Walker v. Georgia Transcript of Record

    United States Court of Appeals
FOR THE FIFTH CIRCUIT

No. 26,332

M A R D O N  R. W A L K E R  and JAMES R. FORMAN,

VERSUS
Appellants,

STATE OF GEORGIA,
Appellee.

Appeal from  the United States District Court 
For the Northern District of Georgia

APPENDIX

L e w is  R. S la t o n , J r. 
Solicitor General 
Atlanta Judicial Circuit
J .  R obert  S p a r k s  
Assistant Solicitor General 
310 Fulton Courthouse 
Atlanta, Georgia
Attorneys for Appellee

H o w a r d  M oore , J r.
859^ Hunter Street, N.W. 
Atlanta, Georgia
Attorney for Appellant



I N D E X

Page No.

Transcript..........................................  1

Petition for removal...............................  214

Plaintiff's motion to remand....................... 232

Defendant's motion to strike and dismiss motion 
of plaintiff to remand.............................  233

Plaintiff's motion to remand....................... 235

Defendant's request for admissions................  239

Defendant's motion for order admitting their 
admissions of fact.................................  246

Order admitting facts set forth in defendant's
request for admissions.............................  248

Plaintiff's motion to set aside order admitting 
petitioner's request for admissions...............  252

Amendment to complaint.............................  255

Order remanding case to State Court...............  258

Notice of Appeal.......................    263

Motion and Order allowing stay pending appeal....  263-A

Testimony of William Kontoes....................... 264

i



UNITED STATES COURT OP APPEALS 
FOR THE FIFTH CIRCUIT

NO.

STATE OF GEORGIA 
vs

Mardon R. Walker 
James R. Forman

)
(
)
( NO. 24,701 
)
( CRIMINAL 
)
(
)

TRANSCRIPT OF RECORD

APPEALED FROM:
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA

Lewis R. Slaton, Jr. 
Solicitor General 
Atlanta Judicial Circuit 
J. Robert Sparks 
Assistant Solicitor General 
301 Fulton Courthouse 
Atlanta, Ga.

Howard Moore, Jr.
859 1/2 Hunter Street, N. W. 
Atlanta, Ga.

ATTORNEYS FOR APPELLEE ATTORNEY FOR APPELLANT

1



AFTER RECESS
THE COURT:
MR. MOORE:

All right, sir, call Mr. Moore in.
I apologize to the Court for being a few

minutes late.
THE COURT: All right, sir.
MR. MOORE: Your Honor, to expedite these proceedings

we are going to dispense with examining Mr. —  Officer 
Wright at this time, and the defendants in this case are 
going to proceed to the Krystal case and be very quick, 
and then proceed right to the Leb's case and terminate the 
matter.

THE COURT: All right, sir.
MR. MOORE: Miss Mardon Walker, please.

Have you been sworn as a witness?
MISS WALKER: No, I haven't.
THE CLERK: The evidence you shall give in the issue

joined between the State of Georgia and Thomas Rachel and 
others shall be the truth, the whole truth, and nothing but 
the truth, so help you God?

MISS WALKER: I do.
MR. MOORE: Take a seat on the witness stand, please.

* * * * *

MARDON ROSA WALKER
called as a witness 
sworn, testified as

after having first been duly 
follows:

2



DIRECT EXAMINATION
BY MR. MOORE:

Q Would you state your full name, please?
A Mardon Rosa Walker.
Q Are you married?
A Yes, I am.
Q And what is your married name?
A Hoke.
Q For the purposes of these proceedings and clarity I

shall call you Miss Walker, okay?
A All right.
Q How old are you, Miss Walker?
A I am twenty-two.
Q I ask you to direct your attention back to the fall

of 1963 and state whether or not you were in the City of
Atlanta.

A Yes, I was.
Q What was your purpose in being in the City of

Atlanta?
A I was an exchange student at Spelman College.
Q When did your period of study at Spelman terminate?
A At the end of the first semester, which was at the

end of January.
Q 1964?
A Yes .

- 3 -



Q And you were an exchange student from Connecticut
College?

A Right.
Q I will ask you to state whether or not on January 13,

1964, you were arrested at the Krystal Restaurant in the City 
of Atlanta?

A Yes, I was.
Q And were you charged with the offense of failing to

leave, trespass?
A Yes, I was.
Q Following your arrest on the 13th of January, 1964, 

were you tried in the Superior Court of Fulton County?
A Yes, I was.
Q Were you convicted in that court?
A Yes, I was.
Q Was that a trial before a court and jury?
A Yes, it was.
Q Do you have personal knowledge as to what your

sentence was?
A Yes. I was sentenced to eighteen months in jail, 

twelve months of hard labor and six months in jail and a 
thousand dollar fine.

Q All right. Were you permitted to make a bond pending
appeal?

A A bond was set.
Q What was that bond?
A Fifteen thousand dollars.

4



Q Do you have any personal knowledge about the manner 
in which the bond was to have been secured?

MR0 SPARKS: Please the Court, I object to this.
This is totally irrelevant and immaterial as to anything 
in this case. This indictment charges here with the offense 
of riot, not trespassing. What might have happened in a 
prior case and the amount of bond she might have had in prior 
cases seems to me to be totally irrelevant and immaterial.

THE COURT: I believe he removed it, and he set up
these allegations in his removal, is my recollection.

MR. MOORE: Yes, sir.
THE COURT: I will let him go into it.

BY MR. MOORE:
Q How much was the bond?
A Fifteen thousand dollars.
Q And do you know how the bond was to have been secured?
A Unencumbered property in Fulton County, Georgia.
Q Was you successful in posting a bond?
A Yes, eventually.
Q And you were released from custody?
A Yes.
Q Was your case appealed?
A It was appealed.
Q To the Supreme Court of Georgia?
A Yes.
Q And do you know whether or not that court affirmed or 

reversed your conviction?
- 5 -



A They affirmed my conviction.
Q All right. And was an appeal taken to the Supreme 

Court of the United States?
A Yes, it was.
Q And was that --- was the decision of the Supreme

Court of Georgia affirmed or reversed?
A It was reversed.

MR. MOORE: Your Honor, this is attached to the
petition ---

THE COURT: That was on trespass?
MR. MOORE: Yes, sir, in removal Case Number 2^,705.
THE COURT: Yes, I have it.
MR. MOORE: Attached to the petition is a copy of

the opinion and order of the Supreme Court of the United 
States. I think it is 2^,705- It is attached as Exhibit 
B, Your Honor, and it is reported, I believe, in 318 U.S.
355, 1965. 

BY MR. MOORE:
Q Following the reversal of your case by the Supreme

Court of the United States, were you then again summoned for 
trial under the indictment for trespass at Krystal?

A All I know is that I never got my bond back and that 
I heard that I had been re-indicted.

Q All right.
THE COURT: What was she re-indicted for? Under the

Riot Statute?
MR. MOORE: Your Honor, two things. Her original case,

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which was reversed on appeal by the Supreme Court of the 
United States, was construed to mean that she was only 
given a new trial, and she was required to stand for a new 
trial on that indictment, which is the order of the

tSuperior Court interpreting the opinion of the Supreme 
Court of the United States. The mandate of the Supreme 
Court of Georgia is attached as Exhibit D to the Petition, 
Your Honor.
Shall I proceed, sir?
THE COURT: Yes, sir.

MR. MOORE: All right, sir.
BY MR. MOORE:

Q You have not been retried at this time, is that 
correct?

A No, I have not.
Q Now, I hand you a copy of your removal petition, 

Number 24,705 in this court styled "State of Georgia, 
Prosecutor, against Mardon R. Walker, petitioner defendant", 
and I ask you whether or not you are the Mardon R. Walker 
named in Indictment Number 85,028, entitled "The State versus 
Mardon R. Walker" attached to the petition as Exhibit A?

A Yes, I am that Mardon R. Walker.

7



BY MR. MOORE:
Q Miss Walker, you are the Mardon R. Walker named in 

Indictment Number 85,028 charging you with trespass, are you?
A Yes, I am.
Q And you are the Mardon R. Walker named in Indictment

Number 88,568 entitled "The State against Mardon R. Walker" 
charging you with tumultuous assembly?

A Yes.
Q On the 13th of January, 1964, at the Krystal, is

that correct?
A Yes. I am the same Mardon R. Walker.
Q All right.
I show you Removal Petition Number 24,701 entitled "State 

of Georgia against Mardon R. Walker and James R. Forman" and 
attached thereto is an indictment as Exhibit B entitled "The 
State of Georgia versus Mardon R. Walker, James R. Forman", 
Indictment Number 88,567, charging you and the said James R. 
Forman with the offense of misdemeanor, tumultuous assault at 
Leb's Restaurant on 25 January, 1964. Are you the Mardon R. 
Walker named therein?

A Yes, I am.
Q Miss Walker, do you know whether or not any of the

other persons who are named in the indictment with you, named 
in the indictment at Krystal as having been persons who were 
inside the restaurant committing acts of violence, were also 
charged for tumultuous assault, tumultuous assembly?

A To my knowledge James Forman —  well —  well, I am
the only one that was indicted for riot at that incident.

8



Q At Krystal, Is that correct?
A Yes.
Q And you were the only one who was arrested on the 

13th of January, 1964, who was tried for the offense of 
trespass, is that correct?

A That's correct.
Q And you are the only one who has gotten his or her

conviction reversed by the Supreme Court of the United States?
A That's correct, too.
Q Now, with respect to the incident on January 24, 19 —  

January 25, 1964, did you participate in that incident at all?
A No.
Q Did you go in Leb ' s Restaurant on the 25th of 

January, 1964?
A I have never in my life been inside or attempted to

enter Leb's Restaurant.
Q Does that include January 25, 1967?
A Yes, it does.
Q I mean 1964?
A Yes, it does.
Q Did you on the date of January 25, 1964, aid and abet

any person who was inside the restaurant to commit any unlaw­
ful act of violence?

A No, I did not.
Q Were you downtown on the date of January 25, 1964, 

in the City of Atlanta?
A Yes, I was, for awhile.

9



Q All right, with whom were you downtown?
A With my roommate from Spelman.
Q Did you go to or attempt to use any place of public

accommodation?
A Yes, we did. We went to see if we could be served at 

a restaurant. That was Shoney's Big Boy Restaurant.
Q Where is Shoney's Big Boy Restaurant located?
A It is very close to Leb's. It is in the same block

on the other side of the street.
Q Were you served at Shoney's Big Boy?
A Well, the waitress was rude, but we were served.
Q After you had been served at Shoney's Big Boy, did

you have occasion to go across the street to Leb's?
A Yes. My roommate and I went over there.
Q What attracted you to Leb's across the street?
A The crowd.
Q And how long were you at Leb 's?
A I don't know. Not long.
Q And when you left Leb's, where did you go?
A We went back to the campus.
Q All right.
On the 24th of January, 1965 —

MR. SPARKS: Please the Court, I would like to have
counsel please get the date right. He keeps saying the 

24th. It is the 25th.
MR. MOORE: Wherever I have said the 24th I mean the

25th.

10



THE COURT: All right, January 25th. This is the 
Leb’s incident she was charged with? Is this the Leb’s 
incident?

MR. MOORE: 
THE COURT: 

Walker and James 
MR. MOORE: 
THE COURT: 

BY MR. MOORE:

Yes .
25th day of January, in which Mardon R. 

R. Forman are charged?
Yes, sir.
All right, sir.

Q On January 25, 1964, when you were down at Leb's, 
did you have any conversation with James R. Forman?

A No, I did not.
Q All right, did you see Forman in the vicinity?
A No, not to my knowledge.
Q Did you have any conversation with Mr. Forman on the

day in question at all?
A Not that I remember,,
Q All right. Do you know who Mr. Forman is?
A Yes, I do.
Q Do you know who he was at the time —  strike that.
Do you know what position he held on January 25, 1964?
A Yes. He was executive secretary of the Student

Nonviolent Coordinating Committee.
Q All right. Do you know the type of activities in

which the Student Nonviolent Coordinating Committee was engaged 
at that time?

A Sit-in demonstrations in downtown Atlanta.
11-



Q Since your conviction in the Superior Court of Fulton 
County you have returned to school, have you not?

A Yes, I have.
Q And for a period of time you worked as a community —  

in the Settlement House in New Haven, Connecticut?
A A Settlement House, yes.
Q And you are presently married?
A Yes.
Q Is your husband presently in court?
A Yes, he is the only spectator.
Q And are you in school at this time?
A Yes. I am enrolled in school.
Q Where?
A In Morgan State College in Baltimore, Maryland.
Q And your husband, what does he do?
A He is in the United States Coast Guard.
Q And your father?
A He is also in the service. He is in the Navy.
Q Does he hold a position in the Navy?
A Yes. He is a captain.
Q Do you know where he is stationed?
A He is stationed in Sidney, Ohio.
Q Do you know where he was stationed in 1964?
A Yes. He was stationed at the Pentagon, in Washington,

D. C.
MR. MOORE: No other questions.

##*###

12



CROSS-EXAMINATION
BY MR. SPARKS:

Q Miss Walker, is it not true that on the 25th day of 
January, 1964, that you were outside of Leb's directing the 
demonstrators on the outside, some two hundred of them?

A I have never directed any demonstrators at any
demonstration.

Q Is it not true that you were in front of the window
on the outside of the building talking to the demonstrators, 
some forty or fifty who were on the inside, and did they not —  

did they not write notes on the inside of Leb's and hold them 
up against the window, and did you not then relay messages 
from them to your co-defendant, James Forman?

A I had no contact or any communication with anybody
on the inside of that demonstration. I was not there when they 
went in or when they came out. I don't remember —

Q Did you ever go in there?
THE COURT: Let her finish.

Go ahead and finish.
THE WITNESS: I have never been in the restaurant or

attempted to go in. I wasn't there when the demonstrators went 
in or came out, so I had no contact or conversation with them.
I never relayed any messages to anybody.
BY MR. SPARKS:

Q Did you write any notes to them?
A I never wrote any notes. In fact, I am sure I didn't

even have a —  I must have had a pocketbook, but I doubt I had
- 13 -



pencil and paper with me.
Q What were you doing out there right outside of Leb's? 
A Well, I saw —  we went over where the crowd was,

but the Klan was there at the same time, and my roommate and I 
were away from the crowd, and Sergeant Marler came up to me 
and said to me, "Please stay out of the areas where it is empty, 
where there is nobody, because it is not safe because of the 
Klan. I want you to stay with the rest of the people."

So my roommate and I moved on to the area around Leb's 
where the crowd was.

Q You were right outside the window, were you not?
A Well, we —  if I remember, the only place we stood

was —  well, down the street towards Shoney's on that side but 
before you went across the sidewalk, not in the alley.

THE COURT: Before you went across?
THE WITNESS: In other words, we weren't right in 

front of the door. We weren't even in the section of 
windows next to the door. We were down almost to where 
the restaurant -- where the end of the restaurant is.

BY MR. SPARKS:
Q You looked inside of Leb's did you not?
A I probably looked inside while I was there.
Q And you saw there were some forty or fifty

demonstrators inside standing on tables and standing —
A I didn't see that. I remember seeing that there were

people inside. I don't know how many or what they were doing.
Q Didn't they hold notes up to the window to you?

14



A No.
Q You know —  did you stay until they all left and

went home?
A No. I said we left, we weren't there that long, and 

I didn't even stay until they came out. Nobody entered or left 
the restaurant while I was there.

Q I will ask you this specifically. Did you not —  did
not one of the demonstrators on the inside call to you through 
the glass that "They won't let us go to the restroom", or words 
to that effect, and didn't you then go to Mr. Forman and bring 
back instructions to them as to what to do inside?

A I don't even know whether you can hear through that
glass. I wouldn't think so.

Q Answer my question. Did you do that?
A I never heard anything, any noise at all from the

inside, nor any words, and I never went to get James Forman.
I never saw him that day. The whole time I was with my 
roommate, and we were just observing. We were not part of the 
demonstration.

Q Had you been demonstrating earlier yourself at some 
other place?

A We had gone to a restaurant to seek service, and we 
were served, so I don't know whether you would call that a 
demonstration.

Q All right. On the .13th day of January, 1964, were you

- 15



in the Krystal Restaurant in Atlanta, Pulton County, Georgia?
A Yes, I was.
Q And do you recall being in there with these persons: 

James M. Carter, John Ponder, Betty Brown, Lydia Woods, also 
called Julia Kindell, Bobbie Zeigler, Billy Kindell, Rafael 
Bentham, James A. Kindell, Louis A. Hurst, Jackie Smith, alias 
Annett Alexander, Robert Weaver, alias Larry F. Camp, Dexter 
Morton, Moreland R. Huber, alias Bob, Jack Crystal, alias Jack 
Heyman, do you recall being in there with those persons?

A YBti-, Those were some of the people present.
Q And while you all were in there, did you not engage 

in loud talking and banging on thi counter, I don't mean all of 
you but some of you, and didn't you scrape mustard and catsup 
on the napkins and counters and floors of the Krystal?

A No. None of that happened by anybody.
Q None of that happened?
A No, it did not.
Q Did someone vomit on the floor, one of the 

demonstrators?
A No, they did not.
Q Did you not sit in there in such a manner as to block

anybody from coming up and down the aisles, that is, did not 
those seated at the counters sit with their backs to the 
counters and those seated on the other side swing around and 
have their legs across the area so that nobody could come up and

16



A When we were seated in that restaurant, the owner 
closed the restaurant, made all the other patrons leave, and 
there was no business going on at that time. I am sure it 
wasn't blocked.

Q That is what I am talking about. It was impossible 
to have business because you all were blocking it.

A That is not true, because they used the telephone in 
the back, and everybody went down to that telephone.

MR. SPARKS: Just a moment.
THE COURT: What did you do in the Krystal?
THE WITNESS: What did I do?
THE COURT: Yes.
THE WITNESS: I went and I sat on a stool, and I

asked to be served, and I was refused service, so I sat 
there.

THE COURT: How long were you there? Did the police
come and arrest you?

THE WITNESS: Yes, they did. All together —  we
weren't there all that long, because the police were right 
around. I would say we weren't there more than forty-five 
minutes altogether at the most.

THE COURT: Go ahead, Mr. Sparks.
BY MR. SPARKS:

Q How long were you around Leb's?

down?

17



A That day?
Q Yes, on January the 25th?
A Well, I remember it was a very cold day, and we 

didn't stay long, and my roommate had to go to the restroom.
So although we were in the area for about two hours, we spent 
at least an hour of that time off trying to find a restroom, 
which wasn’t very easy.

Q How many hours did you stay?
A So I would say altogether I was there at the most for 

an hour.
THE COURT: Where? At Leb's?
THE WITNESS: Out in front of Leb's, yes.
THE COURT: What were you doing there all that time?
THE WITNESS: Just standing there with some of the

people. I had never been to a demonstration where the 
Klan was, and they were all in their outfits, and we were 
watching the Klan and watching the demonstrators.

THE COURT: The Ku Klux Klan was there that day?
THE WITNESS: Yes.

BY MR. SPARKS:
Q Do you recall testifying in the trial in Fulton

Superior Court?
A Yes.
Q I will ask you if this was not asked you:
"You were there that night?"

18



Answer: "Yes. I was there for a few hours."
Question: "For a few hours? How many hours?"
Answer: "Well, I got there about 6:00, and I left about

11:00."
"In other words, you were in or around Leb's for five 

hours?"
Answer: "Well, I was never in Leb's and I wasn't even

around there the whole time, just part of that time I was."
Do you recall testifying to that?
A I don't even —  I thought it was in the daytime.

Read it. I know that. I don't recall that at all.
First of all, I thought the incident happened in the day­

time. That could include the time I was at'the restaurant 
having dinner, I guess. It is so long I don't remember it.

THE COURT: Well, do you remember whether it was
daytime or nighttime?

THE WITNESS: No, because I wasn't even arrested
there. I wasn't part of the demonstration. It was just -- 
It was an incident, it was something that happened among 
hundreds while I was —  hundreds of experiences while I was 
here at Spelman.

THE COURT: You weren't arrested for trespassing at
Leb ' s?

THE WITNESS: No, I wasn't. I wasn't arrested at
all. So, I don't even remember it. I mean, I just

- 19



remember it very vaguely.
THE COURT: When were you first arrested for any

incident that happened at Leb's on January 25th, 1964?
THE WITNESS: I have never been arrested for any

incident at Leb’s, ever.
THE COURT: Even after you were indicted you were not

arrested?
THE WITNESS: Well, I think there was a warrant out

for my arrest, but I have never been arrested.
BY MR. SPARKS:

Q When you were outside, ma'am, what did you do? Did 
you participate in the demonstrations in front of Leb's on 
January 25, 1964?

A I stood there. What do you call participating?
Q Well, for example, did you sing?
A I honestly can't say. I really can't say.
Q You can't recall whether you sang or not?
A That's right.
Q Did you not testify in the trial in the Superior

Court that you sang songs?
A I just —  I don't remember if I testified to that.

It must have been true. What did I sing?
Q "Well, what did you do up there?"
Answer: "Well, I stood out front and I sang songs."
A I guess I did.
Q "What did you sing?"

20



Road' and 'We Shall Overcome',"
A I guess I did.
Q You even sang a stanza of it in court, didn't you?
A No, I didn't. I couldn't possibly. I can't sing.

That is not right.
Q Isn't that your —  well, the chorus to "We Shall

Overcome" is "Deep in my heart I know that I do believe", you 
sang it?

A I am sure I didn't sing it.
MR. SPARKS: I don't think I have any more questions.

******

REDIRECT EXAMINATION
BY MR. MOORE:

Q Miss Walker, you weren't arrested for anything at 
Leb's on the 25th of January, 1964, were you?

A I have never been arrested for anything at Leb's
ever.

Q As a matter of fact, you didn't see anyone else who 
was arrested at Leb's —

A No.
Q —  on the 25th of January?
A No arrests were made when I was there.
Q All right.

Answer: "'Oh, Freedom' and the song we call 'Freedom

21



A No.
Q Now, on the 13th of January, 1964, when you were at

the Krystal, was anybody who was with you or in the restaurant 
arrested for anything other than trespass?

A They were not.
Q All right. And are any of them, to the best of your

knowledge, at this present moment charged with anything other 
than trespass?

A They have not been charged with anything else.
MR. MOORE: That’s all.
THE COURT: Any further questions from this witness?
MR. MOORE: No, sir.
THE COURT: You may step down.
(Whereupon, the witness was excused from the stand.)

******

THE COURT: Call your next witness.
MR. MOORE: I think the record should show she is a

member of the white race.
MR. SPARKS: We stipulate that.
THE COURT: All right.
MR. MOORE: Mr. James R. Forman.
THE CLERK: Would you raise your right hand.

You do solemnly swear that the evidence you shall 
give in the issues joined between State of Georgia and 
Thomas Rachel and others shall be the truth, the whole

22



truth, and nothing but the truth, so help you God?
MR. FORMAN: I do.
THE CLERK: Just have a seat.

******

JAMES FORMAN
called as a witness, after having first been duly 
sworn, testified as follows:

DIRECT EXAMINATION
BY MR. MOORE:

Q Mr. Forman, would you state your name, please?
A My name is James Forman.
Q And where do you live, Mr. Forman?
A I live in New York City at the moment.
Q In January of 1964 were you connected with the Student

Nonviolent Coordinating Committee?
A Yes, I was.
Q What was that connection?
A I was serving as the Executive Secretary of the

Student Nonviolent Coordinating Committee.
Q How long had you been the Executive Secretary in 

January, 1964?
A Since October, 1961.
Q And where are the headquarters of the Student

Nonviolent Coordinating Committee located?
A Atlanta, Georgia.

23



Q Were they in Atlanta, Georgia, in January, 1964?
A Yes, they were.
Q Had the Student Nonviolent Coordinating Committee

been active in efforts to desegregate Atlanta's restaurants
and other facilities?

A Yes, from the very beginning of the organization.
Q I direct your attention, Mr. Forman, to- January 25,

1964, and ask you to state whether or not you ever went inside 
the Leb's Restaurant on that date?

A No. I have never been inside Leb's.
Q Was that on the 25th?
A That was on the 25th. I was not there that day.
Q Did you have occasion to go to Leb's Restaurant?
A Yes. I went in the vicinity of Leb's Restaurant on

January 25th.
Q All right. What time of the day or night was it that

you went in the vicinity of Leb's?
A It must have been after dark, I mean, when I arrived

there, or just at the beginning of dark.
Q All right. And when you arrived what did you see?
A Well, there was a restaurant and the lights were out

in the restaurant, and I saw people on the inside of the 
restaurant.

Q You mean Leb's?
A Yes, inside Leb's.



Q All right.
A There were people standing on the outside, and that 

is it.
Q How long were you present?
A Not over ten or fifteen minutes, because I went back

to the office.
Q All right.
Did you see any disorders inside Leb's?
A No, I did not.
Q Did you order or direct anybody to commit any act

of violence?
A No, I did not.
Q Did you receive any notes or messages from inside the 

restaurant?
A Not that I recall.
Q Had you attempted to use a place of public accommoda­

tion on the date you came down to the restaurant?
THE COURT: Had he done what?

MR. MOORE: Attempted to use a place of public
accommodation.

THE COURT: Oh, yes.
THE WITNESS: Yes. I think way back that I stopped

at Shoney's for just a brief cup of coffee, and I went on 
back to the office.

-  25



BY MR. MOORE:
Q Were you arrested at Leb's?
A No.
Q Do you know whether anyone else was arrested at 

Leb * s?
A On January 25th?
Q Yes.
A To the best of my knowledge nobody was arrested. I

think the people that were inside the restaurant were released 
from the restaurant, the door was opened and they walked out.

Q But you don't have any personal knowledge or informa­
tion of anyone being arrested at Leb's?

A No, I have no personal information of anyone being 
arrested on January the 25th. In fact, I am pretty sure that 
nobody was.

Q And you are positive that you were not arrested?
A I am definitely. In a fact, I don't understand why 

I am here.
Q Okay.
Did you have any conversation with Miss Mardon Walker on 

that day?
A Not that I recall.
Q Did you see Miss Walker on that day?
A No, I am sure I didn't.

MR. MOORE: You may examine.
******

26



CROSS-EXAMINATION
BY MR. SPARKS:

Q Now, isn't it true, Mr. Forman that on that day, on 
January 25, 1964, that you were directing a massive'series of 
sit-ins or attempts to get served at places of public ac­
commodation all over Atlanta? You were in charge of it, were 
you not?

A No, that is not correct.
Q What part did you play in it?
A First of all, it hasn't been established I played any

part.
Q I am asking you, did you play any part?
A Well, I don't know if there were massive demonstra­

tions going on in the City that day or not.
Q You led a march, did you not, on that day?
A No, I didn't lead any march on that day.
Q What did you do that day?
A Well, I don't recall what I did on January 25.
Q Did you yourself go into any place and attempt to

get service, any eating place?
A It is quite possible that I did. As I said, I think

I went into Shoney's, and it could have been early in the day.
I could have gone some other place. I don't recall.

THE COURT: Did you go in Leb's on that day?
THE WITNESS: No, on January 25 I didn't go in Leb's.

27



I have never been in Leb's.
In fact, the place, you know, the reason demonstra­

tions were going on is because it was a segregated restaurant 
in Atlanta in the United States of America where we are not 
supposed to have those things going on.

THE COURT: Well, just answer the question.
THE WITNESS: Okay. Thank you.

BY MR. SPARKS:
Q Now, isn't it true that nobody would leave Leb's, 

that none of the demonstrators, some thirty or forty that were 
in there, would leave Leb's until you came down about 11:30 at 
night and came to the front door and said, "Come on, let's all 
go home", and then they all left, after having been there about 
eight yours?

A Well, I don't know if that is true or not.
Q Well, you know whether —  did you come down to the

door and say, "Come on, let's go home?" You know that, don't 
you?

A No, I am not sure. I don't knew that.
Q You don't deny it, though, do you? Do you?
A No, I don't deny it, but I don't recall having done 

that. It very well may have been that I did.
MR. SPARKS: That's all.
THE COURT: Do you have any further questions,

Mr. Moore?

28



MR. MOORE: Yes, sir, just one question.
******

MR. MOORE: That's all of this witness.
THE COURT: You may step down.
(Whereupon, the witness was excused from the stand.)

******

THE COURT: Call your next witness.
MR. MOORE: Your Honor, at this time we would like

to tender into evidence a ragged copy of the transcript 
of the proceedings in the case of State of Georgia against 
Mardon R. Walker, Case Number 85,028, but, if the Court 
would indulge me, Your Honor, I would —  I would get a 
Xerox copy from the Clerk of the Supreme Court and present 
it to the Court.

THE COURT: Is that the original record?
MR. MOORE: This is just a —  this is counsel's copy

of the record. I believe it to be true and complete, and 
I believe it to be the copy of the record that we used in 
our petition for certiorari to the Supreme Court of the 
United States. Mr. Sparks has the original, a copy of the 
original record, but I think he has to take it back.

Is that correct?
MR. SPARKS: Yes. I have the original copy from the

Superior Court. I am signed out for it and have to take 
it back.

29



THE COURT: All I want is a copy, where it is legible,
where I don’t have to strain my eyes.

MR. MOORE: Your Honor, just in the event these
proceedings go up, I will at this time, tender for the 
convenience and expedition of these proceedings this ragged 
copy and get a copy to substitute.

THE COURT: No objection to him substituting a copy
for the original?

MR. SPARKS: Well, I don't know that that is a
complete copy, Your Honor.

THE COURT: Well, give me your copy, then. I am not
going to quibble. I don't know. I haven't read it.

MR. SPARKS: I don't either. I have never seen this
before.

THE COURT: Have you got your original copy?
MR. SPARKS: Yes, sir.
THE COURT: Can you furnish the original copy to me?
I presume that both of you, on your briefs, will refer 

to the record, the pages of the record, the pertinent 
parts —

MR. MOORE: Yes, sir.
THE COURT: —  and I just want one to refer to in

case it is necessary. Whatever parts you refer to, I am 
sure you will verify it.

Well, can't we dispense with that? Can't you either

30



present me with the original or a Thermofax copy of the 
original, or permit Mr. Moore to do so? All I want is the 
record. That's all.

MR. MOORE: Could we identify your copies, a complete
copy?

THE COURT: Let's do this. Both of you introduce
your own records and let's go ahead that way.

MR. MOORE: Your Honor, we would like to tender in
evidence a complete copy of the record made in the case of 
State of Georgia against Mardon R. Walker, Case Number 
85,028, and I shall requisition such a record from the 
Supreme Court. It only takes the Clerk about two days to 
prepare such a record.

THE COURT: All right, any objection?
MR. SPARKS: Not if it is a complete transcript of

the entire trial. I don't know what went up.
THE COURT: Well, whatever went up to the Supreme

Court of the United States, wouldn't that be a complete 
record?

MR. SPARKS: Not necessarily, Your Honor. He could
have specified part of the record and not all of it.

MR. MOORE: Your Honor, the record in the Clerk's
office of the Supreme Court of Georgia is a complete 
record of the trial proceedings in the Superior Court.

MR. SPARKS: Does it include the plea in abatement,

31 -



MR. MOORE: It includes everything.
THE COURT: Well, I will let you present that. If 

you want anything in addition, you present it. If you 
don't think it is complete, you can present the other 
part. How is that? Is that satisfactory?

too?

MR. MOORE: Correct, that is satisfactory.
THE COURT: All right, sir.
MR. MOORE: We would rest at this time, Your Honor.
THE COURT: All right, sir, let it be admitted with

the provision the State can supplement it if there is any 
record they feel should be in that was omitted and they 
feel should be supplemented.

MR. SPARKS: We have no objection to that proviso
that we be allowed to supplement it if it needs to be by 
anything else that was left out of the record.

THE COURT: All right, sir. And I presume you are
going to refer to it, both of you, in your briefs and 
arguments, whatever part of the record is pertinent. I 
doubt if all of it is pertinent.

THE CLERK: You want to mark that as an exhibit?
THE COURT: Yes, let it be marked as an exhibit.
THE CLERK: That will be Defendants' Exhibit No. 3.
(Whereupon, the above record was marked for identi-
fication as Defendants' Exhibit No. 3.)

32



******

THE COURT: All right, sir, go ahead, Mr. Sparks.
MR. SPARKS: Call Mrs. Dora McRae.
THE COURT: Will you come around and be sworn,

please, ma’am?
MR. SPARKS: You were sworn, I believe you were sworn

yesterday, were you not?
MRS. McRAE: Yes, sir.
MR. SPARKS: Thank you, ma'am. Take the stand,

please.
******

DORA McRAE
called as a witness by the State, after having first 
been duly sworn, testified as follows:

DIRECT EXAMINATION
BY MR. SPARKS:

Q What Is your name, please, ma'am?
A Dora McRae.
Q And what Is your occupation, Mrs. McRae?
A Waitress.
Q And by whom are you employed?
A Charlie Lebedin.
Q And is that the place of business known as Leb's 

which is in Fulton County, Georgia, and located on the corner 
of Luckie and Marietta Street?

A No, Luckie and Forsyth.

- 33



Q Luckie and Forsyth. Excuse me.
Were you employed there on the 25th day of January, 1964?
A Yes, I was.
Q Did something —  did anything happen during the early

afternoon of that day, a Saturday, and, if so, tell us in your 
own words what it was.

A Yes, sir. I was informed that there was some colored
and white people coming in the restaurant, and I walked to the 
front door, and just as I walked to the front door, well, both 
doors flew open and knocked me back against the wall. The whole 
place filled up with colored and white people.

Q About what time of the day was that?
A Well, I would say it was around 3:15 or 3:30. I

don’t know exactly what time it was. I didn’t look at my watch.
Q That was in the afternoon?
A Yes, it was.
Q Approximately how many people came in there?
A Well, sir, I couldn't tell you. It looked around

two hundred to me. The whole place filled up. I didn't count 
them.

Q All right. What did they start doing, these persons 
who came in?

MR. MOORE: Your Honor, we are going to object on the
grounds that the State is bound by the evidence that it has
already put in in the original trial in the State Superior

- 3 4  -



Court, and we would move to strike any evidence respecting 
this incident that is being put in by this witness here.

THE COURT; Well, I don’t know what the evidence is.
I thought I was supposed to be hearing it on a question 
whether it should be removed or remanded. I don’t know 
what was in the State Court.

MR. SPARKS; Me either. I didn't try the case in 
the State Court, Your Honor.

THE COURT: I will overrule the objection. Go ahead.
BY MR. SPARKS:

Q What did these —
MR. MOORE: Your Honor, to keep from jumping up and

down, I would like for my objection to be a continuing 
objection, because we submit the case under the theory of 
collateral estoppel.

THE COURT: All right, let the record show you have
a continuing objection.

All right, sir, go ahead.
BY MR. SPARKS:

Q What did the persons who came in do, Mrs. McRae?
A Well, they all come in, as I say, in a drove, and 

they set in the booths, the tables and the counters, and they 
commenced hollering and asking us to serve them, and they 
commenced eating pickles out of the bowls with their hands, 
and I asked them not to do that. So I moved them, me and a

35



bus girl moved the pickles off the table. And they kept on 
hollering they wanted me to serve them cheesecake and pie and 
stuff.

So I just —  I didn't say anything to them.
Q Approximately how many would you estimate were on 

the inside?
A Well, as I told you before, the place was full. It 

looked like about two hundred of them. I didn't count them.
Q And did they —  were they paying for the pickles and 

things, the pickles they were eating?
A No, sir.
Q Did they offer to pay for them?
A No, they did not.
Q All right, what did you do then?
A Well, when I got all the pickles taken up and 

everything, well, I went to the front to the register and stood 
there until Mr. Lebedin come in.

Q What time did Mr. Lebedin arrive, or do you remember
approximately?

A Well, I don't know just exactly what time. It was
around ten minutes after I had the cashier call him.

Q And what did these people who came inside, what did 
you see them doing besides eating the pickles?

A Well, they was jumping up and down on the booths, in 
the booths and on the tables hollering and singing.

- 36 -



Q By jumping up and down, you mean they were standing —
A Standing up in the booths and on the tables.
Q And on top of the tables?
A Yes, they were.
Q And they were doing what?
A They was hollering and singing.
Q Hollering and singing?
A Beating, the ones in the booths, they was beating on 

the windows.
Q And what is that, a plateglass window to the outside?
A Yes, it is, sir.
Q What kind of seats did you have in the booths on that

day?
A They was, you know, leather.
Q Leather?
A Yes, sir.
Q Padded seats with some kind of padding up underneath

it?
A Yes, it was.
Q And leather on top of it?
A Yes.
Q Were there any police officers there?
A Pardon?
Q Did any police officers come?
A One.

37



Q Who was that?
A Captain Mozley.
Q Is he the one who is now Superintendent Mozley?
A Well, I heard he was superintendent. I don't know.

He was captain then.
Q All right, go ahead and tell us what happened?
A Well, they just kept on that hollering and singing and

dancing until Mr. Lebedin got there, and then Mr. Lebedin was 
talking to Mr. Mozley, Captain Mozley, rather, and said some­
thing about, saying he had to close the door after they got there. 
The doors wasn't locked then. Captain Mozley tola Mr. Lebedin 
that he couldn't lock his place up and open ft again, and he 
said, "Well, I don't see why I can't." He said, "It is my 
place of business." And he just stood there and laughed at 
Mr. Lebedin all the time with a cigar in his mouth.

Q Who did? Captain Mozley?
A Captain Mozley. He didn't try to do anything. He

didn't ask any of the people, colored or white, to'leave.
THE COURT: Did they make cases against any of them?
THE WITNESS: Sir, I just couldn't tell you that,

Your Honor.
BY MR. SPARKS:

Q How long did this crowd of folks stay in there?
A Well, I —
Q To your knowledge, I mean? How long did you stay

there?

- 38 -



Mr. Lebedin told me to go home and come back the next day, that 
he wasn't going to be open, able to open up again that night.

Q Did you see Miss Mardon Walker, the lady there in
the green —

MR. MOORE: Let the record show the Solicitor pointed
her out.

THE WITNESS: Sir?
BY MR. SPARKS:

Q Did you see Miss Mardon Walker there that night?
A I saw her in the restaurant one time. I don't

remember whether it was that night or not. There was so many 
of them.

I seen her on the inside and outside. She was holding up 
a paper one time, but I don't know just exactly when it was.

Q Was that on the night of January 25, 1964?
A Yes, sir.
Q That was this night we are talking about?
A Yes, sir.
Q When you saw Miss Walker, what was she doing?
A Holding up a paper against the window, a piece of

paper against the window.
Q Was she on the inside or outside?
A Well, I just don't remember whether she was on the 

inside or out that night or not.

A Well, I left there around 9:00 o'clock that night.

- 39



Q Well, were other demonstrators on the outside of 
Leb's as well as on the Inside?

A Yes, they was.
Q And state whether or not any of those who were on the

inside of the restaurant were up close to the windows, the 
plateglass windows.

A Oh, yes, they were in the booths. The booths is 
side of the windows.

Q Side of the windows?
A Yes. And there is plateglass windows.
Q Were there any demonstrators on the outside, to the 

best of your recollection, on the outside of the restaurant 
next to the plateglass windows?

A There was a lot of people out there, a lot of people 
out there. I don't know whether they were demonstrators or not.

Q How long did they —  when you left, you said you left
around 9:30, is that right?

A No, sir. About 9:00 o'clock.
Q About 9:00 o'clock? Were they still in there?
A Yes, they was.
Q I will ask you, Mrs. McRae, did you see any of them

push or shove Mr. Lebedin?
A Yes, I did. He asked them to leave, and they got up 

and pushed him.
Q Were you there when they left?

- Mo



Q When you left at 9:00 they were still there?
A They were still there. Some of them had gone, but

not all of them.
Q All right.
When you came back, what time did you come back the next 

day, Sunday, January the 26th?
A I got there around 4:00 o ’clock. I was supposed to

go to work at 5:00.
Q All right.

THE COURT: You mean 4:00 o ’clock in the morning?
THE WITNESS: 4:00 in the afternoon, Your Honor.

BY MR. SPARKS:
Q What damage, if any, did you notice in the restaurant 

after you got back?
A Well, several of the seats was busted open, and some, 

I don't know just exactly how many, of the booths, the legs 
was broke off the booths. I don't remember just exactly how 
many, but there were some. And there was big long splits in 
the seats.

Q By "splits in the seats" do you mean splits in the
leather upholstery?

A Splits in the leather upholstery where you sit.
Q Had the floor been cleaned when you got there —
A Yes, it had.

A No, I was not. I left around 9:00.

- 41 -



Q —  at 4:00 in the afternoon, the next afterroon?
A Yes, it had been cleaned.
Q Did you see James R. Forman there?

MR. MOORE: I object to these leading questions.
THE COURT: Ask her did anybody at the table over

here —
Can you identify any of the people at the counsel

table?
THE WITNESS: No one except the lady over there.
THE COURT: That is the only one you can identify?
THE WITNESS: Yes, that is the only one I can

identify, the only one.
BY MR. SPARKS:

Q And you saw her there that night?
A Yes.

THE COURT: What did you see the lady do?
THE WITNESS: I just saw her holding up the paper to

the window, Your Honor.
THE COURT: What kind of paper?
THE WITNESS: I don't know. Just a piece of paper.
THE COURT: Was it a newspaper?
THE WITNESS: No, it wasn't a newspaper. It was some

kind of white paper, Your Honor.
THE COURT: How many times did you see her do it?
THE WITNESS: Just one time.

- 42



THE WITNESS: No, I just can't remember.
THE COURT: How long had the group, two or three

hundred, been there when it happened?
THE WITNESS: I just don't remember, Your Honor,

just what time it was.
THE COURT: Did you see anybody else other than this

lady hold up any paper?
THE WITNESS: No, I didn't, Your Honor.
THE COURT: Was something written on the peper?
THE WITNESS: I just couldn't tell you. I couldn't

see. My eyes is bad. I couldn't tell that far off.
THE COURT: Do you know whether the paper had any

writing on it?
THE WITNESS: No, I could not tell.
THE COURT: Go ahead. I didn't mean to interrupt

you. Did you have any further questions?
MR. SPARKS: Yes, sir. I have one or two more

questions.
THE COURT: All right, sir.

BY MR. SPARKS:
Q Mrs. McRae, I will ask you whether or not you 

saw them tear up anything, the persons on the inside, tear up 
anything and throw it on the floor?

