Georgia v. Rachel Brief for Petitioner

    IN THE

Supreme Court of the United States
OCTOBER TERM, 1965

NO. 147

GEORGIA, PETITIONER
vs.

THOMAS RACHEL, ET AL.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONER

A r t h u r  K. B o l t o n ,
Judicial Building Attorney General of the 
Atlanta, Ga. 30303 State of Georgia

L ew is R . Sl a to n , J r ., 
Solicitor General 
Atlanta Judicial Circuit

Fulton County G eorge  K. M cP h erson , Jr.,
Courthouse Assistant Solicitor General
Atlanta, Ga. 30303 Atlanta Judicial Circuit

J . R obert  Sparks, 
Assistant Solicitor General 
Atlanta Judicial Circuit

Counsel for Petitioner



INDEX

Opinions Below______________________________  1
Jurisdiction_________________________________- 2
Constitutional Provisions and Statutes Involved___  3
Questions Presented____________________________4
Statement of the Case__________________________ 7
Summary of Argument________________________ 10
Argument___________________________________ 13

I. The Notice of Appeal of the Remand Order 
Was Not Timely Filed, and Petitioner’s 
Timely Motion to Dismiss Appeal Should 
Have Been Granted_____________________ 13

II. The Petition for Removal Does Not Set 
Out Any Valid Ground for Removal_______ 30

III. Assuming Arguendo that Remand to the 
District Court for an Evidentiary Hearing 
Was Proper, the Directions Given the 
Lower Court Were Clearly Erroneous______ 50

Conclusion___________________________________54
Appendices

Constitutional Provisions and Statutes 
Involved________________________________ 59

Certificate of Service__________________________ 58
Appendix “A” _______________________________ 59

CITATIONS
Cases

Arkansas v. Howard, D.C.E.D. Ark., 1963, 218 F.
Supp. 626______________________________ 32, 49

Berman v. United States, 1964, 378 U.S. 530_____ 29

Page

l



INDEX (Continued)

Birmingham v. Croskey, D.C.N.D. Ala., 1963, 217 
F. Supp. 947_______________________________ 49

Bolton v. State, 220 Ga. 632___________11, 52, 53,56
City of Chester v. Anderson, 3 Cir., 1965, 347 F.

2d 823_________________________________ 44, 45
Chicago etc R. Co. v. Roberts, 1891,141 U. S. 690__26
City of Clarksdale, Miss. v. Gertge, D.C.N.D.

Miss., 1964, 237 F. Supp. 213______________47, 49
DiBella v. United States, 1962,369 U.S. 121___23, 25, 27
Gibson v. Mississippi, 1896, 162 U.S. 565_________32
Griffin v. Maryland, 1964, 378 U.S. 130__________51
Hamm v. City of Rock Hill, S. C., 1964, 379 U.S.

306___________________ 6, 7, 11, 12, 50, 51, 52, 53
Hill v. Pennsylvania, D.C.W.D. Pa., 1960, 183 F. 

Supp. 126_________________________________ 32
Hull v. Jackson County Circuit Court, 6 Cir., 

1943, 138 F. 2d 820_________________________ 32
Kentucky v. Powers, 1906, 201 U.S. 1__32, 33, 34, 42
Maryland v. Soper, Judge, (No. 1), 1925, 270 

U.S. 9____________________________________ 48
Moore v. United States, 10 Cir. 1955, 150 F. 2d 

323_____________________________________ 21
Murray v. Louisiana, 1896, 163 U.S. 101___________ 32
Neal v. Delaware, 1880, 103 U.S. 370_________32, 42
North Carolina v. Jackson, D.C.M.D.N.C., 1955,

135 F. Supp. 682___________________________ 32
Nye v United States, 1941, 313 U.S. 28__13, 19, 20, 21
Parr v. United States, 1956, 351 U.S. 513_________ 25

Page

u



INDEX (Continued)

Peacock et al. v. City of Greenwood, 5 Cir., 1965,
347 F. 2d 679________________________ 34, 44, 46

People of the State of New York v. Galamison, 2 
Cir., 1965, 342 F. 2d 255; cert. den. 85 S. Ct.
1342_____________________________ 38, 44, 45, 49

Peterson v. City of Greenville, S. C., 1963, 373 
U.S. 244___________________________________51

Shuttlesworth v. City of Birmingham, Ala., 1963, 
373 U.S. 262_______________________________ 51

Smith v. Mississippi, 1896, 162 U.S. 592__________32
Snypp v. Ohio, 6 Cir., 1934, 70 F. 2d 535, cert. den.

293 U.S. 563_______________________________ 32
Texas v. Doris, D.C.S.D. Texas, 1938, 165 F. Supp.

738_______________________________________ 32
Thompson v. City of Louisville, 1962, 362 U.S. 199__51
United States v. Koenig, 5 Cir., 1961, 290 F. 2d 

166_____________________ ______________ 23, 25
United States v. Lederer, 7 Cir., 1943, 139 F. 2d 

861_______________________________________ 21
United States v. Robinson, 1960, 361 U.S. 220___ 29
United States v. United Mine Workers of Ameri­

ca, 1947, 330 U.S. 258_______________________ 28
United States v. Williams, 4 Cir., 1955, 227 F. 2d 

149_______________________________________ 18
Virginia v. Rives, 1879, 100 U.S. 313_________ 31, 42
Williams v. Mississippi, 1898, 170 U.S. 213________32
Zacarias v. United States, 5 Cir., 1958, 261 F. 2d 

416_________________________________ 22, 25, 27

Page

iii



CONSTITUTION AND STATUTES
Constitution of the United States:

First Amendment__________________________ 59
Fourteenth Amendment_____________________ 59

Statutes and Rules:
Act of 1866, Sec. 3 (14 Stat. 27, 28)____________59
Act of 1875, Sec. 5 (18 Stat. 470, 472)__________61
Act of 1887, Secs. 2 & 5 (24 Stat. 553, 555)_____ 60
Former Sec. 71, former Title 28, U.S.C., (Ju­

dicial Code Sec. 28)_______________________ 61
Former Sec. 74, former Title 28, U. S. C., (Ju­

dicial Code, Sec. 31)_______________________62
Former Sec. 76, former Title 28, U. S. C., (Ju­

dicial Code, Sec. 33)_______________________62
Act of February 24, 1933, c. 119, 47 Stat. 904__63
Act of March 8, 1934, c. 49, 48 Stat. 399_______ 64
Act of June 29, 1940, c. 445, 54 Stat. 688_______ 65
Act of November 21, 1941, c. 492, 55 Stat. 776„_66
Sec. 3731, Act of June 25, 1948, c. 645, 62 Stat.

683, pp. 844-845__________________________66
Sec. 3732, Act of June 25, 1948, c. 645, 62 Stat.

683, p. 845_______________________________68
Sec. 1443 (1) (2), Title 28, U. S. C____________ 68
Sec. 1446 (a), (c), (d), Title 28, U. S. C________ 69
Sec. 1447 (c), (d), Title 28, U. S. C____ _______ 69

INDEX (Continued)
Page

iv



INDEX (Continued)

Sec. 2107, Title 28, U. S. C__________________ 70
Sec. 201 (b) (2), Civil Rights Act of 1964, 78 

Stat. 241 (pp. 289-291)______________ _____ 70
Sec. 203, Civil Rights Act of 1964, 78 Stat. 241 

(pp. 289-291)______________________  71
Sec. 1404, Title 18, U. S. C________________  71
Sec. 1981, Title 42, U. S. C__________________72
Revised Statutes, Title XIII, the Judiciary, Sec.

