

“ A. Yes sir, they did.
“ Q. Do you know of your own knowledge that other 

colored boys on that same date participated in sit-in 
demonstrations in down town stores in the City of 
Birmingham?”

* * * * *
“ Q. Let me put it this way. Other boys who at­

tended the meeting at Rev. Shuttlesworth’s house?” 
* * * * *

“ A. Yes” (R. 30).
* * * * *

“ Q. Did either Gober or Davis while at that Court 
hearing and under the conditions we have previously 
outlined state that other persons were present—I am 
speaking of in the Court room now—did they state that 
other persons were present who did participate in 
these demonstrations at Rev. Shuttlesworth’s house on 
March 30, 1960?

“ A. Yes sir” (R. 31).

Extracts From Transcript of Proceedings