A No, I did not.

THE COURT: Do you know about what time that was?

- 43



MR. SPARKS: I think that's all from this witness.
THE COURT: Do you have any questions?
MR. MOORE: Yes, sir.

******

CROSS-EXAMINATION
BY MR. MOORE:

Q Mrs. McRae, what was the lady wearing?
A Pardon?
Q What was the lady wearing?
A I don't remember.
Q How was her hair fixed?
A It was straight.
Q Did she have on glasses?
A I don't remember about that.
Q Was anyone with her?
A All those people were out there.
Q You don't know how many were with her?
A I don't know who was with her. I don't know if she

was with anyone or not.
Q You don't even know if she was there, do you?
A Yes, I do.
Q Did you see the Klan out there?
A The what?
Q The Ku Klux Klan?
A I certainly did.

- 4 4  -



Q They were marching up and down?
A Pardon?
Q They were marching up and down?
A Yes, they was.
Q Did they have on their regalia?
A Yes.
Q You know, the sheets and —
A Yes .
Q Now, Mr. Lebedin cut out the lights in the restaurant

shortly after he arrived, didn’t he?
A After who arrived?
Q Mr. Lebedin?
A I don't remember about that. It was daytime when-

ever they come in, when the people come in.
Q The first thing he did was cut out the lights, wasn't

it?
A If he did —  if he did, I don't know anything about

it.
Q You know whether the lights were on or off?
A They were on whenever I was there.
Q Were they on when you left?
A They was on when I left.
Q Who unlocked the door to let you out of the restaurant?
A I went down through the basement.
Q But the door was locked, wasn't it?
A The front door?

- 45 -



Q Right.
A And the back door?
Q I am asking you about the front door.
A I don't know.
Q What about the back door?
A I don't know.
Q You just don't know?
Listen —  strike that.
Mr. Lebedin has pickles out on the tables at the restaurant 

free, doesn't he, as an appetizer, doesn't he?
A To eat with the food, yes.
Q Anybody who comes in the restaurant can pick up a

pickle and eat it?
A They are put out there to serve with the people when 

they eat their food.
Q And they eat it before they get their food, don't

they?
A They are supposed to eat them with their food.
Q They do, don't they?
A Yes, they do.
Q And they did in January, 1964, didn't they?
A It was in January, they eat them, yes.

MR. MOORE: That's all.
THE COURT: Any further questions from Mrs. McRae?
MR. SPARKS: No, sir.

- 46



MR. SPARKS: Yes, sir.
THE COURT: Any objection to excusing her?
MR. MOORE: No objection.
THE COURT: You may be excused.
THE WITNESS: Thank you, Your Honor.
(Whereupon, the witness was excused from the stand.)

******

THE COURT: Call your next witness.
MR. SPARKS: Please the Court, at this time I want

to read into the record, pursuant to our agreement, certain 
parts of the testimony of Mr. Kontoes, the witness whom we 
had subpoenaed and who didn’t appear. We previously agreed 
with Mr. Moore that we could read portions of his testimony 
into the record.

MR. MOORE: I have no objection if the full testimony
and his cross-examination is put in.

THE COURT: I will do this. I will let him read any 
part he wants to, and I will let you read any part you 
want to.

MR. MOORE: All right, sir.
THE COURT: Anything you all think is pertinent.
MR. SPARKS: I am starting on Page 845 of my copy.

That is 112 of the plea in abatement. This is 
Mr. William Kontoes who has been identified as the manager

THE COURT: May she be excused?

- 47 -



of Leb's Restaurant.
Question: "Were you on duty on January the 25th,

1964, as manager of Leb's Restaurant located at the corner 
of — "

Answer: "Luckie and Forsyth."
Question: "Forsyth and what?"
Answer: "Luckie."
Question: "Luckie and Forsyth, were you there?"
Answer: "Yes, sir, I was there at 4:30 that day."
Question: "Do you recall what time of the day you

went to work on that day, Mr. Kontoes?"
Answer: "Around 4:30 that afternoon."
Question: "I will ask you to look around the court­

room and see if you see a young lady that you saw on that 
day up there, Mr. Kontoes?"

Answer: "Yes, I saw Miss Walker there."
Question: "Had you seen her prior to this date?"
Answer: "I never saw her prior to that day, no."
Question: "Have you seen her since then?"
Answer: "I have seen her in the courthouse. That

was the last time I saw her."
Question: "Tell the Court and jury what, if anything,

Miss Walker did or said?"
Answer: "I couldn't hear what she said because she

was outside. I saw her on the outside of the restaurant 
that night, yes."

- 48



restaurant at the time you saw her out there?"
Answer: "Oh, there were the demonstrators there.

There was this corps that was inside, about forty, and then 
there was another couple hundred outside. And she was 
with the two hundred or so that was outside."

Question: "What did you see her do, if anything?"
Answer: "Well, the poeple who were inside were

writing letters and notes and putting them up to the 
window, and she was reading them and bringing them messages 
back to the ones who were in the line, and she was running 
up and down amongst them like she was giving the orders —
I mean, she was pretty handy that day anyway."

Question: "Mr. Kontoes, what did you mean just before
lunch when you said she looked like she was in charge?"

Answer: "Well, like when we closed the doors, the
inside ones were holding notes to the windows to the out­
side ones, and the outside ones were telling the ones on 
the inside what to do. And three or four times Miss Walker 
came to the window, and they put up notes to her. And on 
one occasion I heard them say to her, 'Tell Forman that 
the facilities of the bathrooms are closed, what shall we 
do?' And she went off and back she came in just a minute 
with some kind of a note, and she put it up to the window 
for the rest of the ones on the inside."

Question: "Were there any other people in the

- 9̂ -



at that time?"
Answer: "The restaurant was closed."
Continuing on Page 847, skipping a few lines.
MR. MOORE: What is the page number in the original

record?
MR. SPARKS: Sir?
MR. MOORE: What is the page number in the original

record?
MR. SPARKS: 114.
Question: "When you got there, describe the scene at

Leb •s?"
Answer: "Well, when I got there, I couldn't get into

the door because all the demonstrators were laying all out 
in front of the door and against the door, and the only way 
I could get in was to push my way in. And there was an 
officer on the door and Mr. Leb. And the officer was the 
one who let me in, and I came on in with my wife, and 
inside there were forty or fifty just milling around inside 
of the restaurant at the time."

Question, on Page 115, skipping a few lines: "Now,
I believe you stated a moment ago that you heard one of 
the demonstrators tell the defendant on trial to tell 
Forman that the rest rooms are closed, what shall we do.
Did you testify in substance to that?"

Question: "Now, was the restaurant opened or closed

50



Question: "Did you see any of them after they had
delivered that message to the defendant, did you see any 
of them do anything with reference to the bathroom?"

Answer: "Yes, I did. That was about 7:00 o'clock."
Question: "All right. What did you see with respect

to anyone using the bathroom?"
Answer: "In respect to them using the bathroom, one

did come and ask me if they could use the bathroom, and I 
said I would be more than willing to let them out to use 
the bathroom, because I had the key, and they could go at 
any time that they felt like using it. But, oh, about 
7:00 o'clock, I believe it was, I noticed a group of girls 
standing around a booth, and they were all congregated in 
one little circle, half circle around the booth, so I went 
over there immediately to find out what was going on. And 
I pushed them aside, and when I pushed them aside I saw 
this girl stooped over a bus tray —  a bus tray is what we 
put dishes on in the restaurant, so you will know what it 
is, so we can carry the dishes back to the kitchen —  and 
she was squatted over the bus tray, and she was using it

\
as she would a bathroom. And when I pushed the girls a- 
side, she immediately jumped up from that tray, and I didn't 
actually see, but I knew what was going on."

Question: "What did you see there?"

Answer: "I just said that, yes."

51



Answer: "The evidence was in the bus tray itself, I
mean, there it was I could tell what it was."

Question: "What was the evidence?"
Answer: "Urine. They urinated in it because I can

tell that from water. I can tell the smell from water, 
because I was standing right there and could smell it."

Question: "All right. Do you have any coffee urns
up there in Leb's Restaurant?"

Answer: "Yes —  well, not urns. We use Silex —
coffee urns and Silex pots are two different things. One 
of the boys definitely used one of those like you would one 
of these hospital bed things, because over in the left-hand 
corner of the restaurant in the booths I saw some boys 
around there, and I ran over to see what they were doing. 
One of the boys had it in his hand up under the table, and 
he came up with it. I grabbed it out of his hand and 
smashed it right away and threw it away."

Question: "Was that the only one that you actually
saw?"

Answer: "That was the only one I actually saw, but
there was enough evidence around that there had been more 
than just the two."

Question: "What other evidence did you see? What
did you see?"

Answer: "Evidence like, we have these things we call

52



pitchers and quite a few of the glasses had been urinated 
in. I took them and threw all of them away, because I 
don't want my customers using them afterwards."

Question: "What time of night was this?"
Answer: "This was between 7:00 and 10:00 that

evening."
Question: "What time did they actually leave?"
Page 118.
Answer: "They left about 11:30 that night when

Mr. Forman came to the door and said, 'Come on, everybody 
out.'"

Question: "Who came to the door?"
Answer: "Mr. Forman, that is their corps leader, I 

say Mr. Forman. The Forman came to the door at 11:30 and 
said, 'Come on, everybody out.' And he was at the door 
when I opened it. And they went out at that time."

Question by the Court: "The Court thought you said
something about a note."

Answer: "Oh, the note I am referring to is, she was
working directly with the people inside by passing notes 
out to Mr. Forman to tell them that we did not have any 
latrines open."

THE COURT: "Well, did you see any transactions
between the defendant and Forman?"

Answer: "I didn't see it between the foreman, but I

53



saw the transaction of the note between her and the
insiders. And I couldn't read what the words were, because 
when I'd come over there they'd take the letters away right 
away."

By Mr. Spence, who was the Assistant Solicitor: "Did
I understand you to testify a while ago that you heard 
someone tell the defendant something to tell Forman?"

Answer: "One of them in the group:hollered out, 'Tell
Forman that we have no latrine facilities.'"

Question:: "Mr. Kontoes, where was the defendant,
Mardon R. Walker, at the time whoever it was hollered out 
to her, 'Tell Forman — '"

Answer: "She was leaning up against the plateglass of
the restaurant looking in."

Still, on Page 119.
Question:: "All right. Describe the place known as

Leb's Restaurant after the people in the inside actually 
left some- seven or eight hours later?"

Answer: "Well, the only way I can describe it, they
really left it in a mess."

Question:: "Tell us about it."
Answer: 

the floor."
"I mean, they left paper littered all over

Question: 
Mr. Kontoes?"

: "Do you know urine when you see it,

-  5 1 * -



when I smell it."
Question: "Well, did you see any urine on the floor

that night?"
Answer: "I saw it and that is what it smelled like."
Question on Page 120: "Did you make any examination

of the booths and other facilities?"
Answer: "Yes. I examined all of the booths, and the

next day we had to put Coca-Cola crates up under three of 
them because the legs were smashed, to hold them up so we 
could seat cur customers for breakfast."

Still on that page, Question: "Mr. Kontoes, how long
was Leb’s place of business closed up on this January the 
25th, 1964, on account of the demonstrators?"

Answer: "We were closed from 3:30. Well, we closed
on that night, Saturday night at 3:00 o'clock."

Question: "Ordinarily you close at'3:00 o'clock in
the morning?"

Answer: "Yes. So we were closed for eleven and a
half hours."

Question: "Why were you closed that long?"
Answer: "Because our customers couldn't get through

the door. I could hardly get in myself. I mean, the 
outside was just literally packed with them leaning against 
the door, sitting down in front of it. I mean, they were

Answer: "I don't know when I see it, but I know it

55



lucky they could even get out, let alone come in."
And then the cross-examination by Mr. Donald Hollowell, 

who at that time was Mr. Moore's associate.
On Page 133, Question: "Mr. Kontoes, you referred to

a letter a while ago. State what the defendant did, if 
anything, with the letter?"

Answer: "Well, the girls inside —  as a matter of fact, 
we picked up some of the letters on the floor —  were 
writing letters — "

"THE COURT: Have you referred to a letter, Mr.
Kontoes?"

Answer: "I referred to a letter or note, I don't 
remember which one, but it was a piece of paper with a lot 
of writing on it, that she held up to the window. You can 
call it a note or a letter. She put it up to the window, 
and the people within the restaurant read it, and then the 
ones on the inside that had read it sat down and wrote 
something and put it back up to the window, and that is how 
they corresponded with one another."

Question: "When the one on the inside would put it
up to the window, where would the defendant be? Where 
would the defendant be when the people on the inside were 
writing notes or letters?"

Answer: "She was standing up against the plateglass
window looking within the restaurant to get the answer from 
whoever was writing back. I don't know who the persons

- 56



were. They were within our restaurant. And they were 
writing notes and putting them back up for her, so she 
could read them."

Question: "And you say you heard them singing or
shouting words or phrases to the effect that 'We Shall 
Overcome'?"

Answer: "Yes, and 'We Shall Integrate'."
There is one other, Your Honor.
THE COURT: All right, sir, go ahead.
MR. SPARKS: I have just one other, Your 'Honor, if I 

could find the place. On Page 129 of the original tran­
script, Question: "You didn't see anybody urinate any place
else?"

Answer: "I absolutely saw-the- man in the back urinate
because —  if you want me to say it right out in front of 
the Court —  he had a pitcher down between his legs and 
his fly was unbuttoned, and there was urine going into it.
I saw that. Urine was going into it, right in the little 
thing there we had."

Question: "Now, where was this?"
Answer: "This was the man sitting in the back. I

didn't want to come out so bluntly with it, but, if you 
want to know, I did see it."

Question: "Now, when was this? About what time
was this?"

57



Answer: "That was about 8:00 o'clock that night."
THE COURT: All right, sir.
MR. SPARKS: Like to call Mr. Cowan.
MR. MOORE: Just one second. I have the right to —

Your Honor, I wanted the record to show that the 
Solicitor was reading from the transcript of the testimony 
taken in the case of Mardon —  pardon me, State of Georgia 
versus Mardon R. Walker, Indictment Number 85,028, in the 
Superior Court of Fulton County, Georgia. This was the 
case in which she was tried and convicted, Your Honor.

THE COURT: For trespass?
MR. MOORE: We would like for the record to show that

all of the testimony he just read was taken in the trespass 
proceedings.

THE COURT: I am confused. The trespass proceeding
against Miss Walker was from Leb's or from —

MR. MOORE: It was from Krystal.
THE COURT: But this was additional testimony offered

concerning Leb's?
MR. MOORE: Yes, sir, to show —
THE COURT: How was that admissible in the Leb's case?
MR. MOORE: Your Honor, it was admissible, as I

understood, to show her scheme, motive, plan and design.
MR. SPARKS: That is my understanding, too, and it

was carefully limited to that, too, Your Honor. The jury

- 58 -



was instructed to disregard it or to consider it only as 
illustrating motive, scheme, design or plan and identity.

THE COURT: Where was this tried?
MR. SPARKS: This was tried in the Superior Court of

Fulton County, Georgia, before Judge Durwood T. Pye.
And, I might say, it was upheld by both the appellate 

courts. There was no error found in the admission of that 
testimony.

MR. MOORE: The Supreme Court overruled the entire —
THE COURT: I haven't read the entire —
MR. MOORE: They overruled the conviction on the

abatement theory, notwithstanding this so-called testimony.
THE COURT: All right, sir.
MR. MOORE: Your Honor, we would just move the Court

to look at the entire record in connection with Mr. Kontoes' 
testimony.

THE COURT: All right, I will read the entire record.
MR. MOORE: And one'particular section we think —
THE COURT: With the provision that you all point out

what you think is pertinent in your briefs. I am going to 
let you submit a brief on the two indictments in regard to 
Miss Walker and Mr. Forman.

MR. MOORE: Your Honor, with respect to Mr. Kontoes1
testimony, we would want the Court to pay particular 
attention to his testimony at Page 592 of the transcript

59



of proceedings, plea in abatement, had on the trial, 
particularly the following question and answer.

"Mr. Kontoes, did you hear her say anything to 
anybody?"

Answer: "I was inside the restaurant and could not
hear her. She was outside, remember."

Page 592.
THE COURT: All right, call your next witness.
MR. SPARKS: Call Mr. William Cowan.
THE COURT: Is Captain Mozley here?
MR. MOORE: Captain Mozley was subpoenaed, Your Honor,

but he is Superintendent of Police, one of the three or 
four that they have, and he asked us to put him on call, 
he would be able to be called at any time, said he would 
be available, just to call and the police station would 
bring him here. I didn't intend to use him.

THE COURT: I think it is important. I can't under­
stand all of these acts taking place over a period of 
seven or eight hours, whatever the testimony is, and 
Captain Mozley was there, apparently from the testimony of 
Mrs. McRae, why he didn't make some cases there other than 
trespass.

MR. SPARKS: I can't either, Your Honor.
MR. MOORE: We would like --
MR. SPARKS: No trespass cases either were made.

No cases were made.

60



THE COURT: I mean, you are up here asking for two
individuals on a riot charge, and here there were 
apparently —  if they were there they were outside, and 
there were people who, according to the testimony, were 
urinating and committing other acts there, and here Cap­
tain —  I don't know. Maybe Captain Mozley wasn't there.
I am not an expert. During this seven or eight hours, why 
weren't there some cases made? I understand no case was 
made over a period of seven or eight hours.

MR. SPARKS: That's correct.
THE COURT: And then come along four years later,

three years later, three and a half years later, and rehash 
the whole thing.

I would like to have Captain Mozley here. I would 
like to hear his testimony. That is what I am trying to 
bring out.

MR. MOORE: I would like to point out another officer
was there, Lieutenant Baugh, he was there eating ham and 
cheese sandwiches.

MR. SPARKS: I wasn't there, so I don't know. Captain
Little was also there, and I do have Captain Little here.

THE COURT: All right, sir, if Captain Little was 
there. I understood Mr. Mozley was there. I just heard 
the lady testify in regard to Captain Mozley.

All right, sir, who are you going to call?

- 6 1 -



MR. SPARKS: Going to call Mr. William Cowan, and
his testimony will be brief,

THE COURT: Well, can you get Captain Mozley over
here either this afternoon or tomorrow morning?

This is important. This appears to me to be a matter 
of some concern, and I want the truth, what actually 
happened.

MR. SPARKS: I will be glad to get him. He will be 
here in the morning or maybe I could get him here today.

THE COURT: I want to hear the testimony, whether it
is today or tomorrow.

******

THE CLERK: Would you take an oath, please?
The evidence you shall give in the issue joined 

between the State of Georgia and Thomas Rachel and 
others shall be the truth, the whole truth, and nothing but 
the truth, so help you God?

MR. COWAN: I do.

******

62



W I L L I A M  W. COWAN

called as a witness by the State, after having 
first been duly sworn, testified as follows:

DIRECT EXAMINATION
BY MR. SPARKS:

Q State your name and profession, occupation, please,
sir.

A My name is William W. Cowan. I am a lawyer.
Q What firm are you with?
A The firm of Kilpatrick, Cody, Rogers, McClatchey &

Regenstein.
Q Back in January, 196*1, January 25th, 196*4, Mr. Cowan, 

were you or not attorney for Mr. Charles Lebedin?
A Well, our firm.
Q Or did your firm represent him?
A Our firm had represented him for a number of years, 

and I had been advising him in connection with certain matters, 
yes .

Q Mr. Cowan, on the —  on Saturday, January 25 , 196*4 , 
did you have occasion to go down to Leb's Restaurant in Atlanta, 
Fulton County, Georgia, on the corner of Luckie and Forsyth 
Streets?

A Well, on a Saturday afternoon in January, I haven't 
checked the exact date, but I did, yes.

Q What was going on when you got there?

- 63 -



A I had been at the office working on Saturday
afternoon and had heard a news report there was some disturbance 
at Leb's. Since I had been involved in some of the matters 
prior to that time, I circled the block and came by and saw a 
crowd on the outside of the restaurant and several police 
officers were there.

I went and looked inside the restaurant and saw a group 
of people congregated inside, and I saw Mr. Lebedin, and he saw 
me and motioned for me to come inside, and I walked around to 
the entrance and he opened the door and I came in.

Q What was going on inside?
A At that time?
Q Yes, sir.
A Well, the restaurant, there were some twenty-five to 

thirty, I didn’t —  I counted at the time but I can’t recall 
exactly how many, the number that was there. Mr. Lebedin, his 
employees and Captain Mozley of the Atlanta Police Department 
was on the outside.

Q Where was Captain Mozley stationed?
A Well, he was at the entrance when I came up to the 

door. I believe he let me in the restaurant. He was there.
And I had known him from previous occurrences that had transpired 
up there, and I engaged in a series of conversations with he and 
Mr. Lebedin about the situation.

Q How about on the outside of the restaurant, what was



A Well, there was a great crowd, a mob of people on 
the outside of the restaurant.

Q Now, did you see Mr. James R. Forman there at any time 
on that particular day from the time you arrived until you 
left?

A I saw him on several occasions. I saw him when I
came up on the outside of the restaurant. I believe, if I 
recall, he was standing talking to a news man or something.

Q Do you see him in the courtroom now?
A Yes. That is Mr. Forman in the shirt, I believe,

sitting behind —
Q Sitting behind counsel table?
A Yes. It's been a long time, but I believe that is

him.
Q You believe that is him?
Mr. Cowan, did you try to persuade these people to leave, 

the demonstrators on the inside, to leave? Did you ask them to 
leave?

A I asked numerous of them to leave. In fact, some of
them did leave.

Q State what any of them said with reference to
Mr. Forman, if any of them said anything.

A Well, they said they weren't going to leave until
they got word from Mr. Forman.

Q When did you leave, Mr. Cowan? What time of the

going on outside?

- 65 -



evening? Or do you recall approximately? I know you can't 
remember three years ago.

A I was thinking it was somewhere between 11:00 and 
12:00 o'clock.

Q Between 11:00 and 12:00?
A I left when the people left the restaurant. They left

when Mr. Forman came up and motioned for them to leave.
Q Did Mr. Forman come up to the door and motion for

them to leave?
A Yes.
Q And you had been there from the time you arrived until

sometime between 11:00 and 12:00 at night? You stayed there in 
the restaurant?

A Yes. I think I arrived about 5:30 and probably was
there three or four hours at least.

Q Were the lights on or off on the inside of the 
restaurant for the most part when you were there, sir?

A Well, I think, as I recall, we turned the lights on
when —  I say we turned the lights off, the lights were turned 
off after they refused to leave and after I was unable to get 
Captain Mozley to have them leave and because of the crowds on 
the outside. At that time I believe some people who looked to 
be Ku Klux Klan members with their helmets and uniforms on, they 
were outside, and because of the conduct on the inside it was 
felt that it would keep matters calmer if the people on the

66



outside were unable to observe the conduct on the inside. 
Therefore, the lights, some of the lights on the periphery of
the restaurant were closed down, but I believe it was after 
Mr. Lebedin had left.

Q Did you ever ask Captain Mozley on behalf of your 
client to empty the restaurant or to make any arrests or clear 
the people out of Leb's?

A Several times.
Q Did he ever do it?
A No, he did not.

MR. SPARKS: No further questions.
THE COURT: Why didn't he? Were you there, Mr. Cowan

when they were committing all these acts? Did you see any 
parts of the booths kicked out or anything?

THE WITNESS: No, sir, I didn't see any. Only one
time during the evening, there was some activity on the 
outside, just literally hundreds of people around the 
outside, and the people overloaded one booth, that is, a 
crowd gathered, maybe ten people, in a booth that was 
designed for maybe four people. I went over and asked them 
to remove themselves, to quit overloading the booths, which 
they did at that time.

I noticed that some of the legs of the booths were 
kicked out. They are short screw-in legs, and they were 
kicked out. I noticed some places which were torn on the

- 67 -



seats, but I had no way of knowing when —  I didn’t inspect 
it prior to their arrival. I didn’t know whether this 
was damage which was done by them or not, but it was there.

THE COURT: Did you see anyone urinating on the floor?
THE WITNESS: No, sir, I did not.
THE COURT: Did you see any evidence of that?
THE WITNESS: No, sir.
THE COURT: How long were you there?
THE WITNESS: I was there the entire time except for 

one period of about five minutes I left.
THE COURT: In other words, you were there from about

3:00 or 4:00 in the afternoon —
THE WITNESS: No, sir, about 5:30, I believe, just

about dark.
THE COURT: You were there from about 5:30?
THE WITNESS: Until they left, which I judged to be

about 11:00 o'clock.
THE COURT: Did you see anyone pass a note to

Miss Walker in regard, or make a statement about there 
weren't any toilet facilities available?

THE WITNESS: I saw people passing notes to people
on the outside. I don't know Miss Walker. I couldn't 
identify the person to whom the notes were being passed, 
no, sir, I could not, but notes were being passed at people

- 68



on the outside.

THE COURT: During the time that you were there from
5:30, you say, until they closed it up, 11:00 or 11:30, 
you didn't see any evidence of anybody urinating on the 
floor?

THE WITNESS: It was reported to me by other
employees of Mr. Lebedin in the restaurant that this was 
taking —  this took place while I was gone. What happened

THE COURT: You weren't gone but five minutes?
THE WITNESS: That's right. But I personally did not

see any evidence. I didn't make an inspection of it which 
would reveal it, but I didn't see it occur.

THE COURT: You were there as attorney for Mr. Lebedin,
I believe?

THE WITNESS: Yes, sir.
THE COURT: Did you request Captain Mozley to make a

case against any of these parties?
THE WITNESS: Yes, sir.
THE COURT: What did you request him to make a case

against them for?
THE WITNESS: Just for taking over the restaurant.
Well, we asked them to leave on the Anti-trespass Law. 

Of course, I didn't know who they were. I had no way of 
gaining identification of them.

- 69 -



He said, "Well, you have to take out a warrant," as 
I recall, and it was Saturday evening, of course, and no 
way to take out a warrant.

I didn't know the individuals. I asked him to —
THE COURT: Why were you required to take out a

warrant? The testimony here on all except one case, if you 
requested them to leave and they did not leave, then you 
cite them the Georgia Anti-trespass Law, and —

THE WITNESS: That was my understanding.
THE COURT: He refused to do that?
THE WITNESS: I gave him the keys to the restaurant

when he refused to remove them and told him that he would 
be held individually resporsible for the damage that 
occurred.

THE COURT: Well, did you see any acts which, as an
attorney for Leb's, that you concluded were violating any 
other City ordinance, State laws, other than the Trespass 
Law?

THE WITNESS: Well, the conduct was generally
boisterous. I remember one incident, the reason which led 
me to ask Mr. Lebedin to leave the restaurant, because he 
was in a very excited condition as a result of engaging in 
—  having been involved in a scuffle with one of the 
demonstrators on the inside.

And what had happened, this particular —  the group was

70



confined to one particular area along Luckie Street, I 
believe, along that side, and this party had moved over to 
another window, and Mr. Lebedin had asked him to move back 
to the other side. They were toying with him and trying 
to get Superintendent Mozley to arrest him, and he was 
very excited. And because of his age and what he had been 
through and because of the fact Superintendent Mozley made 
no effort to remove them, I thought it best that he leave, 
and I requested him to leave, and he did.

THE COURT: Well, during the whole period of time
that you were there, was Captain Mozley there?

THE WITNESS: Yes, sir.
THE COURT: And no case was made against anyone there

at Leb's that night?
THE WITNESS: No, sir.
THE COURT: From 5:30 until about 11:30?
THE WITNESS: None of the people on the inside.
THE COURT: Well, it is confusing. Some of the

evidence tends to indicate quite a few acts were taking 
place which were —

You testified you didn't see any urinating around?
THE WITNESS: No, sir, I did not.
THE COURT: You were there all except five minutes?
THE WITNESS: Yes, sir.
THE COURT: And Captain Mozley was there the entire

71 -



time?
THE WITNESS: He was there when I arrived. He was on

the inside.
THE COURT: Were any other policemen other than

Captain Mozley there?
THE WITNESS: A lieutenant Ball, or Baugh, I believe,

came in at one point, and other policemen checked by 
periodically, whom I do not know, but Lieutenant Baugh, I 
believe his name is, did come on the inside.

THE COURT: I believe it is your testimony you can’t
identify Miss Walker as being there?

THE WITNESS: No, sir, I cannot.
THE COURT: Do you have any questions?

******

CROSS-EXAMINATION

BY MR. MOORE:
Q Mr. Cowan —
A Yes, sir.
Q —  as a matter of fact, after this incident was over,

up and through and until the time you appeared here to testify, 
you have never sought a warrant against any of the persons inside 
the restaurant?

A No, I have not.
Q And you have no personal knowledge of Mr. Lebedin

having sought a warrant against anybody inside the restaurant on

72



the day in question?
A Not to my knowledge.
Q As a matter of fact, you did not initiate or did not 

advise Mr. Lebedin to initiate the prosecution against 
Miss Walker for any of the events that occurred on the 25th of 
January, did you?

A I have no knowledge of that.
Q You know positively that you did not advise

Mr. Lebedin to that effect?
A I am not sure my client-attorney relationship would

permit me to answer that.
THE COURT: He said he had no knowledge.

BY MR. MOORE:
Q It is a matter of your personal knowledge that the

prime mover of this prosecution against the defendants,
Mardon Walker and James Forman, has been Judge Pye himself?

A I could not say that.
Q You have never escorted your client to the Solicitor's

office for the purpose of initiating a prosecution, have you?
A No, I have not.

MR. SPARKS: Please the Court, I submit that is
irrelevant and immaterial.

THE COURT: I don't see that.
Any further questions from Mr. Cowan?

MR. MOORE: No other questions.

73



THE COURT: Can Mr. Cowan be excused?

MR. SPARKS: Yes, sir.
THE COURT: Thank you, Mr. Cowan.
THE WITNESS: Yes, sir.
(Whereupon, the witness was excused from the stand.)

tie****

MR. SPARKS: Call Captain Little.
* * * * * *

R. E. LITTLE
having returned to the witness stand, testified 
further as follows:

REDIRECT EXAMINATION
BY MR. SPARKS:

Q You are Captain Little who has been before us several 
times in the last two days, is that correct, sir?

A Yes, I have.
Q Captain Little, I will direct your attention to

Saturday, the 25th day of January, 196*1, and ask you —  I direct 
your attention to the restaurant known as Leb's at the corner 
of Luckie and Forsyth Street in Atlanta, Fulton County, Georgia, 
and ask you whether or not you had occasion to go by there?

A Yes, sir, I had occasion to go by and check the 
situation that existed there at that time.

Q What time did you arrive there, Captain Little?
A Approximately 8:00 o'clock P.M.

-  7 ** -



Q At that time what was your assignment, Captain Little?
A At that time I was in charge of the Security

Division, and I was —  at that particular time the UN delegation 
was here on a visit, and I was acting as Security Guard with 
that group and was at the Riviera Motel when this incident 
took place.

Q While you were on the security —  when you were in 
charge of the Security Division of the Atlanta Police Depart­
ment, sir, did you have any special responsibility concerning 
the demonstrations which were going on at that time or had been 
going on in the past?

A Well, as head of the Security Division I had the 
responsibility of, up until about a week prior to that I had the 
responsibility of handling all of the racial problems and 
special radical groups and special radical group problems, 
subversive activity, and about a week prior to this the 
demonstration factor was turned over the Uniform Division, and 
it was decided they would handle that and that I would supply 
information only. At that particular time I was working with 
the UN delegation.

Q You had been relieved about a week prior to this
incident from your primary responsibility for handling —

A From actually handling the demonstrations, making
arrests and so forth. It was decided it would best be handled 
by the Uniform Division.

- 75



Q All right, sir, what did you see at Leb's on that 
night, January 25, 1964?

A Well, I was called at the Riviera and told to go 
downtown and see what the situation was and report back. I did 
so. When I arrived there were approximately, anywhere from 
a thousand to fifteen hundred people in the general area. There 
were two lines of pickets. There was the Ku Klux Klan marching 
in and around Leb’s in one direction, and SNCC and other 
student organizations were marching in a line in the other 
direction. The spectators numbered somewhere between a thousand 
and fifteen hundred, I would say, jeering and hollering, and it 
was a very touchy and dangerous situation. It was a situation 
that could have erupted, any little incident could have erupted 
into a riot very easily.

Q Who was on —  who was on the inside of Leb's, if 
anyone, if you know?

A Well, Captain Mozley was in there. Leb’s was locked 
up and there were a number of the demonstrators in Leb's.
Captain Mozley was in there, and once or twice I saw Lieutenant 
Baugh in there. Of the demonstrators I saw several faces that 
I recognized but did not recall their names. I don’t recall 
them at this time. The only one that I actually recall the 
name of was Isabell Serny, and I specifically remembered her 
because of other dealings that I had had with her in other 
connections which she had been involved in.

- 76 -



Q What did you see the demonstrators on the inside of 
Leb's do, sir?

A Well, they were milling around, and some of them were 
sitting in booths, and some of them were milling around, some 
of them were going over and appeared to be drawing coffee or 
water or something and drinking. Every once in a while a group 
of them would get together in the center of the building 
around other individuals, and it was hard to tell just exactly 
what was going on. There was a great deal of milling around 
in there.

Q Were the lights on or off on the inside?
A They were off when I arrived.

MR. SPARKS: I think that's all.
THE COURT: Were any cases made there that night?
THE WITNESS: No, sir, no cases were made that night.
THE COURT: You say they were taking coffee and so

forth and all that?
THE WITNESS: I said it appeared that way to me,

Judge. I couldn't tell. They would go over to the counter, 
and they were getting some sort of beverage. I don't know 
whether it was water or coffee or what it was. As I say, 
it was dark. They were milling around considerably. I 
never went inside. Captain Mozley was in there. I came 
down specifically on instructions of the Chief to look the 
situation over and give him my thinking as to what the

77



situation was, and I looked at the situation, analyzed it, 
and I called him back and told him what my thinking was.

THE COURT: Did you know anything about anyone 
urinating on the floor or anything like that?

THE WITNESS: I didn’t see anyone urinating on the
floor. I was informed that they did. I saw evidence 
that there had been some the next day, but I couldn’t say 
for sure that they did.

THE COURT: You don't know why the Atlanta Police
Department didn't make arrests there other than for 
trespass? There were no arrests made for anything, were 
there?

THE WITNESS: No, sir. There were no arrests made.
Captain Mozley was inside, and I sent, after I arrived on 
the scene I sent Lieutenant Marler, who was then a 
sergeant of the Uniform Division, I endeavored to send 
Lieutenant Marler in to talk to Captain Mozley two or three 
times, to get information in or out, in other words, so 
we could correlate our thinking, so I could find out 
exactly what the situation was. I was unable to get 
Lieutenant Marler in.

Why cases were not made is a question that Captain 
Mozley will have to answer.

THE COURT: You mean you couldn't get Lieutenant, who
was a sergeant then, you couldn't get him inside there?

- 78 -



Captain Mozley that I wanted to talk to him or ask him for 
certain information, and every time he would go to the 
door, he said Mozley would motion him away, and he would 
come back.

THE COURT: Well, I don't know all the ordinances of
the City of Atlanta, but it would appear to me if any part 
of this testimony is correct there should have been charges 
preferred there that night if they were taking over the 
restaurant.

THE WITNESS: Your Honor, it was my thinking, and I
so Informed the Chief at the time I arrived, which was 
around 8:00 o'clock, the situation was in such a 
condition that if any arrests had been made, either of a 
white person or a colored person, it would have precipi­
tated a riot.

THE COURT: And that is the reason —
THE WITNESS: That is the reason I took no action after

I arrived. Now, what took place prior to my arrival and 
why, I cannot answer that, sir. By the time I arrived 
there it was completely —  it had reached such a stage that 
any action by the Police Department of an arrest of any 
kind in my opinion would have precipitated a riot, and 
other experienced officers felt the same way, and we just 
sat it out.

THE WITNESS: I told h i m  to go, I sent him to tell

79



situation calm down?
THE WITNESS: Around 1:00 o'clock, between 12:00 and

1:00 o'clock, the crowd began to dwindle away.
THE COURT: Were you able to identify those participa­

ting in this within the restaurant where there could have 
been cases made afterwards?

THE WITNESS: The only person I could identify now,
I think that I probably could have identified two or three 
more at the time, was Isabell Serny, and, of course, I knew 
a good many of those outside. I saw Debbie Amos and a 
few more outside that I recall.

THE COURT: I am referring to the acts on the inside.
THE WITNESS: I saw no acts on the inside that I could

book a case against. As I say, it was semi-dark in there 
by the time I arrived. There was a great deal of milling 
around. Had I been inside it would have been a different 
thing, but I was never inside. Captain Mozley was in 
there and informed Sergeant Marler, I believe, that he had 
the situation under control inside and for him to handle 
the outside.

THE COURT: What brought on the explosion, the two
different groups?

THE COURT: Ku Klux Klan —

THE COURT: What caused —  well, whe n  did the

THE WITNESS: You would have two opposite poles there.

80



dent groups.
THE COURT: Where was the Ku Klux Klan on the outside?
THE WITNESS: They were on the outside marching

clockwise.
THE COURT: How many were there?
THE WITNESS: I believe they were marching clockwise

and the other group was marching* counterclockwise.
THE COURT: Approximately'-how-■many*?-' -
THE WITNESS: Of the Klan, sir?
THE COURT: Yes, sir.
THE WITNESS: In the line where Klansmen were identi­

cal, I would say there were about one hundred fifty or two 
hundred people in the line and about the same number of 
students, I would think. You see, they were circling the 
entire block around Leb's. They were coming up Forsyth and 
going down Luckie and then down Broad and then back up 
Poplar. They were just making a circle around the entire 
block, demonstrations, and I would say between a hundred 
and fifty and two hundred people in each group, and you 
just had a circle within a circle.

THE COURT: Do you know Miss Walker?
THE WITNESS: Mardon Walker?
THE COURT: Yes.

THE WITNESS: The Ku Klux Klan and SNCC and the s t u ­

THE WITNESS: Oh, yes.

81 -



THE WITNESS: I am not positive. I believe she was
there. I am not sure. I would not swear that she was 
there.

THE COURT: Did you see Mr. Forman there?
THE WITNESS: Yes, James Forman was there.
THE COURT: What was he doing?
THE WITNESS: He was outside, if I remember correctly

at one time I know he was outside.
THE COURT: What did you see him doing?
THE WITNESS: I don't recall any specific —  I don't

recall any specific incident. It seems like he was present 
I know Debbie Amos and another person put on sheets like 
they were Klansmen and put on quite a little skit there.
I recall instances of that kind, things that were unusual, 
you know, but it was a milling, and it is just hard to say 
what everybody did except specific instances. That was 
some time ago.

THE COURT: You felt from your position that the
situation was so tense and explosive that there shouldn't 
be any arrests made there inside the building, inside Leb's 
building?

THE WITNESS: No, sir, I didn't say that.
THE COURT: I misunderstood you.

THE COURT: Did you see her there that night?

THE WITNESS: I felt —  I felt that after I arrived

82



at 8:00 o'clock any arrests either inside or outside would 
have precipitated a riot. Piror to that time —

THE COURT: You don't know?
THE WITNESS: —  I don't know. It has been my

experience in this type thing, the best way to control the 
mob is never let it form. Why that wasn't done, I can't 
say.

THE COURT: Well, it is just disturbing to me that
regardless, at this time, even though service was being 
refused, I don't know who locked the doors, but to just 
take over the business there, if the evidence is true, and 
urinate on the floor, that is just not the American way.

THE WITNESS: No, sir. I agree with Your Honor.
THE COURT: All right, sir, any further questions?
MR. MOORE: I would like to ask Captain Little 

one or two questions.
#* ## **

RECROSS-EXAMINATION
BY MR. MOORE:

Q Captain Little, did you ever communicate your
/• assessment of the situation to Superintendent Mozley?

A I had no reason to communicate my assessment. I did
endeavor to talk to Mozley. I sent Marler in an effort to talk 
to him. Mozley was not superintendent at that time; he was a 
captain at that time.

- 83 -



Chief.

THE WITNESS: I reported my analysis of the situation
to the Chief.

BY MR. MOORE:

Q Do you have any personal knowledge as to whether the 
Chief communicated your analysis to Captain Mozley?

A I don't believe he did. The Chief came to the area, 
but Mozley was inside the building and never came out until 
after the situation developed. I know the next day at a meeting 
Mozley conferred his analysis to the Chief, but that night I 
doubt very seriously he did, unless he did it by phone. He 
might have done so by phone. I don't know.

Q Captain Little, the situation was not so tense that 
an officer could not have gotten the names and addresses of 
some of the persons present at the scene, inside or outside?

A Inside what?
Q Inside or outside?
A It would depend upon the degree of cooperation he got 

from the individual. If we had gotten a lack of cooperation 
that we had had heretofore and endeavored to get the information,
I feel sure that the resulting actions would have precipitated 
a riot, yes.

Q You don't know whether or not any effort was made to 
ascertain the names and addresses of any person who was inside

THE COURT: I believe he testified he reported to the

84



/T

the restaurant or not, do you?
A I do not.

MR. MOORE: No other questions.
MR. SPARKS: I have no other questions.
THE COURT: Are you through with Captain Little for

the day?
MR. SPARKS: Yes, sir.
THE COURT: Thank you, Captain. You have been most

helpful.
THE WITNESS: May I ask this. Will it be necessary

for me to come back tomorrow? I will be glad to, if 
necessary.

THE COURT: I would like, from the Court's own view­
point, I would like to hear from Captain Mozley. He was in 
the building, from my recollection, over the whole period 
of time. I believe it is Superintendent Mozley.

THE WITNESS: That's correct. He is now Superintendent
of Traffic.

MR. SPARKS: Your Honor, I believe, my colleague here
has tried to contact Lieuterant Mozley, and they say he 
has gone home.

THE COURT: I understand about today. I would like
to have him in the morning.

MR. SPARKS: Well, we will get him in the morning.
In fact, I have two or three more witnesses. They are not

- 85 -



going to be long,but I hate to rush it up.
THE COURT: Well, let me ask you this. What time do

you have the case to be argued down the hall in the 
morning?

MR. MOORE: I think I am —  I am the second case,
Judge.