641_____________________________________ 72
Rule 37 (a) (2), Title 18, U. S. C_____73
Rule 54 (b) (1), Title 18, U. S. C_____74
Rule 45 (a), Title 18, U. S. C_________________74
Rule 59, Title 18, U. S. C____________________74
Rule 73 (a), Title 28, U. S. C________________ 75
Georgia Code Annotated, 26-3005 (Ga. Laws 

1960, pp. 142 & 193)______________________ 75
Rule III, Rules of Practice and Procedure After 

Plea of Guilty, etc., 292 U.S. 662______   75

OTHER AUTHORITIES
Black’s Law Dictionary, Third Edition, 1933, pp. 

1024, 1025_________________________________ 19

Page

v



IN THE

Supreme Court of the United States
OCTOBER TERM, 1965

NO. 147

GEORGIA, PETITIONER
vs.

THOMAS RACHEL, ET AL.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONER

OPINIONS BELOW
The pertinent opinions of Courts below are as follows: 
The remand order and opinion of the United States 

District Court for the Northern District of Georgia (R. 
5-9) is not reported. An Order of the United States 
Court of Appeals for the Fifth Circuit, staying the re­
mand order of the district court, one judge dissenting, 
(R. 13-14) is not reported. The opinion of the Court 
of Appeals, two judges dissenting in part and concurring

1



2

in part, is reported at 342 F. 2d 336, (R. 20-35) . The 
per curiam opinion of the Court of Appeals denying a 
rehearing en banc, one judge dissenting and another 
judge dissenting in part and concurring in part, is re­
ported at 343 F. 2d 909 (R. 51).

JURISDICTION
The opinion and judgment of the Fifth Circuit Court 

of Appeals were entered on March 5, 1965 (R. 20-36). 
A petition for rehearing en banc was filed by Petitioner 
on March 25, 1965 (R. 37-49) and was denied by the 
Court of Appeals on April 19, 1965 (R. 51). The Peti­
tion for Certiorari was filed in this Court on May 15, 
1965, and was granted by this Honorable Court in an 
order dated October ] 1, 1965 (R. 52).

The jurisdiction of this Court is invoked under 28 
U.S.C. 1254(1). The judgment to be reviewed was 
rendered by a majority of the United States Court of Ap­
peals for the Fifth Circuit, reversing the judgment of the 
United States District Court for the Northern District 
of Georgia in which the District Court remanded to Ful- 
tion Superior Court twenty State of Georgia criminal 
prosecutions which had theretofore been removed to said 
District Court under the purported authority of the Civil 
Rights Acts (28 U.S.C. 1443) . The judgment of said 
Court of Appeals to be reviewed remanded the State 
Court criminal prosecutions to the United States District 
Court with directions to hold an evidentiary hearing and 
to dismiss the prosecution if one finding of fact was 
made.



3

CONSTITUTIONAL PROVISIONS, RULES,
AND STATUTES INVOLVED

The First and Fourteenth Amendments to the Con­
stitution of the United States of America are involved.

The Statutes and Rules involved are the following:
1. Act of 1866 (14 Stat. 27, 28)
2. Act of 1875 (18 Stat. 470, 472)
3. Act of 1887 (24 Stat. 553, 555)
4. Former sections 71, 74, 76, former Title 28 U.S.C. 

(March 3, 1911, 36 Stat. 1094, 1096, 1097)
5. Act of February 24, 1933, c. 119, 47 Stat. 904
6. Act of March 8, 1934, c. 49, 48 Stat. 399

7. Act of June 29, 1940, c. 445, 54 Stat. 688

8. Act of November 21, 1941, c. 492, 55 Stat. 776

9. Act of June 25, 1948, c. 645, 62 Stat. 683, pp. 844- 
845

10. Sections 1443 (1) (2); 1446 (a), (c), (d) ; and 
1447 (c) and (d), Title 28, U.S.C. (62 Stat. 938, 
1948, 63 Stat. 102, 1949) ; Section 2107 Title 28 
U.S.C.

11. Civil Rights Act of 1964, Secs. 201 (b) (2) and 
203, 78 Stat. 241 (pp. 289-291)

12. Sections 3731, 3732 and 1404, Title 18, U.S.C.

13. Section 1981, Title 42 U. S. C.

14. Revised Statutes, Title XIII, the Judiciary, Sec. 
641



4

15. Rules 37 (a) (2), 54 (b) (1), 45 (a), and 59, 
Title 18, U. S. C.

16. Rule 73 (a), Title 28, U. S. C.
17. Georgia Code Annotated, 26-3005 (Ga. Laws 

1960, pages 142 and 143)
18. Rule III, Rules of Practice and Procedure After 

Plea of Guilty, etc. (292 U. S. 662)
The constitutional provisions, Rules, and statutes in­

volved being somewhat lengthy, their pertinent text is 
set out in Appendix A for Petitioner, as authorized by 
Rule 40 (1) (c) or are quoted verbatim in the text of 
this brief.

QUESTIONS PRESENTED
I. Whether a Notice of Appeal from an order of 

remand of the District Court entered in twenty State 
Court criminal prosecutions theretofore removed to 
said District Court under the purported authority of 
28 U.S.C. 1443 is timely, where said Notice of Appeal 
was not filed within ten days from the entry of said 
remand order, as required by Rule 37 ( a ) ( 2 ) ,  Fed. 
R. Crim. P.

Other subsidiary questions fairly comprised within 
Question I are:

(a) Did the majority of the Court of Appeals err in 
holding that the ten day time limit for filing a notice 
of appeal prescribed by Rule 37 (a) (2), Fed. R. Crim. 
P., has no application to this case because, as held by 
the majority of the Court, that Rule applies only to 
criminal appeals after verdict, or finding of guilt, or plea 
of guilty?

(b) Is not Rule 37 (a) (2) specifically made appli­



5

cable to an appeal of a remand order entered in a re­
moved criminal case by the provision of Rule 54 (b) (1), 
Fed. R. Crim. P. that the Criminal Rules apply to crim­
inal prosecutions removed to the United States District 
Courts from state courts and govern all procedure after 
removal, except dismissal?

(c) Did the Court of Appeals have jurisdiction to 
entertain the appeal where the Notice of Appeal of the 
order of remand was filed sixteen days after the entry 
of the remand order, and should not Petitioner’s timely 
Motion to Dismiss Appeal on the grounds that the Notice 
of Appeal was not timely filed have been granted?

II. Assuming arguendo that Question I is decided 
adversely to Petitioner and the merits of the judgment 
of the Court of Appeals is reached, the following 
question is presented: Whether the Petition for Re­
moval, which does not allege that any Georgia statute 
is unconstitutional and does not specifically allege a 
denial of the equal rights of the Defendants by vir­
tue of the State statute under which they were being 
prosecuted in the State Court, sets forth a valid ground 
for removal under Section 1443, Title 28, U.S.C.

Other subsidiary questions fairly comprised within 
Question II are:

(a) Did the Court of Appeals err in holding that a 
Petition for Removal need contain only the “bare bones 
allegation of the existence of a right”; that the instant 
Petition for Removal did in fact allege the denial of 
protected rights by State legislation; and that the Peti­
tion for Removal adequately alleged that the Defendants 
suffered a denial of equal rights by virtue of the statute 
under which they were being prosecuted in the State 
Court?