MR. SPARKS: When do they start? 10:00?
THE COURT: Let's start at 9:30, and if they are not 

through at 10:00 —  I think they allow a half hour to the 
side, don't they?

MR. MOORE: Yes, sir.
THE COURT: Then we will recess it where you can go

down there and argue that.
MR. MOORE: All right, sir.
THE COURT: Is that satisfactory?

We might be through by then, but I want to hear 
some more evidence. This is, to my mind, an important 
phase of this whole matter.

MR. SPARKS: Yes, sir, it is very satisfactory to me.
I can start at 9:00, if the Court wants to.

THE COURT: I am here a block away. It doesn't matter
to me. I thought it might be pushing you.

MR. MOORE: 9:00 will be all right.
(Whereupon, the witness was excused from the stand.)

******
THE COURT: If there is nothing further, we will

86



adjourn until tommorrow morning at 9:00 o'clock.
(Whereupon, court was recessed at approximately 
5:00 P. M., reconvening on Wednesday, September 27, 
1967, at 9:00 A. M.)

- 87 -



(Atlanta, Georgia; Wednesday, September 27, 1967,
9:00 A.M., In open court.)

******

THE COURT: Is there any questions, Gentlemen,
regarding these restaurants which we have been considering 
being covered by the 1964 Act?

MR. MOORE: That was a request for admissions, Your
Honor, and the Court ordered that the admissions be 
accepted as true for failure to file a timely answer. The 
request for admissions showed that they are covered under 
Section 201 (c) —  I forget the sub-section —  201 (a) and 
also under 201 (d).

THE COURT: There is no question about the Heart of
Atlanta?

MR. MOORE: No, sir.
THE COURT: All right.
MR. SPARKS: Your Honor, I might say in regard to

that request for admission, it is true that we did not file 
it on time, but we have since filed a motion, Mr. Ginsberg, 
I believe, we filed our response to the request for 
admissions and showed the Court that they had been 
prepared, but, by inadvertence, had not been filed in time. 
We asked the Court to set aside its order admitting, or 
the order declaring that ail the requests for admissions 
were admitted as true.

88



Actually we did admit in our answer which we filed, 
we admitted that all these establishments are covered 
establishments under the 1964 Civil Rights Act.

THE COURT: 1964.
MR. SPARKS: We only objected to certain phraseology

in two or three of the numerous ones.
THE COURT: I didn't want it to go by technicality.

In re-reading the decision this morning it occurred to me 
that nothing had been stated, had been brought up.

There is no question that these restaurants are 
covered by the Civil Rights Act?

MR. SPARKS: No, sir. We have admitted that.
MR. MOORE: Yes, sir. We were proceeding on the

basis of the Court's order of December 9, 1966, taking the 
requests for admissions as true.

THE COURT: They stipulated that they are covered by
the Civil Rights Act, so that is all right.

MR. SPARKS: Technically, Your Honor, we would ask the
Court to allow our answer to be filed, because there are 
several instances they were worded in such a manner as to 
go farther than we wanted to admit. We were in error in 
not getting them filed in time.

THE COURT: How does that affect this case?
MR. SPARKS: I don't know that it will affect it, but

it might at sometime. It might affect some of them in the

- 89 -



wording of them.
I think the essential thing-they were trying to do, 

though, was to get an admission that they were covered by 
the Civil Rights Act of 1964.

THE COURT: That's all.
MR. SPARKS: Your Honor, I have another matter to

bring to the attention of the Court before we proceed. The 
Court directed me yesterday to produce Captain —  former 
Captain, now Superintendent, J. L. Mozley as a witness 
this morning. He is here in the witness room. However,
I do not wish to call him as a State's witness, because 
the State doesn't want to be bound by his testimony. I 
respectfully suggest that the Court call him as a witness 
for the Court, because I don't want to put him on the 
stand. If I put him on the stand I am bound by his 
testimony.

THE COURT: Well, I am not concerned with
technicalities. I will be glad to put him up and let both 
of you have him subject to cross-examination. Why wouldn't 
that be fair?

MR. SPARKS: Very well, sir, if you put him up I will
examine him as a friend of the Court.

THE COURT: Well, I don't care about that. I will
examine him.

MR. SPARKS: Very well, sir.

90



THE COURT: All right, are you ready to proceed,
Gentlemen?

MR. MOORE: Yes, sir. We were going to proceed with
Captain Mozley.

THE COURT: All right, sir, I believe it is
Superintendent Mozley now. Let him be brought in and 
sworn.

THE CLERK: Superintendent Mozley, will you take an
oath, please, sir?

SUPERINTENDENT MOZLEY: Yes, sir.
THE CLERK: The evidence you shall give in the issue

joined between the State of Georgia and Thomas Rachel and 
others shall be the truth, the whole truth, and nothing but 
the truth, so help you God?

SUPERINTENDENT MOZLEY: Yes, sir.
THE CLERK: Just have a seat, sir.

XXXXXX

J. L. MOZLEY
called as a witness by the Court, after having first 
been duly sworn, testified as follows:

EXAMINATION
BY THE COURT:

Q Superintendent Mozley, I wanted to ask you a few 
questions, if I may, sir.

A Yes, sir.

91



Q Were you in on this incident which occurred, I 
believe, on January the 25th at Leb's up here on the corner of 
Luckie and Forsyth Street?

A Yes, sir, I was there.
Q What time did you arrive there, sir?
A I believe it was about, somewhere around 6:00 o'clock.

It was in the early evening, shortly after dark. 
Q Did you stay there until 10:30 or 11:00?
A Yes, sir, I did.
Q Now, did you see any acts committed there relative to

destroying property in any way affecting the booths and so forth?
A No, sir, I didn't.
Q Did you see anybody urinate on the floor?
A No, sir, I did not.
Q Were you there in the premises?
A I was in the place except for about, I guess, fifteen

minutes. I was relieved, and, I believe, Lieutenant Howard
Baugh relieved me about, somewhere around 10:00 o ’clock, and I 
went out and was gone, I guess, fifteen minutes, and I came 
back in and relieved him, and he went back on the street, and I 
stayed in the place.

So I was there all the time except for about fifteen minutes, 
and a police officer was there in my place at the time that I 
was gone.

Q Well, just what occurred inside the place?

- 92 -



A We had, of course, a problem, and I was there to keep 
order. There were some people that went into Leb's, and I went 
to see —  there was some commotion, not a great big disturbance, 
but commotion and so on. Mr. Leb was talking rather excitedly, 
so I went in to see what the trouble was, to see if I could 
somehow or other bring this thing down or satisfy him, and I 
was in the back of the restaurant.

Suddenly the lights went out, and I looked around to see 
what had happened, and the door was locked. We were all —  we 
were all in the restaurant there with the lights out. The 
only lights that we had was from maybe a jukebox or a coin 
machine, or something of that kind, some neon light that gave 
a dim light, and then we had the lights that were from the 
street.

So, after a minute or so, why, our eyes focused so we 
could see by the dim light. Mr. Leb said he was not going to 
let anybody out, and the people who were there said they weren't 
going out. So we kind of got to an impasse.

Mr. Leb's lawyer came in, and we discussed the thing at 
great length. Of course, we were never able to come to any 
decision as to exactly what should be done.

Outside there was a lot of people marching around the 
street and some on the other side marching and so forth. So 
I decided to just hold the inside just as it is until the police" 
who were on the outside were able to bring this matter under

- 93



control without hurting anybody and without —
Q On the outside?
A Yes, sir, on the outside. I was in charge of the 

watch, I might add.
I talked to the Chief of Police several times while I was 

In there.
Q Where was he?
A He was at the Police Station. I had access to him 

by telephone, and we were discussing and trying to determine 
exactly how to do this inside, and also, of course, the other 
law enforcement officers had come into the area. A few came 
to the scene.

Then we had, oh, I would say possibly up to between 
seventy-five and a hundred back away from the scene ready to 
come in if they were needed.

So I stayed in the place until, I guess it was about 10:30, 
and people who were in there singing freedom songs, they had 
some levity among themselves about the conditions and what they 
were going to do and so on, they were going to eat in this 
restaurant, you know, et cetera.

At about 10:30 I guess they wore themselves out, or Mr. Leb 
—  I don't know what caused them to make their decision and I 
don't know what caused him to make his decision, but they 
opened —  he opened the door, and they all left, and the streets 
by that time were clear, and I went back into service and went

_ 94 -



back to the Police Station, talked with the Chief of Police and 
the other staff members there in the Police Department attempting 
to go over what had happened that night to evaluate our actions, 
to determine what to do tomorrow night, because we felt 
certainly this wasn’t the end of this problem.

That is about a summary of what occurred that night.
Q Did you see any —  did you leave after Mr. Lebedin 

left and after the parties left who were attempting to get 
service?

A Yes, sir. They were gone. When I left the restaurant 
the restaurant was clear, yes, sir.

Q How big a restaurant is that, roughly, as far as
dimensions are concerned?

A It is an L-shape, and it is just roughly as big as
this courtroom, if you take part of it and turn it to make an 
L-shape out of it. It might not be quite this big, but roughly 
as big as this courtroom.

Q Would you say a hundred fifty feet by seventy-five
feet?

A I would think nearer a hundred feet by seventy-five 
feet, possibly, the way it makes that L-turn.

Q What I am trying to say, when you were in there, 
could you observe the whole area of Leb’s, inside Leb's 
Restaurant?

A Not at one time, no, sir. I couldn't observe all of

95



it at one time.
However, the restaurant has, along the window it had booths, 

and then out in the middle they had tables and these great big 
posts about so big (indicating) supporting the building, of 
course, and then when it makes the L there is no way that you 
could see all over the —  you can’t see every spot in the 
restaurant at one time, no, sir, from most any angle.

Q After anyone left and before you left, did you make
an examination of the premises?

A No, sir, I didn't make a thorough examination of the 
premises, no, sir.

Q Did anyone ever mention to you that there had been
certain booths damaged or certain tables damaged or certain 
seats damaged?

A I had no information like that that night, no, sir.
Q You didn't see anyone damage them?
A No, sir.
Q Did anyone report to you that they were urinating on

the floor or something?
A No, sir.
Q Did you see any evidence of it after you left?
A No, sir.
Q After they left and before you left?
A No, sir, I did not.
I might add I was there with Mr. Leb and with Mr. Leb's

- 96 -



lawyer, who was —
Q Mr. Cowan?
A Yes, sir. (Continuing) —  at the time. They were 

there In the restaurant, and I was there with them and in 
conversation with them and with this group over here all the 
time.

Now, I can't say that no one urinated. I read in the paper 
they said they urinated in the coffee urn and so on. I just 
can't —  I didn't see that. I had no information about that at 
all.

Q No one reported that to you?
A No, sir. It is possible it could have happened over

there. I wouldn't say that it didn't.
THE COURT: All right, sir, you want to question

Lieutenant Mozley?

CROSS-EXAMINATION
BY MR. SPARKS:

Q Superintendent, weren't the keys —
THE COURT: I said "Lieutenant". Superintendent I

mean. I am sorry.
BY MR. SPARKS:

Q Superintendent Mozley, weren't the keys of the
restaurant actually turned over to you by Mr. Cowan and Mr. 
Lebedin sometime after you were there, the keys to the 
front door?

- 97



A Oh, no. I never did take the keys to the front door,
no, sir.

Q Are you sure of that?
A I am sure, as far as I can —  as far as I can

remember, and I can't imagine under what circumstances that I 
would take the keys to the restaurant, no, sir.

Q Now, isn't it true, Superintendent, that Mr. Lebedin 
and Mr. Cowan told you, handed you the keys and told you they 
were going to hold you responsible for any damage that was done, 
and didn't you call the Chief, and didn't you retain the keys?

A I wouldn't, under any circumstances, assume 
responsibility for the damage to a man's personal business, no 
sir, and I didn't take the keys, and I didn't assume the 
responsibility for the damages to his restaurant, if any.

Q You are not saying, are you, that Mr. Lebedin held
these people prisoner, are you?

A Oh, no, not at all. I say the door was locked.
MR. SPARKS: That's all the questions I have.
THE COURT: Do you have any questions?
MR. MOORE: No questions, Your Honor —  I would like

to ask him perhaps a couple of questions.
******

CROSS - EXAMINATION
BY MR. MOORE:

Q Superintendent Mozley, do you know where the Shoney's

-  9 8  -



A Yes, sir.
Q Is it right across the street from Leb's?
A No, it isn't exactly across the street. It is down 

the street a little ways, and you can see at an angle from 
Leb's Restaurant to Shoney's, but it isn't directly across the 
street.

Q Is it a restaurant where they serve food on the
premises?

THE COURT: Is there food on what?
MR. MOORE: Serve food on the premises.
THE WITNESS: Oh, yes. They serve food on the

premises at Shoney's. Is that the question you asked?
MR. MOORE: Yes, sir.
THE WITNESS: Yes, sir, they do.

BY MR. MOORE:
Q Would you say it is capable of accommodating about 

a hundred people?
A Oh, yes, it would, or more.

MR. MOORE: That's all. Thank you.
******

EXAMINATION
BY THE COURT:

Q Did you see any ordinance or any State statute with
which you are familiar, other than the Trespass Statute, being

Big Boy Restaurant is on Forsyth Street?

99



A No, sir.
Q During your time you were there?
A No, sir, I did not.
Q If you had, would you have made an arrest?
A Yes, sir, I would have.

MR. SPARKS: I have one question.
##*###

RECROSS-EXAMINATION
BY MR. SPARKS:

Q Superintendent, why didn't you eject these people?
Why did you allow them to take over a restaurant for eight hours? 

A Well, it is quite a long story, and I —
THE COURT: Let's hear it. We have heard every other

long story. Let's hear it.
THE WITNESS: We started off a good many years ago,

and we were notified by an organization called SNCC that 
they were going to ask for service in white restaurants in 
the City and that they wanted to put the police on notice 
that they were going to do this. So we, of course, 
acknowledged —  acknowledged their request for a policeman 
to be in the vicinity of the restaurants where they were 
going to ask for service.

For a long time they would go in and ask for service, 
the proprietor would call the police, we would respond, we

violated in Leb's Restaurant?

100



would ask the people to leave, they would leave. This 
went on for a period of months.

Then SNCC changed their tactics. They said they 
were going to be arrested. So then we would go respond to 
the calls. We arrested the people at the request of the 
restaurant operator. Then they would go in and make bond. 
The next day they would be right back out. We arrested 
several hundred people. Then we changed our tactics a 
little bit. This was not effective, so we changed our 
tactics to the point where we asked that the restaurant 
operator get a warrant for their arrest and then let them 
make bond in the county court. We hoped probably we could 
bring this matter to a head. That was the status at the 
time that this thing occurred.

The only difference is that this one occurred at 
night when there was no officer to issue a warrant. There 
was no court operating at that time of night on Saturday, 
so I was in a dilemma. I didn't know exactly what to do.

THE COURT: Did you inform Mr. Cowan or Mr. Lebedin
if they would get a warrant you would arrest them?

THE WITNESS: Yes, sir.
THE COURT: Did they obtain a warrant?
THE WITNESS: No, sir, not as far as I know.
THE COURT: Any further questions?
MR. SPARKS: No, sir, Your Honor.



MR. MOORE: None from the defendants, Your Honor.
THE COURT: All right, sir.

Thank you, sir.
(Whereupon, the witness was excused from the stand.)

*#####

MR. SPARKS: May the Superintendent be excused?
MR. MOORE: Yes, sir.
THE COURT: You may be excused. Thank you, sir.

Anything further?
MR. SPARKS: Yes, sir. We have some witnesses.
THE COURT: All right, sir.
MR. MALLARD: Call Edna Farrington.

Come around and take the stand, please. Were you 
sworn yesterday?

MRS. FARRINGTON: No, sir.
THE CLERK: You were sworn Monday?
MRS. FARRINGTON: No. I was here Monday and

yesterday.
THE CLERK: She was sworn Monday.
THE COURT: Were you sworn Monday? You never have

been sworn?
THE CLERK: If you will raise your right hand, please.
You do solemnly swear that the evidence you shall 

give in the issue joined between the State of Georgia and 
Thomas Rachel and others shall be the truth, the whole 
truth, and nothing but the truth, so help you God?

102



MRS. FARRINGTON: I do.
THE CLERK: Thank you.

#####*

EDNA FARRINGTON
called as a witness by the State, after having first 
been duly sworn, testified as follows:

DIRECT EXAMINATION
BY MR. MALLARD:

Q State your full name to the Court, please.
A Edna Farrington.
Q Where are you employed, Mrs. Farrington?
A Leb's Restaurant.
Q What do you do there?
A I am a waitress.
Q And were you so employed on January 25, 1963?
A Yes, sir.
Q Tell us, if you will, what happened on that date,

starting with when you came to work.
A On the 25th?
Q Yes, ma'am.
A I reported to work at ten minutes after M:00. When I

got in the restaurant the whole restaurant was filled with 
colored people. Every booth and every table, every stool, at 
the counter, and in all the walkways down each line were filled. 

I headed toward the counter where Dora, Mrs. McRae, was,

- 103



and I said, "What are we going to do?" She said, " I really 
don't know."

MR. MOORE: I'm sorry. I can't hear.
THE COURT: We can't hear you.
MR. SPARKS: Speak a little louder, please, ma'am.

BY MR. MALLARD:
Q Speak up a little louder.
A When I got into the restaurant it was completely 

filled. Every stool and every booth was filled, and they were 
standing, you know, all over the place.

I asked Dora what we were going to do, and she said, "I 
really don't know."

We stood there for quite a while, and they were singing and 
they were standing in the booths, not when I went into the 
restaurant, it was filled, but later they were in the booths, 
standing in the booths jumping up and down, and some were on the 
outside looking in, but most of them were inside the restaurant. 
They were singing and jumping up and down in the booths and 
hollering, and they were trying to —  this lady that was on the 
outside, she was looking in, and they were pounding on the 
windows. I couldn't see out the window too good because it was 
really crowded. There were so many standing that you could 
hardly see outside.

Q You say this lady was standing outside near the 
window?

104



had been took off of one side stand and removed to the back.
Some silver was laying on two of the booths. If they put it 
there, I do not know, but there was quite a bit of silver laying 
on one booth, but not on the other booths, that I saw.

They were jumping up and down in the booths singing and 
clapping their hands.

When Mr. Leb came in, they were singing "They Have You 
Now." And when Mr. Maddox came in they started singing to 
Mr. Maddox. They were singing "I Will Get You Next."

Q I believe you testified you came in shortly after
4:00?

A Ten after 4:00.
THE COURT: Is Mr. Maddox one of the managers of the

restaurant?
THE WITNESS: No, sir. That is our governor now.

BY MR. MALLARD:
Q Lester Maddox?
A Yes.
Q What time did you leave, Mrs. Farrington?
A Ten minutes until 9:00. I came in ten after 4:00,

and I left at ten minutes to 9:00.
Q Was this still going on at the time you were —  at

the time you left?
A Yes, sir. They told us that we were closed.

THE COURT: Who was the manager? Who was the manager

- 106



of the restaurant besides Mr. Lebedin. Was it Mr. Martin?
Was it Martin?

THE WITNESS: Sir, there have been quite a few
managers there, and I couldn't tell you to save my life 
who the manager was at that time.

BY MR.
THE COURT: All right. 

MALLARD:
Q Was Mr. Kontoes there?
A Yes, he was.
Q Now, let me ask you, what time did Superintendent

Mozley come in, or was he there when you got there?
A No, he was not there when I got there to work.
Q Do you recall whether he came in during the time you

were there?
A I know there were a few policemen there, but I can't

tell you who they were.
Q You don't remember seeing Superintendent Mozley?
A I was really afraid, and I didn't —  I knew the police

were there, but I don't know who they were.
Q Now, did you at any time see any evidence of urination

on the floor or anywhere?
A About thirty minutes before I left the restaurant we

was checking to see if everything had been put away and sent 
downstairs. There was water on the floor at the back of the 
restaurant. Now, if that is that or water, I cannot say, but

107



Q All you know is it was wet, is that correct?
A It was wet.
Q Was there any place that water could have come from? 

Was there a faucet or anything that would have dripped?
A No, not in that particular spot, because at the back 

of the restaurant on the right-hand side is a water fountain, 
and in the middle, at the center of the dining room is the 
water fountain.

Q How big is the restaurant? Would you say it is as
big as this courtroom?

A Yes, sir.
Q Just about?
A Yes, sir.
Q And how many people would you say were in there at the 

time you were there?
A Well, if I am not mistaken the seating capacity in 

that restaurant is at least two hundred or better, and every 
booth and every table and every aisle was filled when I got 
there at ten after 4̂:00, and I would say there was over two 
huncred in there.

Q Now, do you see anyone else in the courtroom that you 
saw there that night other than Miss Walker?

A Well, I can't say it was this particular night, but
this fellow here with the glasses on was there at one time. I

there was water at the back of the restaurant on the floor.

- 108



don't know whether that was the 2 5th or not.
Q You had seen him there?
A But I have seen him there, yes, singing.

MR. MOORE: Let the record show the fellow with the
glasses on at counsel's table is The Reverend Ashton Jones.

THE WITNESS: He was there singing. This one coming
in the door, he was in the pickets.

BY MR. MALLARD:
Q You say the one that just came in the door was in 

the pickets?
A And he tried to come in the restaurant before that.
Q Directing your attention to the next day, when did you 

come on duty the next day?
A The next day?
Q Yes.
A We was closed that Saturday night. That was the one 

and only time that we were ever closed. On Sunday I came in at 
4:00 o'clock.

Q Did you have an opportunity to inspect or observe the
seats and the condition of the restaurant at that time?

A Well, in the mornings around 4:30 or 5:00 o'clock I 
think the clean-up men come in to clean the restaurant and to 
clean the floors. By the time I was there that had all been 
taken care of, but the booths in the back and a few in the 
middle, about halfway to the middle on the left-hand side and

- 109



towards the back, the booths, the leather on the booths had 
been cut and the legs on the booths, on several booths were 
off.

Q Now, the last time you had seen these booths the 
day before or before the demonstrators, so-called demonstra­
tors came in, what was the condition at that time?

A They were in good condition. There were no cuts in
them at all.

MR. MALLARD: No other questions.
THE COURT: Do you have any questions, Mr. Moore?
MR. MOORE: No, sir, I don't have any questions.
THE COURT: You may step down.

May this lady be excused?
MR. SPARKS: As far as we are concerned, yes, sir.
MR. MOORE: Yes, sir.
THE COURT: Mr. Moore, may she be excused?
MR. MOORE: Yes, sir.
THE COURT: You may be excused.
(Whereupon, the witness was excused from the stand.)

******

THE COURT: Call your next witness.
MR. SPARKS: Mrs. York, please.
THE COURT: All right.
MR. SPARKS: I don't believe you have been sworn,

have you?
MRS. YORK: Yes, I have.

110



MR. SPARKS: 
MRS. YORK: 
MR. SPARKS: 
MRS. YORK: 
MR. SPARKS: 
MR. MOORE:

You have? Take the stand there.
They didn't call my name, but I was sworn.
You were sworn Monday morning?

Yes .
Take the stand, please.
Pardon me. What is the lady's name,

please?
MR. SPARKS: York.
MR. MOORE: Y-o-r-k?
MR. SPARKS: Y-o-r-k.

******

DOROTHY YORK
called as a witness by the State, after having first 
been duly sworn, testified as follows:

DIRECT EXAMINATION
BY MR. SPARKS:

Q State your full name for the record, please, ma'am.
A Mrs. Dorothy York.
Q And what is your occupation, please, Mrs. York?
A Waitress.
Q Where do you work?
A Leb's.
Q Is that Leb's at —
A 66 Luckie.
Q —  66 Luckie, which is on Luckie and Forsyth Streets?

Ill



A
Q

September
A
Q

Forsyth.
Were you employed there on Saturday the 25th day of 

—  25th day of January, 1964?
Yes, sir.
What time did you get to work there that day, that

Saturday?
A Between 3:00 and 4:00, I guess it was.
Q When you arrived there, what did you observe? What 

was going on there in Leb's Restaurant?
A Well, the restaurant was full of colored people, 

every table. They were jumping up and down on the tables and 
seats and chairs and hollering.

Q Jumping up and down?
Let me ask you, you mean their feet were on the tables?

MR. MOORE: I object to that, Your Honor. That is
leading.

THE COURT: Don't lead your witness.
MR. MOORE: She has been led once before.
THE COURT: If you can say in your own words.
THE WITNESS: They had their feet on the tables and

on the seats, hollering, having fun, laughing.
BY MR. SPARKS:

Q How were they talking? Were they talking in a low
voice or loud voice?

A Loud voice.

112



Q How long did you remain there?
A Around 8:00 o'clock, I guess. I am not sure of 

the time.
Q Did these persons remain in there during the time

that you were there?
A They were there when I left.
Q They were there when you left?
A Yes.
Q Was Mr. Lebedin, the operator, was he there when you 

left, or had he left earlier?
A He was there.
Q He was there when you left?
Do you see anyone in the courtroom that you recognize as 

having been in or around Leb's that night?
A Yes. That girl over there (pointing).
Q The girl sitting to the left of Mr. Moore?
A Yes, sir.
Q Where did you see her, and what was she doing when 

you saw her?
A She was outside the window holding up paper of some

kind, and I am not sure whether she was inside after that or 
not. I have got my days kind of confused.

THE COURT: Your what?
THE WITNESS: Days.
THE COURT: Oh, yes.

- 113



THE WITNESS: Some days she was inside and some
days she wasn't. I am not sure whether I saw her inside 
that particular day or not.

BY MR. SPARKS:
Q On that particular day do you recall her being on 

the outside holding up the paper?
A Oh, yes, yes.

MR. MOORE: I move to strike the witness' answer and
the question, too, on the ground it is the grossest type 
of leading question to the witness.

THE COURT: I think she had previously testified
that, Mr. Moore. I think he is just repeating it.

MR. SPARKS: Yes, sir.
THE COURT: Let's move along.

BY MR. SPARKS:
Q Do you see anyone else in the courtroom that you saw 

there that day?
A It has been so long, I can't remember.
Q It's been so long you can't remember.
Mrs. York, I will ask you, during the day did you see any 

evidence, or during the afternoon or evening up until the time 
you left, did you see anyone urinating or anything that indica­
ted that persons were urinating?

MR. MOORE: I object to that. That is the rankest
type of leading question.

- 114



THE COURT: Yes, sir.
MR. SPARKS: That is not leading, Your Honor.
THE COURT: The form you have placed it in, it is

leading. You can ask it differently.
I will sustain the objection.

BY MR. SPARKS:
Q I will rephrase it, then.
What, if any, evidence of urination did you see, if any? 

THE COURT: Let's move ahead.
MR. MOORE: I would renew my objection.
THE COURT: All right, sir.

BY MR. SPARKS:
Q Ma'am?
A No, I didn't see any. I saw someone —
Q Go ahead.
A I saw some of them squatting down, but I didn't see

anything like that.
Q You saw them squatting down?
A Yes .
Q On the floor?
A I was up front and I looked in the back.
Q And whom did you see squatting down?
A I don't know.
Q Was it male or female?
A Male.

- 115



Q Male?
A Yes.
Q Were the lights on or off at that time, or do you 

recall?
A They were on.
Q They were on?
A Yes.
Q Was it easy to get —  was It easy or hard to get a 

view of everything that was going on in there?
A You couldn't —  you could see on the outside and the 

ones that were on the tables and jumping on the chairs, but on 
the inside and in the aisles you could see some but the view 
wasn't too good.

Q Ma'am?
A The view wasn't too good to see everything. You 

couldn't do it.
Q Was that because there were so many people in there?
A So many people in there.
Q Did you see any persons, any of these persons who

were inside there do anything to Mr. Lebedin, Mr. Charles 
Lebedin, known as Mr. Charlie Leb?

A On that day?
Q Yes, ma'am.
A No.
Q When you went —  when did you return to the restaurant

116



after you left at 8:00 o'clock that night?
A The next Monday morning.
Q Monday morning?
A Yes.
Q What, if anything, did you observe about the booths

and the general physical state of the booths and tables in the 
restaurant?

A Well, it had been cleaned up by —  I have forgotten 
how many, but the legs were broken off, and the chairs, some of 
them had holes in them. I don't know whether they were cut or
came that way from jumping up and down on them.

Q They had holes or tears in them?
A Yes .
Q When you had seen those booths prior to that Saturday,

had the legs been broken —
A No.
Q —  and those holes in the cushions?
A No.

MR. SPARKS: Thank you.
******

CROSS-EXAMINATION
BY MR. MOORE:

Q Mrs. York, as a matter of fact, prior to that 
Saturday, January 25} 1964, you didn't even look at the booths 
to see whether or not the legs had been broken, did you?

117



A I work there all the time.
Q I asked you —  I didn't ask you if you worked there.

I asked you if you had looked to see whether or not the legs on 
the booths had been broken or not?

A Any time there is one broken I know it, because you
go up and down the aisle, and they had to get a box or some­
thing to put under it if there was or they couldn't seat people 
in it, so I would know if there was any broken.

Q You didn't look to see if any of the booths had been 
cut before the 25th of January, did you?

A You see, we rotate, and I work all around, so if there
was a hole I would have seen it.

Q You think you would have seen it, right?
A I would have, because I watch the seats.
Q Do you set the tables up?
A Well, my station, we have different stations every day. 
Q I am asking you, do you set the tables up?
A Not all of them, just my station.
Q You set your station up, is that right?
A That's correct.
Q Okay.
How long have you been working at Leb's?
A About twelve or thirteen years, I guess. I am not

sure.
Q When did you start at Leb's? You started at least in

- 1 1 8



195^?

A I couldn't tell you exactly.
Q Was that over there on Luckle Street?
A Yes .
Q During the time —  between the time you first started

and January 25, 1964, had Leb's had any remodeling, any new
booths and chairs and tables put Into the restaurant?

A Yes, while I was there they did.
Q When did he do that?
A I couldn't tell you the exact date.
Q Do you know —
A He had the floors and the whole thing remodeled, the

whole place.
Q Was that before January, 1964?
A Yes .
Q How many years before January, 1964?
A I couldn't tell you.
Q Do you know whether it was one year, two years, three

years, or what?
A I couldn't tell you.
Q Pardon me?
A I couldn't tell you.

MR. MOORE: That's all. Thank you.
THE COURT: Any further questions from Mrs. York? 
MR. SPARKS: No, sir.

- 119



you start?

THE COURTt May she be excused?

MR. MOORE: Yes, Sir.

MR. SPARKS: Yes, sir.

THE COURT: You may be excused. Thank you.

(Whereupon, the witness was excused from the stand.) 
******

THE COURT: All right, sir.

MR. SPARKS: Call Mr. Lebedin.

THE COURT: It is a quarter of 10:00. What time do

MR. MOORE: We would start at 10:30, depending on

how long they argue.

THE COURT:

then.

All right. Probably we can finish before

******

CHARLES LEBEDIN

having been recalled to the stand by the State, testified 

further as follows:

REDIRECT EXAMINATION

BY MR. SPARKS:

Q. What is your name, please, sir, again?

A Charles Lebedin

Q Mr. Lebedin, under what name is your business known,

under the name of Leb's? I mean, what type of business

organization do you have?
- 1 2 0



A It is a restaurant.

Q It is a restaurant? Is it a corporation?

A Corporation.

Q What is the name of the corporation?

A It was Lebco, Incorporated, but the corporation name

was changed about a year and a half ago to Charnorm.

Q Was it known as Lebco, Incorporated on January 25, 1964?

A That's right.

Q Was it located, or not, on the corner of Luckie 

Street and Forsyth Street in the City of Atlanta, County of 

Fulton, State of Georgia?

A That's correct.

Q I will direct your attention to Saturday, the 25th of 

January, 1964, Mr. Lebedin, and ask you what time did you arrive 

at your^ restaurant, if you came down that day?

A Well, I was there in the morning, and I went home, I 

imagine, about 2:00 o'clock, as I always do on a Saturday. I 

got a call to hurry up and come down, there was a lot of trouble 

in front of the place. I must have gotten in the City about 

4:00 o'clock, or so. I received the call around that time. I 

don't know exactly what time it was.

Q When you went down and arrived there, what did you 

see, Mr. Lebedin?

A I saw a mob of people, must have been a thousand people

121



around the place. And I saw, as I pulled over in a taxicab, I 

saw people standing on tables, and the place was jammed with 

people. I must have had ■—  the capacity of the place Is only 

about a hundred seventy-five people. I estimated the crowd 

there of about at least two hundred and fifty.

THE COURT: Inside the building?

THE WITNESS: Inside. Must have been a thousand on

the outside, as far as my judgment is concerned.

BY MR. SPARKS:

Q. These people on the inside, sir, were they of —

what races were they?

A Both races.

Q Both Negro and Caucasian?

A That's right.

Q What action did you take, or what did you do when you 

got there?

A Well, I walked in the door, and I saw this Captain of 

the Police whom I knew, Captain Mozley, who was instrumental in 

coming around there quite a few times during the demonstrations , 

I had against my place, and he was there at the door. The door 

was open. I walked in. I said, "What is this, Captain? How 

come you allow this to go on?" He just said, "Well, nothing I 

can do now." And he just stood there. As I walked in there 

was a chorus, "We Will Get You, Leb".

Q What?
122



A "We Will Get You, Leb".

Q That is what the people on the inside --

A The people on the inside, they were singing, and it 

was like a carnival to them. They were having a big time. Then 

they were up and down, and I stood -- my restaurant is sort of an 

L-shape. As you enter there is a section here, and that whole 

section, this is about a hundred feet by fifty, I think that is 

about the right figure, and they were all on this side, the de­

monstrators, and they were all over the tables and in the booths 

and just jumping all over.

Q Would you describe how they were in the tables and 

on the booths?

A Standing up on the tables. They were very noisy and 

were very -- they weren't using any morals at all. The girls 

had their arms around the fellows. Girls were picking their 

dresses up, and they were just having a big time.

Q How long did you stay down there, Mr. Lebedin?

A Well, I have forgotten. I stayed there all through

this, and I asked Captain Mozley, "Why don't you do something 

about this?" And there was no policeman that I recognized 

around, just outside -- the only white policeman was Captain 

Mozley, and I saw three colored policemen there, three or four,

I am not sure, on the outside, and I asked Captain Mozley, "Why 

don't you get some police down here?" And there was never any

- 1 2 3  -



white policemen around the area then; I never saw one. I saw 

these colored policemen. They stood on the outside with the 

mob, and I asked Mozley, "Why don't you do something?" And he 

said, "We will do something in a little while."

The phone rang and he answered the phone. He said that was 

-- he told me that was the Chief of Police that just called him.

I said, "Why doesn't he come down and do something?" He said,

"He will be down in a little while." He said, "Wait, and we 

will straighten this out."

A call came through in about a half hour. "Was that the 

Chief of Police?" "Yes. Well, he will be here soon."

He was enjoying himself, too, Captain Mozley; he was 

enjoying himself with a cigar in his mouth.

If I could state things that happened before this riot, as 

far as the Negro question is concerned, I was one of the best
i

friends the Negroes ever had in the City of Atlanta. At one 

time I employed two hundred fifty Negroes in my place, in my 

places I have got around town. I fought for them.

In 1949 when they weren't allowed to walk the streets 

after dark, used to get locked up, I have had meetings with 

SNCC organizations, I have had meetings with CORE, and I asked, 

"Why do you pick on me?"

Well, it seemed that I had the best corner in town for 

one of those things, so, you run trucks around with demonstrators

- 124



and everything, and that is why I was a victim of that.

That made me very bitter. As these people here were making 

this trouble here, a few started to -- I was standing about the 

area to the right, about where this gentleman is here, and my 

counters, my tables are along this side, and a few started to 

head forward here, and I went to stop them, and I got pushed 

around and everything else. I tried to keep one away. There 

were two men over here. They were later identified as the men 

that also invaded Governor Maddox's place at that time.

Q Was that Reverend Dunn and Reverend Wells?

A They were the same two men, when I stopped the man, 

they said, "Take your hand off that man." They threatened me 

and came towards me. That was the only time Captain Mozley 

interceded in any way to help me.

I had to leave that day. My attorney said to me, "Charlie, 

you had better give me the keys, and you had better get out of 

here." I didn't want to go. He said, "Look, I am warning you, 

you are going to get hurt."

Q Do you know who the keys were given to?

A They were given to this lawyer, and my lawyer gave

them to Captain Mozley, and Captain Mozley held the keys.

Julian Bond made a statement in front of the Sigma Delta 

Chi in Atlanta, Georgia, made a speech there —

THE COURT: Let's don't go into that. We have

-  125



enough here. Let's just confine it to right here.

THE WITNESS. All right, sir.

A (By the Witness) Anyway, he gave the keys to Captain 

Mozley, and he had the keys. The doors weren't locked. He 

opened and locked them when he wanted to.

Q Who* Captain Mozley?

A Because when Lester Maddox came, he said, "Charlie, 

can I let Lester Maddox in?"

Q Captain Mozley said that?

A Captain Mozley asked me if he should let him in. I 

said, "Of course, let him in." He came in, and they started 

hollering, "We have got Charlie Leb, we will get you next,

Lester Maddox."

And then Dick Gregory was outside, and Captain Mozley 

opened the door and said, "Shall I let him in?" And I said,

"No. I have got enough demonstrators in here."

Q Did Captain Mozley have the keys in his physical 

possession?

A Yes. And the doors were never locked all the time.

We couldn't get any more people in the crowd.

I have always been a good citizen. I have paid my taxes.

I was commended by the Administration for the wonderful work I 

did for the restaurant association. That is the previous 

administration; not this one. They afforded me no police

- 126 -



protection whatsoever.

They may call it a police department, but* as far as I am 

concerned, it is a political department, run by bigger ups that 

need the votes. That is the way I feel about the thing. It never 

should have happened to me.

Q All right, Mr. Lebedin --

A I was hurt physically and mentally. I was kicked all

around. I was bruised and I still have got my bruises on both

legs, kicked and pushed and shoved for trying to do a good job 

in the restaurant business in Atlanta, Georgia.

Q You still have scars where you were kicked by 

demonstrators?

A Yes, right there, right through here (pointing to his

legs). That doesn't heal so fast.

Q Now, Mr. Lebedin, when did you return to your

restaurant after you left that night?

A I don't remember returning that day.

Q I say, when did you come back? Did you come back

the next morning?

A I don't remember whether -- we are closed on Sundays 

now. I don't know in those days whether we were closed on

Sundays —

Q All right.

A -- but the following day, the police again blocked off

- 127 -



my restaurant, would let no customers in, closed off my business 

entirely,

Q That was the next day, Sunday?

A No, it was on a Monday, I think.

Q Monday?

A And they wouldn't let anybody in the place. They 

closed me down completely, blocked off the street.

Q When was the next time after this Saturday night you 

went back into your restaurant after you left on this Saturday 

night?

A I don't recall just when I went back.

Q Was it in a day or two?

A It had to be Monday.

Q Had to be Monday?

A I don't know whether I was open Sunday that time or

not.

Q What did you observe about the condition of your 

booths, the seat cushions and so forth in your booths and chairs?

A Well, I called the insurance company, and they came 

down to examine the damage, and they found booths broken, found 

tables turned over. My utensils were gone. I have got 

insurance. They allowed me so much insurance.

My utensils had been taken out. I don't count the knives 

and forks and silverware, but it had been taken out.

- 128 -



I had pickle jars on the tables. They were putting their 

hands and eating pickles out of the pickle jars.

That was no possession of mine; it belonged to them at that

time.

Q Specifically about your booths, what, if anything,

did you observe about the legs or your booths?

A They were broken, some of them.

Q They were broken?

A Sure.

Q What about the seat cushions, did you notice anything? 

A Some of them were ripped. There was a lot of damage 

there, but I didn't know whether it was done by mischief or it 

was done some other way. I don't know.

Q Well, let me ask you this, sir. Prior to --

THE COURT: Do you remember what you settled for the

insurance company?

THE WITNESS: No. I just found, yesterday I located

the insurance company that handled the case. His name was 

Bass, R. L. Bass & Company.

BY MR. SPARKS:

Q Do you remember the approximate amount of the damage 

that you settled with your Insurance company?

A I don't remember.

Q You don't remember?

- 129



A No* sir. I also

Q Let me also ask you this* Mr. Lebedin. Before these 

demonstrators came into your place on that Saturday afternoon, 

January the 25th* 1964* were the tables* were the legs to your 

booths broken and the rips to your seat covers and cushions --

A There may have been some cushions* not ripped* but

they may have had cigarette marks or something like that* but --

Q Were any of the legs broken?

A No* sir. Everything was fine. I couldn't operate a

restaurant with broken tables.

Q Do you recall what expedient you all used when you 

opened up again to prop up the booths so that they could be

used?

A I don't recall. We have a maintenance man in the

place. He probably set them up together. I was -- I don't 

remember that.

Q You don't remember that?

A The insurance company also paid me some money for

business interruption.

Q How long was your business interrupted, sir?

A Well, it was interrupted during that afternoon and

evening, and also the following Monday when the police wouldn't

let anybody in on that side of the street.

I pleaded with the police. There was nothing wrong. There

- 130 -



were no more demonstrators. Why did they close me up? I got no 
answer.

The police did not cooperate in any way at all. I never 

saw anything like it in my life.

MR. SPARKS: Thank you, sir.

THE COURT: Do you have any questions?

MR. MOORE: Yes, sir, Your Honor, I would like to ask

Mr. Lebedin, who has been under the ordeal, a couple of 

questions.
******

RECROS S-EXAMINA TION

BY MR. MOORE:

Q Mr. Lebedin, it is not true that the Police Department 

didn't give you protection. As a matter of fact, they arrested

THE COURT: Let's don't argue. Let's just ask him

questions.

BY MR. MOORE:

Q Didn't they arrest some two hundred demonstrators at 

your restaurant that Sunday following this instance?

A There was a period of time when he arrested maybe fifty 

or a hundred, but not that day. Nobody was arrested that day.

Q, The Sunday following the Saturday?

A The Sunday following the Saturday?

- 131



Q The next day?

A Yes .

Q Sunday, that evening, didn't the Atlanta Police 

Department arrest some two hundred people at your restaurant?

A Two hundred people? Two hundred people in my

restaurant?

Q They arrested some people?

A Did you say two hundred?

Q Yes „

A Never.

Q Didn't they arrest some people that Sunday?

A I don't know that Sunday if they arrested anybody. 

There were a few arrests made --

Q Sunday?

A -- but I don't know what day it was. There were a

lot of days.

Q I am talking about the Sunday following this Saturday, 

the 25th?

A I don't remember anything on that Sunday. Being

excited as I was on what happened Saturday, it was purely hard 

to observe what happened following that.

Q You were so excited you never took out a warrant 

against anyone who did damage to your property?

A Would you tell me how a warrant could be taken out in

the City of Atlanta?
- 1 3 2  -



THE COURT: Just answer the question. You never did

take a warrant?

THE WITNESS: I tried to.

THE COURT: You tried to? And it was on a Saturday

night?

THE WITNESS: It was Saturday and Sunday -- not

Sunday. It was Saturday.

BY MR. MOORE:

Q Did you try on Monday?

A I tried a few times --

Q Did you try Monday?

A -- when the demonstrations happened. I can't

remember days. There have been so many times. I just wouldn't 

remember.

Q
get a

A

Q
A

Q
A

Monday following the 25th of January, did you try to 

warrant?

I don't remember.

Is that because you didn't try to get one?

Is that because what?

Because you didn't try to get one?

I don't understand your question. Is that what -- 

THE COURT: He said he didn't remember.

MR. MOORE: All right.

- 133 -



BY MR. MOORE:

Q Are you still under investigation by your insurance

company on the proof of loss claim you filed as a result of the 

incident on January 25?

A Am I under investigation?

Q Right.

A No, no investigation that I know of.

Q You have no knowledge of this, is that right?

A I have no knowledge of any investigation by an 

insurance company.

Q Was the claim contested at that time you filed it?

A I don't think so.

Q Do you know whether it is being contested at this
time?

A I don't think it is. I would have heard of it, if 

it was. My nephew handles all the details, insurance and 

everything else, so I don't know of any contested case.

Q, Is that your nephew in Connecticut?

A No. He is here. He is here.

Q What is his name?

A Norman.

Q, You would know about an important matter like that, 

wouldn't you?

A Would I know?

- 134 -



Q Yes „

A The only thing, if something happened, I would know, 

but it appears nothing happened. He handles all my finances 

and everything else, all my business.

Q And if your business is interrupted, you had insurance 

against the interruption, didn't you?

A That's right.

Q And the value of the amount paid is the amount that 

you can show you would have made during that period. Is that 

right?

A I didn't get the amount I would have made for the 

period. I lost.

Q But you do get compensation for the interruption of 

business?

A I do, to a certain degree, what you can get out of 

an insurance company.

Q Is that why you locked the doors to your restaurant?

A I never locked the doors to the restaurant.

Q Is that why your lawyer locked the doors to the 

restaurant?

A My lawyers didn't lock the doors to the restaurant.

Q Is it your contention that Captain Mozley --

A Captain Mozley had the keys after a period of time, 

at first, when I first came in.

- 135



Q Did you lock the doors when you first came in?

A When I first came in, I forgot whether the doors was 

open or not.

Q But you remember unlocking the door to get out?

A I remember giving the keys to my lawyer and my lawyer

handed the keys to Mozley, and my lawyer took me downstairs to

get me out. He wouldn't let me out the front door. I wanted to 

go out the front door, but he wouldn't let me. He said, "You 

had better go through the basement. You are going to get 

yourself hurt."

Q Did you turn the lights out in your restaurant?

A What is that?

Q Did you turn the lights out in your restaurant?

A No, sir.

Q Do you know who did?

A No.

Q Did you give any orders or instructions for your

lights to be turned out?

A I don't know that any lights were turned out.

Q Do you know whether your lawyer turned out your lights?

A Pardon me?

Q Do you know whether your lawyer turned out the lights?

A I don't know if my lawyer would know where the box

was to put the lights out.

- 136



Q In order for you to show that your business was 

interrupted you would have to show that the normal operations 

had stopped, had beer interfered with, wouldn't you?

A Yes, I guess so.

Q Is that right?

A I guess so.

Q And that is what you wanted to be able to show to your

insurance company on the date in question, isn't it?
A I guess that is the way the procedure is.

THE COURT: Mr. Lebedin, may I ask you a question. 

Do you see anybody here in the courtroom that was

around your place that night?

THE WITNESS: That day? That day, Your Honor?

THE COURT: That Saturday. We are referring to the

Saturday afternoon and Saturday night.

THE WITNESS: Well, I recognize those people over
there. I recognize --

THE COURT: Point out anybody that you saw.

THE WITNESS: That girl there (pointing).

THE COURT: Yes.

THE WITNESS: She was there quite often, very often. 

THE COURT: I am talking about particularly on that

Saturday.

THE WITNESS: On that Saturday she was there.

- 137 -



THE COURT; Where was she?

THE WITNESS; On the top of one of the tables. She 

had a sign in her hand. The man —

THE COURT; She was inside?

THE WITNESS; I saw her inside.

THE COURT; And you are referring to the young lady 
over here?

THE WITNESS; That's right, and the man next to her, 

I have seen him around many, many times, but I don't remember 

seeing him there that Saturday. He was around. He gave me 

plenty of trouble. I don't remember seeing him there on that 

Saturday.

THE COURT: Anybody else?

THE WITNESS: And the boy right next to him, he was

there many, many times. I don't remember seeing him on that 
Saturday.

THE COURT: All right, sir.

THE WITNESS: The only one I saw there that Saturday

was that girl, but I have seen those people around many times.

THE COURT: We are referring to that Saturday.

THE WITNESS: The only reason I recognize her as

being there that Saturday is because she was prominent. She 

was sort of a leader of the group.

THE COURT: All right, any further questions?

- 138 -



MR. SPARKS None fro m  the State, Y o u r  Honor.

THE COURT”. 

MR. MOORE: 

THE COURT: 

MR. MOORE: 

THE COURT: 

THE WITNESS: 

THE COURT: 

(Whereupon,

Mr. Moore?

No further questions.

May he be excused?

Yes, sir.

You may be excused.

Thank you.

Thank you, sir.

the witness was excused from the 
******

stand.)

THE COURT: All right, sir, call your next witness.

MR. SPARKS: Your Honor, that completes the testimony

at this time on this incident for the State.

THE COURT: Do you have anything further?

MR. MOORE: Yes, sir. I would like to recall

Miss Mardon Walker.

THE COURT: All right.
******

MARDON R. WALKER

having been recalled to the stand, testified further 

as follows:

REDIRECT EXAMINATION

BY MR. MOORE:

Q Miss Walker, did you hear the testimony of

- 139



Mr. Charlie Lebedin?

A Yes, I did.

Q Did you hear the questions and answers to Mr. Lebedin? 
A Yes, I did.

0. Is that a true statement, that you were inside the 

restaurant jumping up and down on the tables?

A I have never been inside Leb's Restaurant or even 

attempted to go in, ever in my whole life.

MR. MOORE: That's all.

THE COURT: Any questions?

MR. SPARKS: No, sir.

(Whereupon the witness was excused from the stand.) 
******

MR. MOORE: I would like to call The Reverend Ashton

Jones.

Reverend Jones, would you take the stand, please?
******

ASHTON BRYAN JONES

having been recalled to the stand, testified further 

as follows:

REDIRECT EXAMINATION

BY MR. MOORE:

Q Rev. Jones, you were present in the courtroom during 

the time Mrs. Edna Farrington testified, were you not?

- 140 -



A Yes.

Q Did you hear the questions and answers put to her?

A Yes, I did.

Q Is that a true statement, that you were present at 

the restaurant, Leb's, on January 25, 1964?

A I think the record at the Pulton County Jail will 

show that I was being given free room and board and hospitality 
there at that time.

Q So your answer would be that that is not a true 
statement, is that correct?

A It certainly would, of course.

Q And you were incarcerated in the Pulton County Jail? 
A I wa s.

MR. MOORE: No other questions.

THE COURT: All right, thank you. You didn't have

any questions, did you?

MR. SPARKS: No, sir.

THE COURT: All right, thank you.

(Whereupon, the witness was excused from the stand.)
******

THE COURT: Anything further?

MR. MOORE: Your Honor, I would like for the record

to show there are two more Leb incidents, and we were 

trying to get Officer Wright so we could conclude this

- 141



case. I would like for the record to show that on 

January the 13th, 1964, at the Krystal, that all of the 

persons who were arrested were charged with violating the 

Anti-trespass Statute. That was the only offense made, 

and I believe that testimony, that fact is so stated in 

Defendants 1 Exhibit D-3, which is the transcript of the 

trial proceedings.

THE COURT; What evidence, I was trying to recall it 

last night, what evidence was there in regard to Miss 

Walker at the Krystal grill?

MR. SPARKS: We haven't gone into that yet, Your Honor.

THE COURT: You haven't?

MR. SPARKS: No, sir. We haven't gone into the

Krystal incident at all.

THE COURT: I thought you had.

MR. SPARKS: No, sir. Those witnesses are still

outside.

THE COURT: All right, sir.

MR. SPARKS: That is the last one, except for one or

two isolated Leb’s incidents, that we have to take up.

THE COURT: We don't have any more Leb's incidents?

MR. SPARKS: I beg your pardon, Your Honor. There

has been testimony by Miss Walker, when she took the stand, 

she admitted she was there at Leb's, and I cross-examined

- 142



her. That is the only evidence. She admitted she was 

there.

THE COURT: You haven't put up your evidence.

MR. SPARKS: I haven't put up my evidence at the

Krystal. Mr. Moore put them up together. He put 

Miss Walker up, and she testified to the incidents at

Leb's and Krystal , and I have just completed Leb's.
THE COURT: Have we finished all the Leb's incidents?
MR. MOORE: Except two.
THE COURT: What was that? January 8 and January 18?
MR. MOORE: June 8.
THE COURT: June 8 and 18th?
MR. MOORE: 1963.
THE COURT: What were they?
MR. MOORE: Trespass.
MR. SPARKS: Those are the ones in which --

THE COURT: I thought we went over those yesterday.
MR. MOORE: We went over them, but there were some

additional details.

MR. SPARKS: Those are the ones in which Lieutenant

Wright was not present, and counsel wanted to use him, and 

we weren't able to get him quickly, and we went on to those. 

Lieutenant Wright is here now.

- 143 -



MR. MOORE: Yes* sir.

THE COURT: How about your time element?

MR. MOORE: It should only take me about seven or 

eight minutes.

THE COURT: All right* bring him in.

This is in regard to what date?

MR. MOORE: The 8th.

THE COURT: All right* sir.
******

C. E. WRIGHT

having been recalled to the stand* testified further 

as follows:

RECROSS-EXAMINATION

BY MR. MOORE:
Q Officer Wright* you were sworn as a witness

previously* were you not?

A Yes.-

Q I will ask you* did you bring into court with you 

records showing the arrest of Archer Columbus Black and James 

F. Thompson at Leb's Restaurant on June 8th, 1963?

A Yes.

Q, Do your records show what race they are?

A No* they do not.

THE COURT: Can we go on?

- 144



Q All right. Does your record show what they were 

arrested for?

A No, they do not, but all of them on this particular 

list that we have was the Anti-trespass Law.

Q Does it show an arrest for any other offense?

A No.

Q And was that at Leb's at 66 Luckie Street?

A That's correct.

Q, Do you know the disposition of the charges against 

these defendants?

A No, I don't recall.

Q Did you make the arrests yourself?

A Myself and M. G. Redding.

Q All right, do you know the circumstances surrounding 

the arrests?

A To the best of my knowledge, when we arrived on the 

scene at approximately 2:15 on June 8 we were met by the 

manager at this time, who was Mr. Martin, and he, in turn, told 

us that they had refused service to three Individuals --

Q All right.

A -- and then he asked them to leave In our presence,

and we also instructed them to leave, and they refused to do so, 

and we arrested them and charged them accordingly.

Q, They were arrested for refusal to leave, is that

correct?
- 145 -



A That's right.

Q

A

Q

A

Q

to leave 

A 

Q  

A

Q
A

Q

Were they violent in any manner?

Not that I can recall.

Did they curse anyone?

Not that I can recall.

And they were arrested solely and purely for failing 

the premises when requested to do so?

That's correct.

Could you give me the names of the three individuals 

Archer Columbus Black -- 

All right.

-- James F. Thompson and Carl Cleveland Arnold.

All right. Did you make an arrest at Leb's on

June J, 1963?

THE COURT: June 8, 1963, wasn't it?

THE WITNESS: My records doesn't indicate the 7th.

THE COURT: You have one on the 8th?

THE WITNESS: Yes, sir.

BY MR. MOORE:

Q And what about on the 7th?

THE COURT: June 8th.

MR. MOORE: Yes, sir, he just testified to June 8.

BY MR. MOORE:

Q I wanted to ask you about May 18.

MR. SPARKS: June 18, you mean, don't you?
- 146 -



MR. MOORE: Yes

MR. SPARKS: You are confused, and I can't blame you

Carl Arnold is the one you were trying to get at,

June 18, 1963.

BY MR. MOORE:

Q Do you have records to show the arrest of Carl 

Cleveland Arnold on June 18, 1963?

A Yes.

Q And was he arrested at Leb's?

A Yes.

Q And was he arrested for violating the Anti-trespass

Statute?

A Yes.

Q Can you relate to the Court the circumstances attend

ing his arrest?

A To the best of my memory it was under the same 

circumstances that we went there on June 8th.

Q. Yes, sir.

A He was asked to leave in the presence of the manager 

and then also we, in turn, asked him to leave also, and he 

refused to do so, and he was arrested and charged accordingly.

Q All right, sir, did he commit any acts of violence?

A Not to my knowledge.

Q Was he loud and boisterous?

- 147 -



A Not to my knowledge.

Q And he was arrested solely and purely for violating 

the Anti-trespass Statute?

A Yes, sir, yes.

MR. MOORE: Thank you. You may examine.
******

REDIRECT EXAMINATION

BY MR. SPARKS:

Q On these two occasions did these individuals whom you 

arrested and whom you have named, did they go -- did they walk 

to the police car when you arrested them, or to the wagon, or 

did you have to carry them?

A To the best of my memory they all walked out to the 

wagon peacefully.

Q Was there any disturbance created by their activity 

that you observed?

A No more than the attention of onlookers, which 

naturally drew a crowd around the place.

MR. SPARKS: Thank you, sir.

THE COURT: Any further questions on the Lieutenant?

MR. MOORE: No, sir.

THE COURT: You may step down.

THE WITNESS: Thank you, Judge.

(Whereupon, the witness was excused from the stand.)

- 148



******

on your behalf on those two incidents?

MR. MOORE: No, sir.

THE COURT: All right.

Do you have anything, Mr. Sparks?

MR. SPARKS: Nothing further.

THE COURT: Well, I would certainly grant the removal

on those two dates. Now, I am not referring to 

January the 25th.

MR. MOORE: I understand that, sir. I understand on

that we will have to submit a brief.

THE COURT: Yes, sir, if you would.

Is there anything —

How about on Krystal, now?

MR. SPARKS: I have some witnesses on Krystal.

THE COURT: I guess we had better do this. I will

take a recess for fifteen minutes and let you finish the 

Krystal, and I want to discuss some of the facets of this 

with you after that. I will take up the matter that the 

other attorneys are here with and dispose of that.

MR. MOORE: May I be excused at least until 11:30?
THE COURT: Yes, sir.

MR. MOORE: We have the argument. It may end before

THE COURT: All right, sir, a n y t h i n g  further on that

- 149 -



that.

I wish you would notify my office, and we can finish at 

this time.

Stay right here or stay available.

We will take a recess for fifteen minutes.
******

(Whereupon, proceedings in the above case were

recessed at 10:15 A. M., reconvening at 11:45 A. M.) 
******

AFTER RECESS

THE COURT: Mr. Sparks, I believe you had some more

evidence in regard to Krystal, didn't you?

MR. SPARKS: Yes, I do.

THE COURT: Are you ready to proceed?

MR. SPARKS: Yes, sir.

Call Mr. H. J. Drury.

MR. MOORE: Your Honor, I would like to state for

the record that under our theory of the case, we take the 

position that the State is collaterally estopped from 

re-examining the transaction at Krystal.

THE COURT: I understand that is your contention.

MR. MOORE: I would like to point out in considering 

this testimony, Your Honor, that the Court should bear in

THE COURT: All right. If you finish before \L1:30,

- 150



mind that there are two indictments against the defendant, 

Mardon Walker, at Krystal. One is the original indictment 

on which she was tried and convicted and which has been 

ordered placed for new trial. The other indictment, sir, 

is the indictment that was returned twenty-two months later 

for alleged riot.

THE COURT: That is what I understand we are hearing

now.

MR. MOORE: In which she is named -- she is the only

individual named in that indictment.

THE COURT: That is what I understand.

MR. MOORE: Yes, sir.

THE COURT: I understand that.
******

H. J. DRURY

called as a witness by the State, after having first 

been duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. SPARKS:

Q Would you state your name --

Have you been sworn, sir?

A Yes, sir.

Q I believe you have been here three days, haven't you? 

A Yes, sir.

I am sorry for the delay, sir.
- 151 -

Q



Would you state your name and occupation to the Court, sir? 

A H. J. Drury; City Manager for the Krystal Company.

Q Is the Krystal Company a place of business that

operates In the City of Atlanta In various locations?

A Yes, sir.

Q 'Were you employed In that capacity, sir, on the 13th 

day of January, 1964?

A Yes, sir.

Q I will ask you, sir, whether or not you had occasion

to --

THE COURT: What was the date?

MR. SPARKS: January 13, 1964.

THE COURT: January 13, 1964.

BY MR. SPARKS:

Q I will ask you whether or not you had occasion to go 

on that date to one of your places of business of the Krystal 

Company, I believe it was located on 70 Peachtree Street in 

Atlanta, Fulton County, Georgia?

A Yes, sir.

Q Tell the Court briefly what you saw when you arrived,

sir.

A Well, when I arrived there were approximately -- well, 

the place was full of people, and they were, most of them were 

turned with their backs to the counter and feet in the aisles.

-  152



Some were up milling around, loud singing and clapping of hands 

and stomping of feet. And some mustard and catsup had been 

squirted on some of the counters, and, as I said, there were a 

great number of them, people, most of them sitting down with 

their feet in the aisle, and some of them milling up and down. 

There was milling around, clapping hands, and the mustard and 

catsup had been squirted on napkins and on the floor, and there 

was sputum on the floor.

The man in charge was in the process of cleaning up where 

someone had vomited on the floor.

Q Was that man in charge, was that Mr. H. E. Quinn?

A Yes, sir.

Q For the sake of the record, possibly I should get you 

to describe the premises there at Krystal. Is that a big place 

or a small place?

A It is a very small place.

Q I believe it caters mainly to short orders and 

hamburgers and so forth, does it not, sir?

A Yes, sir.

Q When you arrived, sir, was there any crowd outside?

A Yes, sir.

Q What action, if any, did you take when you arrived,

sir?

A I called the police.

- 153



Q You called the police?

A Yes, sir.

Q Was business still going on In there? I mean, were 

your regular customers still being served?

A No, sir.

Q, I will ask you to look around the courtroom and see 

if you can recognize anyone who was there when you arrived?

A Yes, sir„

Q Who is it, sir?

A. Miss Walker.

Q Point her out in the courtroom.

A The lady sitting by Mr. Moore (pointing).

Q Sitting by Mr. Howard Moore, her lawyer?

A Yes, sir.

Q What was Miss Walker doing when you arrived?

A Well, she was -- my best recollection is that she was 

sitting at one of the stools with her feet in the aisle, and 

she was with the group in there singing and clapping their hands 

and such as that.

Q After the police arrived, sir, what happened?

A Well, I asked Captain Hamby, if we could get them out, 

and he said he would have to have them arrested, or to ask them 

first if they would leave.

- 154 -



I asked each one of them individually if they would leave. 
Some did and some remained.

Then I was instructed I would have to have a warrant to 

have them arrested, so I called Judge Wofford and asked him 

about it, and --

Q Is that Judge Charles Wofford, Judge of the Criminal 

Court of Fulton County at that time?

A Yes, sir.

Q Now I believe he is a Superior Court judge?

A Yes, sir.

Q All right, sir.

A And he asked to speak to Captain Hamby, and he talked

with Captain Hamby, and Captain Hamby asked me to ask them again 

if they would leave, and they did not leave, so they were 

arrested. Judge Wofford issued warrants.

Q Do you recall, sir, the details of the arrest, or were 

you present when they were arrested?

A Yes, sir.

Q How did they behave when they were arrested, sir?

A Well, most of them left with the officers, but some 

had to be carried out. They prostrated themselves on the floor 

and they had to be bodily moved, physically moved.

Q All right, sir, did these activities of these patrons, 

including the defendant, Mardon Walker, did that or not disrupt

- 155



the operation of your 

MR„ MOORE: 

THE COURT: 

MR. MOORE: 

THE COURT:

business?

I object to that, Your Honor.

What is your objection?

It is a leading question, Your Honor. 

Well, just ask him what effect it had on

the business.

MR. SPARKS: All right, sir.

BY MR. SPARKS:

Q What effect did it have on your business at the time 

it was going on?

A It stopped it. It brought it to a standstill.

THE COURT: For how long a period?

THE WITNESS: For at least an hour or an hour and a

half, maybe two hours. I am not too clear on the details 

at this time.

THE COURT: All right, sir.

BY MR. SPARKS:

Q Approximately how many people would you say were 

there, sir?

A I would say when I first arrived there must have 
been --

Q Inside, I mean?

A Well, inside, at least thirty, twenty-five or thirty.

- 156 -



Q At least tweny-five or thirty. And approximately 

how many persons were congregated outside, would you estimate?

A There must have been at least that many more.

Q, At least that many more on the outside?

A Yes, sir.

Q And was Miss Walker or not inside and on the premises 

of the Krystal Company at that location?

A Yes, sir, yes, sir.

Q And did the napkins, counters and floors belong to

the Krystal Company?

A Yes, sir.

MR. SPARKS: That's all I have, Your Honor.

THE COURT: Did you see Miss Walker throw any catsup

or mustard?

THE WITNESS: No, sir, I did not see any.

THE COURT: When she was arrested, how was she taken

out?

THE WITNESS: She was carried out by the officers.

THE COURT: Was she prostrate?

THE WITNESS: Yes, sir.

THE COURT: All right, any questions, Mr. Moore?

MR. MOORE: Yes, sir.
******

CR OS S-EXAMINATION

- 157 -



BY MR. MOORE:

Q Mr. Drury, you remember being examined in the 
Superior Court of Fulton County?

A Yes, sir.

Q In January, 1964?

A Yes, sir.

Q You remember giving testimony on oath on that occasion? 
A Yes.

Q Do you remember my asking you these questions in the

transcript of the proceedings had on the plea in abatement,
Page 335 of the original --

A I remember being questioned, yes.

Q Question: "Mr. Drury, were the police officers there
when you arrived?”

You remember that question?

A Yes.

Q And your answer was: "Which time?"
Do you remember that?

A I don't remember the specific question, no, sir.

Q Question: "On the 13th?"

Your answer was: "No."

Is that correct?

A I don't remember the specific questions or the
answers.

- 158 -



Q All right* I will show you the transcript of the 
proceedings* Page 335* 336 and 337* to the re-cross examination 
by Mr. Spence* and I will ask you to examine it.

(Whereupon* Mr. Moore tendered the transcript to 
the witness.)

Q Have you had a chance to read each page?
A Both pages?
Q I think there are three pages* sir.
Did you get a chance to read the third page down to 

"Recross Examination"? Have you read both pages I requested you 
to read?

A All except this bottom part.
Q I just wanted you to read down to "Recross Exami­

nation". You have read down through -- down to "Recross 
Examination", is that correct?

A Yes.
0, Now* were the questions -- were the answers which you 

gave to those questions on that occasion true* correct and 
complete?

A Yes* sir* to the best of my knowledge.
MR. MOORE: Your Honor* I would like to read in his

questions and answers at that time.
THE COURT: All right, sir.

- 159



"Re-direct Examination, Questions by Mr. Moore:" 

Question: "Mr. Drury, were the police officers there

when you arrived?"

MR. MOORE: Page 335:

Answer: "Which time?"

Question: "On the 13th?"

Answer: "No. "

Question: "They were not there?"

Answer: "No. "

Question: "Who called the police officers?"

Answer: "I summoned them from the street, Sergeant

Marler. He was on the street and I summoned him from the 

street."

Question: "How far was he from the Krystal at 70

Peachtree?"

Answer: "Approximately two blocks, a block and a half

or two blocks."

Question: "Was this defendant and the others doing

the same thing that they had been doing when he arrived, 

prior to the time of his arrival?"

Answer: "Do you mean when he arrived or when I

arrived?"

Question: "Prior to the time that the police officers

arrived, what were the defendants doing? Strike that, please.

- 160 -



"Mr. Drury, were the defendants doing the same thing 

when Sergeant Marler arrived that they were doing just 
prior to his arrival?"

Answer: "i couldn't answer that with accuracy. I

could tell you what they were doing when he arrived."

Question: "What were they doing when he arrived?"

Answer: "Most of them were sitting at the stools,

both at the counter and the window. Some were sitting 

facing the counter, some were sitting with their feet in 

the aisle. They were talking loud to each other, and 

some were milling about between the others."

Question: "This is all that they were doing?"

Answer: "When I arrived, yes."

Question: "I mean, when Sergeant Marler arrived?"

Answer: "As far as I know, yes."

Question: "Were they doing the same thing when he

arrived, when you arrived, as they were when you arrived?"

Answer: "I would think so."

Question: "When did you get the defendant's name,

Mardon Walker?"

Answer: "Where did I get her name?"

Question: "Yes."

Answer: "From the arresting officer."

Question: "When did you get her name?"

- 161



Answer: "Just prior to the issuance of the warrant."

Question: "Approximately how many minutes or hours

before the issuance of the warrant did you get her name?"

Answer: "Oh* I would say thirty or forty-five minutes."

Question: "Did you call the police station?"

Answer: "I personally didn't. The names were given

to the judge by the arresting officer."

Question: "Were you present when this was done?"

Answer: "Yes."

Question: "When the names were given to the judge by

the arresting officer?"

Answer: "That is correct."

Question: "You didn't at that time personally know

the defendant, Mardon Walker, did you?"

Answer: "I knew her by sight but not by name."

Question: "You didn't know her by name, did you?"
Answer: "No."

Then there was a recess.

BY MR. MOORE:

Q Now, Mr. Drury, this re-direct examination that I 

have read to you is not the complete testimony that you gave 

at the trial in the Superior Court in January, 1964, is it?

A You say it is not the complete testimony?

Q Yes. The testimony that I have just read into the

- 162



record does not represent all of the testimony you gave at 
the trial?

A I really couldn't answer that, because I don't 
remember all the testimony or all the details.

Q In any event, your testimony Is set out, set forth In 

Defendant's Exhibit 3 on Pages 304, 322, 335, 337 and I only 
had you read Pages 335 through 337, correct?

A Yes.

Q At no place in your entire testimony in the Superior 

Court in January, 1964, did you say any of these defendants

poured catsup in a napkin or vomited on the floor, isn't that 
correct?

A Well, I didn't, as I said, I didn't see them do it, 
but I saw the evidence of where it had been.

Q As a matter of fact, you did not testify that they 
did it?

A I don't remember.

Q As a matter of fact, the first time you ever testi­

fied that any person who came to your place of business on 

January 13, 1964, threw catsup in a napkin or vomited on the 
floor is today, isn't that correct?

A If it is not in the record, I assume so. I am not 
sure that that question was asked specifically.

Q All right. And you didn't give any information? You
were asked what they were doing, weren't you?

- 163 -



A Yes, sir.

Q And you told them at that time what they were doing, 
didn't you?

A Yes.

Q And it did not include any of the things about catsup

in the napkin and vomiting that you testified about here, did
it?

A I don't remember that specific question, no, sir.

Q Now, when you came to the restaurant the door was
locked, wasn't it?

A I don't remember, but I don't believe it was, no, sir.

Q Was the door closed?
A Well, the normal closing of the door. I am not sure

whether it was closed or open, I mean at that time.

Q Were the lights out?
A The lights were not out.

Q Had you received a call from the assistant manager to
come to the restaurant?

A Yes, sir.

Q All right, did you give him instructions before you
arrived to close up the shop?

A I don't remember, I don't remember specifically
whether I did that time or not.

- 164



Q But you did have a practice of closing up the shop 

when people came in to get service on an integrated basis, 

didn't you?

A We had closed some prior to that on occasions, yes, sir.
Q, And that is v/hat you did when people sought service

on an integrated basis, isn't it?

A Not always.

Q But most -- on most occasions?

A Well, we had closed some to ease the tension in the

past, yes.

Q Nov/, on the date in question, that is, January 13*

1963 -- '64, rather, the only arrests that were made in your 

premises v/ere for an alleged violation of the Anti-trespass 

Statute, isn't that correct?

A I would suppose so.

Q All right, that is, you have no recollection of any­

one being arrested for anything else, is that correct?

A Well, I am not clear on the ordinances and such as 

that as to how they were booked, whether it was on the Anti- 

trespass or disorderly conduct.

THE COURT: Doesn't the record show that?

MR. MOORE: Yes, sir, I believe it does, but we

wanted —

THE WITNESS: I am not clear on that, Mr. Moore.

- 165 -



B Y  MR. MOORE:

Q Did you talk with Judge Wofford yourself?
A Yes.

Q All right, and did you tell him what you wanted the 
warrant for?

A I told him the situation and asked him if we could 
get a warrant, yes, sir.

Q All right. You told him that there were Negroes and 
whites in your restaurant?

A I told him there were a lot of people there.

Q And you wanted the warrant?

A Yes, sir.

Q And he told you the warrant would be issued, is that 
correct?

A Yes, sir.

Q And did you know what the warrant was for?

A At that time I didn't know what it would be issued
for specifically.

Q All right.

Was Sergeant Marler -- pardon me. How long did Sergeant 

Marler remain in the restaurant after he arrived before these 

people were taken out?

A I really would just have to guess. Perhaps twenty

or twenty-five minutes, something like that.

- 166



Q All right, what time did you arrive at the restaurant?

A I don't know the exact time. I know it was perhaps 

around 7^30 or 8:00 o'clock or 8:30. I am not certain. I 

can't remember the time.

Q Do you know how long the demonstrators had been there 

before you arrived?

A No, sir.

Q Can you state how long they were there after you 

arrived at the restaurant?

A Well, about the length of time that Sergeant Marler 

was in there, I would say twenty-five or thirty minutes, 

something along those lines. I am not -- I can't remember 

exactly.

Q Now, in January of 1964 the Krystal Company had a 

policy of serving Negroes only on a take-out basis, is that 

correct?

A That's correct.

Q You did not serve any Negroes seated in that restaurant,

right?

A That is correct.

Q And it would be fair to characterize your restaurant 

as one that was racially segregated, is that right?

A (Witness nods head.)

Q You nodded your head?

- 167 -



A Well, I suppose so.

Q And your policy was, In January of 1964, was to 

refuse service to any Negro persons that came Into the restaurant 

and took a seat and ordered food, Isn't that right?

A Yes.

Q All right. And your policy was also to refuse ser­

vice to any white person who came in with a Negro seeking 

service, isn't that correct?

A No, sir.

Q Did you serve white people who came in with Negro 

people?

A We had in some instances, yes, sir.

Q Is that on a take-out basis?

A No, sir. We have served some at the counters.

Q, Is that in January of 1964?

A Well, January, February. There were several instances.

I don't recall whether it was in January. I feel sure there was.

Q Would you serve a white person who came in the 

restaurant and his Negro companion sat down with him also?

A We did.

Q In 1964?

A Yes.

Q But your restaurant was segregated in 1964, wasn't it?

A Yes.

- 168 -



Q Is that the one at 70 Peachtree?
A Yes, sir.

Q And did you refuse to serve these people whc. came 

into your restaurant on January 13 because of your segregated 
policy?

A They were refused service because of the conduct, as
far as I am concerned.

Q You were not present at the time they were refused 
service, were you?

A No, sir.

Q So you don't know what their conduct was at the time

you first entered the restaurant, do you?

A No, sir, except what was told to me.

Q All right. And as far as you know, they were refused

service because of their race, weren't they?

MR. SPARKS: I object to that, because he has already
said he wasn't there.

THE COURT: I think he has gone over it four times.

I think you have made your point.

My recollection is that is in the case that went to

the Supreme Court, went to the Supreme Court of Georgia and

the Supreme Court of the United States.

MR. MOORE: Yes, sir.

THE COURT: On this very date.

- 169 -



B Y  MR. MOORE:

Q And at that time Krystal Company was a Tennessee 
corporation, wasn't it?

A Well, I am not sure whether it was a Tennessee 

corporation at that time or whether it was a Georgia corporation 

They have reorganized the corporation. I don't remember whether 

it was prior to that or after that.

Q Did you have units in Georgia and Alabama and 

Tennessee?

A Yes, sir.

Q You were doing interstate business at that time?

Yes , sir.

MR. MOORE: No other questions.

MR. SPARKS: I have just one.
******

REDIRECT EXAMINATION
BY MR. SPARKS:

Q Mr. Drury, to the best of your recollection, when you 

were testifying in the prior trial in Fulton County, which 

Mr. Moore has questioned you about, were you ever asked directly 

or indirectly whether or not you saw catsup on the floors, on 

the counters, or sputum on the floors or the remains of vomit 

on the floor?

A I don't remember being asked those specific questions

- 170 -



MR. SPARKS: Thank you, sir.
* * * * * *

RECROSS-EXAMINATION

BY MR. MOORE:

Q But you do remember being asked what were the 

demonstrators doing, don't you?

A Yes, sir.

THE COURT: All right, are you through with Mr. Drury?

MR. SPARKS: Yes, sir.

THE COURT: May he be excused?

MR. SPARKS: Yes, sir, as far as we are concerned.

MR. MOORE: Yes, sir.

THE COURT: You may be excused. Thank you, sir.

THE WITNESS: Thank you.

(Whereupon, the witness was excused from the stand.) 
******

THE COURT: Call your next witness.

MR. SPARKS: Mr. Quinn.

THE COURT: Would you have a seat around here,

Mr. Quinn.
******

EUGENE QUINN

called as a witness by the State, after having first 

been duly sworn, testified as follows:

- 171



DIRECT EXAMINATION
B Y  MR. SPARKS:

Q Have you been sworn in this case, Mr. Quinn?
A Yes, sir.

Q Monday morning?
A Yes, sir.

Q State your name and occupation, please, sir.
A My name is Eugene Quinn.

THE COURT: Will you speak out a little louder where

these people can hear you?

THE WITNESS: My name is Eugene Quinn. I work in a

restaurant. Right now I am working —  shall I tell you where 

I am working at now?

BY MR. SPARKS:

Q You can tell us where you are working now.

A I am working at the Old Hickory on Stewart Avenue now.

Q Back in January of 1964, on the 13th day of January,

'64, to be precise, where were you working then?

A I was working at 70 Peachtree at the Krystal Company.

Q At the Krystal Company?

A Yes, sir.

Q I will direct your attention to that date, Mr. Quinn, 

and ask you whether or not anything unusual happened that 

afternoon, and, if so, tell us what it was.

- 172 -



A Well, that was when all this sit-in demonstrations 
started.

MR. MOORE: I'm sorry. I can't hear the witness.

THE COURT: You will have to talk a little louder.
BY MR. SPARKS:

Q You will have to talk loud enough so that the Judge 

can hear you and Mr. Moore over there at the defense table and 

the Court Reporter.

A If I ain't mistaken this is the time they were having 

all these sit-in demonstrations and everything, during that time.

Q All right, sir, what happened on that afternoon? Who 

came into the Krystal, if anyone.

A Well, this lady over here was there.

Q This lady over here? You are pointing at Miss Mardon

Walker?

A Yes.

Q Who else was with her when she came in? I don't mean 

by name, but just describe the persons who came in.

A Well, it was several of them that came in.

Q Talk a little louder, if you will.

A It was several of them that came in, but I know the 

first one that came in, he come in and set up at the front stool, 

and he hit the counter and said, "Give me a cup of coffee," like 

that.

- 173 -



Q He hit the counter and said, "Give me a cup of coffee"?

A That is one of the first ones that came in.

Q Was that a male or female? You said it was a man?

A It was a male, a man that done that.

Q All right, what was his race?

A Well, he was colored.

Q He was colored?

A Yes, sir.

Q Approximately how many came in at the same time or

in that same group that entered along with Miss Walker and this 

colored male?

A Well, it was about four of them came in that door at

one time.

Q About how many?

A It was about four of them came in there at one time.

Q At one time, came through the door at one time?

A Yes, sir.

Q Did others follow them or not?

A Yes, sir, there was others that came in with them.

Q Approximately how many would you estimate came into

the Krystal at that time, sir?

A I don't know exactly. I know they came in. They was

real loud about coming in.

Q When you say they were loud, what do you mean?

- 174 -



A Well, everybody -- we was in the process of waiting 

on people and everything, trying to get business and everything, 

and we wasn't real busy at the time they came in or anything, 

but I know that when they came in like that they were pretty 

loud and was making a lot of noise and everything, and these 

people, some of them that was eating, they got up and left, left 

their food and all.

MR. MOORE: I'm sorry. I can't hear.

THE COURT: You will have to talk louder, sir. Just 

sit up in the chair and talk a little bit louder, if you 

don't mind. Don't hesitate about talking. All we want 

are the facts.

A (By the witness) When they came in and everything,

they was making so much noise and everything, these people that 

was eating at the counter and everything, it annoyed a lot of 

them because they got up and left their food on the counter.

Q What happened then? What did the people start doing, 

these people who were in there with Miss Walker?

A Well, they started making a lot of noise and singing 

and even turned around facing each other and singing and talking 

to each other and had their feet out in the floor, in the aisle, 

in the floor.

Q In the aisle?

A Yes. And these people, some of the people still in

- 175



there eating went to go out and everything, and a lot of them 

had to step over their legs and everything because they wouldn't 

move. They had them out in the aisles like that (indicating). 

They stepped over and went on out the door and everything.

Q What else did you see them do?

A Well, one of them, he got these napkin holders and

was playing with them napkin holders, and he grabbed a napkin 

out like that (indicating) and put mustard and catsup on it and 

attempted to eat it.

Q Attempted to eat it? The napkin or the mustard off 

the napkin?

A He was eating the napkin and the mustard and the 

catsup off.

Q What else, if anything, did they do with the mustard 

and the catsup, sir?

A They squirted it, some of it on the counter, a lot of 

it was squirted on the counter and a lots of them napkins was 

wadded up and throwed on the floor. They got all the salt and 

pepper shakers and throwed them all over the counter and 

everything. I noticed there was a lot -- there was three or 

four of them spit in the floor.

Q Three or four of them spit in the floor?

A Yes, sir.

Q Did you see anyone else do anything else on the floor?

- 176 -



A Yes. One of them throwed up on the floor. I didn't 

appreciate it at all because I had to clean it up and everything. 

The least he could have done would have been to go outside when 

he done that. He vomited on the floor.

Q When he came in there --

A It was a mess.

Q When he came in there, Mr. Quinn, I will ask you did

you see any act of violence done by anybody to get a seat, and 

tell us about that, if you did.

A Well, I seen one of the -- not this particular time,

but I --

Q It wasn't at this particular time?

A No. It was another time that they came in.

Q Don't go into anything that happened at another time.

What did you do with reference to serving them, sir, or did

they ever -- did they ever actually put in any orders with you?

A Well, just like I say, when that first one came in,

he demanded service, and, frankly, I don't care who it is, if 

they come in and ask me for something like that and slam their 

hand on the counter like that and ask me for something like 

that, I just don't have the guts to wait on somebody like that. 

I mean —

Q Did you decline to wait on them?

- 1 7 7  -



A I would have waited on them. I was going to let 

somebody else wait on them in a case like that, but that 

particular one that came in and hit the counter like that and 

demanded service that way, I mean, without any reason whatsoever, 

just come in there and hit the counter like that and said, "Give 

me a cup of coffee," just as loud as he could.

Q Did he hit the counter hard?

A Hit the counter and made a big racket, hit the counter 

and he demanded service like that. I just --

Q What did you do then, sir, after they got in there and 

performed these acts that you have testified about?

A I didn't understand the question.

Q What did you do? I mean, did you call anyone or did

you wait on them, or just what did you do?

A Well, I called Mr. Drury. I didn't know exactly what 

to do about it. They was interrupting the service and every­

thing, and I didn't know what to do about it. I mean, you 

couldn't wait on nobody or nothing on account of all this 

disturbance and everything.

Q, Gould you wait on any of your regular customers or 

other persons other than this group that came in?

A We couldn't -- we couldn't take no orders or nothing. 

They were making so much racket and everything, singing, and 

all that kind of stuff, we couldn't even place the order.

- 178 -



Q What kind of songs were they singing?

A One of them was —  the only thing I heard them singing 

was "We Shall Overcome" and all that stuff.

Q "We Shall Overcome"? What was happening outside, sir, 

with reference to any gathering? Was anyone outside?

A I didn't notice too much about on the outside. There 

was so much going on on the inside and everything. I was 

supposed to be in charge of the place at that particular time 

and everything, and I was pretty well concerned with what all 

was going on inside there.

I did notice, after all this was over, and everything, and 

went to cleaning up, I don't know for sure if it was done this 

particular time, but I noticed when they left and everything 

there was four of the seats that was cut with a knife.

Q Pour of the seats had been cut with a knife?

A Yes.

Q Had you noticed those seats having been cut with a

knife prior to them coming in that afternoon?

A No. You see, I cleaned up that morning before all 

this took place and everything. The place was in real good 

shape and everything before they came in.

Q And those seats that were cut, were they the property 

of the Krystal Company?

A Yes, sir.

- 179 -



THE COURT: All right, sir, any further questions?

MR. SPARKS: I think that's all the questions.

THE COURT: All right, Mr. Moore.
******

CR OS S-EXAMINA TION

BY MR. MOORE:

Q What time did the demonstrators come into the 

restaurant? What time was it?

A I don't remember right offhand.

THE COURT: Was it morning, afternoon or night?

THE WITNESS: I believe I was working the morning

at that particular time.

MR. MOORE: I'm sorry. I can't hear the witness.

THE WITNESS: I was thinking —  I was thinking I was

working in the mornings at that particular time. I don't 

remember exactly what time it was, to be exact.