6

(b) Whether the Defendants are entitled to a hear­
ing in a federal forum for the purpose of proving a de­
nial of their rights under a law providing for their equal 
rights because of State legislation, under the meager alle­
gations of the “notice-type” pleading in their Petition 
for Removal, and whether the District Court erred in 
remanding said cases to the State Court upon considera­
tion of the allegations of the Petition for Removal alone, 
without ordering an evidentiary hearing.

III. Whether the majority of the Court of Appeals 
erred in reversing the remand order of the District 
Court and remanding the cases to said District Court 
with directions to hold a hearing, and in further hold­
ing that, if, upon such a hearing, it is established 
that the removal of the Defendants from the various 
places of public accommodation was done for racial 
reasons, it would become the duty of the District 
Court to order a dismissal of the prosecutions with­
out further proceedings, under the holding of Hamm 
v. City of Rock Hill, 1964, 379 U. S. 306, 85 S. Ct. 
384.

Other subsidiary questions fairly comprised within 
Question III are:

(a) Did the aforesaid directions by the majority of the 
Court of Appeals to the District Court misconstrue and 
expand the doctrine of Hamm, supra, to mean that all 
criminal prosecutions arising from removal of persons for 
racial reasons from places of public accommodation must 
be abated, without regard to any possible evidence as to 
the peaceful or nonpeaceful conduct of the particular 
Defendants involved, and did the aforesaid directions 
unduly limit the discretion of the District Court in de­



7

riding whether the Hamm decision was controlling or 
was distinguishable on other grounds based on the pos­
sible evidence adduced at the hearing?

(b) Did the majority of the Court of Appeals err in 
remanding the case to the District Court with the direc­
tions aforesaid, without requiring the removing Defend­
ants to prove in the hearing that the teachings of Hamm 
would not be applied fairly to them by the Georgia 
Courts if the prosecutions were remanded to the State 
courts?

(c) Did the majority of the Court of Appeals err in 
failing to affirm the District Court’s order of remand, 
thus allowing the Courts of Georgia to apply the doctrine 
of the Hamm decision, rendered subsequent to the re­
moval of these cases, to these prosecutions?

STATEMENT OF THE CASE
On August 2, 1963, a Grand Jury of Fulton Superior 

Court, Atlanta, Georgia, indicted Thomas Rachel and 
19 other defendants in separate indictments for viola­
tions of Georgia Laws, 1960, pages 142 and 143, a mis­
demeanor. This statute is codified as 26-3005, Georgia 
Code Annotated (App. A, page 75) .

The misdemeanor with which Thomas Rachel was 
charged was his failure and refusal, on June 17, 1963, 
to leave the premises of another, to-wit, Lebco, Inc., 
doing business under the name of Lebs on Luckie Street 
after having been requested to leave said premises by 
the person in charge.

The indictments returned against the other 19 de­
fendants involved here contained identical allegations 
to the Rachel indictment with the exception that in some



8

instances the misdemeanor was alleged to have been com­
mitted on another date and at a different restaurant in 
Fulton County, Georgia.

On February 17, 1964, the Defendant Rachel and 
the 19 other Defendants filed a Petition for Removal 
in the United States District Court for the Northern 
District of Georgia, under the purported authority of 
Sections 1443 (1) (2) and 1446, Title 28, U. S. C. (R. 
1-5)

Briefly stated, the removal petition alleged that the 
State of Georgia by statute was perpetuating customs 
and serving members of the Negro race in places of 
public accommodation on a racially discriminatory basis, 
and on terms and conditions not imposed on the white 
race. They further alleged that they were being prose­
cuted for acts done under color of authority derived 
from the Constitution and laws of the United States, 
and for refusing to do an act inconsistent therewith. 
(R. 1-5)

The next day after filing of the removal petition, i.e., 
on February 18, 1964, United States District Judge Boyd 
Sloan issued an opinion and order remanding said cases 
to Fulton Superior Court, stating in part, “the petition 
for removal to this Court does not allege facts sufficient 
to justify the removal which has been effected.” (R. 5-9)

On March 5, 1964, the Defendants filed a Notice of 
Appeal from the order of remand to the Fifth Circuit 
Court of Appeals. (R. 9)

The Defendants filed with the Fifth Circuit Court 
of Appeals a Motion for Stay Pending Appeal, on March 
12, 1964.

On March 12, 1964, a hearing was held before a three



9

Judge panel of the Fifth Circuit Court of Appeals on 
the motion for stay of the remand order of the District 
Court. Petitioner, the State of Georgia, filed a Motion 
to Dismiss Appeal on two grounds: (1) that the remand 
order of the District Court was not reviewable on appeal 
or otherwise, and (2) the Notice of Appeal was not 
timely filed, having been filed more than ten days from 
date of the remand order. (R. 10-13)

After an oral hearing, the majority of the Fifth Circuit 
Court of Appeals by a 2-1 division granted the stay. 
District Judge G. Harrold Carswell, Northern District 
of Florida, dissented, saying, “1 would, therefore, grant 
appellee’s motion to dismiss.” (R. 13-14)

Thereafter, after extensive oral argument before the 
Court of Appeals (R. 19), said Court on March 5, 1965, 
entered an opinion by a divided three-judge Court re­
versing the judgment of the District Court, and remand­
ing the case to the lower Court with instructions to hold 
a hearing and to dismiss the prosecutions, if it is es­
tablished that the removal of the Defendants from the 
various places of public accommodation was done for 
racial reasons. Two Judges dissented in part and con­
curred in part. (R. 20-35)

A timely Petition for Rehearing En Banc was filed by 
the State of Georgia, Petitioner (R. 37-49) and was 
denied in a per curiam opinion of the Court of Appeals 
entered on April 19, 1965, with one Judge dissenting 
and another Judge dissenting in part and concurring in 
part (R. 51) .

This Honorable Court granted certiorari in an order 
dated October 11, 1965 (R. 52)

The jurisdiction of the Court of first instance, the



10

United States District Court for the Northern Disrict 
of Georgia, was invoked by the removing Defendants 
under the purported authority of Sections 1443 and 
1446 (c) (d), Title 28, U.S.C. (R. 4, 5).

SUMMARY OF ARGUMENT
I

Only three very basic and important grounds for 
reversal are urged by Petitioner. First, the Court of 
Appeals had no jurisdiction to consider the appeal, inas­
much as the Notice of Appeal of the order of remand 
was filed six days too late. The majority of the Court of 
Appeals has held, in the first opinion known to counsel 
for Petitioner since the 1948 enactment of Title 18, 
U.S.C., that the ten-day time limit of Rule 37 (a) (2) , 
Fed. R. Crim. P. for filing a notice of appeal from an 
order in a criminal case applies only to criminal appeals 
after verdict, or finding of guilt, or plea of guilty. This 
novel construction of one of the basic Criminal Rules 
originally promulgated by this Honorable Court and 
subsequently incorporated by reference in an Act of 
Congress in 1948, alone demands reversal. One Judge 
of the panel dissented on this ground alone both in the 
opinion on the merits and on the petition for rehearing.

II
Secondly, the Petition for Removal completely fails, 

according to all federal judicial precedent, to set out a 
valid ground for removing State prosecutions to a federal 
district court for trial. Petitioner urges that there is no 
requirements for a hearing of the allegations of the re­
moval petition and that removability must stand or fall 
upon the allegations of the petition. All federal case 
precedent, including that of this Honorable Court, sup­



11

port this position, and Petitioner strongly maintains that 
no error was committed by the District Court in re­
manding the cases without an evidentiary hearing. The 
remand order of the District Court should have been af­
firmed.

Ill
(a) Finally, even if Petitioner’s first twTo grounds are 

decided adversely to us, the Court of Appeals should be 
reversed because the majority opinion has directed the 
District Court to look for only one criteria on the hear­
ing, and to dismiss the State Court prosecutions if that 
single element is found from the evidence. That element 
is, of course, the finding that racial reasons were the 
cause of the removal of the Rachel, et al, defendants from 
the various restaurants. This virtual mandate to the 
District Court unduly limits his judicial discretion in 
considering whether or not the prosecutions are in fact 
controlled by Hamm, supra. Many distinguishing factors 
might be raised by the evidence on such a hearing. Were 
the defendants peaceable and non-violent in their dem­
onstrations? Were the restaurants places of public ac­
commodation coming under the purvietv of the Civil 
Rights Act of 1964? Under the directions of the Court 
of Appeals, the District Court could consider none of 
these factors, if the racial factor alone were found.

(b) Further, the Court of Appeals by its remand to 
the District Court with directions ignores the fact that 
the Supreme Court of Georgia has recognized and fol­
lowed the Hamm decision and has abated five similar 
State Court prosecutions. Bolton, et al v. State of Georgia, 
220 Ga. 632, decided February 8, 1965. The Hamm case 
had not been decided when these (Rachel, et al) prose­
cutions were pending in the Georgia Courts, and the 
Georgia Courts have not had an opportunity to consider



12

these eases in connection with the Hamm doctrine. They 
should be afforded that opportunity, as pointed out by 
Circuit Judge Bell in his partial dissent (R. 35) . The 
action of the majority of the Court of Appeals amounts 
to a finding that the Courts of Georgia will not apply 
Hamm fairly to these Defendants before such courts have 
even been given the opportunity to do so. This casual 
treatment of the Georgia Courts involves jeopardy to 
our dual system of courts, state and federal, as pointed 
out by Circuit Judge Bell. (R. 35). Petitioner feels that, 
if these cases are remanded to the District Court for a 
hearing, contrary to Petitioner’s other grounds, at the 
very least these Defendants should be required to prove 
that the Georgia Courts will not treat them fairly, in he 
light of Hamm. If they cannot prove this, the cases 
should be remanded to the State Courts. The District 
Court should not have its hands tied by the erroneous 
directions of the majority of the Court of Appeals, in 
limiting the hearing to one issue only.

(c) Counsel for Petitioner are not concerned in this 
brief with the merits of the State Court prosecutions 
against these Defendants, and as to the eventual outcome 
of same if they are remanded to the State Courts. We 
are deeply concerned with the grave and highly im­
portant constitutional question of whether a federal ap­
pellate court should accept jurisdiction over State Court 
criminal prosecutions and virtually order dismissal of 
the actions, without ever giving the State Courts a 
chance to reconsider the cases in the light of the latest 
decision from this Honorable Court. Particularly is this 
so in view of the Bolton decision by the highest Court 
of Georgia, which proves conclusively that Georgia 
Courts are following the decisions of the United States 
Supreme Court in racial controversies.



13

For the foregoing reasons, Petitioner respectfully in­
sists that the decision of the Fifth Circuit Court of Ap­
peals should be reversed.

ARGUMENT

I. THE NOTICE OF APPEAL OF THE REMAND
ORDER WAS NOT TIMELY FILED AND PETI­
TIONER’S TIMELY MOTION TO DISMISS AP­
PEAL SHOULD HAVE BEEN GRANTED
The Court of Appeals, Judge Whitehurst dissenting, 

held that Rule 37 (a) (2) applies only to criminal ap­
peals “after verdict or finding of guilt . . .  or plea of 
guilty,’’ citing Nye v. United States, 1941, 313 U. S. 28, 
43-44. Therefore, the Court held, that Defendants’ notice 
of appeal was timely, even though filed sixteen days after 
entry of the remand order. Petitioner respectfully main­
tains that this was erroneous.

(a) Rule 37 ( a ) ( 2 )  controls the time limit for 
filing a notice of appeal in a criminal case both be­
fore and after verdict.

The history of the creation of the Rules of Criminal 
Procedure require application of Rule 37 (a) (2) to the 
instant case.

By the Act of March 8, 1934, c. 49, 48 Stat. 399, amend­
ing the Act of February 24, 1933, c. 119, 47 Stat. 904, the 
Supreme Court was given authority to prescribe “rules 
of practice and procedure with respect to any or all pro­
ceedings after verdict, or finding of guilt by the court if 
a jury has been waived, or plea of guilty in criminal 
cases . .

Pusuant to the above Act, the Supreme Court by order



14

dated May 7, 1934 and entitled “Rules of Practice and 
Procedure, after plea of guilty, verdict or finding of guilt, 
in criminal cases brought in the District Court of the 
United States and in the Supreme Court of the District 
of Columbia” adopted thirteen rules as the “Rules of 
Practice and Procedure in all proceedings after plea of 
guilty, verdict of guilt by a jury or finding of guilt by the 
trial court where a jury is waived, in criminal cases in 
District Courts of the United States . . . and in all subse­
quent proceedings in such cases in the United States 
Circuit Court of Appeals . . . and in the Supreme Court 
of the United States.” 292 U.S. 661.

The 1934 “after verdict” enabling act did not require 
the Court to submit these rules to Congress; they were 
therefore made effective September 1, 1934 by the Court.

Rule III of these rules, and the predecessor to Rule 
37 (a) (2), provided in part that “An appeal shall be 
taken within 5 days after entry of judgment of conviction 
. . .” 292 U. S. 662 (emphasis added)

It is clear that Congress, under the 1934 Act, intended 
the Supreme Court to promulgate only “after verdict” 
rules. It is equally clear that the Supreme Court intended 
the rules adopted May 7, 1934 to apply only to “after 
verdict” cases. This is manifested by the title of the order 
adopting the rules, and by the language of Rule III limit­
ing appeals to those cases where there has been a judg­
ment of conviction. If there were no judgment of con­
viction there could be no appeal as the case had not yet 
reached the necessary “after verdict” stage. Of course, 
in such circumstances the 5 day period for appeal was 
inapplicable.

By the Act of June 29, 1940, c. 445, 54 Stat. 688, Con­



15

gress gave the Supreme Court the authority to prescribe 
Rules of Criminal Procedure for the District Court of 
the United States governing poceedings in criminal 
cases prior to and including verdict, finding of guilty or 
not guilty by the court, or plea of guilty. The Act also re­
quired the submission of these rules to Congress. Under 
the authority of this Act, the Supreme Court promulgated 
Rules 1-31 and 40-60 by order dated December 26, 1944. 
323 U. S. 821. The Supreme Court, by letter dated 
December 26, 1944, requested the Attorney General of 
the United States to report these rules to the next regular 
session of Congress. 327 U. S. 823. This was done by a 
Letter of Submittal from the Attorney General of the 
United States to Congress, dated January 3, 1945. 327 
U. S. 824. The first regular session of Congress adjourned 
on December 21, 1945. The rules therefore became ef­
fective on March 21, 1946 as provided by Rule 59.