BY MR. MOORE:

Q Do you know whether it was -- do you know whether it 

was morning or afternoon?

A I don't remember that exactly, what time it was. It 

has been so long ago.

Q, Now, Mr. Drury instructed you to turn off the lights, 

didn't he?

A Yes, he told me to turn off the lights and just go

- 180 -



ahead and to go to cleaning up and everything, because it looked 

like we was going to have to close.

Q Pardon me?

A He said it looked like we was going to have to close 

and everything, said, "We can't operate like this." He said,

"Go ahead and turn them off."

Q Mr. Drury gave you these instructions over the 

telephone, is that correct?

A I don't remember whether he told me on the telephone. 

I knew he came up there. I don't remember exactly.

Q How long had the demonstrators been there before 

Mr. Drury came?

A Well, I don't think it took him but about —  he was 

at the other store, and I don't think it took him very long to 

get up there. I would say about twenty or thirty minutes.

Q At the other store, where was it located?

A Marietta Street.

Q Where is that? About two blocks from there?

A Yes, about two or three blocks.

Q You say it didn't take him very long, five or

minutes?

A I imagine it took him, I don't know, about twenty or 

thirty minutes.

Q Pardon me?

- 181



A I imagine it took him about fifteen or twenty minutes, 

something like that. I don't know.

Q Were there any police officers present inside the 

premises before Mr. Drury arrived?

A It seems like to me it was -- I know it was one on

the outside, and seems like to me it was -- it has been so long 

I don't know. I couldn't swear to it, because it has been so 

long I don't remember whether it was one inside or not, just to 

be honest with you.

Q And you also locked the door, didn't you?

A After they told me to close up and everything that 

way, they instructed me to -- well, when we closed up and 

everything, we told them we was closed and everything, we was 

going to have to lock the doors and everything. They wouldn't 

leave. That is when they started spitting on the floor.

Q That is when you locked the door?

A We didn't keep it locked. They started to lock it, 

and they decided they wouldn't lock it, or something, if I ain't 

mistaken. They was attempting to lock it. They said, "Ain't 

no use locking it."

Q Who said that?

A I believe it was Mr. Drury said something about it.

Q You said Mr. Drury?

- 182 -



A It seems like it was. One of them said something 

about it wasn't no use locking it, or something like that.

I don't know exactly which one said that.

Q You cut the grill off, didn't you?

A Well, we had food on the grill and everything that was

cooking. We had to throw all that stuff away that we was 

planning for business and everything, we had to throw a good 

bit of stuff away and everything.

Q You cut the grill off, didn't you?

A No. The grill wasn't cut off, because it -- you see, 

it had these -- it wasn't cut off until after we had -- all we 

done was -- see, we had to keep that grill on. It stays on all 

the time. If we cut it off at all it causes that food to ruin, 

or something. It stays on all the time.

Q You took all the food off the grill, is that right, 

and you took the grease off the grill?

A No. We just cleaned up and everything. It was just 

like I said, we had to throw a lot of that stuff away because 

after -- I don't know how long exactly it was, but it took a 

good while. Anyway, the food ruined on us and we had to throw 

it away.

Q, What did you do to clean the grill up?

A Well, see, we have two grills. We have the small

grill and we have the big one. The small grill is what we cook

- 183 -



bacon and stuff like that on. We cleaned it off and scraped it 

as well as we could, and he told us to just -- I believe he said 

something about just leaving it, go on back there in the back, 

or something that way. I don't know exactly.

Q Could you speak up just a little?

A He said something about just cleaning up the best we 

could, just let things go as it is until they leave and every­

thing. Then we could finish cleaning up and everything.

THE COURT: I don't want to interrupt you, but I don't

know what this has got to do with it, whether the grill 

stays on part of the time, I don't know what that has got 

to do with it.

MR. MOORE: Yes, sir.

BY MR. MOORE:

Q Did you cut off the coffee urn?

A No, they didn't cut off the coffee, because it had

coffee in there. They didn't cut the coffee urn off.

MR. SPARKS: Please the Court, I don't see what the

relevancy is of the coffee urn being on or off.

THE COURT: I don't either, but --

MR. MOORE: The State wants to holler they were

disrupting the business. We just want to show that they 

discontinued business because of their racial policy, they 

would rather close down than serve Negroes, and that is

- 184



certainly not the responsibility of any persons in this 
case.

THE COURT: Well, I don't pay any attention to whether

business was closed down or why it was closed down by the 

people on the outside. I don't know who can control people 

on the outside, people gathering because of curiosity. I 

don't think that is the issue in the case.

BY MR. MOORE:

Q Now, the man that you testified to that came in and 

banged the counter, he was not arrested, was he?

A I really don't know whether he was or not.

Q Didn't you point out a man in the courtroom over in 

the Superior Court when you testified last time?

A Yes, I believe I did. They asked me was he in the 

courtroom, or something like that.

Q And you pointed out Reverend Greer sitting in the 

back, didn't you?

A I said he favored him.

Q Tall, big, tall, black man, and you said that was him? 

A The one with the yellow -- I believe he had on a

yellow tie at the time. I said he favored him. I didn't know 

for sure if it was him or not. I said it favored him.

Q And he was not one of the persons whom you identified 
as having been arrested at the premises on the date in question,

was he?
- 185 -



A I don't believe I understand that question.

Q I say, you did not identify that man as one of the 

persons arrested at the restaurant on January 13, did you?

A I don't remember. I'm sorry. I just don't remember. 

Q You didn't see Miss Walker here at the counter, did

you?

A No. Well, she was sitting across from there on this 

-- she came in and she was sitting over there on this -- it was 

on the left. It was a counter, yes.

Q You didn't see her bang on the counter like that, did

you?

A No, I don't think I saw her banging on the counter.

Q You didn't see Miss Walker squirting any mustard and

catsup on a napkin, did you?

A No, I don't believe so. It was a colored boy that was 

eating the mustard and catsup that was on a napkin.

Q And you didn't see Miss Walker vomit on the floor,

did you?

A No, I didn't see her vomit on the floor.

Q Pardon me?

A I didn't see her vomit on the floor.

Q As a matter of fact, you didn't see anybody vomit on 

the floor, did you?

A I did. I seen one.

- 186



Q Do you remember your testimony back in the Superior 

Court, you were asked this question by the Judge -- I will read 

Mr. Hollowell's question first.

"Will you answer my question yes or no, Mr. Quinn? 

Did you see the defendant vomit on the floor? Yes or no."

Answer: "Your Honor, I would like to explain when I

saw the vomit on the floor."

"THE COURT: What was it you wanted to explain,

Mr. Quinn?"

Answer: "I swept and mopped the floor before they

came in and after they left, and I know what they did and 

what they didn't do. One of them vomited on the floor. I 

don't know which one did, but there was vomit on the floor 

and one of them vomited on the floor because I cleaned it 

up. "

"MR. HOLLOWELL: You don't know when?"

Answer: "it was during the time they were in there.

Question: "And you didn't see anybody do it?"

Answer: "No, I didn't see anybody do it."

Isn't that a correct answer?

A Well, in a round-about-way it would be, but let me,

if I may, I can explain what I meant by that. I did see one 

vomit on the floor, but picking him out would be a thing of 

the past, because I wouldn't know exactly who done it. I don't

- 187 -



remember. I don't recall exactly who done it. It was kind of

a round-about way of saying It, but that is the way it is.
Q But you did testify back in January of 1964 you 

didn't see anybody do it, didn't you?

A Well, I -- I went with that statement on account of I 

didn't remember who done it.

Q You didn't say you didn't remember in '64, did you, 

when you testified?

THE COURT: I think he testified what he meant. Go

ahead.

BY MR. MOORE:

Q Didn't you testify over there in the Superior Court in 

January of 1964 that some two to five hundred people come in 

the restuarant between 2:00 o'clock and the time that these -- 

A Two to five hundred people? I don't remember that.

MR. SPARKS: Where are you reading from?

BY MR. MOORE:

Q I show your answer, Page 76 of the trial record.

Would you read these questions to yourself and see if they are 

true and complete answers?

MR. SPARKS: Your Honor, that is a question that was

asked. He never said that.

MR. MOORE: The record speaks for itself.

THE COURT: What is the question that was asked and

what was the answer?
- 188 -



MR. SPARKS: The question was: "How many people would

you suggest had been in there? Between two and five, a 
couple of hundred?"

That was asked by counsel.

Answer: "i don't know."

Question: "Beg your pardon?"

Answer: "I don't know. A lot of people."

Mr. Moore is asking him didn't he testify that 

between two and five hundred people had been in there.

That's all. I am just objecting to Mr. Moore misstating 

the record to him.

THE COURT: Yes, sir, let's move on. I can't see that

this is -- 

BY MR. MOORE:

Q You did testify --

MR. MOORE: Pardon me.

BY MR. MOORE:

Q Mr. Quinn, have you talked about this case with 

Mr. Sparks before you testified, Mr. Sparks, the Solicitor 

sitting over there with his finger in his mouth?

A No.

Q Pardon me?

A No, not lately.

- 189 -



Q I didn't hear you

A No.

Q How is it you remember the answers to the questions

that he asked you, but you can't remember the answers to the 

questions I have asked you?

THE COURT: I don't think he remembered all the

questions Mr. Sparks asked him.

THE WITNESS: That's been a long time ago.

MR. MOORE: He didn't seem to have any trouble

remembering answers to questions asked out of the 

indictment.

THE WITNESS: Well, if you are talking about what

they did in the place and everything, I remember what all 

they done, if that is what you are talking about.

MR. MOORE: Your Honor, we have introduced the

testimony on the trial anyway.

THE COURT: All right, sir.

Any objection?

MR. SPARKS: I have no further questions.

THE COURT: Let it be admitted.

MR. SPARKS: It is already in, I think.

THE COURT: Are you through with this witness?

MR. MOORE: Yes, Your Honor.

THE COURT: You may be excused, Mr. Quinn.



(Whereupon, the witness was excused from the stand.)
******

THE COURT: Call your next witness.

MR. SPARKS: Captain Hamby.
******

C. C. HAMBY

having been recalled to the stand, testified further

as follows:

REDIRECT EXAMINATION

BY MR. SPARKS:

Q I believe you are Captain C. C. Hamby who has testi­

fied several times earlier in these proceedings, is that correct?

A Yes, sir.

Q Captain Hamby, I will direct your attention to

January the 13th, 1964, and ask you whether or not you had 

occasion to go to the premises of the Krystal in Atlanta,

Pulton County, Georgia, located at 70 Peachtree Street, being a 

type of hamburger place, a short order place?

A I did.

Q Tell the Court what you saw when you got there, sir.

A Well, the time, it was approximately 4:30, a quarter 

of 5:00 in the afternoon, and they called me, someone called me 

at the Police Station, and I drove from the Police Station up 

there.

By the time I got to the corner at 70 Peachtree Street

- 191 -



there was a couple of hundred people gathered on the outside of 

the place, and there was approximately twenty or mayhe twenty- 

five people on the inside of the place. The people on the 

outside were looking in the windows, and there were some 

people in the place that were eating who immediately left when 

they started pouring mustard and catsup and sugar and salt and 

spitting on the floor and throwing napkins on the floor, people 

that were there, some of them left, and I believe we wound up 

with about fifteen in there in the general melee.

Q Were they doing anything when you actually arrived on 

the scene, that is, the persons on the inside?

A Yes.
Q What were they doing that you observed them doing?

A They were stomping and making quite a bit of noise,

and they were pouring out the mustard and catsup on the counter.

Q Did you see them doing that?

A Yes, I did.

Q Did you see -- I will ask you whether or not 

Miss Mardon Walker was there?

A She was there.

Q ' Do you see her in the courtroom?

A Yes, I do.

Q, Point to her.

A Right there (pointing).

- 192



Q Seated beside Mr. Moore?

A Mr. Moore, that's right.

Q Did you see her doing anything when you arrived, 

Captain?

A There was so much going on I would not attempt to say 

that she had mustard or catsup or any specific thing in her 

hand. I couldn't say that.

Q Tell us what the condition of the inside of the 

Krystal at this location looked like when you arrived? What did 

you see, I mean the physical condition of it?

A Well, it was about as big a mess as I have ever seen 

in a restaurant. Paper napkins were all over the floor, mustard, 

catsup, sugar, salt, cream and everything was poured on the 

counters. It was on the floor. As you go in the place, the 

counter is on your left, and you can sit at this window here 

facing the side street, there is a counter there, but all food 

is served from the back side, and the mustard and catsup was all 

along this counter where people sit and eat also.

Q, I see. Did you arrest anyone, sir?

A Yes, sir.

Q " Did you or not arrest Miss Walker, Miss Mardon Walker?

A I did.

Q Whom else did you arrest? I will ask you whether or 
not you have photographs of those persons whom you arrested?

A I do. - 193 -



Q All right, sir, call them off and identify their 

photograph, and then I will have the Clerk mark them.

A Miss Mardon Walker, James Carter, Jean Potts --

MR. MOORE: Pardon me?

THE WITNESS: Jean Potts.

A (By the Witness) —  (Continuing) Betty Brown,

Lynda Woods, Bobbie Zeigler, Billy Eugene Kindell, Rafael Hilton 

Bentham, James Arthur Kindell, Lewis Andrews Hurst, Jackie 

Smith, Robert Weaver, Dexter Morton, Moreland Robinson Huber, 

Jack Krystal, alias Heyman.

MR. SPARKS: I would like to have these marked as a

State Exhibit. They may all be marked as one exhibit, if 

there is no objection.

THE CLERK: State's Exhibit No. 4 are photographs --

MR. MOORE: Without objection, Your Honor.

THE CLERK: -- just identified by Captain Hamby.

(Whereupon, the above photographs were marked for 

identification as State's Exhibit No. 4.)
******

THE COURT: Did you offer them in evidence?

MR. SPARKS: I was going to offer them just as soon

as I finish with Captain Hamby's direct testimony.

THE COURT: All right, sir.

- 194 -



BY MR. SPARKS:

Q Captain Hamby, when you arrested, made the arrest of 

these persons whom you have identified, whom you have named and 

whose pictures you have identified, I will ask you whether or 

not you -- how did the arrest take place? Was there any 

resistance by any persons, or did they all go peaceably?

A No, we had to pick them up and bodily carry some of 

them out. A few of them walked out, and I would not be able 

to separate one from the other. Some refused to move, and we 

picked them up bodily and carried them out of the place. No, 

they didn't fight back.

Q They just laid down on the floor?

MR. MOORE: I object to that. It is leading.

A (By the Witness) Most of them that were sitting sat 

on the stools and we just picked them up and carried them out 

and put them in the wagons.

Q I see.

Do you recall what happened in the case of Miss Walker?

A I do.

Q What happened?

A We carried her out physically.

Q Carried her out physically?

A Physically, yes, sir.

MR. SPARKS: That's all the questions I have at this

time - 195



I tender in evidence that State's exhibit, the

photographs.

THE COURT: 

MR. MOORE: 

THE COURT: 

MR. MOORE: 

THE COURT: 

(Whereupon, 

evidence.)

Any objection to the pictures?

Without objection.

No objection?

No objection.

Let them be admitted without objection. 

State's Exhibit No. 4 was admitted into

******

RECROSS-EXAMINATION

BY MR. MOORE:

Q Captain Hamby, do you have with you a record of the 

arrests you made at the Krystal on the 13th of January, 1964?

A Do I have a record?

Q Yes, do you have records showing the arrests you made?

A I have my own individual notes here.

Q All right, does it show the reason for the arrests of 

these persons you have identified by photograph?

A This is just a list of the people.

THE COURT: I think what he is asking you is what

charge?

THE WITNESS: They were arrested on Code Section

26-3005, the Anti-trespass Law, on a warrant issued by

Judge Wofford
- 196 -



BY MR. MOORE:

Q Do you have any records to show their being arrested 

for any other violations of city ordinances or state law on the 

date in question?

A The day in question they were arrested on warrants 

issued by a Criminal Court judge is the only record.

Q And you arrested no one for a violation of a city 

ordinance committed in your presence, is that correct?

A No, because the greater of the crimes, we would have 

only sent them to the county jail on the greater of the crimes.

Q You could have made arrests for disorderly conduct, 

could you not?

A I could have.

Q Yes, sir. You had the authority to do that?

A Under the old disorderly conduct ordinance I would

say yes.

Q, But you made no cases for disorderly conduct, is 

that correct?

THE COURT: He testified he only made them for --

MR. MOORE: All right.

BY MR. MOORE:

Q Would throwing mustard and catsup on the floor be 

disorderly conduct?

THE COURT: It is a pretty broad statute, as I recall,

the disorderly conduct statute. I will let him answer the
- 197 -



question.

A (By the Witness) Yes, that would create a disorder. 

Hollering and singing and stomping and clapping and beating on 

the counters would have created, would have caused a disorder --

Q And you only --

A -- but

Q Excuse me.

A -- but at the time,the policy of the Department was

to operate on warrants. Therefore, let the owner take warrants, 

and we went by method of the Criminal Court of Fulton County.

Q That is the warrant for violation of State law, isn't 

that correct?

A That's correct.

Q A warrant was not required for a violation of a city 

ordinance, was it?

A No, it would not have been.

Q All right.

Was this lady that you have identified, young girl, rather, 

as Jackie Smith, is she also known as Annett Alexander?

A That I do not know.

Q You don't know about that?

A I couldn't answer that. The only thing I know is the

names that were given to us at the time of the arrests.

- 198 -



Q Was Sergeant Marler at the restaurant before you 

arrived?

A I believe he was there shortly, to the best of my 

knowledge, he got there shortly before I did.

Q You are positive he was there before --

A No, no. To the best of my knowledge Sergeant Marler

was there a few minutes before I arrived, or it is possible that 

we could have gone together, but I am of the opinion that he,

I sent him on and I finished up what I had to do before leaving 

the office to go up there.

Q Aind did Sergeant Marler leave the scene before you

left?

A No. We left together.

MR. MOORE: No other questions.

THE COURT: Any further questions?

Mil. SPARKS: I have nothing further.

(Whereupon, the witness was excused from the stand.)
******

THE COURT: Is that the last case? Is there anything

further?

MR. SPARKS: This is the last witness, as far as I am

concerned, in this case.

THE COURT: How about it, Mr. Moore?

- 199



MR. MOORE: We would like to put Sergeant Marler on.

We don't insist on him, if the Court would just take his 

testimony in the prior trial.

MR. SPARKS: Sergeant Marler is outside. His is now

Lieutenant Marler.

THE COURT: I mean, Captain Hamby can be excused?

MR. MOORE: Yes, sir.

THE COURT: You may be excused, Captain. Thank you.

MR. SPARKS: I have nothing further, Your Honor.

I think Lieutenant Marler's testimony would be 

cumulative, but he is here in case counsel wants to call 

him, or at least he was a minute ago.

MR. MOORE: We would like to call Lieutenant, now

Lieutenant Marler.

THE COURT: All right, call Lieutenant Marler.
* * * * * *

B. P. MARLER

called as a witness by the defendants, after having first 

been duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. MOORE:

Q, Lieutenant, you have been sworn, have you not?

A Yes, I have.

Q I want to talk to you about an incident back in

2 0 0



January, 1964, at the Krystal when you were a sergeant.

A Yes, sir.

Q Do you mind, for the purposes of the record, that I

call you Sergeant?

A Be fine.

Q All right.

Do you recall going to the Krystal restaurant on

January 13, 1964?
A Yes, I do.

Q What time did you arrive at the restaurant?

A It would have been shortly after 4:00 P. M. My tour

of duty started at 4:00. Probably about 4:15 or 4:20.

Q Sergeant Marler, when you arrived at the restaurant

was It open?

A Was it open?

Q Yes, sir.

A Yes, I believe it was.

Q Were there people outside the restaurant?

A People outside, yes.

Q And were there people inside?

A Yes.

Q Did you see the defendant, Mardon Walker?

A Yes, I remember her.

Q All right. Did you see some other Negroes who were

201



with her?

A Yes.

Q Who were present in the restaurant?

A Yes.

Q Gan you tell the Court what they were doing at that

time?

A They were just in the restaurant, in the Krystal 

restaurant.

Q VJere they peaceful?

A There was some noise, some disorder. Of course, you 

couldn't specify to which particular individual was causing a 

particular disturbance, but there was a particular amount of 

hassle and static or disburbance.

Q When you say "static''' you mean that the situation 

seemed to have been one that was a bit tense because of the 

racial implications involved in their being there in the 

restaurant?

A I think that would be a true statement.

Q, You don't mean they were yelling and cursing people?

A I didn't hear any yelling or cursing.

Q And they weren't singing when you came in the 

restaurant, were they?

A I don't recall any. I don't say that they weren't.

I do not remember any.
- 2 0 2  -



Q And no one was stomping his feet at the time you

came in?

A I don't remember this, no.

Q At this time you went in the restaurant there were

no napkins 

was there?

full of mustard and regurgitant vomit on the floor,

A This has been talked about. I cannot remember

seeing any of this. I was concerned with other things. I 

don't say that there was no such foreign matter there, but I 

didn't notice it.

Q You did not see it?

A I did not notice it.

Q Did you arrest everyone that was in the restaurant?

A No.

Q You arrested the people who were seated at the stools

A Not necessarily.

Q All right. You arrested Mardon Walker, who is a

member of the white race?

A Yes, she was arrested.

Q And you arrested a fellow by the name of Jack Heyman?

A Heyman.

Q And he is a member of the white race?

That's correct.

Q And you arrested a fellow by the name of Lewis Hurst,

is that correct?
- 203 -



A Yes, I remember that name

Q And he is a member of the white race, is that correct?

A I can't say* not from the name. I remember the name,

but I don't remember whether he is a Negro or white.

Q And I noticed -- strike that.

They introduced before the testimony -- strike that.

Before you came into court they introduced through the 

testimony of Captain Hamby by State's Exhibit No. 4, which is a 

series of photographs of persons arrested in the Krystal on 

January 24, 1964 -- pardon me, January 13* 1964. There is, on 

the back of the photograph, there is a notation of what they 

were arrested for and the disposition, isn't that correct?

A No. All I see is the name and their description by 

way of race and age and a date and another number, 26-3005. I 

don't know what this other number means.

Q Do you see on the photographs any of the --

MR. SPARKS: Please the Court, I hate to object, but

the thing speaks for itself. He is just asking him

something about that which is already there. It is in 

evidence.

BY MR. MOORE:

Q. Is there a notation?

A I do understand these numbers nowr. This is 26-3005, 

the Georgia Anti-trespass Law.

- 204



for.

MR. MOORE: All right, sir.

BY MR. MOORE:

Q Did you arrest any of the persons whose photographs 

you have in your hand for any other offense other than that of 

violating the Trespass Statute?

A No, sir, not that I remember.

Q And did the manager of the restaurant, Mr. Drury,

make a request in your presence to them to leave the restaurant?

A Yes, he did.

Q And that was the sole basis for your arrest of them,

is that correct?

A If my memory serves me correctly, he made a blanket 

request to everyone present, and after this request was made 

Captain Hamby and myself indicated to those present that anyone 

that wanted to leave at that point was free to go, and then 

after that this was done Mr. Drury and myself and possibly 

Captain Hamby also went to each individual and made this request, 

and after this series of requests had been completed, then the 

door was not locked but secured by a police officer, and the 

arresting procedure began at that point.

Q And at the time you arrested these people, none of 

them were shaking mustard and catsup on the floor and throwing

THE COURT: No dispute that is what they were arrested

salt shakers around? - 205



A This has been discussed, but I have to say again I 

did not notice this. It could have happened, could have been 

there, but I did not personally notice it.

Q All right.

At that time, the moment you arrested them, there was no 

person who was singing and yelling and cursing people and 

things of that sort?

A I cannot recall any singing and yelling. There was 

some singing, I believe, if my memory again serves me, there was 

some singing as the arrests were being made.

Q. Right.

A As they were taken from the restaurant and placed in 

the patrol wagon, I believe some of the people remaining in the 

restaurant, after all of the requests had been made and the 

arresting process had began, I believe there were some people 

in the restaurant then singing.

Q Were they singing "We Shall Overcome"?

A That would be what they were singing, but I cannot say 

definitely they were singing even then. This has been some 

time ago.

MR. MOORE: No other questions.

THE COURT: Any questions?

MR. SPARKS: Nothing further.

- 20 6



Walker out?

THE WITNESS: I don't --yes. I assisted. There

was three of us that took her to the patrol wagon; yes, sir. 

THE COURT: Picked her up and carried her out?

THE WITNESS: Yes, sir. We had to carry her out.

THE COURT: Any further questions?

MR. SPARKS: Nothing further, Your Honor.

THE COURT: All right, sir, you may step down.

Thank you, sir.

(Whereupon, the witness was excused from the stand.)
******

THE COURT: Did you have to bodily carry Miss

THE COURT: Anything further, gentlemen?

MR. MOORE: Just some rebuttal by the defendant,

Mardon Walker.

THE COURT: Sir?

MR. MOORE: Just some rebuttal by the defendant,

Mardon Walker.

THE COURT: All right, sir.

MR. MOORE: Miss Walker, would you take the stand.
******

MARDON R. WALKER

having been recalled to the stand, testified further 

as follows:
- 2 0 7  -



REDIRECT EXAMINATION

BY MR. MOORE:

Q. Miss Walker, you have heard the testimony of 

Mr. Drury and the testimony of Mr. Quinn and of Captain Hamby 

and of Lieutenant Marler, have you not?

A Yes, I have.

Q You have heard the questions and the answers, is 

that correct?

A Yes, I did.

Q I believe in the testimony of Mr. Quinn and perhaps 

in the testimony of Mr. Drury there was some evidence or 

testimony that you went limp on the floor. Do you remember 

that?

A There was nobody that laid down on the floor. I 

didn't --

THE COURT: I believe there was testimony, Mr. Moore,

that she sat in a chair and wouldn't move, and they picked 

her up.

MR. MOORE: I wanted to establish there was no one

else w’ho went limp on the floor.

BY MR. MOORE:

Q Is that correct?

A That's correct.

Q Can you tell the Court the circumstances that caused

- 2 0 8



you to remain on your stool in the restaurant rather than to 

walk out?

A Well, there were thirteen people being arrested, so 

that is a goodly number, and it was a fairly small place. We 

were on the stools, and we were being -- in other words, we 

didn't just all go out at once. They were escorting small 

groups of people out of the door in an orderly way. I was in the 

very back of the restaurant, so I was one of the last people to 

be escorted out under arrest.

There was a young, frail-looking white boy I had never met 

before sitting next to me on the stool. We were waiting our 

turn to be escorted out, and I had every intention of just 

walking off. Then these police officers came up to this boy 

and just yanked him up and grabbed him under the shoulders, and 

then Captain Hamby said, "Oh, no, don't get him under the 

shoulders, get him by the feet, just the feet." And so they let 

go of his shoulders and they took his feet and dragged him out 

with his head just bumping along the cement and the --

Q You mean the tile floor?

A The tile and the cement outside and the step.

I was really scared. And then the police officers came over 

to me, and Captain Hamby said something like, "Now, you just 

better get up and walk out of here." And I just sat there

- 209



because after what they did to this boy, I just didn't want to 

be intimidated like that.

Q And did they carry you out at that time?

A So they picked me up and carried me out.

Q, Did you physically resist or struggle with them?

A No, in no way.

MR. MOORE: No other questions.

THE COURT: Any questions?

MR. SPARKS: Just a moment.

MR. MOORE: One other question.

BY MR. MOORE:

Q Miss Walker, did you ask for service in the 

restaurant?

A Yes, I did ask for service.

Q Were you served?

A I was not served.
******

RECROSS EXAMINATION

BY MR. SPARKS:

Q Miss Walker, did you at any time when you were being 

tried in Fulton Superior Court testify to this incident about 

a boy being dragged out and his head bumping on the pavement?

A I think so, but I am not sure.

Q Can you find it in your testimony?

2 1 0



THE COURT: She can't find it. She said she didn't

know whether she did or not.

3Y MR. SPARKS:

Q That is the first time you have ever mentioned it?

A I have mentioned it on many occasions, and the SNCC

office has an affidavit to that -- you know, I explained the 

incident and had it notarized, I believe, so that record should 

be available.

Q Didn't you testify at the beginning of this trial 

that everybody walked out peacefully at the beginning of the 

trial on this particular incident here in court? Didn't you 

testify that everybody left peacefully?

A I don't think I did.

THE COURT: Have you got the record?

That is all right. You can dispense with it. It 

will be in the record.

MR. SPARKS: I have no further questions.

MR. MOORE: No further questions.

THE COURT: You may step down.

(Whereupon, the witness was excused from the stand.)
******



C E R T I F I C A T E

UNITED STATES OF AMERICA 
NORTHERN DISTRICT OF GEORGIA

I, RUFUS L, HIXON, Official Court Reporter of the United 
States District Court for the Northern District of Georgia, 
do hereby certify that the foregoing 567 pages constitute a 
true transcript of proceedings had before the said Court held 
in the City of Atlanta, Georgia, in the matter therein stated.

In testimony whereof I hereunto set my hand on this the 
27th day of November, 1967,

/s/ Rufus L, Hlxon________ _
Rufus L. Hixon, Official Court 
Reporter, Northern District of 
Georgia,

212



FILED IN CLERK'S OFFICE 
Apr. 6, lS6b

Y

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
________ ATLANTA DIVISION_____________

STATS OF GEORGIA )

-vs- ) CRIMINAL NO. 24701

WARDON R. WALKER and )
JAMES R. FORMAN NOTICE)

)
TO THE HONORABLE J. W. SIMMONS, CLERK OF THE SUPERIOR COURT OF 

FULTON COUNTY, GEORGIA AND HONORABLE ROY COWAN, DEPUTY CLERK IN 

THE CRIMINAL DIVISION OF SAID COURT:

You are hereby notified that on the 6th day of April, 1966, 

a petition for removal in the above-entitled case, the foregoing 

petition being a copy of the same, was filed in the United States 

District Court for the Northern District of Georgia, Atlanta 

Division.

This 6th day of April, 1966.

/s/ Howard Moore, Jr.________
Howard Moore, Jr.
859-1 HUNTER ST. , N. W. 
ATLANTA, GEORGIA 30314

ATTORNEY FOR PETITIONERS
- 213 -



(Title and Number Omitted)

PETITION FOR REMOVAL

1. Jurisdiction of this Court is invoked pursuant to Title 

28, United States Code, Section 1443(1) and (2). By this action, 

the petitioners seek a federal forum to protect their equal 

rights, privileges, and immunities secured by the First Amend­

ment, United States Constitution as made applicable to the states 

by the Fourteenth Amendment thereto, Fourteenth Amendment,

Article VI, Section 2, United States Constitution, Title 42, 

United States Code, Section 1981; and by Title II of the Civil 

Rights Act of 1964 (p. L. 88-352; Laws of 88th Cong. - 2nd Sess.).

2. Petitioner-defendant Mardon R. Walker is a white or 

Caucasian citizen of the United States, residing in the State

of Connecticut. At the time of the Incident for which the State 

of Georgia is threatening to prosecute, this petitioner was com­

pleting the first semester of the school year 1963-64 as an 

exchange student at Spelman College in Atlanta, Georgia. Spel- 

man College is and was a fully accredited four-year liberal arts 

college, predominantly attended by females of the Negro race. 

Towards the conclusion of the first semester, petitioner took 

part in several attempts by Negro citizens of Atlanta, Georgia 

to obtain and acquire equal access to places of public accommo­

dation within the City of Atlanta. On one such occasion, 

petitioner was arrested by members of the Atlanta Police



Department and charged with violating Title 26, Georgia Code 

Annotated, Section 3005. Petitioner was indicted and convicted 

for that offense in the Superior Court of Fulton County, Georgia 

and sentenced to serve eighteen months in jail and to pay a 

thousand dollars fine. From that conviction petitioner, while 

at liberty on an appeal bond in the amount of fifteen thousand 

dollars, unsuccessfully appealed to the Supreme Court of the 

State of Georgia and finally to the Supreme Court of the United 

States, where her conviction and sentence were reversed. Walker 

v. State, 381, U. S. 355 (1965).
3. Petitioner-defendant James Forman is a Negro citizen 

of the United States, residing in the State of Georgia. On or 

about January 25, 1964, petitioner was and presently is the Ex­

ecutive Secretary of the Student Nonviolent Coordinating Committee 

(hereinafter SNCC). SNCC is and was an unincorporated association 

of Negro and white citizens of the United States with its princi­

pal office and regular place of business in Atlanta, Fulton 

County, Georgia. The primary purpose and business of SNCC was 

and is the attainment of equal political, economic, social, edu­

cational, and cultural opportunities and advantages for all citi­

zens, including equal access to places of public accommodation.

4. On or about January 25, 1964, the practice of limiting 

and conditioning access to places of accommodation on the basis 

of race or color was prevalent in the City of Atlanta, Georgia.

- 215 -



Some places of public accommodations, however, had abandoned that 

practice in favor of a more liberal and progressive business 

image, conducive to attracting international, national and 

regional conventions and trade delegations.

5. On or about January 25, 1964, several Negro and white 

citizens unsuccessfully sought service and accommodation at Leb's 

Restaurant, owned and operated by Lebco, Incorporated, a business 

corporation organized under the laws of theState of Georgia. At 

that time, Leb's Restaurant limited and conditioned access and 

admission to its goods, services and advantages on the basis of 

race or color. Leb's Restaurant is a place of public accommoda­

tion which can accommodate more than one hundred patrons at one 

time. Said restaurant did and does serve and offer to serve food 

for consumption on the premises to interstate travelers. A sub­

stantial portion of the goods which it offers for consumption on 

the premises has and did move in interstate commerce.

6. Approximately twenty-two months later, on or about Nov­

ember 25, 1965, the Honorable Durwood T. Pye, Judge of the Su­

perior Court of Fulton County, Georgia ordered the Solicitor Gen­

eral of Fulton County to prepare an indictment against the peti­

tioners charging them with violating Title 26, Georgia Code An­

notated, Sections 5302, 8ll6, and 5501. The order specified the 

incident giving rise to the alleged charges, the material witness­

es to be brought before the Grand Jury, and cited the source of

- 216 -



material testimony given in a prior proceeding against petitioner 

Walker. A copy of said order is attached hereto as Exhibit "A".

7. Shortly thereafter, the Solicitor General procured a 

grand jury indictment against the petitioners in the manner and 

particulars specified in the order of November 25, 1965. Peti­

tioners' copy of said Indictment is attached hereto as Exhibit 

"B".
8. On December J, 1965, the Honorable Durwood T. Pye entered 

an order retaining said indictment for trial in the Superior 

Court of Fulton County and took exclusive jurisdiction of the 

case himself. A copy of said order is attached hereto as 

Exhibit "C".

9. The indictment charged petitioners with aiding and 

abetting unknown persons to enter Leb's Restaurant at Luckie and 

Forsyth Street in the City of Atlanta in a disorderly manner and 

damaging property belonging to Lebco, Incorporated. Petitioners 

themselves did not enter the restaurant and were not present 

when others are alleged to have entered said restaurant, or at 

the time of any or all of the acts set forth in the bill of 

indictment, if the same did in fact occur.

10. On information and belief, none of the persons alleged 

in the indictment to be unknown to the grand jury have ever been 

arrested or charged with committing any or all of the acts com­

plained of in the indictment. If such acts and conduct did in
- 217 -



fact occur, law-enforcement officials, who were present at the 

scene and in positions to observe, had ample opportunity to 

arrest and charge any person or persons engaging in or doing any 

or all of the acts set forth in the indictment.

11. The statutes of the State of Georgia upon whicb the 

above-mentioned indictment proceeded are unconstitutions 1 upon 

their face; in that, they fail to give petitioners adequate 

notice and warning that their belief in equal rights for all 

citizens and association with other citizens of the United 

States seeking to obtain equal access to a place or places of 

public accommodation without discrimination or segregation be­

cause of their race or color would constitute a violation of 

any or all of the statutes upon which the indictment wac laid 

in violation of the First and Fourteenth Amendments, Corstitu- 

tion of the United States, the due process of law and 1he 

equal protection of law clauses of the Fourteenth Amendment, 

Article VI, Section 2, cf the Constitution of the Unitec States, 

and Title II of the Civil Rights Act of 1964. Said statutes

are as follows: , , n - < ■ ■■■--
f t  " T  ~

"2o5302. (360 P. C.) 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

218 -



as for a misdemeanor. (Cobb, 811, Acts

1865-6, p. 233.)"

"26-8116. (78I P.G.) All other acts of

malicious mischief. - All other acts of 

willful and malicious mischief, in the 

injuring or destroying any other public 

or private property not herein enumerated, 

shall be misdemeanors. (Cobb, 825.)"

"26-5501. (P.C.) Punishment. All other 

offenses against the public peace, not 

herein provided for, shall be misdemeanors.

(Cobb, 813.)"

12. Said statutes as applied against the petitioners in­

fringe upon and deprive them of their equal rights of 

association, belief, speech, and equal access to places of 

public accommodation in violation of the First and Fourteenth 

Amendments, Constitution of the United States, and Title II 

of the Civil Rights Act of 1964.

13. Petitioners' indictment and prosecution are attempts 

by a certain governmental authority or authorities, under color 

of state law, to punish, coerce, harass, and intimidate the 

petitioners because of their associations with SNCC and their 

civil rights activities and an attempt to threaten, harass, 

intimidate, punish and coerce Negro and white citizens for

- 219 -



having, through interracial cooperation, procured and secured 

judicial, executive, and legislative vindication of their right 

to be free of segregation or discrimination because of their 

race or color in the exercise of their equal rights under the 

Constitution and laws of the United States.

14. For the reasons hereinbefore stated, petitioners were 

indicted and are now threatened with prosecution and punishment 

for acts done under color of authority derived from the laws of 

the United States providing for equal access to places cf public 

accommodation, including the right to associate with organi­

zations and persons seeking to acquire and enjoy equal access

to places of public accommodation as defined in Title 13 of the 

Civil Rights Act of 1964.

15. Petitioners are denied and/or cannot enforce in the 

Courts of the State of Georgia rights under the Constitution and 

laws of the United States providing for the equal rights of 

citizens; in that, among other things, petitioners' riglr t to 

trial by jury is effectively withheld and denied by Tit3e 59j 

Georgia Code Annotated, which requires the jury commissioners

of the several counties to select the names from tax digests, at 

the time the jurors who will be summoned to try petitiorers 

were drawn, were organized and maintained pursuant to Title 92, 

Georgia Cede Annotated, Section 6307 on the basis of race or 

color.
220



For the reasons set forth in paragraphs 6 , 7> and 6 above, 

the petitioners are further denied and/or cannot in the Superior 

Court of Fulton County, Georgia, enforce rights under tie 

Constitution of the United States providing for equal rights.

16. The case against petitioner Forman is scheduled for 

trial Thursday, April 7} 1966, before the Honorable Durvood T.

Fye in the Superior Court of Fulton County. On information and 

belief, the case against petitioner Walker has not been called 

for trial.

17. Petitioner James Forman is presently at liberty on 

bail in the amount of $500.00. Following return of the above- 

mentioned indictment against James R. Forman, a warrant was 

issued for the arrest of this petitioner. Petitioner Walker is 

presently at liberty in the State of Connecticut and will abide 

any order of this Court served upon her attorney of reccrd 

directed to her.

18. Since the cases or charges pending against the 

petitioners are criminal, bond with good and sufficient surety . 

is not required to be filed herewith.

WHEREFORE, in view of these facts, petitioners pray that:

(a) The aforesaid criminal indictment be removed from 

the Superior Court of Fulton County, Georgia to the Uni1ed States 

District Court for the Northern District of Georgia, Atlanta 

Division, for trial; - . ..
221



(b) This petition be filed pursuant to 28 U.S.C.,
Sections 1443 and 1446(a) (1958), and Lefton v. City of 
Hattiesburg. 333 F.2d 280 (5th Cir. 1964);

(c) The aforesaid criminal prosecutions stand so 
removed as provided for in Title 28, United States Code,
Section 1446(c) and (e);

(d) Jurisdiction be retained by this Court under
28 U.SoC., Section 1443 (1958), or in the alternative, petitioners 
be granted a full evidentiary hearing as soon as practicable 
as provided for in Rachel v, State of Georgia, 342 F.2d 336 
(5th Cir. 1965); Peacock v. City of Greenwood, 347 F„2d 679 
(5th Cir. 1965); Cox v. Louisiana, 374 F.2d 678 (5th Cir. 1965).

(e) The Court accord such further relief as is 
necessary and justified to protect the petitioners’ interests.

/s/ Howard Moore, Jr,______ _________
Howard Moore, Jr.
859-1/2 Hunter St., N.W.
Atlanta, Georgia 30314
ATTORNEY FOR PETITIONERS

222



IN THE SUPERIOR COURT OF FULTON COUNTY

ORDERED, that the Solicitor General prepare indictment 

against Mardon R. Walker and the person referred to as Mr. 

Forman, and as Forman, in the testimony delivered on the trial 

of the case of The State versus Mardon R. Walker, wherein she 

was charged with misdemeanor, Case Number 85028; that in said 

Indictment said Walker, said Forman, and such other persons as 

the evidence may indicate, be charged with the offense of mis­

demeanor in respect of the following alleged transaction, 

to wit:

That the accused persons, in said county, and on 

or about January 25, 1964, together with other persons, were 

motivated by the common intent to unlawfully disturb and dis­

rupt the operation of the restaurant business carried on in 

said county at said time by Lebco, Incorporated, doing business 

under the name of Leb's, and located on Luckie Street in the 

city of Atlanta; that pursuant to such common intent, about 

twenty-five or more of such persons did unlawfully enter and 

invade the premises of said Lebco, Incorporated, at said place, 

in a violent and tumultuous manner and, while therein, did 

unlawfully smash the legs of booths in said restaurant, and

FILED IN OFFICE THIS THE 

26 Day of Nov. 1965.

/s/ Lillian P. Jones - Deputy Clerk EXHIBIT "A"

- 223



urinate in utensils; that said Walker and said Forman did aid.

abet, counsel, assist, direct, and command, the aforesaid acts 

of entering said premises in said violent and tumultuous manner, 
breaking the legs of booths and urinating in utensils. See,

Code, Section 26-5302, with reference to the offense of riot,

Code, Section 26-8116, with reference to the offense of malicious 

mischief, and Code, Section 26-5501, with reference to all of­

fenses against the public peace not specifically provided for.

See, the testimony delivered on the trial of the Plea in 

Abatement, filed by Mardon R. Walker in the case above referred 

to, particularly the testimony of William Kontoes.

ORDERED, further, that the Solicitor General prepare 

indictment against Mardon R. Walker, charging her with the offense 

of misdeameanor, in that she and fifteen other persons, alleged­

ly acting with common intent and concert of action, allegedly 

did, on or about the thirteenth day of January, 1964, in said 

county, in violent and tumultuous manner, enter and invade the 
premises of the Krystal Company, a place of business in the 

city of Atlanta, said county, with intent to disturb and dis­

rupt the operation of said business and, while on said premises 

and pursuant to such intent, did spit on the floor, vomit on 

the floor, engage in loud talking and banging on the counter, 

and did squirt mustard and catsup on napkins. See, Code,

Section 26-5302.

- 224 -



See, testimony of H. E. Quinn, as delivered upon the

trial before the jury of the aforesaid case against Mardon R. 

Walker.

ORDERED, further, that said indictments be laid 

before the Grand Jury now in session, and that William Kontoes 

and H. E. Quinn be subpoenaed to testify on said indictments, 

and that their testimony be laid before said Grand Jury.

ORDERED, further,that this order be filed by the 

clerk and entered upon the minutes of the Court.

This 24th day of November, 1965.

/s/ Durwood T. Pye___________
Durwood T. Pye 
Judge, Superior Court 
Atlanta Judicial Circuit

MINUTES 49 PAGE 106.

- 225 -



STATE OF GEORGIA, COUNTY OF FULTON.

IN THE SUPERIOR C O U R T  O F  SAID C O U N TY .

THE G R A N D  JU RO R S soloctod, chosen and sworn for the County of Fulton, to-wit:

I . ............................................ ........................................ .................... , Foreman

I a.*....... ... ..........
in the name and behalf of the citizens of Georgia, charge and accuse

................ -... MAROON R, WALKER •nd - JAMSS Rv F O R m » ..................
with the offense of:—

... .... -.... ................ MISDEMEANOR................................ ....
for that said accused, in the County of Fulton and State of Georgia, on the

............ 25 th .............day of.....January....................• 19 64
did wilfully, maliciously, violently, tumultuously, and unlawfully, together

with other persons, who axe to the Grand Jurors unknown, numbering In excest
of fifteen persons, said accused and said other unknown persons being motive

by the common intent and purpose to unlawfully disturb and disrupt the opera:
ion of the restaurant business carried on in said county at said time by Leb<

Incorporated, doing business under the name of Leb'a, and located on the cor:

of Luckie Street and Forsyth Street in the city of Atlanta, enter and invade
the premises of the said Lebco, Incorporated, at said place, in a violent am

tumultuous manner, and while therein, did unlawfully smash and break the leg:
of booths, and urinate in pots, glasses, utensils and equipment in said

restaurant; that the said WALKER and the said FGRMAN, being present on the
outside of said premises and restaurant business, at said time and place, die
aid, ebet, counsel, assist, direct, and command said unknown persons to cased
the aforesaid acts of entering said premises in said violent and tumultuous

manner, smashing and breaking the legs of said booths, and urinating in said

pots, glasses, utensils and equipment therein; thereby injuring end destroyir
the property of the said Lebco, Incorporated; -

contrary to the laws of said State, the good order, peace and dignity thereof.

LE W IS R  SLATON J R  T. BOYD, Solicitor General.

Special Presentment.

EXHIBIT "B"

-  226 
r*

i t I
• ' ' 1 ' [

; . ' >



o
r

 o

Sol's No...

i
W

ii
WjiIi
i
u

Clerk'* N © .£ £ .£ £ 2

FULTON SUPERIOR CO URT

THE STATE

m . . .

E . FOittttK

...MEBS&EAUSL.-....

day of.

£

£

Bill

19— .
..Foreman

waives copy of indictment, list of witnesses, full panel, 

formal arraignment, and pleads............. .......... ........ ..........

.....Sol. Gen'I.

Deft's. Atty.

i
oj
CM
I

» >  * • * -



THE STATE CASE NUMBER 88567

VERSUS INDICTMENT FOR MISDEMEANOR
TRUE BILL RETURNED DECEMBER 3, 1965

MARDON R. VJALKER AND 
JAMES R. FORMAN ■ FULTON SUPERIOR COURT

O R D E R

Ordered, that the foregoing indictment be retained 

in this Court for trial.

Further ordered, that the undersigned Judge take 

exclusive jurisdiction of said case.

This 7 day of December, 1965.

/s/ Durwood T, Pye
JUDGE, SUPERIOR COURT 
ATLANTA JUDICIAL CIRCUIT

EXHIBIT "C"

FILED IN OFFICE, THIS THE

7 day of Dec. 1965 Minutes 49 Page 114

/s/ Charlotte W. Stomcy 
Deputy Clerk

228



VERIFICATION

I, HOWARD MOORE, JR., of lawful age, first being duly 

sworn upon oath, depose and say:

That I am a member of the Bar of the State of Georgia;

That I am the duly authorized attorney for Mardon R. 

Walker;

That I have read the annexed petition and know the 

contents thereof;

That I know of my personal knowledge that all facts stated 

therein are true except such as are stated on information and 

belief;

That as to subject matter I believe the petition to be 

true; and

That I sign this verification on behalf of this petitioner 

because the annexed petition deals chiefly with matters of law 

and legal inference to be drawn from facts alleged and/or of 

which I as an attorney have more knowledge than the petitioner, 

and for the further reason that time is of the essence.

,/s/ Howard Moore, Jr._____________
HOWARD MOORE, JR.

Sworn to and subscribed before me,

this 6th day of April, i960.

/s/ Alice M. Lewis________________
NOTARY PUBLIC

-  2 2 9  -



V E R I F I C A T I O N

STATE OF GEORGIA 

COUNTY OF FULTON

PERSONALLY APPEARED before the undersigned 

authority, duly authorized by law to administer oaths,

_________ JAMES FORMAN__________________________________ , who,

after being duly sworn, deposes and says that he is the 

petitioner in the above and foregoing Removal Petition, 

and that the facts alleged therein are true.

/s/ James Forman 
JAMES FORMAN

Subscribed and sworn to before me,

this 6th day of April, 1966.
/s/ Alice M. Lewis________________

NOTARY PUBLIC

230 -



C E R T I F I C A T E  OF SERV I C E

I hereby certify that I have served a copy of the Petition 

for Removal in the case of the State of Georgia v. Mardon R. 

Walker and James R. Forman, United States District Court for 

the Northern District of Georgia, Atlanta Division, upon the 

Clerk of the Superior Court of Fulton County, Georgia, and upon 

the Honorable Lewis Slaton, Solicitor General, of the Superior 

Court of Fulton County, Georgia, by personally serving a copy of 

same upon the said Clerk and Solicitor General at their 

respective offices, in the Fulton County Courthouse Building, 

Atlanta, Georgia, on April 5, 1966.

/s/ Howard Moore, Jr.__________
HOWARD MOORE, JR.

ATTORNEY FOR PETITIONERS

231 -



(Title and Number Omitted)

MOTION TO REMAND TO FULTON SUPERIOR COURT

Now comes the State of Georgia, acting by and through 

Lewis R. Slaton, Jr., Solicitor General, and J. Robert Sparks, 

Assistant Solicitor General, Atlanta Judicial Circuit, and 

respectfully moves this Court to remand the indictment against 

Mardon R. Walker and James R. Forman filed April 6, 1966, and 

numbered as shown in the caption above, to the Fulton Superior 

Court for trial or other disposition, on the ground that the 

allegations set forth in said Petition for Removal do not set 

out sufficient cause as a matter of law to authorize the removal 

of said criminal cases from Fulton Superior Court to this 

Honorable Court.

WHEREFORE, Movant prays that this Court issue an order 

remanding this case to Fulton Superior Court for trial or other 

disposition.

/s/ Lewis R. Slaton, Jr.________
Lewis R . Sla ton, Jr.,
Solicitor General A.J.C.

/s/ J. Robert Sparks____________
J. Robert Sparks 
Assistant Solicitor General,A T P  •f * • O • •

F I L E D  IN CLERK'S OFFICE
APR. 18, 1966

- 232 -



FILED IN CLERK'S OFFICE
APR. 25, 1966

(Title and Number Omitted)

MOTION TO STRIKE AND DISMISS MOTION 
OF THE STATE OF GEORGIA TO REMAND 
TO FULTON SUPERIOR COURT____________

MARDON R. WALKER and JAMES R. FORMAN, defendants - 

petitioners in the above-captioned petition for removal, 

move this Court for an order striking and dismissing the 

motion filed on behalf of the State of Georgia ro remand 

on the grounds of its legal insufficiency. Said motion 

constitutes a mere conclusion of the pleader and is wholly 

devoid of any allegations which set forth how and by what 

authority the allegations of the removal petition fail to 

"set out sufficient cause as a matter of law to authorize" 

removal.

WHEREFORE, defendants-petitioners move this Court for 

an order striking and dismissing the motion to remand.

/s/ Howax d Moore, Jr.________
HOWARD MOORE, JR.
8595- Hunter St., N. W. 
Atlanta, Georgia 3031^-

ATTORNEY FOR PETITIONERS

- 233 -



IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION

STATE OF GEORGIA 

v.

THOMAS RACHEL, et al

5
5
5 Case No. 23869
5
5

STATE OF GEORGIA 

v.

RAFAEL BENTHAM, et al

STATE OF GEORGIA 

v.

PRATHIA LAURA ANN HALL and
ANNETT ALEXANDER, a/k/a/
Jackie Smith

STATE OF GEORGIA 

v.

STEPHEN G. JONES, et al

STATE OF GEORGIA 

v.

JANICE MELITA MOHR

STATE OF GEORGIA 

v.

MARDON R. WALKER and
JAMES R. FORMAN

5
5
} Case No. 23875
5
5

5
5
} Case No. 23886
5
5
5
5

5
5
{ Case No. 23895
5
5

i
5
jj Case No. 23899
5
5

5
5
5 Case No. 24701
5
5
5

234  -



STATE OF GEORGIA

v.

MARDON R. WALKER

5
5
5
5

Case No. 24705

FILED IN CLERK'S OFFICE 

AUG. 24, 1966

MOTION TO REMAND TO FULTON SUPERIOR COURT

Now comes the State of Georgia, acting by and through 

Lewis R. Slaton, Jr., Solicitor General, and Paul Ginsberg and 

J. Robert Sparks, Assistant Solicitors General, for the Atlanta 

Judicial Circuit, Atlanta, Georgia, and respectfully shows:

1. That the defendants named in Exhibit A hereto attached 

and made a part hereof were indicted by the Grand Jury of Fulton 

County, Georgia, and charged with violating Title 26, Georgia 

Code Section 3005* under the indictment numbers and premises 

where said offense occurred all as shown in said Exhibit A.

2. That on or about February 17, 1964, after a trial 

calendar had been set for the trials in the Fulton Superior 

Court, Atlanta Judicial Circuit, Georgia, and tfille one trial 

was in progress, certain of the defendants filed in this Court 

a Petition for Removal of said cases from the Fulton Superior 

Court to this Court, under the name, number and style in this

- 235 -



Court, as shown in Exhibit B, hereto attached and made a 

part hereof.

3. That the Petition for Removal filed by Thomas Rachel 

and others, being Case No. 23869, in this Court and more fully 

set forth in Exhibit B hereto attached, was not granted and 

before the State of Georgia had time to file its response 

thereto, this Court, on its own Motion, ~?fused to grant re­

moval of said case No. 23869, and same were remanded to the 

Fulton Superior Court by Order of His Honor United States 

District Court Judge Sloan.

4. Whereupon, the aforesaid Remand Order of Court of the 

Honorable United States Judge Sloan was thereafter superseded 

by the United States Court of Appeals for the Fifth Circuit, 

which Court thereafter entered an Order and Opinion reversing 

that of Judge Sloan, which Order and Opinion of said Circuit 

Court of Appeals was thereafter reviewed on a writ of certiorari 

by the Supreme Court of the United States, which made rulings 

contrary to that of said Fifth Circuit Court of Appeals, all

as set forth in the decision of the Supreme Court of the United 

States in Case Number 147, October Term, 1965* entitled, State 

of Georgia, Petitioner, versus Thomas Rachel, et al.

5. That certain of the named defendants as set forth in 

Exhibit B hereto attached and made a part hereof, filed

- 236 -



Petitions for Removal of said indictments of the Pulton 

Superior Court* to this Court* all as shown in the caption 

and more detailed as to names; case numbers in the Fulton 

Superior Court; case numbers in this Court; date of the 

offense; and place where the offense occurred as alleged in 

said indictments* as more fully set forth in both Exhibits A 

and B hereto attached and made a part hereof.

6. That the State of Georgia now respectfully moves this 

Court to remand all the indictments against said named defendants 

as shown in the caption and in Exhibit A hereto attached* to the 

Fulton Superior Court for trial or other disposition* on the 

grounds that the allegations set forth in said Petitions for 

Removal* aforementioned* do not set out sufficient cause as a 

matter of law, to authorize the removal of said criminal cases 

from the Fulton Superior Court to this Honorable Court.

7. That heretofore this Honorable Court did issue restrain­

ing orders and injunctions* restraining and enjoining the 

Solicitor General of the Atlanta Judicial Circuit* Georgia,

from proceeding with trial of said cases aforesaid* in the 

Fulton Superior Court* Georgia* and also enjoined and restrained 

the Sheriff of Fulton County* Georgia* from acting in said 

cases in the Fulton Superior Court* which restraining orders 

and injunctions should now be vacated and set aside.

- 237 -



WHEREFORE, Movant prays:

1. That this Honorable Court issue an Order, remanding 

said cases shown in Exhibits A and B to the Fulton Superior 

Court for trial or other disposition; and

2. That this Honorable Court vacate and dissolve any 

and all restraining orders and injunctions heretofore issued 

by this Court against the Solicitor General of the Atlanta 

Jucicial Circuit, Georgia, and the Sheriff of Fulton County, 

Georgia, in the above entitled cases and all other similar 

cases now before this Honorable Court.

Lewis R. Slaton, Jr., Solicitor 
General,
A.J.C., Georgia

J, Robert Sparks, Assistant 
Solicitor General, A.J.C., Georgia

FILED IN CLERK'S OFFICE 
June A, 1968

Paul Ginsberg, Assistant 
Solicitor General, A.J.C., 
Georgia

- 238 -



DEFENDANTS' REQUESTS F O R  ADMISSIONS

Petitioners, in each of the above-numbered actions, 

request the State of Georgia, respondent, to make the following 

admissions for the purpose of these removal proceedings only 

and subject to all pertinent objections to admissibility 

which may be interposed at the trial, namely, that each of the 

following statements is true.

1. Davis Brothers, Incorporated, located on Lucbie 

Street, Atlanta, Fulton County, Georgia, was on May 1, 2, 4, 

1963, and still is, a privately owned restaurant open to the 

general public.

2. Davis Brothers, Incorporated, did and does serve food 

for consumption on the premises, and a substantial portion of 

such food has moved in commerce as that term is defined by 

Title II of "The Civil Rights Act of 1964."

3. Davis Brothers, Incorporated, does and did in May of 

1963  ̂ serve and offer to serve interstate travelers.

4. The discrimination or segregation, based upon race or 

color, practiced at Davis Brothers, Incorporated in May of 1963 

was supported by state action as that term is defined in 

Section 201(d) of Title II of "The Civil Rights Act of 1964."

5. Davis House No. 3, Inc., d/b/a Davis Fine Food 

Cafeteria, located on Marietta Street, Atlanta, Georgia, was,

- 239 -



on April 30, 1963* and May 4, 1963* and still is, a privately 

owned cafeteria-styled restaurant open to the general public.

6. Davis House No. 3* Inc., d/b/a Davis Fine Food 

Cafeteria, did and does serve food for consumption on the 

premises, and a substantial portion of such food has moved

in commerce as that term is defined in Title II of "The Civil 

Rights Act of 1964."

7. Davis House, No. 3* d/b/a Davis Find Food Cafeteria,

on April 30, 1963 and May 4, 1963, did serve and offer to

serve interstate travelers.

8. The discrimination or segregation, based upon race or 

color, practiced at Davis House No. 3* Inc., d/b/a Davis Fine 

Food Cafeteria, in April and May of 1963, was supported by 

state action as that term is defined in Section 201(d) of 

Title II of "The Civil Rights Act of 1964."

9. George's Fine Food, located at 66 Forsyth Street,

Atlanta, Georgia, was on May 4, 1963, and still is a privately

owned restaurant open to the general public.

10. George's Fine Food did and does serve food for con­

sumption on the premises, and a substantial portion of such 

food has moved in commerce as that term is defined by Title II 

of "The Civil Rights Act of 1964."

11. George's Fine Food does, and did on May 4, 1963,

- 240



serve and offer to serve interstate travelers.

12. The discrimination or segregation, based upon race or 

color, practiced at George's Fine Food in May of 1963 was 

supported by state action as that term was defined in Section 

201(d) of Title II of "The Civil Rights Act of 1964."

13. H & G Hotel Corporation, d/b/a Henry Grady Hotel, 

located on Peachtree Street, Atlanta, Georgia, is a hotel 

establishment which provides lodging to transient guests and 

is located in a building which contains more than five rooms 

for rent or hire.

14. The Henry Grady Hotel is an establishment open to the 

general public built on real estate owned by the State of Georgia 

but leased for a term of years.

15. The discrimination or segregation, based upon race or 

coloijj practiced at the Henry Grady Hotel on May 13, 1963* was 

and is supported by state action as defined in Section 201(d) 

of Title II of "The Civil Rights Act of 1964."

16. The Heart of Atlanta located on Courtland Street in 

\tlanta, Georgia is a hotel or motel establishment which pro­

bes lodging to transient guests and is located in buildings

. ch contain more than five rooms for rent or hire.

17. The Heart of Atlanta leases certain space located in 

its establishment on Courtland Street to the Interstate Host, 

Incorporated in which the lessee operates the Host Restaurant, 

open to the general public.
- 241 -



18. The restaurant operated by the Interstate Host, 

Incorporated, on January 11, 1964 at the Heart of Atlanta, 

did and does serve food for consumption on the premises, and 

a substantial portion of such food has moved in commerce as 

that term is defined in Title II of "The Civil Rights Act of 

1964."

19. The Host Restaurant does and did, in January, 1964, 

serve and offer to serve interstate travelers.

20. The discrimination or segregation, based upon race or 

color, practiced at the Host Restaurant on January 11, 1964 was 

and is supported by state action as defined in Section 201(d) 

of Title II of "The Civil Rights Act of 1964."

21. On January 11, 1964, Morton Rolleston, Jr., was 

President of the Heart of Atlanta and was neither a director, 

officer, agent, or employee of the Interstate Host, Incorporated, 

operator of the Host Restaurant.

22. Lebco, Inc., d/b/a Leb's, located at Forsyth and 

Luckie Streets, Atlanta, Georgia, was in May, June, and July,

1963 and January 1964 and still is, a privately owned restaurant 

open to the general public.

23. Lebco, Inc., d/b/a Leb's, did and does serve food for 

consumption on the premises, and a substantial portion of such 

food has moved in commerce as that term is defined in Title II 

of "The Civil Rights Act of 1964."

-  2H2 -



24. Lebco, Inc., d/b/a Leb's, did and does serve and 

offer to serve interstate travelers.

25. The discrimination or segregation, based upon race 

or color, practiced by Lebco, Inc., is and was supported by 

state action as that term is defined in Section 201(d) of 

"The Civil Rights Act of 1964."

26. Little Italy, located on Carnegie Way, Atlanta, 

Georgia, was in May, 1963* and still is a privately owned 

restaurant open to the general public.

27. Little Italy is located across the street from the 

American Motel, the Greyhound Bus Station, and the Trailways 

Bus Station in the City of Atlanta, Georgia.

28. Ship Ahoy was located on Luckie Street, Atlanta, 

Georgia in April and May of 1963 and was a privately owned 

restaurant open to the general public.

29. Ship Ahoy did serve food for consumption on the 

premises, and a substantial portion of such food had moved in 

commerce as that term is defined in Title II of "The Civil 

Rights Act of 1964. "

30. Ship Ahoy did serve and offer to serve interstate 

travelers.

31. The discrimination or segregation, based upon race 

or color, practiced by Ship Ahoy was supported by state action 

as that term is defined in Section 201(d) of "The Civil Rights 

Act of 1964."
- 243 -



32. The Ship Ahoy is no longer engaged in the restaurant 

business at 95 Luckie Street, Atlanta, Georgia.

33. Little Italy did and does serve food for consumption 

on the premises, and a substantial portion of such food has 

moved in commerce as that term is defined in Title II of

"The Civil Rights Act of 1964."

34. Little Italy did and does serve and offer to serve 

interstate travelers.

The discrimination or segregation, based upon race 

or color, practiced by Little Italy is and was supported by 

state action as that term is defined in Section 201(d) of 

Title II of "The Civil Rights Act of 1964."

35. The Krystal Company, JO Peachtree, N.W., Atlanta, 
Georgia, was on January 13» 1964, and still is, a privately 

owned restaurant open to the general public.

36. The Krystal Company at the above location did and 

does serve food for consumption on the premises, and a sub­

stantial portion of such food has moved in commerce as that 

term is defined in Title II of "The Civil Rights Act of 1964."

37. The Krystal Company at the above location did and 

does serve and offer to serve interstate travelers.

38. The discrimination or segregation, based upon race 

or color, practiced by the Krystal Company at the above 

location is supported by state action as that term is defined
-  244  -



in Section 201(d) of Title II of "The Civil Rights Act of 

1964."

39. The management of Lebco, Inc., d/b/a Leb's, Little 

Italy, Shit- Ahoy, The Krystal Company, Davis House No. 3>

Davis Brothers, Inc., and George's Fine Foods, did on or after 

the enactment of "The Civil Rights Act of 1964" on July 2, 

1964, discontinue their practice of limiting and conditioning 

access to their establishment on the basis of race or color.

This 3rd day of October, 1966.

/s/ Howard Moore, Jr.________
HOV/ARD MOORE, JR.
8592 Hunter St., N. W. 
Atlanta, Georgia 30314

ATTORNEY FOR PETITIONERS

- 245 -



FILED IN CLERK'S OFFICE 
Nov. 23, 1966

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION

STATE OF GEORGIA )
)

-vs- ) CASE NO. 24701
)

MARDON R. WALKER AND )
JAMES R. FORMAN )

STATE OF GEORGIA )
)

-vs- ) CASE NO. 24705
)

MARDON R. WALKER )

MOTION OF PETITIONERS-DEFENDANTS FOR AN 
ORDER TAKING THEIR REQUESTS FOR ADMISSIONS 
OF FACTS AS ADMITTED OR, IN THE ALTERNATIVE,
FOR AN ORDER STRIKING THE PROSECUTION'S MOTIONS 
TO REMAND

Defendants move this Court for an order admitting the 

facts specified in their previously filed requests for ad­

missions, or, in the alternative, for an order striking the 

prosecution's motions to remand. As grounds therefor, 

defendants show:

1. On October 3> 1966, the defendants filed and 

served their requests for admissions upon the State of Georgia.

2. The State of Georgia did not within the time

allowed object to any or all of defendants' requests for
-  2H6 -



admissions.

3. The State of Georgia has not filed answers 

either admitting or denying the requests for admissions.

Neither has the State of Georgia applied for or obtained an 

enlargement of the time in which to respond.

4. The facts which the defendants seek to have the 

State of Georgia admit or deny are material and relevant to 

these proceedings. The failure of the State of Georgia to 

respond within the time allowed has prejudiced and continues to 

prejudice the defendants in the preparation of their cases. 

Defendants incorporate herein by reference their requests for 

admissions filed and served October 3* 1966.

WHEREFORE, defendants move the Court for an order taking 

the requests for admissions as admitted, or, in the alternative, 

for an order striking and dismissing each of the motions of the 

State of Georgia to remand.

/s/ Howard Moore, Jr._________
HOWARD MOORE, JR.
859! Hunter Street, N. W. 
Atlanta, Georgia 30314

ATTORNEY FOR PETITIONERS- 
DEFENDANTS

- 247 -



FILED IN CLERK'S OFFICE
Dec. 12, 1966

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

STATE OF GEORGIA )
)
)
)
)

vs. CRIMINAL NO. 24701

MARDON R. WALKER and
JAMES R. FORMAN )

STATS OF GEORGIA )
)
)
)
)

vs. CRIMINAL NO. 24705

MARDON R. WALKER

The petitioners for removal, defendants in the State 

Court, have moved this Court for an order taking their 

requests for admissions, thirty-nine in number, as 

admitted. On October 3, 1966, these defendants filed and 

served their requests for admissions upon the State of 

Georgia. The State of Georgia has not filed with this 

Court answers, objections, nor applied for nor obtained 

an enlargement of time in which to respond. The facts 

which defendants seek to have the State of Georgia either 

admit or deny are relevant to the issues in these pro­

ceedings .

2 4 8  -



The State of Georgia having failed to comply 
with the provisions of Rule 36, Federal Rules of Criminal 
Procedure, the facts set forth in the petitioners' requests 
for admissions for the purpose of these cases are deemed 
admitted.

IT IS SO ORDERED.
This the 9th day of December, 1966.

/s/ Lewis R, Morgan____________
LEWIS R. MORGAN
United States District Judge

FILED IN CLERK'S OFFICE
AND A TRUE COPY CERTIFIED, THIS
JUNE 4, 1968

Claude L. Goza, Clerk 
Deputy Clerk

- 2^9 -



Nov/ comes the State of Georgia by and through 
its Solicitor General of the Atlanta Judicial Circuit,
Lewis R. Slaton, Jr., and Paul Ginsberg, Assistant Solicitor 
General and J. Robert Sparks, Assistant Solicitor General, 
and files this Response to the Defendants' Request of 
Admissions and respectfully shows:

1. Respondents, for the purpose of the removal 
proceedings only in the aforesaid captioned cases, reserving 
all rights to which they may be entitled, answer said requests 
for admissions as follows:

(a) Respondents admit Paragraphs 1, 2, 3, 5, 6,
7 , 9, 1 0 , 1 1 , 13, 14, 16, 17, 18 , 19, 2 1, 2 2, 23, 24, 26, 2 7, 
28, 29, 30, 32, 33, 35, 36 and 37.

(b) With regard tc paragraphs 4, 8, 12, 1 5 , 20, 
2 5, 3 1, 38 and 39, respondents deny same in the language in 
which same is written. However, respondents admit that the 
places of business named in said paragraphs would be covered 
by the Civil Rights Act of 1964.

(c) With regard to paragraph 34, respondents 
admit that "Little Italy" did and does serve interstate 
travelers, but deny the remainder of said paragraph in 
the language in which it is written; however, respondents 
admit that said place of business would be covered by the 
Civil Rights Act of 1964.

250 -



This the 8th day of December, 1966

/s/ Lewis R. Slaton, Jr.___________
LEWIS R. SLATON, JR.,. Solicitor General 

Atlanta Judicial Circuit, Ga.

/s/ J. Robert Sparks_______________
J. ROBERT SPARKS, Assistant Solicitor 
General, Atlanta Judicial Circuit, Ga.

/s/ Paul Ginsberg______
PAUL GINSBERG, Assistant Solicitor 
General, Atlanta Judicial Circuit, Ga.

FILED IN CLERK'S OFFICE

AND A TRUE COPY CERTIFIED, THIS

June 4, 1968

Claude L. Goza, Clerk

By: Deputy Clerk

251



MOTION BY STATE OF GEORGIA TO SST ASIDE
ORDER OF COURT DATED DECEMBER 9, 1966,

ADMITTING PETITIONERS* REQUEST FOR ADMISSIONS

Now comes the State of Georgia by and through the 

Solicitor General of the Atlanta Judicial Circuit, Lewis R. 

Slaton, Jr., and Paul Ginsberg, Assistant Solicitor General, 

and J. Robert Sparks, Assistant Solicitor General, and files 

this Motion to Set Aside the Order of Court dated December 9, 

1966, issued by the Honorable Lewis R. Morgan, United States 

District Judge for the Northern District of Georgia, and for 

such respectfully shows:

1. Movants show that heretofore on or about October 

3, 1966, the named defendants by and through their attorney

at law served upon Movants certain Request for Admissions 

in the within styled cases.

2. Movants show that a response was prepared 

thereto and within the time allowed by law it was the intention 

of Movants to file same with the Court and serve same upon 

defendants' attorney.

3. However, through inadvertence the said response 

of Movants was not mailed out by Movants’ secretary, but was 

placed back in the file and put in the file cabinet.

4. Thereafter Movants received notice of the in­

tentions of the defendants that they were bringing a Motion for 

an Order taking their request for admission of facts as ad-

- 252 -



mitted, but said information was not called to the attention 

of the Movants' and it was then that Movants realized that 

said response to defendants' request for admissions had not 

been served on the Movants and sent to this Honorable Court. 

Thereupon service was made of such response to defendants' 

attorney with the original being signed in this Court.

5. Movants show that an Order of Court dated 

December 9, and Movants' filing of their response to defendants' 

request for admissions, crossed in the mail.

6 . Movants respectfully show that it was the 

intention of Movants to file the aforesaid response, but due 

to pressure of business and being actually engaged in prosecu­

tion of felonies for the State of Georgia, misunderstanding 

the secretary as to the mailing of said response and said 

response having been inadvertently placed in the file and

put back in the filing cabinet and that because of said 

facts Movants now file this Motion to seek to set aside the 

aforesaid Order of Court dated December 9 > 1966, by the 

Honorable Lewis R. Morgan.

WHEREFORE, Movants move to show cause why the Order of 

Court dated December 9> 1966, by the Honorable Lewis R. Morgan, 

United States District Judge for the Northern District of 

Georgia, should not be set aside and the response to the

253 -



defendants' request for admissions be allowed and ordered 

filed as part of the pleadings in this case.

/s/ Lewis R. Slaton__________________
LEWIS R. SLATON, SOLICITOR GENERAL 

ATLANTA JUDICIAL CIRCUIT

/s/ Paul Ginsberg____________________
PAUL GINSBERG, ASST. SOLICITOR GENERAL

/s/ J. Robert Sparks__________________
J. ROBERT SPARKS, ASST. SOLICITOR

GENERAL

FILED IN CLERK'S OFFICE 
JUN 4, 1968

ORDER OF COURT

The foregoing Motion having been presented, let 

the same be filed.

Let the defendants show cause on the 13th day

of January, 1967, at 11:00 o'clock A.M., why the prayers

and petitions should not be granted.

This the 20th day of December, 1966.

/s/ Lewis R. Morgan_________________
LEWIS R. MORGAN

UNITED STATES DISTRICT JUDGE FOR THE 
NORTHERN DISTRICT OF GEORGIA

FILED IN CLERK'S OFFICE
JUNE 4, 1968 FILED IN CLERK'S OFFICE

Claude L. Goza, Clerk DEC. 20, 1966
Claude L. Goza, Clerk

- 25^ -



FILED IN OPEN COURT 
SEPT. 25, 1967

(Title and Number Omitted)

AMENDMENT

Mardon R. Walker and James Forman, petitioners - 

defendants in the above-entitled petition for removal, 

amend their previously filed petition by striking paragraph 

15 in its entirety and substitute therefor the following:

(15) Petitioners' rights to be free of punishment, 

coercion, and intimidation for having exercised or having 

attempted to exercise rights, privileges, and immunities 

secured by Title II of the Civil Rights Act of 1964 by the 

enforcement of the judgment rendered in Walker v. State,

381 U.S. 355 (1965) are denied and withheld by the mere 

pendency of the indictments and proceedings which are 

attached hereto as Exhibits A and C, respectively.

For the reasons set forth in paragraphs 6, 7, and 8 

above, the petitioners are further denied and/or cannot in 

the Superior Court of Fulton County, Georgia, enforce rights 

under the Constitution of the United States providing for 

equal rights.

- 255 -



WHEREFORE, petitioners-defendants pray that this 

their amendment be allowed and ordered filed.

This 25th day of September, 1967*

Respectfully submitted,

/s/ Howard Moore, Jr.___________
HOWARD MOORE, JR.
859| Hunter Street, N. W.
Atlanta, Georgia 3031^

ATTORNEY FOR PETITIONERS - 
DEFENDANTS

So Ordered, subject to motions, answers, and objections, 

this 25th day of September, 1967.
/s/ Lewis R. Morgan______________
CHIEF JUDGE, UNITED STATES 

DISTRICT COURT

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the 

within and foregoing amendment upon the State of Georgia 

by personally handing to their representative, Hon. Robert 

Sparks, Assistant Solicitor for the Atlanta Judicial Circuit, 

a copy of the same in the United States District Court, Old 

Post Office Building, Atlanta, Georgia.

This 25th day of September, 1967.

/s/ Howard Moore, Jr.____________
HOWARD MOORE, JR.

- 256 -



V E R I F I C A T I O N

STATE OF GEORGIA 

COUNTY OF FULTON

Personally appeared before the undersigned 

authority, duly authorized by law to administer oaths, 

MARDON R. WALKER , who after being

duly sworn deposes and says that she is the

petitioner-defendant in the above and foregoing 

amendment and that the facts alleged therein

are true.

/s/ Mardon R. Walker

Subscribed and sworn to before me,

this 25th day of September, 1967.

________ /s/ Howard Moore, Jr.____
NOTARY PUBLIC

My commission expires May 18, 1968.

257 -



FILED IN CLERK'S OFFICE

APR 5* 1967

(Title and Number Omitted)

The above and foregoing case came on before this Court 

on motion of the State of Georgia to remand to the Superior 
Court of Fulton County the above-numbered indictment.

The Court* after receiving evidence* hearing oral 

arguments of the parties* and considering the case on the 

submission of written briefs* finds that* although Lebco* 

Inc.* d/b/a Leb's* is a covered establishment within the 

meaning of Title II of the Civil Rights Act of 1964* as a 

matter of lav; the cause is not properly removable under 

Section 1443(1)* Title 28* United States Code* from the 

Superior Court of Fulton County* Georgia; and* accordingly* 

the case is remanded to the Superior Court of Fulton County.

The numerous petitioners for removal in the instant 

actions were indicted for trespass in connection with their 

activities in civil rights demonstrations. These two 

petitioners were also indicted for other offenses in addition 

to trespass which allegedly involve acts of malicious 

mischief and destruction of property.

The defendants Mardon R. Walker and James Forman are 

charged in the indictment returned by the Fulton Superior

- 258 -



Court with violations of Sections 26-5303* 26-5501, and 26-8116 

of the Georgia Code Annotated, with damaging private property 

and behaving in a riotous manner at Leb's on January 25* 1964.

The Supreme Court made it clear in Georgia v. Rachel,

348 U.S. 780 (1966), that civil rights demonstrators are 

insulated from prosecution under trespass laws for activities 

involving peaceful attempts to obtain service in establishments 

covered by the Civil Rights Act of 1964. Such insulation from state 

prosecution was obtained under the removal provisions of 28 

U.S.C.A. 1443(1).

The high Court has made it equally clear that Section 

1443(1) does not confer the right upon an individual to 

commit any offense with impunity in the name of civil rights. 

Greenwood v. Peacock, 384 U.S. 808 (1966). As the Court

stated in Peacock:

. . no federal lav; confers an absolute right 
on private citizens - on civil rights advocates, 
on Negroes, or on anybody else - to obstruct a 
public street, to contribute to the delinquency 
of a minor, to drive an automobile without a 
license, or to bite a policeman.1'

It is patently clear that the Act nor the companion 

removal statutes cannot be utilized as a license to un­

fettered vandalism or criminal activity. To do so would 

prostitute the Act and seduce the cause of a lawful society.

- 259 -



The petitioners who are charged with offenses in 

addition to trespass argue that there is no evidence of such 

additional violations and that the Court is therefore com­

pelled to dismiss the charges and deny remand. If the 

additional charges were merely a thinly veiled edition of 

previously stricken trespass statutes, the Court would 

agree, as the right to service in covered establishments 

cannot be precluded by state statutes which make it a crime 

to seek such service in a peaceful manner -the denomination 

of such a statute is unimportant, it is its effect that is 

relevant.

However, in the instant action, the additional charges 

against the defendants are not charges of violations of tres­

pass statutes by another name. The petitioners would have 

the Court reach a determination on the merits of the charges 

lodged against them. As the Supreme Court stated in Peacock:

". . . The civil rights removal statute does not require
and does not permit the judges of the federal 
courts to put their brethren of the state 
judiciary on trial. Under Sec. 1443(1), the vin­
dication of the defendant's federal rights is 
left to the state courts except in the rare situ­
ations where it can be clearly predicted by 
reason of the operation of a pervasive and 
explicit state or federal law that those rights 
will inevitably be denied by the very act of 
bringing the defendant to trial in the state 
court. Georgia v. Rachel, 384 U.S. 780, 16 L.
Ed. 2d 925, 86 S.Ct. 1783; Strauder v. West 
Virginia, 100 U.S. 303, 25 L. Sd. 664.

2 6 0



"What we have said is not for one moment 
to suggest that the individual petitioners in 
this case have not alleged a denial of rights 
guaranteed to them under federal law. If, as 
they allege, they are being prosecuted on 
baseless charges solely because of their race, 
then there has been an outrageous denial of 
their federal rights, and the federal courts 
are far from powerless to redress the wrongs 
done to them. The most obvious remedy is the 
traditional one emphssized in the line of 
cases from Virginia v. Rives, 100 U.S. 313*
23 L. Ed. 667, to Kentucky v. Powers, 201 U. S. 1,
50 L. Ed. 633* 26 S. Ct. 387 - vindication of 
their federal claims on direct review by this 
Court, if those claims have not been vindicated 
by the trial or reviewing courts of the State."

If the charges are groundless or if the evidence

is insufficient to support a conclusion of guilt, this is

a determination to be made initially in the state forum.

The petitioners may redress any possible error made by

such forum via review in the Supreme Court and through

other avenues of relief pointed out in the Pea cock case.

It should not need reiteration that the federal courts

cannot supplant the criminal functions of the state

judiciary systems - to do so would in the end emasculate

both systems.

Therefore, the Court concludes that the question of 

merit of the charges lodged in addition to trespass is 

irrelevant to the issue of remand presently before this 

Court for determination.

-  2 6 1  -



In sum, just as it is conclusively clear that the 

charges of trespass must he dismissed, it is equally clear 

that the charges of other violations involving malicious 

mischief and destruction must he remanded to the State Court.

In accordance with the above, the case of 

Mardon R. Walker and James Forman, Criminal No. 2^701, 

are hereby remanded to the State Court.

IT IS SO ORDERED.

This the 2nd day of April, 1968.

/s/ Lewis R. Morgan
LEWIS R. MORGAN
United States District Judge

-  2 6 2  -



FILED IN CLERK'S OFFICE

APR 10,1967

(Title and Number Omitted)

NOTICE OF APPEAL

Notice is hereby given that the defendants-petitioners, 

MARDON R. WALKER and JAMES FORMAN, hereby appeal to the United 

States Court of Appeals for the Fifth Circuit from the final 

order entered April 5* 1968 and the judgment entered thereon, 

remanding said case to the Superior Court of Fulton County, 

Georgia.

This 8th day of April, 1968.

,/s/ Howard Moore, Jr.____________
HOWARD MOORE, JR.
PETER E. RINDSKOPF 
8591 Hunter St., N. W. 
Atlanta, Georgia 3031^-

ATTORNEYS FOR PETITIONERS

- 263 -



(TITLE AND NUMBER OMITTED) 

MOTION FOR STAY PENDING APPEAL

Come now the defendants in the above-numbered case, 

having filed notice of appeal in said case to the United 

States Court of Appeals for the Fifth Circuit, move this 

Honorable Court to stay the remand of this cause to the 

Superior Court of Fulton County, Georgia, pending determi­

nation of this appeal.

This 8th day of April, 1968.

/s/ Howard Moore, Jr.______
HOWARD MOORE, JR.
PETER E. RINDSKOPF 
859i Hunter St., N. W. 
Atlanta, Georgia 3031^

ATTORNEYS FOR MOVANTS

So ordered, this 10th day of April, 1968.

/s/ Lewis R. Morgan____________
CHIEF JUDGE, UNITED STATES 
DISTRICT COURT

Filed April 10, 1968

- 263-A -



WITNESSES FOR THE STATE:

WILLIAM KONTOES

after having been first duly 

sworn, testified, as follows:

DIRECT EXAMINATION 

QUESTIONS BY MR. SPENCE:

Q Give us your name, please.

A My name is William Kontoes.

Q How do you spell that last name?

A K - o - n - t - o - e - s .

Q Are you a native of Atlanta, Georgia, Mr. Kontoes?

A No, I am not.

Q. Where are you originally from?

A I am originally from Wooster, Massachusetts.

Q How long have you been in Atlanta?

A Off and on I have lived here since 1945.

Q. Are you a segregationist?

A No, I am not.

Q I will ask you what your employment is?

A I am the manager of Leb's, Incorporated, which is a

private business.

Q And what kind of private business is Leb's, Incorporated?
- 2 6 4



A They serve food, a restaurant.

Q And how long have you been connected with Leb's?

A I have been connected with Mr. Leb off and on since 19^5-

Q I will ask you, calling your attention specifically to

January 25th, 26th, and 27th, of this year, if you 

were on duty?

A I was on duty on the 25th, which was a Saturday, from 

four-thirty on until one o'clock that night and every 

day afterwards.

Q Now, do you know, or have you seen the defendant on 

trial, Mardon Walker?

A I saw her on the first night. She was running up and 

down our front there like she was, I don't know what 

her occupation is in SNCC, or whatever that outfit is, 

but she certainly looked like a director out there that 

night.

MR. HOLLOWELL: We would object to the

answer, Your Honor, that she looked like a director.

I think that is a conclusion on his part, not based upon 

any evidence which is already in the record. There has 

been no testimony indicating that this witness even 

knows what a director is, may it please the Court.

MR. SPENCE: Your Honor, I will go more into

what she did.
- 265 -



WITNESS: She was running up and down the

front of the restaurant, telling everyone in the line 

or in the windows what to do practically. In other 

■words, she was to me giving them the go-ahead what to 

do and what not to do.