By Order dated February 8, 1946 the Supreme Court 
prescribed rules 32-39 pursuant to the “after verdict” 
enabling Act of 1933, as amended. The Court made those 
rules effective on the same date rules 1-31 and 40-60 be­
came effective. The Court further ordered that both the 
“prior to verdict” rules and the “after verdict” rules be 
consecutively numbered and known as the Federal Rules 
of Criminal Procedure, 327 U. S. 825. Rules 32-39 
were not submitted to Congress. There was no need to 
submit them. The 1933 Act, as amended, did not require 
submission of the rules for them to become effective.

ft is obvious from the February 8, 1946 order that the 
Supreme Court intended Rules 1 through 60 to serve as 
a complete set of Rules to govern criminal proceedings. 
This is manifested by all of the Rules becoming effective 
on the same date, and by the fact that the Court titled the



16

rules as the Federal Rules of Criminal Procedure. If 
these rules were intended to be separated into two sets, 
one embracing “verdict and before verdict” proceedings 
and the other “after verdict” proceeding, as Judge Tut­
tle, speaking for the majority of the Court of Appeals, 
advocates, it is doubtful that the court would have gone 
to the difficulty of making them effective on the same day. 
It is even more doubtful that the Court would order the 
rules numbered consecutively or title them the Federal 
Rules of Criminal Procedure. It seems more reasonable 
to believe the court would have kept the “before verdict” 
rules separate from the “after verdict” rules and titled 
them as such. This reasoning is further supported by the 
fact that the old rules I through XIII now replaced by 
Rules 32-39 were in fact known as the “Rules of Practice 
and Procedure, after plea of guilty, verdict or finding of 
guilt, in Criminal Cases . . . ”

The Supreme Court had the authority under the 1933 
and 1940 enabling Acts to prescribe all rules to govern 
any and all proceedings in a criminal case. It is obvious 
from its above described actions that this Court intended 
Rules 1 through 60 to serve all criminal proceedings be­
fore and after verdict, without regard to which enabling 
act authorized promulgation of a particular rule.

If a distinction as to the application of Rules 1-31 and 
40-60, and Rules 32-39 ever existed because the 1940 Act 
required submission of the rules to Congress and the 
1933 Act did not, it no longer exists. There is no merit 
in the contention that Rules 32 through 39 have not 
been submitted to Congress. By the Act of June 25, 
1948, c. 645, 62 Stat. 683, entitled “An Act to Revise, 
Codify, and Enact into Positive Law Title 18 of the 
United States Code,” Congress enacted into law all sixty



17

Federal Rules of Criminal Procedure. Rule 37 (a) (2) 
is specifically incorporated by reference under Section 
3732 on page 845 of that Statute. Clearly Congress in­
tended the Federal Rules of Criminal Procedure to apply 
to all criminal proceedings, whether before or after 
verdict.

Petitioner’s viewpoint is further supported by the
language of Rule 37 (a) (2), which reads as follows:

“2. Time for Taking Appeal. An appeal by a 
defendant may be taken within 10 days after entry 
of the judgment or order appealed from, but if a 
motion for a new trial or in arrest of judgment has 
been made within the 10-day period an appeal from 
a judgment of conviction may be taken within 10 
days after entry of the order denying the motion. 
When a court after trial imposes sentence upon a 
defendant not represented by counsel, the defendant 
shall be advised of his right to appeal and if he so 
requests, the clerk shall prepare and file forthwith a 
notice of appeal on behalf of the defendant. An ap­
peal by the government when authorized by statute 
may be taken with 30 days after entry of the judg­
ment or order appealed from” (Emphasis added)

The last sentence allows thirty days for an appeal by
the government when authorized by Statute. 18 U.S.C. 
3731 (App. A, p. 66) authorized appeal by the govern­
ment in criminal cases in the following instances:

(1) from a decision or judgment setting aside, or dis­
missing any indictment or information, or any count 
thereof;

(2) from a decision arresting a judgment of convic­
tion for insufficiency of the indictment or information;

(3) from a decision or judgment sustaining a motion 
in bar, when the defendant has not been put in jeopardy.



18

One and three of the foregoing are “before verdict 
appeals.” The government is also authorized a “before 
verdict appeal” of an order suppressing evidence in a 
narcotics case and in certain internal revenue cases. 
(18 U.S.C. 1404) . In fact it is the rule rather than the 
exception that the government’s right to appeal is in 
“before verdict” circumstances. If Rule 37 (a) (2) ap­
plies only to “after verdict” situations as urged by the 
Court of Appeals, why does the last sentence of the Rule 
deal with “before verdict” appeals? The Court of Ap­
peals’ reasoning becomes even more illogical when com­
bined with their interpretation of the 1933 and 1940 en­
abling Acts. Accept for the moment arguendo that Rules 
32 through 39 applied only to “after verdict” rules and 
that 1-31 and 40-60 applied only to “prior to and in­
cluding verdict” rules. (This of course ignores the 1948 
Act codifying the Rules) . Since Rule 37 (a) (2) was 
promulgated under the “after verdict” enabling Act of 
1933, the last sentence of the rule dealing with Appeals 
by the government must be limited to “after verdict” ap­
peals only. Therefore, Rule 37 (a) (2) would be a nullity 
as to “before verdict” appeals as authorized by 18 U.S.C. 
3731 and 18 U.S.C. 1404. Clearly such appeals are au­
thorized.

In United States v. Williams (4th Cir. 1955) 227 F.2d 
149, the Defendant was charged with removing and con­
cealing non-tax paid whiskey. After defendant’s motion 
to suppress evidence had been sustained and the indict­
ment dismissed the Government appealed, but did so 
more than 30 days after entry of the order. The Fourth 
Circuit Court of Appeals dismissed the appeal, holding:

“The order was not a final order made in a civil 
proceeding, from which an appeal would lie and 
from which the government would have 60 days in



19

which to take an appeal, but an order in a criminal 
proceeding. . . .  In so far as it (the order of the 
lower court) ordered a dismissal of the indictment 
in the case, it (the appeal) was not taken within 30 
days and must be dismissed for that reason under 
Rule 37 of the Federal Rules of Criminal Procedure. 
18 U.S.C.A.” (Explanatory words added)

Petitioner’s interpretation of Rule 37 (a) (2) is
further strengthened by comparing it with its predeces­
sor, Rule III. This rule allowed only for appeal . . after 
entry of judgment of conviction.” Rule 37 (a) (2) al­
lows appeal “. . . after entry of the judgment or order ap­
pealed from, . . . ” Surely if the court had intended Rule 
37 (a) (2) to apply only to “after verdict” situations it 
would have retained the language, “judgment of convic­
tion.” By broadening the language to “judgment or order 
appealed from” the Court removed the “after verdict” 
limitation. A judgment may be defined as “a decision of 
a court of justice upon respective rights and claims of the 
parties to an action.” (Black’s Law Dictionary, Third 
Edition, 1933, page 1024) Judgments are classified ac­
cording to the time or stage of the action when rendered. 
(Black, supra, p. 1025). A judgment may be final or in­
terlocutory. An order may be defined as “every direction 
of a Court or a Judge made or entered in writing.” 
(Black, supra, p. 1298) . An order may be final or inter­
locutory. Therefore, the use of the general terms “judg­
ment” and “order” can not be construed in Rule 37 
(a) (2) as a “judgment of conviction” limiting appeal to 
“after verdict” situations only.

Judge Tuttle bases his opinion for the majority of 
the Court that Rule 37 (a) (2) is inapplicable on Nye v. 
United States, 1941, 313 U.S. 28, 43-55. Nye is not con­
trolling. It was decided before the Federal Rules of



20

Criminal Procedure were adopted. Nye was not con­
cerned with Rule 37 (a) (2) but rather with its pre­
decessor, Rule III, which we have seen was limited to 
“after verdict” appeals. Further, Nye was an adjudication 
of a criminal contempt arising out of a civil case. In 
deciding that the Criminal Appeals Rules then in effect 
did not apply to criminal contempt cases, the Supreme 
Court held that these Rules

were adopted as the Rules of Practice and Pro­
cedure in all proceedings after plea of guilty, verdict 
of guilt by a jury or finding of guilt by the trial 
court where a jury is waived in criminal cases (292 
U.S. 661) . In this case there was no plea of guilty, 
there was no verdict of guilt by a jury, and there 
was no finding of guilt by the court where a jury 
was waived. It is our view that the rules describe 
the kinds of cases to which they are to be applied.”

This holding is correct. The words of limitation in 
Rule III are “entry of Judgment of Conviction.” It is 
clear from the title of these Rules and the language of 
Rule III that Rule III would not apply to an appeal be­
fore a judgment of conviction.

The title of the current Rules and Rule 37 (a) (2) 
are void of any language limiting application to “after 
verdict” cases. Following the Nye reasoning it is logical 
to conclude that Rule 37 (a) (2) does apply to “before 
verdict” situations since the language in the title and 
Rule 37 (a) (2) limiting application to “after verdict” 
appeals has been deleted.

As mentioned above, Nye was decided when Rule III 
was in effect. The whole history of the promulgation of 
Rule 37 (a) (2) and the Federal Rules of Criminal Pro­
cedure presents such a changed picture from the factual



21

situation presented at the time of the Nye decision as to 
refute any contention that it is controlling authority for 
the proposition that Rule 37 (a) (2) applies only to 
“after verdict” cases. Also, Nye has been interpreted 
merely as standing for the proposition that the Criminal 
Appeals Rules did not apply to a criminal contempt case. 
See Moore v. United States (10 Cir. 1945), 150 F.2d 323, 
cert. den. 326 U.S. 740; United States v. Lederer (7 Cir. 
1943) 139 F. 2d 861. This interpretation finds strength 
in the Act of November 21, 1941, C. 492, 55 Stat. 776 
which provided that the rules would apply to criminal 
contempt proceedings.

(b) Rules 54 (b) (1 ) and 59 of the Federal Rules 
of Criminal Procedure require application of Rule 
37 (a) (2 ) to the instant case.

Rule 54 (b) (1) reads as follows:
“Removal Proceedings These rules apply to 

criminal prosecutions removed to the district courts 
of the United States from state courts and govern 
all procedures after removal, except that dismissal 
by the attorney for the prosecution shall be governed 
by state law.” (Emphasis added)

The instant case is a criminal prosecution, begun in 
the Superior Court of the State of Georgia. It was re­
moved by the defendants to the United States District 
Court for the Northern District of Georgia. Clearly, then 
Rule 54 (b) (1) applies. The phrase “govern all proce­
dure after removal” must include any appeal of a remand 
order. A remand order can not be issued until after a 
case has been removed from State to Federal Court. It 
can not be said that appeal of a remand order is an ex­
ception to Rule 54 (b) (1) because the rule provides for 
only one exception, dismissal by the prosecuting attorney.



22

Applying the principle of Inclusio unius est exclusio al- 
terius, the listing of one exception excludes all other ex­
ceptions. If appeal of a remand order were to be an ex­
ception of Rule 54 (b) (1), it would have been so stated 
in the Rule.

The last sentence of Rule 59 states that the Rules shall 
“. . . govern all criminal proceedings thereafter com­
menced . . .’’ To hold that Rule 37 (a) (2) does not 
apply to an appeal of a remand order in a criminal case 
ignores and contradicts the specific requirement of Rule 
54 (b) (1) and the general requirement of Rule 59. The 
opinion of the Court of Appeals that Rule 37 (a) (2) is 
not applicable flies in the teeth of Rule 54 (b) (1) and 
can only circumvent Rule 59 by a finding that the pro­
ceedings removing the case to Federal court was civil 
rather than criminal. But the proceedings are criminal 
in nature. They are made so by Rule 54 (b) (1) . They 
are also made so by decisions of the court. The facts 
of the instant case meet even the requirements of a 
criminal proceeding set forth by Judge Tuttle in 
Zacarias v. United States, 5 Cir., 1958, 261 F.2d 416. The 
Court of Appeals held in that case that a motion to sup­
press evidence brought after the defendant had been ar­
rested, taken before a U. S. Commissioner where a com­
plaint was filed against him, and bound over to the 
grand jury, was incidental to the criminal proceeding al­
ready commenced and pending. An indictment had not 
yet been returned against the defendant. Since the mo­
tion was ancillary to the criminal proceeding, it was held 
to be interlocutory and not directly appealable. The ap­
peal was dismissed by the Fifth Circuit Court of Appeals.

The point at which a criminal proceeding begins was 
more fully explored by the Fifth Circuit Court of Ap­



23

peals in United States v. Koenig, 1961, 290 F.2d 166. 
Here, the government was attempting to appeal from an 
order sustaining a motion to suppress evidence seized. 
The Court held that the government could not appeal be­
cause . . . “an order to suppress has no finality because 
it does not of itself terminate the criminal proceedings”. 
Certainly removal of a criminal case from State to Federal 
court does not terminate the criminal proceedings. The 
Supreme Court of the United States granted certiorari in 
Koenig and decided it together with DiBella v. United 
States, 1962, 369 U. S. 121. The Court said in part, at 
page 128:

“. . . ‘the final judgment rule is the dominant rule in 
federal appellate practice’. 6 Moore, Federal Practice 
(2d ed. 1953) 113. Particularly is this true of
criminal prosecutions. See, e.g., Parr v. United 
States, 351 U.S. 513, 518-521. Every statutory excep­
tion is addressed either in terms or by necessary 
operation solely to civil actions. Moreover, the de­
lays and disruptions attendant upon intermediate 
appeal are especially inimical to the effective and 
fair administration of the criminal law. The Sixth 
Amendment guarantees a speedy trial. Rule 2 of 
the Federal Rules of Criminal Procedure counsels 
construction of the Rules ‘to secure simplicity in 
procedure, fairness in administration and the elimin­
ation of unjustifiable expense and delay’; Rules 
39 (a) and 50 assign preference to criminal cases on 
both trial and appellate dockets”.

# *  *  *  #

“We should decide the question here — we are 
free to do so — with due regard to historic principle 
and to the practicalities in the administration of 
criminal justice. An order granting or denying a 
pre-indictment motion to suppress does not fall 
within any class of independent proceedings other­



24

wise recognized by this Court, and there is every 
practical reason for denying it such recognition. To 
regard such a disjointed ruling on the admissibility 
of a potential item of evidence in a forthcoming 
trial as the termination of an independent proceed­
ing with full panoply of appeal and attendant stay, 
entails serious disruption to the conduct of a crim­
inal trial.8 The fortuity of a preindictment motion 
may make of appeal an instrument of harassment, 
jeopardizing by delay the availibility of other es­
sential evidence.” (at page 129).

“Presentations before a United States Commis­
sioner, GoBart Co. v. United States, 282 U.S. 344, 
352-354, as well as before a grand jury, Cobbledick 
v. United States, 309 U. S. 323, 327, are parts of the 
federal prosecutorial system leading to a criminal 
trial. Orders granting or denying suppression in the 
wake of such proceedings are truly interlocutory, 
for the criminal trial is then fairly in train. When at 
the time of ruling there is outstanding a complaint, 
or a detention or release on bail following arrest, or 
an arraignment, information, or indictment — in 
each such case the order on a suppression motion 
must be treated as ‘but a step in the criminal case 
preliminary to the trial thereof’. Cogen v. United 
States, 278 U. S. 221, 227. Only if the motion is 
solely for return of property and is in no way tied 
to a criminal prosecution in esse against the movant 
can the proceedings be regarded as independent. 
See Carroll v. United States, 354 U. S. 394, 404 n. 
17; In re Brenner, 6 F. 2d 425 (C.A. 2d Cir. 1925) .”