Q All right, at the time she was running up there telling 

people what to do, state whether or not there was a, 

what we call, demonstration going on?

A There was a demonstration going on, yes. I mean, when 

there are a hundred or two hundred people out front 

blocking your door, I call that a demonstration.

Q Well, tell us exactly what you saw there that night 

on the outside, Mr. Kontoes?

A Well, I arrived at Let's Restaurant at four-thirty that 

afternoon, and in front of the door there was at least 

a group of eight or ten people in front of the door.

The only way I could get in the door was to shove them 

aside.

Q Now, were they Negroes or white people?

A There was both.

Q Both.

A And after I got in, I saw approximately forty-five 

inside mixed, Negro and white.

Q You say, for or five?

- 2 6 6



A Pardon?

Q, You say, approximately four or five inside?

A Forty to forty-five inside. And they were inside milling 

all around the restaurant. They were going up to the 

counter, and back of the counter, they were all over 

the counters. And so I figured it was my right to 

tell them to sit in one section and stay there, which 

they did obediently at the time. And during the course 

of the night, the demonstration outside got more riled 

up, and inside they got more riled up, so they started 

getting around. And one of them asked me if she could 

go out and use the bathroom. And I said, certainly you 

can. And during that time -- and she said: Can I get 

back in? And I said, no, anybody that goes out, stays 

out because we are closed.

Q, Was that a white or a Negro?

A This was -- Well, I am telling you it is hard to say

what she was because whe was light.

Q It was a female?

A She was a female.

Q All right.

A And I said, anybody that goes out the door cannot come 

back in. So one walked up to me and said: I am going

- 267 -



to use the floor. I said, you can use it but don't let 

me catch you using it. And about ten o ’clock that night 

I seen a group of girls around a booth, they weren't 

girls, some were elderly ladies, well, I will say ladies 

And they were around the booth, and I run over to see 

what they were doing. And I saw one squatted over a 

bus tray, and when I got there --a bus tray is what 

we put our dishes in, in case somebody doesn't know 

what it is -- and she was squatted over there and inside 

of the bus tray was where she had just urinated, and I 

know because I saw it.

Q All right, tell us any other acts of --

A Well, after they left, our booths were cut up, three

or four of cur booths were cut up, and they are pretty 

expensive. And then I saw one --

Q You say, the booths were cut up?

A Yes, sir, they were split down the side, and I know

that that morning they were not split. And then over 

in one of the corners of the restaurant, there were 

about eight or ten boys congregated. And I went over 

there --

Q Negro boys or white boys?
A Negro boys these 'were, and I pushed them aside, and one

-  2 6 8  -



of them had -- when you go into most restaurants you 

will see a pitcher that is used for ice water -- and one 

of them was using a pitcher for a latrine. So I grabbed 

that away from him --

Q You say, one of the boys was urinating in a pitcher?

A Yes, that is what he was doing. And I grabbed that

away from him and threw it away. And when we closed up 

that night, there were at least two or three silex cups - 

a silex is what we always serve coffee to our customers 

in -- and glasses, and I threw all of those away.

Q Why did you throw them away?

A Well, I am not going to serve them to my customers after 

they've been urinated in, that is for sure. So, I just 

threw them away.

Q Was there evidence that they had done that in these 

coffee servers that you threw away?

A There was some coffee servers that I left on the floor, 

and the boys that cleaned up in the morning threw them 

out, but I threw the glasses out and the water pitcher 

out.

Q After the crowd had actually all left, Mr. Kontoes, state 

the general condition of the floor and of your restaurant

A Well, it -- I am a farmer myself, and I have seen barns

cleaner afterwards, in other words, the floor was a mess.

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Q It was a mess?

A Yes, sir.

Q How long did they stay in there and did this conduct 

go on?

Well, they stayed in there from four-thirty, when I 

arrived, -- well, they had gotten in there at three 

o'clock -- until eleven-thirty, and they said they were 

•willing, they came there to stay at least until we 

opened the doors -- until their coordinator, or whatever 

you want to call him, I don't know because in my part 

of the country we, we don't have this kind of thing, I 

don't know what you call somebody like that, but a 

coordinator, I imagine you would call him, came to the 

door, and said: Let's go. And then they all went out

peacefully, but they wouldn't go out when I asked, and 

I asked them three or four times.

Q Now, I believe you stated you came from Massachusetts?
A Yes, sir.

Q Originally?

A Yes, sir.

Q And you are not a segregationist?

A That is right.

Q Why do you say you are not a segregationist?

-  2 7 0  -



A Well, I lived at 32 Belmont Street in Wooster,

Massachusetts, and if anybody wants to check that address 

out, they will find that it is close to the Negro neigh­

borhood up there, and the school that my children went 

to was predominately colored. And if I were a segrega­

tionist my children would not have gone to that school.

I would have gone to the opposite side of town where 

my children wouldn't have gone tc school with Negroes.

Or I would have moved to a small town where my children 

would not have gone to school with Negroes. But my boy 

went back and forth to school with one.

Q. I will ask you, Mr. Kontoes, if you or to your knowledge 

Mr. Leb has used this trespass lav;, known as Title 26- 

3005, to perpetuate, aid, and abet, or to officially 

encourage and foster a scheme of racial discrimination 

in places of public accommodation in the City of 

Atlanta, Georgia?

MR. MOORE: May it please the Court, we

interpose an objection. The witness is incompetent 

to answer the question because he is being asked to 

make a conclusion as to the legal significance of facts 

in evidence, some of which are not within his testimony 

anyway; and it would be the same effect if this witness

-  2 7 1  -



were asked whether or not do you think this act was an 

act of negligence. He is incompetent to answer that 

question.

WITNESS: I would like to answer the question,

if I may.

THE COURT: Just a minute.

MR. SPENCE: Your Honor, they have accused the

application of this statute and everyone connected with 

it at Leb's and at the Krystal and everybody else, and 

I think if he knows of his own knowledge whether or 

not he has ever used --

THE COURT: The Court will permit the witness

to answer the question.

A Well, Mr. Leb has never -- when I came to work back here 

on December the 1st, he has never even talked to me 

about the occasions that have arisen in the past. And 

he has never even told me, he has just said: If any­

thing happens -- he says -- just call an officer, which 

I did, and it was to no prevail. And he has never told 

me, and I have never heard him scheming anything against 

them. He is just a man who wants his private business 

and to run it as he sees fit.

Q What nationality is he?

A Who, Mr. Leb?

Q Yes.

-  2 7 2  -



A Well, he Is a Russian Jew; hut just like me, I am a

Greek hut my great-grandmother was a Jew but that doesn't 

mean to say that I am a Jew, I mean, there are generations 

of Greeks in my family.

Q Do you have anything against the Negro race in general?

A I don't have nothing against no race in general.

Q, All right, why did you, give us the reason why you asked 

them to leave, the Negro people that you saw in Leb's 

when you got over there, why did you ask them to leave?

A I didn't ask just the Negroes, I asked the white ones in 

there too.

Q All right, why did you do that?

A I did that because Mr. Leb has a private business, and he

has a right to run that business as he sees fit.

MR. HOLLOWELL: Nov;, may it please the

Court, we object to that as being a conclusion on the 

part of the witness as to what the rights of Mr. Leb are.

THE COURT: Well, the Court will hold that the

witness is correct about that, that the owner of a private 

business has a right to run it as he sees fit in accordance 

with the law, he is only required to obey the law.

MR. HOLLOWELL: But, may it please the Court, .

that was not his response, that was the Court's response.

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THE COURT: Well, the witness is stating

his opinion and 'why he did various things. The Court 

will receive the evidence as throwing light upon the 

conduct of the witness.

MR. SPENCE: Now, Mr. Kontoes, as manager of

Leb's, I believe you have stated that that was Leb's, 

Incorporated?

A That is right, sir.

Q As manager of Leb's, Incorporated, state whether or not 

you pay license tax to the City of Atlanta to operate?

A Yes, any business has to pay license and taxes to 

operate.

Q State whether or not Leb's, Incorporated, has anything

to do or anything in connection with any government body

A No, we don't, not with the government. That building is 

owned and it is privately owned and the lot is privately 

owned, and we do not lease that property from the govern 

ment, and from them on it is just private to me, it is 

owned by an insurance company, that is all I know, and 

that is private industry.

Q, Have you paid your license tax this year to operate?

A Yes, it has been paid as far as I know.

Q All right, now, what time of night did they leave there, 

Mr. Kontoes?
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A I would say they left around eleven-thirty at night.

Q, That was on a Saturday night?

A It was on a Saturday night, yes, sir.

Q Tell us, as briefly as you can, exactly what you saw 

during the time you were there with reference to what 

they did, the demonstrators, on the inside and outside?

A Well, on the outside they were hand-in-hand just rolling 

back and forth chatting, that is, the colored and white 

mixed that was out there. And cn the inside they kept 

pretty quiet except they milled around quite a lot. I 

kept them quiet until they started chatting up and down 

and then they started mocking the Klansmen that were 

out there from the inside, and I asked them to stop that, 

which they did.

Q Now, then, in what respect did they mock the Klansmen?

A Well, they took -- we have napkins that we serve our

customers, and they took them and started making robes 

out of them and I walked up to them and asked if I 

couldn't have the napkins back, I said, because they 

don't belong to us, they are three cents apiece. And 

one of the boys pulled a dollar out and said: Here, I

will buy them. I said, I don't have the right to sell 

them to you because they don't belong to me. So, I 

took them back away from them, they gave them to me.

- 275 -



Q You say they were making a robe out of the napkins?

A They were making robes and hats* and marching up and 

down in front of my window on the inside taunting the 

Klansmen that were on the outside.

Q Where were the Klansmen?

A They were on the outside.

Q They were on the outside of Leb's Restaurant?

A Yes* sir.

Q And what was the proximity of the Klansmen to the people 

who were arm and arm chanting and chatting?

A Well, they were on the outside towards the curb, and

they couldn't get near the building anyway because too 

many of the demonstrators were laying up against the 

building.

Q, All right, was there anybody in the foyer?

A In the doorway there?

Q Yes.

A Well, there was four officers that were ringing it, and 

with inside of them there was a pretty good size group 

that kept coming and going all night long that night.

Q All right. Is there anything else that you haven't told 

us about this Saturday night? Did you state 'whether or 

not anybody threatened you?

A Well, the only time I ---

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MR. HOLLOWELL: We object to that, may it

please the Court. This is his witness, and I submit 

that it is a leading question.

THE COURT: Overrule the objection.

Well, no, the only time -- when I asked the people to 

be seated -- we have different sections in the restauran 

and I closed one section off. And Mr. Leb was there at 

the time, and one of the young boys run over in that 

section -- because Mr. Leb had said, this is off-limits 

and grabbed ahold of him to throw him out. Well, before 

the Negro gentleman ran up to get ahold of Mr. Leb, at 

that time I ran up and backed him off. And that was the 

only, that wasn't a threat then, they just backed up.

The only time I was really threatened was when I came 

and told the officer that was on duty that they were 

urinating on the floor and in the trays -- and the next 

time I see one doing that I will slap them in their face 

And this one big husky fellow was out in the hallway 

this morning. And he says: You won't do it -- he says,

and he drew back like he was going to hit me, and says: 

You will get this. And about twenty minutes after that, 

he walked up and he shook my hand and asked if he could 

apologize for the incident. And I said, I will let you



apologize, I will accept anybody's apology that is willing 

to give it. And I shook his hand, and that was it. And 

that was the only time I was threatened. But I did state 

in front of the officer that they were urinating on my 

floors, and Lieutenant Ball, which is a colored officer, 

was sitting there at the time. And I served Lieutenant 

Ball a ham sandwich and a cup of coffee because he was 

on duty, and he was hungry. And the other Negroes in 

there wanted to know why I couldn't serve them, and I 

said, we are closed, he is just on duty right now.

Q You were actually closed as far as --

A We were closed as far as the company's business was con­

cerned .

Q And for what period of time on that Saturday night, what 

was the approximate period of time you were closed there?

A From three o'clock -- well, we are open until two o'clock 

in the morning. And we closed at three o'clock and didn't 

open back up until Sunday morning, at seven o'clock 

Sunday morning.

Q In other words, you were closed from three o'clock on 

until --

A For the entire evening.

Q You were closed from three o'clock in the afternoon 

on throughout the entire evening?

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A Yes, sir.

Q State whether or not these demonstrators, or people that 

were in your place, whom you claim had no right to be 

there was the cause of your having to close?

A Well, that certainly was the main cause.

MR. MOORE: May it please the Court, I object

to that. That as a leading question. He asked, state 

whether or not :ie demonstrators caused him to be closed.

THE COURT: Well, the Court will permit the witne
to state why he closed.

MR. SPENCE: Why did you close?

A Well, I me.jn, .f anybody walked up to the door, and.

all of those demonstrators there, you wouldn't have to 

ask why. you could see way. They were in front of the 

door f’d wouldn't let nob.'dy in. I mean, you don't have 

to a me that question, anybody could walk up and see 

ths.': you couldn't get in,,

Q T o n l y  reason I am asking you, Mr. Kontoes, is for the 

re i )rd.
A '* :s, but I mean, anybody could see.

Q, A LI right, I will ask you wh ;her or not you have ever 

called the police officers tc your place of business, 

your establishment and asked ;lem to eject or to make

279 -



a case against some obnoxious person that is completely 

unrelated to a sit-in or a demonstration?

A I believe one night that did happen. There was a white 

fellow -- I didn't know who he was, I never saw him 

before in my life -- and he kept taunting the demonstra­

tors out there. And I said, I wish you wouldn't taunt 

them. And he kept, you know, throwing kisses at the 

colored girls that were going by and making different, 

and putting up little signs to the window and taunting 

them. And I said, look, I said, if you don't stop 

taunting the demonstrators, I am going to eject you.

And he got pretty belligerent. And so I walked down 

and got the officer that was on duty, and I asked him 

to be removed. And that is one time that I did have one.

Q Mr. Kontoes, did you ask that he be removed under this 

trespass law?

A Well, I asked him under the law that we have that you 

can have anybody ejected by the police if you do not 

want him in there.

Q All right, did you open up then the following Sunday

morning after this Saturday night you've been telling us 

about?

A We opened up at seven o'clock in the morning.

-  2 8 0  -



Q Seven o'clock Sunday morning?

A Yes, sir, and I got there at eleven o'clock.

Q You got there at eleven o'clock?

A Yes, sir.

Q Now, did anything else unusual, did anything unusual 

happen on that day?

A Well, I thought it was unusual. On Sunday evening about 

it was pretty quiet during the afternoon, and about six 

o'clock when they started pushing in the doors to get 

into the place, eight and ten in a group at one time 

just shoving their way on in.

Q Were they white or colored?

A They were mixed. And everytime they would come through 

the door, I could feel a fist in my rib or a kick in my 

shin, but nobody hit me in the face, but I did get 

kicked in the ribs and in the chest.

Q What were you trying to do?

A I was just keeping them from coming in the door.

Q You were trying to keep them from coming inside?

A That is all we wanted, just to keep them out at the time

Q, Well, did they come in in spite of what you were doing?

A They did get in within the door in spite of what I

tried, and four or five other fellows was with me.

-  2 8 1  -



Q Were they Negroes or white?

A The majority of the time they were Negroes. Once in

awhile they would send in three or four whites in front 

of the door, and we'd open the doors thinking they were 

customers, and then they would flux in behind them.

Q All right, tell us what all happened that Sunday night,

Mr. Kontoes?

A Well, they kept --

Q Did you have to close up that Sunday night?

A No, I wouldn't have closed the doors that night under

any circumstances -- I mean, I kept them out, and I -- 

our customers came in; and when they came in, they had 

to push their way in; and when they went out, they had 

to push their way out.

Q By whom did they have to push?

A Well, they had to push the demonstrators that were there 

in front of our door.

Q, And you were able to keep them out that night?

A We were able to keep them out that night.

Q Now, getting back to the Saturday night, Mr. Kontoes, with

reference to the booths, give us a physical description 

of the booths afterwards?

A Well, anybody that goes in the restaurant knows that you 

have the big cushions at the back and you have the big

-  2 8 2  -



cushions on the seat, and the four legs, well, on three 

of the booths the legs were broken out from under them 

because the next day we had to use Coca-Cola crates to 

get them back up because our maintenance man wasn't on 

duty that day, and we couldn't get ahold of him. So we 

put Coca-Cola crates under them. And then we had to put 

adhesive tape over the slits -where they sliced the booths. 

And when we opened up -- well, I wouldn't say exactly 

what time we opened up that morning, but we opened up a 

little later, the boys said, because they had to clean 

the mess up. And a couple of colored boys there that 

cleaned it said --

MR. HOLLOWELL: We would object to -what somebody

else said, Your Honor.

THE COURT: Sustain the objection.

MR. SPENCE: I believe you said you were a

farmer?

A Yes, sir, I remember saying that to you.

Q You have lived on a farm?

A I lived on a farm nearly all of my life.

Q You know what manure is, don't you?

A I certainly do, I have shoveled enough of it.

Q And I believe you stated awhile ago that the restaurant

looked like, that it was dirtier than a barn?

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A Yes. And if you see some of the barns up in Massachusetts, 

they get in pretty bad shape.

Q All right, now, on Sunday night --

THE COURT: Do you mean by that there was

excrement on the floor?

A Not just manure, I mean, just trash. It was littered up 

that night, the floor was so littered up that night. I 

mean, we don't ever operate a restaurant that dirty, 

that is for sure.

THE COURT: Was there urine on the floor?

A Yes, there was, because I saw it there. And when it was 

running down the floor, I knew that that Mas what it was.

MR. SPENCE: And I believe you stated that one

of the demonstrators asked you could she use a restroom.

And you told her if she left, she couldn't come back in --

A Yes, sir.

Q --  and that was when she used the floor?

A She wasn't the one that I asked. That was when they 

■went back to the booth, and I saw this group of girls 

around a booth. And when anybody groups up like that,

I knew there was going to be something up. So I ran 

right up there.

Q, And saw it?

A Yes, sir.
- 284



Q All right, now, on Sunday night you were able to keep 

them out and were able to keep your place of business 

open, although --

A We did and we did an extra good business that night 

because the people ’wanted to come in and they pushed 

their way through.

Q, How long did the demonstrators stay with you on Sunday 

night?

A Well, I don't know. They say they work twenty hours a 

day, but it seems to me like on those four days they 

come to work at three and get off at eleven thirty.

Q You mean the demonstrators?

A Yes. Seems like they were pretty punctual getting there 

and pretty punctual leaving.

Q Nov/, on the following day, which would be Monday, did 

you have any disturbance there then?

A We didn't have too much disturbance like we did Saturday 

and Sunday because that was the day the police came up 

and carted them off. So they didn't bother our door 

any, block our door, they just -- mostly they were out 

front. I think that is the night, the only disturbance 

I had was, I think, was Dick Gregory come to the door 

that night. I asked him to leave.

Q Who is Dick Gregory?

- 285 -



A Well, he is a comedian of some kind.

Q Is he white or Negro?

A He is Negro, from Chicago. And I asked him to leave, 

and as I put my finger out, like that (demonstrating),

I touched him. And he said: You get your hands off

of me. And I said, you are on the property of Leb's 

Restaurant. And I said, would you leave. And he said: 

No. So, I called the officer, and sc the officer come 

over and took him away. And after that it seemed like 

everything just got quiet when he left, but while he 

was there, it was pretty unruly.

Q That was on Monday night?

A I wouldn't say for sure whether it was Sunday or Monday 

because I have forgotten now, but I am pretty sure it wa 

on Monday night.

Q Mr. Kontoes, can you give us the approximate number of 

times that you have had disturbances there caused by 

the so-called sit-iners or demonstrators either in the 

restaurant or on the outside of the restaurant?

A Oh, they disturbed me so many times, I have just lost 

count of them, but I know it was a good many times, 

more than should have been allowed.

MR. HOLLOWELL: We would object to that, Your

Honor, as being a conclusion.
-  2 8 6  -



TH E  COURT: More than should be allowed?

MR. HOLLDWELL: Yes, sir.

THE COURT: Well, exclude that.

MR. SPENCE: I believe that is all right now.

THE COURT: Would you say that they have been

there blocking the door as many as twenty-five times?

A Well, I would say that they have been to our door that 

many times, but I wouldn't say that they were blocking 

the door that many times. They have been to the door 

at least that many times, but the first two nights was 

when they really blocked the door, and after that they 

dispersed from the door because we did get the police 

to move them away from our door after that.

MR. MOORE: Objection, I have a motion, Your

Honor. I move that this witness' testimony be stricken 

from the record on the grounds that it is highly ir­

relevant and immaterial. It does not show in any way 

that it is related to any transaction that is described 

in the plea of abatement, nor does it show that it is 

related to any matter that is raised by the traverse 

to the plea which would join the issue between the 

defendant and the State in this particular case. 

Therefore, it has no probative value, and it should go 

out, and I move the Court to strike the testimony of 

thi s wi tne s s.

- 287 -



THE COURT: Overrule the motion.

CROSS-EXAMINATION

QUESTIONS BY MR. HOLLOWELL:

Q How long have you been manager of Leb's, Mr. Kontoes?

A Well, I have been manager of Leb's since December the

1st on this trip, but before I was manager of Leb's 

Restaurant for five years.

Q. December the 1st, 19^3?

A That is right.

Q Where did you come from to this restaurant?

A I came from Wooster, Massachusetts.

Q Do you know what happened to the manager who was there 

just prior to December the 1st, 1963?

A What happened to him?

Q Yes.

A No, I don’t.

Q Did you know him?

A I knew him, yes.
Q Between the five-year interval, the interval of time 

that existed between the time that you came back and 

the time that you were there before, what have you been 

doing?
A I worked at Holy Cress College. I worked iOr the Fathers

2 8 8  -



up there.

Q In other words, from 1958 until --

A No, from i960 to 19 6 3.
Q From '60 to '63?

A I worked at Holy Cross College, and I worked in a respect­

able place for all of the Fathers. I cooked for them.
Q You cooked for them?

A That is right.

Q And prior to i960?

A Well, like I said, I was five years at Leb's Restaurant, 

but not in the one on the corner, I worked in the Broad 

Street one and I worked out at Piedmont Hospital.

Q So then actually you were only away three years?

A I was away three years, yes.

Q Were you fired?

A No, I xvas not. I could call up today and get my job 
back.

Q Were you fired from Leb's when you left?

A No, I was not fired.

Q Where did you live prior to the time you first came to 
Leb ' s ?

A Before I first worked for Mr. Leb?

Q Yes.

A I resided at 1103 80th Avenue.
- 289 -



Q Where, in what city?

A Oh, you mean, before I came back this first time?

Q No, where did you live before you came to Leb's the

first time?

A I lived at -- the first time?

Q Yes.

A Oh, I lived down here on McDonald Street.

Q, McDonald Street?

A Yes.

Q How long had you been living on McDonald Street?

A Oh, I didn't live there too long. I lived with my

wife's mother until I could get an apartment for us.

Q With whose mother?

A My wife's mother.

Q I see. When had you first come to Atlanta?

A I first came to Atlanta in 19̂ -3 when I was stationed

out here.

Q Stationed where?

A I was stationed at Fort McPherson.

Q What did you do out there?

A I was on convoy duty sergeant.

Q Where did you live at the time you went into the service? 

A I lived in Spencer, Massachusetts, on the farm.

Q Were you born in this country?
-  2 9 0



Q And so you came here the first time in 1943?

A Right.

Q And did you work here from 1943 on up --

A No, I was in the service, I said.

Q Prom 1943 until when?

A 1946.

Q Then, where did you go, you came back here.

A I was discharged at Port McPherson, and I went to

Massachusetts. And I went up there, and I worked in a 

foundry and we run the farm at the same time.

Q When did you come back here to the job?

A I came back here -- oh, I have been coming back here all 

along. I came back here in, I think, 1948. I wouldn1t 

know definitely the time. People don't keep those things 

down on a record.

Q, Well, you can't talk about what people do, Mr. Kontoes.

We are discussing what you did.

A Well, myself, I don't keep those records written down.

Q And so you came here in 1948. Is that when you first 

startec. working for Leb's Restaurant, working for Mr. 

Lebowich?

A No, I have known Mr. Leb since 1945. I first went to

A Yes, sir, and my mo t h e r  was born her e  too.

- 291 -



work at Leb's when he opened the door, and he did not 

open the door until 19^9.

Q, I see, and that is when you began to work for him?

A That is right.

Q, And you have worked for him all of the time since that 

time except the stint that you worked for the Fathers 

up in Massachusetts, is that correct?

A That is right.

Q In the same capacity as a cook or as manager?

A No, I was the cook for them up there.

Q You were the cook at that time?

A Yes.

Q How long have you been the manager, as such, of this 

institution -- let me strike that, and ask you this.

How long have you served in a managerial capacity for 

Mr. Leb?

A For a good ten years altogether, counting -- I opened up 

his four restaurants for him.

Q Where did you get your training?

A Where did I get my training?

Q Yes.

A From Mr. Leb himself, and that is good enough.

Q So, you started as a cook, and then he trained you and

brought you along, sort of on-the-job training, is that 

right?
2 9 2  -



Q And you are very devoted to him, I suppose?

A I wouldn't say devoted. I am loyal.

Q You are loyal to him?

A Yes.

Q, Dedicated to the cause?

A Well, what do you mean, cause?

Q The cause of Lebanese?

A No ---

MR. SPENCE: Your Honor, there hasn't been

any evidence here about the Lebanese cause. I object 

to that, may it please the Court, as being improper. 

There has been no evidence here about any Lebanese 

cause.

THE COURT: Well, the witness states he is

loyal to Mr. Lebowich, Mr. Leb --

MR. SPENCE: And I admire him for that.

THE COURT: How did you refer to the

proprietor?

A I am loyal to him, and naturally --

THE COURT: Well, how did you refer to him,

Mr. Lebowich or Mr. Leb?

A Mr. Leb, because --

THE COURT: Mr. Leb?

A Yes, sir.

- 293



A Yes, sir. Everybody in the City calls him Mr. Leb, 

nobody da 11s him Mr. Lebowich.

MR. HOLLOWELL: Isn't that his name?

A Well, my name isn't Kontoes --

Q Mr. Kontoes, isn't that his name?

A That is his name, but  

Q That is all I asked.

MR. SPENCE: Well, he has a right to explain

his answer, Your Honor.

A I would like to explain. My full name isn't Kontoes 

either, but everybody calls me Kontoes. My father 

didn't have that name when he came to this country 

either.

MR. HOLLOWELL: Well, may it please the Court,

we asked the witness a question which I think we are 

entitled to have a direct response.

THE COURT: Well, the witness answered, and

then he made his explanation, both.

MR. HOLLOWELL: Now, sir, you say your name

isn't Kontoes?

A My name is Kontoes. When my father came to this country, 

he chopped a lot of it off, Just like Mr. Leb does, he 

chops it off, and most foreign people do chop off about 

a half of their names. So that doesn't involve anything.

-  294  -



Q You don't really know that. What you know Is that some 

people do, Isn't that correct?

A Well, a good majority of Greeks do, I know that.

Q They don't like their names?

A It isn't that they don't like their names. It Is that 

we cannot spell them, when you transfer them over to 

the English.

Q Did you transfer them?

A My father did. And if you want to check the records, you 

go up to New Bedford, Massachusetts, and check it.

Q So, Kontoes is your legal --

A My father ---

Q Just a moment, sir. Let me finish the question.

A Yes, sir.

Q So, then, Kontoes is your legal name? In this country, 

Kontoes is your legal name?

A Yes, Kontoes is my legal name in this country.

Q All right. How many times have you seen the defendant?

A The young lady, right there (indicating)?

Q. Yes.

A I have seen her three or four times.

Q When was the first time that you saw her?

A I would say I saw her that Saturday night, the first 

demonstration.

- 295 -



A January the 25th.

Q The 25th of January?

A Yes.

Q Did you ever see her in your establishment?

A I wouldn't say that I saw her in there, no.

Q As a matter of fact, you never have, have you?

A I have seen her, yes.

Q I mean, you have never seen her in the establishment?

A Not while I was on duty, no.

Q And on this Saturday night, you say you saw her outside 

about what time?

A I would say from the time the demonstration really got

hot, which was from six o'clock until around nine-thirty. 

Q And when you say, got hot, you mean the people were 

clapping their hands and singing songs?

A They started drumming it up pretty well about then.

Q Well, now, I am asking you the question, Mr. Kontoes.

Did you see them clapping their hands?

A Yes.

Q Did you hear them singing songs?

A Yes.

Q Did you know who they were?

A If I see them, I know who they are. I don't know their

Q What Saturday night?

-  2 9 6  -



na me s.

Q You don't know where they came from?

A Well, If I knew where they came from --

Q, Would you answer the question, Mr. Kontoes? The question 

was: Do you know where they came from?

A Like I say, If I knew where they came from, I would 

know who they are.

MR. HOLLOWELL: If it please the Court ---

Just a minute, Mr. Kontoes. If it please the Court, we 

would respectfully request that this witness be required 

and be instructed to answer the question. We don't want 

to at any time curtail any explanation that he may give. 

But we certainly respectfully request that he be 

instructed that he is to answer the question, if he knows 

And then any explanation that he might want to make, well 

certainly we know that we have no right to cut it off.

But we think, Your Honor, we are entitled to have a 

categorical answer if in fact the question is capable 

of being so answered.

THE COURT: That is correct. The attorney is

entitled to have a direct answer followed by any 

pertinent explanation that you wish to make.

WITNESS: What was the question, sir?

THE COURT: The question was: Do you know where

they came from?

- 297 -



A No, I don't.
MR. HOLLOWELL: Did you know the names of any

of them?

A No, I don't.
q Nov;, were you there at the time they first came, this 

group that you called the demonstrators?

A Not when they -- I was there the first day, hut I was 

not there when they first came. I came an hour or so 

afterwards, after they got there. 

q How do you know that as a matter of fact since you were

not even there?
A well, they were inside the restaurant when I got there.

That is good enough for me.

Q But you don't know when they got there?

A I know I left at two-thirty that afternoon, and I got

back at four-thirty, so they had to come within that time 

Q I see, sometime between two and four?

A No, two-thirty and four-thirty.

Q All right, between two-thirty and four-thirty. Now, 

what day was this?
A That was January the 25th, the first day of the demonstra 

tions.

Q January the 25th?

A Which was a Saturday.

-  2 9 8  -



A Yes.

Q And these people that you are referring to, which do not 

include the defendant, were inside --

A Yes.

Q --  the restaurant when you came?

A Yes.

Q Is this a restaurant which serves food?

A Yes, we serve the best.

Q, Is this a restaurant which purchases a license for the 

dispensing of food?

A Yes, and it is paid for.

Q, Is there anything on your license which says that this 

is a private restaurant?

MR. SPENCE: Now, Your Honor, I --

MR. HOLLOWELL: If he knows that.

MR. SPENCE: Well, the license themselves

would speak for that.

THE COURT: Yes, the license should be introduced

into evidence and the Ordinances and things of that sort. 

So the Court will not go into oral evidence on what is on 

the license. The Court will hold the license will speak 

for itself.

WITNESS: I haven't looked at the new license.

Q On a Saturday?

-  2 9 9  -



THE COURT: Wellj now, the Court is holding

that the license speaks for itself. So, don’t go into 

the contents of the license.

WITNESS: Yes, sir.

THE COURT: You say you haven't looked at it,

so you wouldn't know anyway.

MR. HOLLO1//ELL: Is Leb ' s a membership organization?

A Break that down for me.

Q Do you issue membership cards to your patrons?

A We issue credit cards.

Q I didn't ask you about credit cards. Do you issue

membership cards?

A No.

Q This is not a membership organization, is it?

A You mean when it comes to eating in the establishment 

itself?

Q, That is right.

A No.

Q It never has been, has it?

A No.

Q This is not a club, such as maybe the Progressive Club, 

or some country club, 'which is truly a private institu­

tion, as far as you know, is it?

MR. SFENCE: Now, Your Honor, I object to that
3 0 0  -



on the ground that there is no evidence here that this 

witness belongs to any of the various clubs which he 

has enumerated, and the witness wouldn't know what 

they are.

THE COURT: Well, the Court will permit the

witness to state whether or not this is a private club.

MR. HOLLOWELL: I believe your answer was no,

it is not a private club?

A No, it is not.

Q The only people, as a matter of fact, that you ever try 

to prevent from coming in are people who are Negroes or 

white people who are with Negroes, unless there is some­

thing about their conduct or their clothing which would 

be offensive, isn't that true?

A You mean, whose clothing are you talking about?

Q Let me strike that, and let me rephrase the question.

If a person came up to your restaurant to come in and 

he was dressed in a pair of greasy overalls, you might 

step to the door and suggest that maybe he was not in 

the right place, is that not correct?

A Who are you talking about?

Q Anybody.

A No, if a man wants to come in with greasy overalls on, 

we ’would let him come in.
3 0 1  -



Q You would let him in, all right. If a person came 

reeling and rocking up to the door and was visibly 

under the influence of some barbiturate or alcoholic 

beverage, would you let him in?

A No, I wouldn't, not if he came reeling up. If he was 

under the alcohol, I would let him in, but when he 

comes reeling up, like you said, naturally I wouldn't 

let him come in.

Q, You wouldn't let him in?

A • No.

Q You would exclude that kind of person?

A Oh, yes.

Q This would be offensive to you, right?

A Yes.

Q And it would be offensive to your customers, you would 

believe?

A Yes.

Q If a person came up to your door, and he say, say, in

the process, it would appear, of having a fit from the 

standpoint of screaming and the flaying of his arms, 

you would step up to see that perhaps that individual 

might not be appropriate for coming into your restaurant, 

is that not correct?

A That is right.

3 0 2  -



Q And if a person came up to your door, and he was engaging 

in loud profane or vulgar language, if he came to the 

door and you were there, you would suggest that he not 

come in, or if he was on the inside, you would see, that 

he was escorted out, isn't that true?

A Yes.

Q And I suppose that we could think of a number of other 

kinds of conduct which would be nondescript and which 

’would be offensive to the public generally and would be 

sufficient cause perhaps for you, or for anyone else 

who believed in the operation of a decent place to be 

excluded from the restaurant, isn't that true?

A Yes.

Q Now, on Saturday when you came back from wherever you

had been you saw some young people of mixed, apparently 

mixed racial identity and mixed as far as sex is con­

cerned in the establishment?

A Yes.

Q Was the restaurant open when you left?

A Yes, it was.

Q, Was it serving people?

A Yes.

Q It was open to do business?

A At the time it was, yes.

- 303 -



Q Did you make any interrogation to find out whether or

not any of those persons that you say were in there when 

you came back were in a position to purchase food?

A They were in a position to purchase food, but they came 

in there bodily demanding, they didn't come in politely, 

they just barged in.

Q How do you know how they came in? You weren't even 

there.

A Because they pushed a girl aside, they threw her aside 

to get in.

MR. HOLLOWELL: May it please the Court we ask

that that be stricken, because the witness has already 

testified that they were there when he came back.

WITNESS: Well, you just asked me --

MR. HOLLOWELL: Just a moment, sir. That he left

about two-thirty and he returned about four-thirty, and 

that the people were already in there. Therefore, the 

only way that he could so testify would be a matter of 

hearsay.

MR. SPENCE: Your Honor, Colonel Hollowell asked

the witness how he knew that they got in, and he was 

attempting to tell him that the girl told him. It might 

be hearsay, but he asked for it. He said: How do you

know? Just like a lawyer sometimes asls the question.

-  3 0 4  -



why did you do so and so, and it opens up ten million

avenues.

(The Court recessed at one o'clock P.M., February 

12, 1964, and resumed at two o'clock P.M.)

THE COURT: Let Mr. Kontoes resume the stand.

Proceed.

MR. H0L10WELL: May it please the Court, at the

time that we recessed, I believe there was some argument 

related to an objection concerning people in the restaurant 

on the night of the 2pth. To clear the record, we villi 
strike the question and answer, and ask the question 

again, so as to clarify it.

THE COURT: Very well.

Q On Saturday, the 25th, you left about two-thirty P.M.; 

when I say left, you left the restaurant?

A Yes.

Q You did not return until about four-thirty?

A That's right.

Q At the time you returned, there were some, I believe you 

said there were some forty or forty-five, I believe you 

testified, people in the restaurant?

A That's right.

Q, Did you know any of them?

A No, I didn't.

- 3 0 5 -



Q These people were a mixed group racially as well as 

sexually, is that correct?

A Well, they weren't mixed equally, no.

Q I didn't say equally.

A Oh, I thought you meant equally.

Q They were mixed racially and sexually, in other words, 

there were men and women, and Negro and white there, is 

that correct?

A That's right.

Q You weren't there when they arrived, they were there when 

you got back?

A That's right.

Q You testified, did you not, that as of the time that you left, 
the restaurant was open, food was being dispensed for pay, 

is that correct, sir?

A Yes.

Q, You don't give food away normally?

A Not normally, no.

Q People that come in for the services of the restaurant

would be expected normally to pay for whatever they chose?

Q You have both the cafeteria style as well as the regular 

service?

A It is all waitress service.

Q, People who want to be served then come in and take a seat?

- 3 0 6 -



A They have to be seated.

Q. And they are given a menu, I presume?

A Yes.

Q How many seating spaces do you have in the restaurant in 

question?

A How many?

Q Yes, roughly.

A About a hundred eighty-five.

Q, Were there people in the restaurant eating as of the time 

that you returned at four-thirty?

A There was nobody in there but the demonstrators.

Q, You didn't answer my question. I a.sked you were there

people in there eating as of the time that you returned?

A Well, yes, some of the demonstrators were eating pickles 

around the table.

Q, Was there anyone that had been served?

A No, none of them had been served.

Q You didn't see them get these pickles when you first came 

in, did you?

A I saw them eating them.

Q You saw them eating some pickles?

A Yes, so they had to naturally take them.

Q Well, you don't know where, they may have had them in 

their pocket as far as you know?

307 -



A You wouldn't have kosher pickles in your pocket.

Q You didn't see them take them?

A I saw them eating them.

Q Pickles are sometimes used as some sort of appetizer, are 

they not, along with other hors d'oeuvres?

A No, they are not classified as an appetizer.

Q I didn't say that they were classified; I said they were

sometimes used in this connection.

A. Some people might use them as an appetizer.

Q You have pickles which are on the table, more or less 

promiscuously, do you not?

A We leave them there for anybody that buys a sandwich.

Q So, they were right out on the table?

A That's right.

Q Do you know whether any of the people who were in the 

employ of Mr. Lebedin, were, at any time went over to 

where the people were sitting and asked if they wanted 

to be served?

A I don't know. Mr. Lebedin closed the doors, so naturally 

no one would ask.

Q Mr. Lebedin closed the doors. Was this immediately after 

your arrival?

A No, before I was there, the place was closed.

Q It was closed?

- 3 0 8  -



A It was closed for the evening.

Q The door was locked?

A Yes.

Q, So that the door was locked when you returned?

A Yes, it was locked.

Q, Foodstuffs were still in the heater there, what do you

call it, the steam table?

A There was no food in there. The colored boys had put that 

away.

Q This had already been taken away, because they did not 

want to serve these persons who were in the restaurant, 

is that correct?

A No, I wouldn't say that.

Q Well, I mean they weren't served?

A They weren't served.

Q And I believe you testified that there was no indication

that they did not have money with which to pay for that

which they ordered?

A Oh, they had the money, I imagine.

Q And they were decently dressed?

A Decently dressed?

Q Dressed?

A Yes, they were.

Q As a result, you had served everybody else who had come

309



and asked for service, as far as you know, on that day, 

except this group, is that not correct?

A I don't remember if they asked for service. We have a 

hostess that seats the people. They just walked in and 

sat down and said they wanted something to eat. They 

didn't ask, they said they wanted.

Q You say, they wanted something to eat. They made it 

manifest they they were there to be served?

A That was their purpose in coming in, yes.

Q You didn't order anybody served?

A No, I didn't.

Q Mr. Lebedin didn't order anybody served, is that correct?

A That's right.

Q There was a stock of prepared food at the restaurant?

A Every restaurant has a stock of food.

Q, We are not talking about every restaurant, Mr. Kontoes, 

we are talking about Leb's, where you work.

A We have to have food on hand all the time.

Q Prepared?

A Prepared, yes.

Q When you first came about four-thirty and the doors were 

locked, how many doors are there to Leb's?

A There is the double door in the front and there is a back 

door and there is a side entrance into Pigalley which

310



leads into Leb's Restaurant.

Q Were all three of these doors locked?

A All three of them were locked.

Q Where are the restrooms?

A They are in the rear of the restaurant in the corridor.

Q In the rear of the restaurant in the corridor, but within 

the confines of the area where these exterior doors that 

were locked exist, is that right?

A Yes.

Q And those doors were also locked?

A No, there are no locls on those doors.

Q They were not?

A There are no locks on the doors, so they can't be locked.

Q How do you get to them in relationship to, say the back

door to Lebedin's?

A If you want to come in the back door, they were in sight 

of the doors, like you just said.

Q. Are you suggesting that anyone who was inside the restau­

rant and wanted to relieve himself, could go directly to 

the restroom?

A They weren't locked because they don't have a lock on them.

Q You're not answering my question, sir.

A They could have gone if they wanted to move the table aside.

Q You mean, what you're saying is that the table had been

311



placed in front of --

A The table had been placed in front of the door.

Q In front of what door?

A There is a little aisle that leads to the back door and we

placed the table there at the time, so nobody could go out 

the back door. We wanted everybody to go out the front.

Q, No one could go out the back because of the table, and, 

also, one could not get to the restrooms because of the 

table, is that correct?

A They could have got to the restrooms, going out the 

front door.

Q Was there anything blocked the hallway to the back door?
A Yes.

Q Maybe we need to clarify the position of the restrooms in

relationship to the door. Is there any difference between 

going out the front door and going out the rear door inso­

far as one removing himself from the interior of the place?

A We close our door, we lock the back door a lot of times.

Q You didn't answer my question about when you locked the

back door. The question was: Is there any difference

between one exiting himself from the interior of Leb's, 

if they go out the back door as distinguished from the 

front door, they would be outside, wouldn't they?