Petitioner urges that the instant case had proceeded so

8“It is evident, for example, that the form of independence has 
been availed of on occasion to seek advantages acquired by the 
rules governing civil procedure, to the prejudice of proper ad­
ministration of criminal proceeding, e.g., Green v. United States, 
296 F 2d 841, 843-855 (C. A. 2d Cir., 1961) (extended time for 
a p p e a l ) .



25

far within the doctrine of DiBella, Koenig and Zacarias, 
supra, that the removal to federal court was but a step in 
the criminal train. The defendants had already passed 
the steps of arrest, commitment hearing and indictment. 
The State of Georgia was proceeding at full speed to give 
the defendants their day in court when the cases were re­
moved to federal court. The first case was to be tried on 
February 17, 1964 (R. 4), the same day the removal 
petition was filed. Removal to federal court does not dis­
miss or dispense with prosecution. It merely changes the 
forum. No independent right is involved and the de­
fendants can not qualify the removal as not being tied to 
the prosecution in esse as required by DiBella. In fact 
the Supreme Court has held that removal is merely a step 
in a criminal proceeding, therefore interlocutory and not 
directly appealable. In Parr v. United States, 351 U. S. 
513 (1956) , the defendant was indicted in one division 
of the Federal District Court and that court granted his 
motion to transfer the case to another division, on the 
ground that local prejudice would prevent a fair trial in 
the division where he was indicted. The government 
then obtained a new indictment for the same offenses in 
another district and moved in the first court for a dismis­
sal of the first indictment. The dismissal was granted and 
the defendant appealed. The Court stated, in holding 
that the order was not appealable because it was not 
final, that:

“ ‘Final judgment in a criminal case means sen­
tence. The sentence is the judgment.’ Berman v. 
United States, (302 U. S. 211). And viewing the 
two indictments together as a single prosecution . . . 
the petitioner has not yet been tried, much less con­
victed and sentenced. The order dismissing the 
(first) indictment was but an interlocutory step in



26

this prosecution and its review must await the con­
clusion of the ‘whole matter litigated’ between the 
Government and the petitioner (defendant) —name­
ly ‘the right to convict the accused of the crime, 
charged in the indictment’. Heike v. United States, 
217 U.S. 423, at p. 429” (Explanatory words added).

The Court further held that since the order dismissing 
the first indictment was but a “ ‘step toward final dis­
position of the merits of the case’ ” it would “ ‘be merged 
in the final judgment;’” citing Cohen v. Beneficial In­
dustrial Loan Corp., 337 U. S. 541, at p. 546.

The Supreme Court added (351 U. S. at 519) :
“The lack of an appeal now will not deny effective 

review of a claim fairly severable from the context 
of a larger litigious process. Sivift & Company Pack­
ers v. Compania Columbiana de Caribe, (339 U.S. 
684.) at p. 689. True, the petitioner will have to 
hazard a trial under the Austin (second) indictment 
before he can get a review of whether he should 
have been tried in Laredo under the Corpus Christi 
(first) indictment, but ‘bearing the discomfiture 
and cost of a prosecution for crime even by an in­
nocent person is one of the painful obligations of 
citizenship.’ Cobbledick v. United States, supra, at 
p. 325.” (Explanatory words added)

See also, Chicago etc. R. Co. v. Roberts, 1891, 141 U. S. 
690 which held that a remand order was not appealable 
because it was not a final order. In fact under 28 U. S. C. 
1447 (d) no remand order was appealable until amended 
by the Civil Rights Act of 1964 giving for the first time 
the right to appeal a remand order in civil and criminal 
cases involving civil rights. Based upon the foregoing the 
removal must be viewed as but a part of the criminal 
proceeding. If the Defendants had been denied the right 
to appeal the remand order of the District Court an ef-



fective review could still have been had on appeal on the 
merits of the case.

If the removal of the instant case to federal court was 
part of the criminal proceeding, should not the Federal 
Rules of Criminal Procedure apply to its appeal?

The Petitioner unequivocally contends that these 
principles of law, and therefore Rule 37 (a) (2) must 
be applied to the case at hand.

Judge Tuttle, in holding that Rule 37 (a) (2) is in­
applicable does not state what Rule or statute does govern 
the time limit for filing the Defendants’ notice of ap­
peal. Surely he would not advocate a limitless time to 
appeal. Therefore he must have applied either Rule 73 
(a), Fed. R. Civil P. or Section 2107, Title 28, U. S. C. 
to hold this appeal timely, it being filed sixteen days 
after the remand order.

28 U. S. C. 2107 reads as follows:
2107 Time for appeal to courts of appeals.

“Except as otherwise provided in this section, no 
appeal shall bring any judgment, order or decree in 
an action, suit or proceeding of a civil nature before a 
Court of Appeals for review unless notice of appeal 
is filed within 30 days after entry of such judgment, 
order or decree.” . . . (As amended May 24, 1949, 
c. 139, 107, 108, 63 Stat. 104) (Emphasis added)

The rule expressly provided that the action must be of 
a civil nature. Following the rulings of Parr, DiBella, 
Koenig, and Zacarias, all supra, the Petitioner respect­
fully urges that the instant case is not of a civil nature 
and therefore neither Rule 73 (a) , Fed. R. Civil P. nor 
28 U. S. C. 2107 can apply.

Forgetting for the moment Rule 37 (a) (2) of the



Criminal Rules, Rule 73 (a) of the Civil Rules and 28 
U. S. C. 2107, should the Rules of Civil Procedure and 
the Rules of Criminal Procedure be intermingled at 
all? Counsel for Petitioner think not,

“At times in our system the way in which courts 
perform their function becomes as important as what 
they do in the result. In some respects matters of 
procedure constitute the very essence of ordered 
liberty under the Constitution.

*  #  *  *

“I do not think the Constitution contemplated 
that there should be in any case an admixture of civil 
and criminal proceedings in one. Such an idea is 
foreign to its spirit.

“The founders did not command the impossible. 
They could not have conceived that procedures so 
irreconcilably inconsistent in many ways could be 
applied simultaneously. Nor was their purpose to 
create any part of judicial power,. . . wholly at large, 
free from any constitutional limitations or to pick 
and choose between the conflicting civil and criminal 
procedures and remedies at will. Much less was it 
to allow mixing civil remedies and criminal punish­
ments in one lumped form of relief, indistinguish- 
ably compounding them and thus putting both in 
unlimited judicial discretion, with no possibility of 
applying any standard of measurement on review”. 
Mr. Justice Rutledge, dissenting in United States 
v. United Mine Workers of America, 1947, 330 U. S. 
258, pp 363-365.

To hold that Rule 37 (a) (2) does not apply to the 
case at hand contravenes every ruling of the Supreme 
Court and the purpose for creating the Federal Rules of 
Criminal Procedure. It would cause chaos in the orderly 
and impartial administration of justice in criminal cases.



29

(c) An appeal not timely filed confers no juris­
diction upon the Court of Appeals

Applying Rule 37 (a) (2), the Defendants’ appeal 
was not timely filed. Defendants’ notice of appeal was 
filed sixteen days after entry of the remand order. A 
notice of appeal in a criminal case not filed within the 
10 day time limit required by Rule 37 (a) (2) confers 
no jurisdiction upon the Court of Appeals. United States 
v. Robinson, 1960, 361 U. S. 220; Berman v. United 
States, 1964, 378 U. S. 530.