A No, they wouldn't be outside, they would be --

312 -



Q They would be outside of Leb's?

A They would be outside of Leb's.

Q This Is what we're talking about. If you come In the

front door, the double door on the corner of Luckle and 

Forsyth, where are the restrooms in relation to that door?

A Straight to the back on the right-hand side.

Q. Is there any partition between the dining area and the 

restrooms?

A There's not a partition, it' s like a little alleyway, 

there's a water fountain.

Q So, in order to get to the area where the restrooms are, 

you have to go down a little alleyway, is that right?

A Yes, about four feet long.

Q Was there anything in front of that walk?

A Not at the door up in front of the fountain.

Q I am talking about at the place where you enter this 

alleyway?

A Yes, there was.

Q, What was there?

A A table.

Q, A table, who put it there?

A I did.

Q The only way you could get into the area beyond that

would be to go under or jump over or move the table,

313 -



is that correct?

A Yes.

Q Was there somebody there to see that the table wasn't 

moved?

A No, I was there but if they had moved the table, I asked 

them not to.

Q They did move the table?

A Yes, they did.

Q Who-?

A I didn't know, I don't know the people's names that were 

in there.

Q, All right, you can describe who moved the table?

A I would know them if I see them.

Q Did they seek to go into that area?

A If they wanted to go, I believe they could have gone.

Q Answer my question, Mr. Kontoes, did anyone seek to go

into that area?

A Well, they didn't try very hard.

Q Did anybody seek to go, Mr. Kontoes?

A You mean did they ask me directly?

Q I didn't ask you -whether they asked you directly. Did

anyone approach that entrance?

A They approached it, but they didn't want to go in.

Q How did you know, could you read their minds?

-  314  -



A If they had wanted to go in, I believe they would have 

gone.

Q You believe they would have gone; you don't know?

A If they had wanted to go, they could have gone in the

doorway.

Q You didn't know what they wanted to do, did you?

A No, if I had known what they wanted to do, I would have 

been ahead of the game.

Q, Well, you didn't want them to use the restrooms?

A Oh, no, I didn't say that.

Q I am asking you.

A No, I didn't say that.

Q I didn't ask you what you said, Mr. Kontoes, I asked you 

did you want them to use the restrooms?

A If they wanted to use them, they could have gone ahead 

and used them.

Q, You didn't want them to use them, did you?

A I didn't, but if they had wanted to use them, they could 

have gone ahead and used them.

Q. Jump over the table?

A They jumped over the table and got through to come in.

Q, Did they jump over this table?

A They didn't jump over this one.

Q And you say they remained there, didn't they?

315 -



A Yes, until early the next morning.

Q As a matter of fact, you wouldn't let anybody that was in 

this group back into the area where the restrooms were, 

isn't that correct?

A Not only this group, I didn't even allow my employees 

that were there. They had to go out.

Q These are the only toilet facilities within the general 

area of the Leb Restaurant?

A No, there are some down in the kitchen.

Q I didn't ask you about in the kitchen, I said within the 

dining room area, generally.

A Yes.

Q You didn't permit any of these people in the kitchen, 

did you?

A No, we don't let anyone in there.

Q, How long were they there?

A Well, I told you I got there at four-thirty, they left at

eleven-thirty. How long they were there before I got 

there, I'm not quite sure.

Q How long is that?

A That's eight hours.

Q Eight hours?

A Yes.

Q. That was seven when I went to school, do we differ as to
- 316 -



that, seven hours?

A What's seven hours?

Q From four-thirty to eleven-thirty.

A From four-thirty to eleven-thirty, yes, that's right.

Q So they were there seven hours?

A What I am trying to say is, they were there before I 

got there.

Q All right, so at least seven hours, is that correct?

A The least they were there.

Q Do you have a bladder that will contain water for seven 

hours normally?

THE COURT: Don't answer that question.

A I don't have to answer, I know.

Q, Who was standing at the front door when you came in?

A Captain of the po?ice force opened the door.

Q He opened the door and let you in?

A He turned the key.

Q Who else was there?

A A Lieutenant Baugh, I believe was there.

Q, Who else?

A Mr. Leb.

Q Did you let them come and go as they sought fit?

A I told them if they were going to go out, they had to

stay out, too, and they stayed with me.

317 -



Q You told the police what they could or could not do?

A It was a private industry, they were inside.

Q, Answer my question, Mr. Kontoes.

A Yes, I did. I told them that if they wanted to leave, we

were closed and they weren't coming back in.

Q You told them that?

A Tha t ' s wha t I told them.

Q In the presence of Mr. Lebedin, who was your superior?
A No, I did not in his presence. I told them when they

wanted to go out, they wanted to go out to use the bath­

room, and I said, when you go out, nobody is coming back in.

Q I am talking about police officers, now.

A I told the police officers that, yes.

Q That if they wanted to go out they would have to stay out?

A They would have to stay out, right.

Q When was it you told them that?

A Saturday night, when they were in there.

Q About what time?

A About eight-thirty or nine o'clock.

Q What about between four and eight-thirty, you said that

they were there at the time that you arrived?

A There were officers that were there, but they didn't ask 

me to go anywhere.

Q, They didn't ask you to go anywhere?

- 318 -



A No.

Q Didn't you say they were handling the lock?

A They let me in., yes.

Q The police were handling the lock?

A No, they turned the key to let me in, because Mr. Leb

told them to let me in. You asked who let me in and I 

told you, a captain let me in.

Q You say that was Captain Brooks?

A I don't know his name. I know he is a captain on the

police force, but I don't know his name.

Q Describe him.

A He was a big, heavy-set man, and if I see him, I can tell 

you.

Q, Blond hair?

A No, he was gray-haired.

Q Gray hair?

A Well, he had a cap on, so you can't exactly tell.

Q, About what age?

A I would say around fifty-five.

Q, Wear glasses?

A No, he didn't have glasses on that night. He might wear 

them, but he didn't have them on then.

Q, Between probably two ten and two thirty?

A He would weigh around two hundred.

319 -



Q Around two hundred pounds?

A Yes.

Q, He was the doorkeeper?

A He wasn't the doorkeeper. Mr. Leb was there and when I 

came up to get in, Mr. Leb said something to him and he 

turned the key and let me in.

Q He was the turnkey?

A To let me in.

Q, Did he let anybody else in?

A No, I had to let anybody come in, but nobody came in.

Q Did you see him let anybody else in?

A No.

Q Did you see him let anybody out?

A Yes, he let somebody out.

Q, Who did he let out?

A He let out our employees.

Q What employees?

A Colored and white.

Q When?

A It was after four o'clock, four-thirty, five, in between 

there.

Q After your arrival?

A That's right.

Q Immediately after your arrival?

3 2 0  -



A Not immediately, it took a while for some of them to 

clean up, and some of them weren’t in any hurry to 

leave anyhow.

Q And he let them out?

A Yes.

Q So that then we have only the officers and these folk that 

were seated, still looking for service, and you and Mr. 

Lebedin, is that correct?

A And my wife was there.

Q And your wife was there, does she work there, too?

A Yes.

Q What does she do?

A She is a waitress.

Q Did you let her out?

A No, she didn't want to go, she wanted to stay with me.

Q She wanted to stay with you?

A I told her to go with the rest of the waitresses and she 

did not want to go.

Q She didn't want to go?

A No.

Q I believe you said you told them to sit down and that they 

sat down, this was your testimony, they sat down and nobody 

ever served them. And then you said that a female asked you 

to use the bathroom, isn't that what you said?

3 2 1  -



A Yes.

Q Well, a moment ago, you said that nobody indicated to you 

that they wanted to go?

A You said, ask me; indication and asking is two different 

things to me. If you walk toward the door, that doesn't 

mean you are going out. If you ask to go out, that means 

another thing too.

Q You said on direct testimony that one asked you. Where 

did you refer her to?

A I told her I would let her out and go.

Q, You didn't have to let her out to go, you had one there,

didn't you?

A Yes, but I didn't even let my employees use it.

Q But there was one in the back, wasn't it?

A Yes.

Q, So they didn't have to go in the back, there was one there

for customers or potential customers, isn't that true?

A Potential customers, yes.

Q Well, customers. I said there was one there for the use 

of customers and potential customers, isn't that true?

A Well, you could say it that way.

Q But you did not permit her to use it?

A I told her, I did not let her use that one, but I was

willing to let her out. I had the key and I said, right 

this way.
-  3 2 2  -



A Yes, I let the waitresses out and the employees.

Q You let these people out?

A I let them out when they wanted to go out, yes.

Q When was that?

A About eleven-thirty.

Q, About eleven-thirty; they asked you to use the bathroom, 

didn't they?

A Yes.

Q But you refused?

A I didn't refuse them to use the bathrooms.

Q You didn't?

A I only refused them to use ours.

Q Well, was there any other around?

A Yes, they could have gone across the street, down to the

railroad station.

Q, Was there any other in that building around?

A There are some in the building.

Q, I am speaking of specifically Leb's.

A No.

Q I believe you said that you saw someone over a bus tray 

relieve themself, is that correct, urinating?

A That's right.

Q And you saw some boys in a corner and thereafter you saw

Q, Did you let anybody else out?

323 -



a pitcher which you took to be --

A Not thereafter, I took it out of his hand.

Q You took it out of his hand?

A Tha t 's right.

Q Had it been used?

A It had been used.

Q And you say there were one or two silex cups that had been

used?

A Yes.

Q This was after some period of some several hours in the 

place, is that right?

A Yes.

Q Nov;, you did not testify that you saw anyone urinate on 

the floor, did you?

A No, but when ---

Q. Just answer the question. And you didn't see anybody do that, 

did you?

A Do you have to see it?

Q I didn't ask you that, I said did you or did you not see 

anyone?

A I don't want to answer --

MR. HOLLOWELL: May it please the Court, we ask

that this witness be directed to answer the question.

- 324 -



floor?

A I didn't see any of them doing it on the floor, no.

THE COURT: Did you see any urine on the floor?

A I saw urine on the floor.

Q You saw some on the floor?

A Yes.

Q And you don't know 'whether it was kicked over or spilled 

over or how it got there, all you know is that you saw 

some on the floor, is that correct?

A I saw it on the floor.

Q Of course, there was no defalcation on the floor at all, 

was there?

A Would you rephrase that?

Q I say, there was no defalcation on the floor.

A What do you mean by that?

Q There had been, there was no indication of an elimination 

of the bowels on the floor?

A No.

Q You were insinuating by way of the fact that you had seen 

barns that were cleaner, you weren't suggesting that 

t h i s --

A I wasn't suggesting, because grain is very clean and that 

is all over the floor, too.

THE COURT: Did you see anyone urinate on the

325 -



Q I believe you said ultimately that when the door was

finally opened that night, they all went out peaceably, 

is that correct?

A Yes, they did.

Q I believe you also testified that Mr. Leb told you that if 

anything happened to call the police?

A Yes.

Q, This was in relationship to anything pertaining to any of 

these demonstrations. He told you to call the police if 

any of those people came in there, is that right?

A Not before that, no.

Q Not before that?

A No.

Q But you know there have been some there before?

A We never even spoke about it.

Q I beg your pardon?

A We never even spoke about it, about demonstrations that7
had been there before.

Q Is that right?

A No, he never said a word to me and I didn't even know that 

he had the demonstrations until after these were brought 

up.

Q Is that right?

A That's a fact.

-  3 2 6  -



Q Where did you say you came from?

A Worchester, Massachusetts, a good nine hundred miles

away, and we didn't get that kind of information up there.

Q. You indicated that the fact that you were from Worchester, 

Massachusetts, automatically made you a liberal, is that 

correct?

A What do you call a liberal?

Q A non-segregationist, let's put it that way.

A Everybody is a segregationist to a certain point.

Q I mean, you testified to the Court in answer to counsel that 

you were not a segregationist, are you or are you not?

A When my children go to school with colored, then I can't 

be a segregationist. When they were coming home, walking 

down the street, talking together, play on the same baseball 

team, the same football team, I'm not a segregationist.

Q, That's your children, that's not you.

A Well, I could have easily taken the children and moved to 

the other side of town. I had the right of will over my 

children then.

Q You are aware of the fact that some of the most liberal-

minded people as relates to race and relationship of people, 

live right here in Atlanta and other parts of the South, 

you are aware of that, aren't you?

A Reword that.

327 -



Q You are aware of the fact that some of the most gracious,

some of the most liberal-minded people, some of the most -- 

hov/ could I best put it -- some of the people who see other 

people as just members of the human race as distinguished 

from being members of certain ethnic groups, live right 

here in Atlanta and in the South?

A I can't testify for them. I can only testify for myself.

Q. Well, you don't testify that just because you happened to

come down here from Worchester, Massachusetts, that that 

qualifies you as a non-segregationist?

A No, that don't qualify me none, because this South felt 

pretty strong.

Q Now, you said you saw the defendant and she was outside.

You saw her singing?

A If that's what they are going to call it, I didn't call it 

singing.

Q Well, you were on the inside, weren't you?

A Yes, but I  

Q You couldn't hear one voice as distinguished from any other 

voice?

A I couldn't distinguish no voices, I don't even know music.

Q You didn't see her hit anybody?

A No.

Q You didn't see anybody hit her?

-  3 2 8  -



Q You didn't see her kick anybody?

A No.

Q, You didn't see her slap anyone?

A No.

Q You didn't see anybody slap her?

A No.

Q She didn't give the appearance of being intoxicated?

A She didn't -- she gave me --

Q Answer my question, sir. Did she give the appearance of 

being intoxicated?

A Like you said, I was inside.

Q All right. But you saw her?

A I saw her on the outside.

Q She wasn't staggering?

A Well, that weaving back and forth and 'waving the hands, like

you just'told me they were --

Q Was she staggering, Mr. Kontoes?

A I wouldn't say yes, I wouldn't say no, to that.

Q Did she appear to be off balance at any time?

A She looked off balance to me when she was running up and

down, making all those kinds of actions, and whispering 

in everybody's ear and going on up and down there.

Q Was she physically off balance?

A N o .

329 -



Q Now, let me ask this. You didn't hear her say a word to 

anybody, did you?

A When somebody talks right In your ear ---

Q, Mr. Kontoes, did you hear her say anything to anybody?

A - I was Inside the restaurant and could not hear her. She 

was outside, remember.

Q I believe you said there were some people there on Sunday 

night, also, is that correct?

A Yes, there were a good number there Sunday.

Q You didn't see this defendant that Sunday, did you?

A I wouldn't swear to it.

Q This Is the night that you took the chain and hit some 

several young women who were inside, is that correct?

A I did not hit several women.

Q Hoxv many did you hit that night?

A I way trying to hit an officer that had punched me, a 

colored officer punched me.

Q A colored officer punched you?

A Punched me on the way through the door, and I tried to 

hit him.

Q How do you mean, through the door?

A As he came through the door --

Q As who came through the door?

A No.

330



A The demonstrators, at first they pushed the colored girls

in, and we were pushing them back --

Q Who is we?

A Five or six of the boys, and they started  

Q Five or six of what boys?

A They were the boys that were behind me.

Q Nov/, who were they?

A I don't know who they were. I don't remember if they were 

customers that jumped up.

Q, Were they people who were employed by Lebedin?

A No, sir, they were --

Q, They were just people inside who had come to your 

assistance?

A Oh, I would say they came to my assistance.

Q How long had they been there?

A They were eating.

Q They were eating?

A They were eating.

Q How do you know they were eating?

A Well, my waitress had served them food.

Q, As a matter of fact, you had some bouncers that you had

right there for the purpose of keeping out anyone that 

you didn't want in, isn't that correct?

A We didn't pay nobody, we didn't have nobody.

331 -



Q We'll say they weren't paid, but you did have some there 

for that purpose?

A No, they weren't there for that purpose.

Q And they had been there for several hours, isn't that 

correct?

A No, I wouldn't say that.

Q For two or three?

A They came in of their own free will. They had a right to

sit there. If they wanted to do what they did, we let them.

Q, At the time they were not eating, because as a matter of 

fact, they had been there for quite some time, isn't that 

true?

A Well, the ones that had pushed back at the time, were.

Q This assistance that you had, this reinforcement group, 

they were standing there behind you when some girls 

were pushed through?

A Yes.

Q Was it then when you hit them with the --

A No, it was not  

Q -- v/ith the chain?

A If you will just permit me, I'm not used to being up here 

and I might be a little slow in thinking, so just let me 

take in in a slow way.

Q What I was trying to get you tc do is just answer the 

question.

- 332 -



A Well, I can't answer It as good as like she could, because 

I'm not trained in this kind of stuff.

MR. HOLLOWELL: Now, we object to that, Your Honor, the

statement that: I can't answer it as good as she could,

because I'm not trained, in that I think there has been 

no suggestion that the defendant was trained.

A Well, she just --

MR. HOLLOWELL: Just a moment, sir. I would

respectfully request that that remark be stricken as being 

improper and not responsive, nor based upon any question 

that had been asked of the defendant.

THE COURT: The Court will exclude about the

training of the defendant. Tell about this occurrence 

that you were starting to tell about. Just go ahead and 

proceed.

A If you will just hear me out. When the girls were pushed 

to the door, there were quite a few fellows behind them, 

and Lieutenant Baugh, he will testify to this, that one 

of the boys --

MR. HOLLOWELL: We object to what Lieutenant

Baugh will testify to.

THE COURT: Sustain the objection.

A Well, anyhow, one of the boys behind me started to throw 

punches at them coming through. I said, please, no 

violence.

- -333



Q, Started to throw punches at who?

A At the demonstrators that were coming in through the door, 

and I said, please, no violence. They started pushing us 

back a pretty good ways, and --

Q, Who are they?

A The demonstrators.

Q Pushing who back?

A Me and the few boys that were with me. Just about that 

time I don't know his name but I would know him when I

saw him, he come running and took --  one of your colored

boys came right in and took a poke at me.

Q, I don't have any colored boys, so I don't know who you're 

talking about.

A The defendant's outfit here, I don't know what it is.

Q Who is it that you say ran in?

A One of the demonstrators, let me put it that way.

Q Some demonstrator?

A One of the demonstrators.

Q Some person of Negro extraction or that you took to be a 

Negro, came in, passed you and took a swing at you, is 

that correct?

A He never passed me, he came up and took a swing at me.

Q He came up and took a swing?

A And I took a swing at him, and at that time, the little

- 334 -



officer that was on duty came in and took a swing at me, 

and I ran back and got one of these things, just like 

you've got there.

Q I don't have anything there, so what are you talking about?

A This little thing right here, we have the very same thing.

Q, You mean this stanchion here?

A This, they call it a theater rope.

Q Since you have described it, this is a flexible, cord­

looking object, metal on each end, about three or three 

and a half feet long. I can't tell what the inside, what 

•was inside of yours was chain,, is that correct?

A Oh, no, it is soft. I think it is plastic, to tell you 

the truth.

Q Inside, and it is covered on the outside by some velvet or 

velveteen?

A No, it's a plastic.

Q Yours is covered by plastic?

A Yes.

Q And this one is covered by velvet, I know it is not

velveteen because it would be velvet in our courthouse.

A It is the very same thing.

Q The very same thing, and you took this and you swung it at 
an officer?

A Yes.

- 335 -



Q How many times did you swing it?

A Well, I would have stopped, but I kept swinging  

Q Will you answer my question, how many times did you swing

it?

A I didn't start swinging as long as they were swinging at 

me.

Q How many times did this person that you spoke about swing 

at you?

A He swung once and then got out of the way.

Q The officer or the man?

A The officer and the man, too.

Q How many times did the man swing at you?

A He came in the door three or four times. Everytime the 

door would open up, he would hit me and run back off.

Q, Which way was the door open, in or out?

A Once it was out, once it was in.

Q, Which one swing in?

A The one ’where you come in says in, on the right.

Q, And where we re you standing in relation to the door?

A I was halfway in. I wasn't near the door at all. I was

halfway in.

Q You were halfway in, well, who was holding the door shut?

A There was nobody holding the door shut.

Q So that you were permitting the door to be opened, is that

correct?

- 336 -



A No, I was in the back when this occurrence of swinging this 

rope happened, I happened to be in the back.

Q Well, now, how long had they been at the door when this 

occurrence took place?

A When I got up front, everybody was swinging pretty wildly.

Q, Who is everybody?

A The demonstrators and the help.

Q. And your help?

A Well, and some of the people that were eating.

Q Well, now, who did you see there that you saw swinging at 

somebody?

A The little officer came at me and one of the little boys 

came at me, every time that door would open he would run 

in and hit me.

Q You mean the little officer would run in and hit you every 

time the door opened?

A No, I said the little fellow that was hanging around 

outside the door.

Q Everytime it would open, he would come in and hit you?

A He'd take a swing at me.

Q How many times did he hit you?

A The first two or three times he hit me, because I let 

him, but the next times he didn't.

Q, Where were the other police officers on this case?

337 -



%

A They were standing across the street.

Q You mean only this one Negro officer was standing there 

with all the other officers across the street?

A That's right.

Q, Just one Negro officer there?

A No, three.

Q There were three?

A Yes.

Q And Lieutenant Baugh was there?

A Yes.

Q, And you say that Lieutenant Baugh would testify that he 

saw one of these officers run up and hit you?

A I didn't say that. I said that he could testify that I 

said, please, don't hit these people, no violence.

Q, This was after there had been bloodshed?

A No, that was before then.

Q Oh, this was before there -was bloodshed?

A And then when he started hitting me, I changed my mind.

Q When who started hitting you, did any girl hit you?

A No.

Q How many times did you hit these girls with this rope you 

were talking about?
A When you start swinging a thing four feet long, you don't 

know who you're going to hit. You're just going to hit

- 338 -



what is in front of you.

Q Answer my question, how many times did you hit these girls?

A I didn't hit no girls that I know of. All I knew is that I

swung that cord.

Q. How, did you put it over your head and start swinging it 

around?

A No, I swung it like I was chopping wood.

Q Back over your shoulder and swinging down?

A Yes, just as fast as I could.

Q How many times would you suggest that you did this wood­

chopping action?

A How many?

Q Yes, just as many times as you could, until you got tired?

A No, somebody yanked it out of my hand.

Q After about how many strokes?

A Three or four.

Q Do you know that they took some girls to the hospital that 

you had struck with this thing?

A No, I don't believe they took -- you see, when I went up to 

the door --

Q Answer my question, do you know whether or not they took 

some girls to the hospital?

A I knew it, but it wasn't because of that.

-  3 3 9  -



Q What?

A I knew, but it wasn't because of that. They were laying 

in the doorway when I got there.

Q They were?

A Yes, they were.

Q How did you get in there?

A They were laying out in front of the doorway.

Q, What day?

A I don't remember exactly which day.

Q So all you know is that you did some swinging with this 

rope that has this metal head on it, and you swung it at

least three times in a wood-chopping kind of fashion --

A Yes.

Q --  and somebody ultimately took it away from you?

A Yes.

Q But you were mad, weren't you?

A No, I wasn't mad.

Q You weren't mad?

A I was repudiating at the officer for doing as he did.

THE COURT: Was this on Saturday or Sunday?

A I believe it was on Sunday.

Q, Let me show you Defendant's Exhibit Number D-8, and ask you 

to indicate whether or not you recognize the gentleman who 

is in the center of the photograph?

-  3^0  -



A The one in the center looks like me.

Q That is Mr. Kontoes?

A Mr. Kontoes, right.

Q Who is the gentleman next to you?

A I tell you, the face is familiar but you have that white

blotch down there.

Q Who does it look like?

A It looks more like Mr. Russell than anybody I've ever seen. 

Q Did you see Mr. Russell around there on that Saturday?

A Yes, he was in Pigalley.

Q What Russell?

A Senator Russell.

Q Senator Russell, did you see him standing next to you at 

any time during that day?

A No, I didn't.

Q Anybody else that it makes you think of?

A What?

Q Does it look like anybody else that you know?

A No.

Q Do you know Mr. Lebedin?

A That isn't him.

Q That's not him, then do you know the man at all?

A The way this thing is blurred down there, with a photograph 

mixed up like that, I don't want to even say who that is.

-  3*11 -



Q Mr. Kontoes, I am not asking you who it is, I am asking 

you if it looks like anybody that you know?

MR. SPENCE: Your Honor, I don't believe that would

be admissible. It could look like a lot of different 

people.

A I told you who it looked like.

THE COURT: Let's see the photograph.

MR. SPENCE: I would like to inquire of Counsel

for the defense, Your Honor, whether or not he contends 

Senator Russell was in on this demonstration.

MR. HOLLOWELL: Since the inquiry has been made,

and it would seem to me to be perhaps facetiously made,

I think counsel is capable of laying out to the Court 

what the theory and contentions of counsel are. I don't 

recollect as having included the Senator from Georgia.

THE COURT: Proceed with the examination of

the witness.

Q The gentleman who is to the extreme left of the photograph, 

as you view it, does it look like anybody that you 

recognize other than, you say. Senator Russell?

A No, seeing that you brought up the subject of Mr. Leb, the 

mouth does look like him, but I've known Mr. Leb for years 

and that is a poor picture of him.

Q I guess we are all more photogenic at some times that at
-  3^2  -



others, but it does look like Mr. Leb to you, the mouth, 

you say?

A The mouth.

Q Have you ever seen this other person that is in the 

photograph?

A I have seen her on several occasions.

Q You have seen her on several occasions?

A She has on a little leather jacket.

Q Is that your hand that is on her shoulder?

A Well, it could be mine.

Q It appears to be?

A It appears to be, yes.,
Q And it appears to be the hand of the other gentleman that

is just below that, doesn't it?

A Right.
Q Do you remember that as of the time that this photograph 

was taken that that girl was virtually passed out from 

having been hit?

A No, Mr. Leb was not in the building at the time I used that.

Q. I didn't say he was.

A But you said passed out from being hit, me hitting her.

Q But she could have passed out for some time and had been

out for some time when Mr. Leb came.

A Mr. Leb was not there that night at all.

-  343  -



Q He was not?

A No.

Q Then, let's say the gentleman who was there in the 

foreground of the photograph?

A But you just said that was Mr. Let).

Q I understood you to have said that the mouth or expression, 

at least, gave the appearance of being Mr. Leb.

A That's all.

Q All right, so I will now ask the question again. Do you 

remember having your hand on this young woman that is in 

the photograph there, in the manner that is described and 

portrayed by the photograph?

A No, I don't remember that.

Q But you don't deny it?

A I wouldn't deny it knowing that I did push.

Q, And you did strike?

A I struck just that one time.

Q You said you struck at least three times?

A But I mean at that one time.

Q Oh, you struck some more during the course of the evening?

A No, that one time was the only time I struck, three or

four blows.

Q Were there any others that did some striking up there, too?

A There was one boy, and I asked him to, please, no violence.

-  3 *1*1 -



Q, I'm talking about when you did some striking.

A No.

Q Let me show you Defendant's Exhibit Number 7 for

identification, and ask you if you recognize the person 

who appears to be unconscious or possibly unconscious, 

and who is lying on the ground there, and see if you 

recognize her as being the same person that is apparently 

shown in the photograph which is marked for identification, 

Defendant's Exhibit 8?

A I don't remember that person.

Q, You don't recognize in Defendant's Exhibit 7 as being the 

same person in Defendant's Exhibit 8, is that correct?

A To me it doesn't look the same.

Q These aren't the same people?

A I'm noc saying that.

Q To you they are not the same people?

A This cne here is laying on the ground.

Q, And she doesn't have on a black leatherette-type jacket, 

either1, does she?

A That isn't a leather jacket, no.

Q, I said it was leatherette, they are different, aren't they?

A Yes, they are.

Q. I mean that is the point, this is another person, isn't it?

A Yes.

-  3 ^ 5  -



Q That had been hit that night by you?

A I don't say she's hit. She's laying on the ground. There

were plenty more laying out there on the ground. Some of 

them laying in front of the police wagons. That don't mean 
nothing there.

Q She wasn't laying in front of a police wagon that night?

A Just because she is laying on the ground doesn't say I hit

her.

Q You don't deny that you hit more than one that night?

A I don't deny I ever hit more than one.

Q As a matter of fact, there have been some other folk who

have picketed Leb's on a more recent date than the one 

in question, isn't that correct?

A Could you repeat that?

Q I say, there have been or has been some picketing of Leb's 

place on dates more recent?

A Yes, that's true. They have been passing through the last 

couple of weeks.

Q Which night was it that you pulled the gun on the students?

A I pulled a gun?

Q Yes, you.

A I never pulled a gun on a student.

Q You have never pulled a gun?

A May I remind you that I am under oath now, I have never pulled

a gun.

- 346 -



Q, I want to remind you since you bring it up that you are 

under oath.

A I know.

Q Do you remember throwing out physically or assisting in 

throwing out or having thrown out another young colored 

girl on either Saturday or Sunday night?

A I wouldn't say throwing, I would say pushing.

Q Pushing, describe what you mean by pushing.

A You say throw, to me throwing is taking and picking up

and out; pushing to me is just gently pushing them back.

Q Oh, I see, and this was what was happening?

A That was what was happening.

Q A gentle ---

A Gentle, but with twenty people, you have to push.

Q A gentle -- how many people were behind you?

A Not behind me, in front of me.

Q No, I'm talking about, you said you had help?

A Oh, five or six.

Q A gentle, five or six man push in the opposite direction

from which the pressure is coming?

A The pressure was easy. If they had pushed harder, we -would 

have had to push harder.

Q Let me get it clear for the record, is it your testimony ~- 

strike that and let me ask this. Do you know what a

-  3^7 -



bouncer is?

A Oh, yes, I know what a bouncer is, all right.

Q, Do they have any or have they had any such persons who 

fit the general description of what is commonly known 

as bouncers at Leb's?

A Not as long as I have been employed there.

Q Never had any such persons?

A No, I was more like a bouncer, but I was at the door.

Q These persons who had been around for some several hour

waiting, how do you describe them, just lookers-on, 

interested citizens?

A I would say they were interested citizens.

Q, Just interested citizens?

A Yes.

Q, You do have a gun at the place of business, do you not?

A If there is, I don't know where it is.

Q Answer my question. Do you or do you not have a gun at 

the place of business or one at your disposal?

A No.

Q To your knowledge, there is none?

A No.

Q, You have never seen one there?

A I have seen one there several years ago, but I have not 

seen one there since I have been back.

- 348 -



A Yes, I have taken one there unloadec at one time.

Q When was this?

A It was when I bought it and was going to take it home and 

give it to my wife after I was threatened.

Q When was this?

A Oh, about the 28th.

Q The 28th, was this the night that you pulled it out and 

made a display of it?

A I didn't pull no gun out and make a display out of it.

Q This was about the 28th of January, 196^, that you are

talking about?

A That's right, I've got it listed dovm on record that I 

bought it.

Q About the 28th of January, 196̂ 1, is that right?

A It could have been around there.

Q It was, in fact, wasn't it?

A I don't know whether it was or not, I think it was later

than that, I wouldn't say.

Q This has been within the last few days?

A The last week or two.

Q Yes, that's right. Where did they get the cattle prodders? 

A Leb's don't have no cattle prodders.

Q You have never seen any cattle prodders?

Q You have never taken one there?

-  3 ^ 9  -



A I have seen cattle prodders, but they weren't at Leb's 

Restaurant.

Q You don't have any?

A Not at Leb's Restaurant.

Q, What Is the source of those that are used there?

A Only Leb's Restaurant is In this right now.

Q But I am asking you what is the source of those that have

been used by you or those who have been assisting you?

A Nobody has assisted me with one of them.

Q Nobody has assisted you with one?

A No, they are not used in my establishment, it was used in 

another establishment.

Q Which establishment was that?

A I don't have to say that now.

Q I'm asking you. You said it and I am asking you which one 

i t wa s.

THE COURT: Did you see this?

A I did not see it, no, so how can I answer it. I know that 

people do have them and they have been used, but I didn't 

see it.

Q, When you say you know, that is evidence of the fact that it 

is within your knowledge.

A Well, there are a lot of things within my knowledge, but 

I don ' t see it.

- 350 -



Q The Court asked you, did you in fact see them in use.

A No.

Q When I say you did not see them in use, but you do know

that there are certain restauranteurs that have them. Is

this what you are saying?

A They do have them.

Q Did you get a permit when you purchased this gun?

A When I purchased the gun, I asked if I needed a permit to

keep it at home. He said, no. He took my name and the

number down, and he said, as long as it is kept in your

house, you don't need it.

Q Who is he?

A The man I bought it from.

Q Who is he?

A I don't know his name.

Q, Where was it?

A On Peters Street.

Q A store?

A A little loan shop down there.

Q What was the name of the loan shop?

A I don't know, all I know is that I went in there and I

bought it.

Q What was the name of the loan shop?

A The loan shop?

- 351 -



Q Yes, where you bought it?

A They are buying pistols up there everyday, you sign your 

n a m e --

Q What is the name, Mr. Kontoes?

A West Side Loan.

Q West Side Loan, where is it located?

A On Peters Street.

Q What number on Peters Street?

A It must be the two hundred block.

Q This was the proprietor that gave you this information?

A It may have been the wrong information, but when I bought 

it, I said, do I need a permit. If he had said yes, I 

would have gone out and gotten one.

Q And so the first place you took it was to Leb's?

A I had it in my pocket, unloaded, I didn't buy any shells.

Q But you took it to Leb's?

A I took it to Leb's, yes. I didn't want to leave it in the 

car.

Q What caliber is this gun?

A Twenty-two.

Q Shoot both long and shorts?

A Shorts.

Q You bought some rounds there?

A No, I did not buy any rounds, I--

- 352 -



A No.

Q When did you buy the rounds?

A I bought them a week later, after I was threatened.

Q You mean you bought the pistol ---

A And then a week later, I bought the shells.

Q And then a week later, you bought the shells?

A Yes.

Q I thought that you testified that you had been threatened

before you bought the pistol and that was the reason you 

went and bought it?

A That was one reason, and then when I got threatened again, 

I went and bought the shells. It isn't only one time that 

I have been threatened. I'm not saying it's colored, it 

could have been any crank that called me up and threatened 

me.

Q You mean you get those things?

A Yes, we all get those things, when we are under circum­

stances like we are, I mean, we all get some kind of 

threats.

Q I get threats, and nobody is demonstrating against me.

A I know, but I'm not going to take the chance that some­

body's going to do it.

Q At any rate, you got the gun one week and you took it

Q You already had rounds?

- 353 -



to Leb's, and then you got the rounds the next week?

A Yes.

Q And if you just got it this month, then that means that 

you just got the rounds this week?

A I just got them this week, yes.

Q What day this week?

A Day before yesterday.

Q You took them to Leb's, too?

A No.

Q No?

A I took them directly home.

Q Where did you get them?

A At the same —  he asked me if I wanted any shells, and I

said, no, I don't believe I need them. Then a week later, 

I went back and got the shells. I didn't buy the pistol 

for my own use, because it would be bigger than a twenty- 

two.

Q Well, you know the twenty-two will kill you just as dead?

A I know, but I had rather have something big.

Q How many pistols do you have?

A I have that one little twenty-two.

Q Do you have a rifle?

A No.

Q Shotgun?

- 354 -



A No, and my house is open for anybody to look and see.

Q Do you keep billies or billyclubs?

A No, I don't keep a billyclub. I have never carried a 

knife in my life, either.

Q Blackjack?

A Nor a blackjack.

Q Just use stanchion?

A I'll use a stanchion if it's handy.

Q Rope, metal head rope?

A When I am physically abused, yes.

Q And we will take our unloaded pistols to our place of

employment and we won't shoot it because we don't have 

any bullets?

A If you don't have any shells, you can't shoot it.

MR. HOLLOWELL: No further questions.

RE-DIRECT EXAMINATION

QUESTIONS BY MR. SPENCE:

Q Mr. Kontoes, any person that you struck in any of these 

instances, or any person that you might have hit, why 

did you do that?

A Because I was struck at or I wouldn't have done it. The 

first five or six times they came through that door, I 

tried to prevent violence. But when violence came upon 

me, then I used it back and only at that time.

- 355



Q As manager of Leb's, is it the policy of Leb's to cater 

to any particular segment of the people in Atlanta?

A Most of our clientele, we have been catering to their 

homes and in there, too.

Q Do you cater to the Negro business in Atlanta?

A In our take-out department.

Q They don't come in and eat at the table, do they?

A No, they don't.

MR. SPENCE: I believe that's all.

RE-CROSS-EXAMINATION

QUESTIONS BY MR. HOLLOWELL:

Q Nor do you feed white persons who come for the purpose of 

being served if they are with Negroes, is that correct?

A When they are with Negroes?

Q Yes.

A If they come in with Negroes, they are not served.

MR. HOLLOWELL: No further questions for

this witness.

THE COURT: You may do down, sir.

MR. SPENCE: Your Honor, may he be excused?

THE COURT: Any objection to excusing Mr.

Kontoes, subject to call?

Mr. HOLLOWELL: Since he would be subject to

- 356 -



call, we have no objections, Your Honor.

THE COURT: Mr. Kontoes Is excused,

to call.
subject

- 357 -



National L E G A L  A I D  and 
D E F E N D E R  Association

Hon. Ea r l W arren
Chief Justice of the United States 

Honorary President A M E R I C A N  B A R C E N T ER ,  1155 E A S T  601 H S T R E E T ,  C H I C A G O ,  I L L IN O I S  6 0 63 7  
Area Code 312 • 684-2727 • 493-0533

O FFICER S
M aynard  J . Toll, President 

433 South Spring Street 
Los Angeles, C a lifo rn ia  9001 3 

Raynor M . G ard iner  
M urray Seasongood

Honorary Vice Presidents 
John W . Cum miskey  
O rison S. A4arden 
John D. Robb 
W hitney North Seymour 
John S. Tennant 
Harrison Tw eed  
Theodore V co rhces  

Vice Presidents 
Christopher W . W ilson  

Treasurer 
Jun ius L. A llison  

Secretary

BOARD O F DIRECTORS  
Robert D. A b raham s, Philadelphia 
Law rence A . Aschenbrcnner, Salem 
T. Edw ard  Austin , Jacksonville  
W illiam  H. A very , Chicago 
Jam es V/. B a ile y , Boston 
E. Clinton Bam berger, J r .,  Baltimore 
N athaniel A . Barre l!, Buffalo 
G a ry  B e llo w , M cFarland 
Hon. Bernard Botein, New York 
Charles V/. Bow ser, Philadelphia 
Ed w ard  Q . C arr, J r .,  New York 
R. D onald Chapm an, San Jose 
W illia m  M . Chisholm , Brooklyn 
M argadefte M. Demef, M ilw aukee 
Ju lia n  R. D ugas, Washington 
Robert H. Frieberf, Madison 
W illiam  R. Fry, New York 
D avid  H. G am b re ll, Atlcnta 
M orris P. G lush ien , New York 
W illia m  T. Gossett, Detroit 
W illia m  D. G raham , Hartford 
Hon. John M. H arlan , Washington 
Arnett L. H artsfield, Los Angeles 
Edw ard  H. H ickey, Chicago 
Erling J . H cvden, Los Angeles 
Elm er C . Jackson , J r .,  Kansas City 
Robert E . Jag g er, Clearw ater 
Hon. Sam D. Johnson, Houston 
Hon. Florence M. K elley , New York 
Edw ard  W . Kuhn, Memphis 
W illi am A . Low ry, C leveland 
Joe B. M cD ade, Peoria 
O rison S. M arden , New York 
Anthony F. M arra , New York 
Soia M entschikoff, Chicago 
W . Robert M ing, Chicago 
J. W hitfield M oody, Kansas City 
Earl F. M orris, Columbus 
Horace P. M oulton, New York 
Rcvius O . O ttique, J r .,  New Orleans 
Louis H. P o liak , New Haven 
Herman I. Pollock, Philadelphia 
John E. Po w ell, Washington 
A . Kenneth Pye, Durham 
M ilton G . Rector, New York 
Edgar A . R im bold, Boston 
John D. Robb, Albuquerque 
H arold J . Rothw ax, New York 
Thom as H. Rothw ell, Son Francisco 
W hitney North Seymour, New York 
H arlan E. Smith, M inneapolis 
D avidson Sommers, New York 
John S. Tennant, New' York 
W right T isd a le , Dearborn 
M ayn ard  J . Toll, Los Angeles 
Harrison T w ee d , New York 
H oward C . W estwood, W ashington 
DeW itt W illia m s, Seattle 
J . A lbert W o ll, W ashington 
A.rthur K. Young, Chicago 
Robert E . L. Young, Cincinnati

>vi-rn
S 6 7

D ecem b er  6, 1967

M icha e l  M e l t s n e r ,  Esq.
NAACP L eg a l  Defense  Fund
10 Columbus C i r c l e
New Y o rk ,  New Y o rk  10019

D ear  M r .  M e l t s n e r :

I would l ike  to take this opportunity  on beha l f  of 
m y s e l f ,  M r .  Junius A l l i s o n  our  D i r e c to r ,  and a l l  our  de fender  
m e m b e r s  to thank you fo r  yo ur  p a r t ic ip a t ion  in our  Annual  
NLA DA m eet ing  held in Ph i lad e lp h ia ,  P e n n sy lv a n ia .  We at  
NLADA fe e l  that the de fender  P r e - C o n f e r e n c e  w ork sho p  and 
the defender  s e ss io n s  w e r e  e x t r e m e l y  s u c c e s s fu l  and the 
comm ents  of our  m e m b e r s  who w e r e  in attendance b e a r  this 
out. H ow ever ,  w h a te v e r  s u c c e ss  we enjoyed was  due to your  
e f fo r ts  as a s p e a k e r  and a panel pa r t ic ip a n t  and we ap prec ia te  
those  e f fo r t s .

Thank you again fo r  your  r o le  in making our  annual  
meeting the s u c c e ss  that it w a s .  If I, o r  NLADA can be of 
s e r v i c e  o r  a s s i s t a n c e  to you at any t im e ,  p le a s e  do not hes i ta te  
to c a l l  upon m e.

PJH/lch

Since r e l y  w our  s,
/ r /  /  /  / /

/  . / / / / .
f
P a t r i c k  J.  .-Hughes, ^Jr. 
D ire c to r  of De^dnder S e r v i c e s

Junius L. A llison
Executive Director 

Philip J. M urphy
Assistant Director

N at iona l D e fe n d e r  P ro je c t  
Charles L. Decker, Director 
John J . C le a ry , Deputy Director