Nowhere in this record is this Honorable Court shown 
any reason or excuse for the late filing of the notice of 
appeal. One can only surmise that these defendants, or 
their counsel, have slept on their right to appeal. Realiz­
ing too late that the 10 day time limit of Rule 37 (a) (2) 
had passed before their notice of appeal was filed, the 
Defendants are trying frantically to justify the sixteen 
day interval as proper and to “stay in court”. However, 
even they did not urge the novel construction given Rule 
37 (a) (2) by the Court of Appeals.

For the foregoing reasons, the Court of Appeals erred 
in holding this appeal to be timely. Therefore, Peti­
tioner’s timely Motion to Dismiss Appeal should have 
been granted, as District Judge Whitehurst, sitting as a 
member of the Fifth Circuit panel hearing this appeal, 
has insisted in dissenting opinions both on the merits and 
on the petition for rehearing.



30

II. THE PETITION FOR REMOVAL DOES NOT 
SET OUT ANY VALID GROUND FOR REMOVAL.

(a) There is nothing in the Petition for Removal 
to warrant the exercise of Federal jurisdiction.

Petitioner respectfully maintains that the Petition for 
Removal is completely devoid of any valid ground for 
removal of these criminal prosecutions from State to Fed­
eral court. What it does not contain is more important 
than the skimpy allegations set forth. The Petition for 
Removal (R. 1-5) does not allege (1) that any statute 
or law of the State of Georgia is unconstitutional (2) 
that any civil right, or the enforcement thereof, of the 
Defendants is destroyed by any statute of the State of 
Georgia or by its Constitution (3) that any statute of 
the State of Georgia, or its Constitution creates an in­
ability on the part of Defendants to enforce in the 
Courts of Georgia their equal civil rights under the 
United States Constitution.

Furthermore, there is a complete failure in the Peti­
tion for Removal to set out sufficient facts to support a 
removal. Only bare allegations are made that certain 
Defendants sought service, food, entertainment and 
comfort in certain restaurants and hotels in Atlanta, 
Georgia, and were arrested pursuant to Georgia Code 
Annotated 26-3005. Then appears a mere conclusionary 
allegation that these arrests were effected for the sole 
purpose of perpetuating customs and usages of the City 
of Atlanta with respect to serving and seating Negroes, 
and white persons accompanying Negroes, in places of 
public accommodation upon a racially discriminatory 
basis. They allege, in a pure conclusion, that they cannot 
enforce their rights in the Georgia courts, but do not 
allege a single fact, showing why they cannot do so. They



31

do not specify one single Georgia law which prevents 
enforcement of their rights in the State courts. More­
over, they do not allege that any judge, law enforcement 
officer, prosecuting attorney, or other officer of the State 
of Georgia has in any way violated any of their civil 
rights, or prevented them from asserting any of such 
rights. In other words, there is no allegation of improper 
conduct by any State official. Even if such allegations 
were contained in the Petition for Removal, many fed­
eral decisions hold that such allegations would not justify 
removal. This woefully inadequate removal petition was 
everything that the District Court had before him when 
he considered, on his own motion as it was his duty 
to do, the question of whether a cause for removal was 
shown.

Petitioner will discuss briefly just a few of the con­
trolling cases which illustrate beyond the shadow of a 
doubt that this case is not removable under any possible 
construction of the Petition for Removal.

In Virginia v. Rives, 1879, 100 U. S. 313, where two 
Negroes removed their pending State trial for murder 
to federal court, and the State of Virginia filed a petition 
for mandamus to the United States Supreme Court to 
force the remand of said cases, Justice Strong said, in 
part, for the Court, in granting the petition for man­
damus:

“.. . But in the absence of constitutional or legisla­
tive impediments he cannot swear before his case 
comes to trial that his enjoyment of all his civil rights 
is denied to him. When he has only an apprehension 
that such rights will be withheld from him when his 
case shall come to trial, he cannot affirm that they are 
actually denied, or that he cannot enforce them. Yet 
such an affirmation is essential to his right to remove



32

his case. By the express requirement of the statute 
his petition must set forth the facts upon which he 
bases his claim to have his case removed, and not 
merely his belief that he cannot enforce his rights at 
a subsequent stage of the proceedings. The statute 
was not, therefore, intended as a corrective of errors 
or wrongs committed by judicial tribunals in the ad­
ministration of the law at the trial.” (Emphasis 
added)

Virginia v. Rives, supra, holds categorically that a case 
is not removable under the civil rights acts (the prede­
cessor of 28 U.S.C. 1443) unless a State Constitution or 
Statute on its face denies the removing defendant his 
federal constitutional rights. In other words, there must 
be discriminatory state legislation depriving him of those 
rights before he can remove the case. Since that time, 
federal courts have followed that rule without deviation 
or modification. To list just a few, Petitioner cites Ken­
tucky v. Powers, 1906, 201 U. S. 1; Williams v. Missis­
sippi, 1898, 170 U. S. 213; Murray v. Louisiana, 1896, 
163 U. S. 101; Gibson v. Mississippi, 1896, 162 U. S. 565; 
Smith v Mississippi, 1896, 162 U. S. 592; Hull v. Jackson 
County Circuit Court, 6 Cir., 1943, 138 F. 2d 820; Snypp 
v. Ohio, 6 Cir. 1934, 70 F. 2d 535, cert. den. 293 U. S. 
563; Arkansas v. Howard, D.C. E.D. Ark., 1963, 218 F. 
Supp. 626; North Carolina v. Jackson, D.C. M.D. N.C., 
1955, 135 F. Supp. 682; Hill v. Pennsylvania, D.C. W.D. 
Pa., 1960, 183 F. Supp. 126; Texas v. Doris, D.C., S.D. 
Texas, 1938, 165 F. Supp. 738; and Neal v. Delaware, 
1880, 103 U.S. 370. Each of the foregoing was a criminal 
case, and removal was sought in each under the civil 
rights act.

The Kentucky v. Powers case, supra, appears to be the 
last Supreme Court ruling on exactly what grounds will 
authorize a removal under color of the civil rights acts,



33

and it has been followed in every instance by the lower 
federal courts in the cases previously cited in this section 
of this Brief. In Powers, supra, the Supreme Court said, 
(201 U. S. at page 30) :

“The question as to the scope of section 641 of 
the Revised Statutes again rose in the subsequent 
cases of Neal v. Delaware, 103 U. S. 370, 386: Bush 
v. Kentucky, 107 U. S. 110, 116; Gibson v. Missis­
sippi, 162 U. S. 565, 581, 584, and Charley Smith v. 
Mississippi, 162 U. S. 592, 600. In each of these cases 
it was distinctly adjudged, in harmony with previous 
cases, that the words in section 641 — ‘who is denied 
or cannot enforce in the judicial tribunals of the 
State or in the part of the State where such suit or 
prosecution is pending, any right secured to him 
by any law providing for the equal civil rights of 
citizens of the United States, or of all persons within 
the jurisdiction of the United States’ — did not give 
the right of removal, unless the constitution or the 
laws of the State in which the criminal prosecution 
was pending denied or prevented the enforcement 
in the judicial tribunals of such State of the equal 
rights of the accused as secured by any lawr of the 
United States. Those cases, as did the prior ones, 
expressly held that there was no right of removal 
under section 641, where the alleged discrimination 
against the accused, in respect of his equal rights, 
was due to the illegal or corrupt acts of administra­
tive officers, unauthorized by the constitution or laws 
of the State, as interpreted by its highest court. For 
wrongs of that character the remedy, it was held, is 
in the state court, and ultimately in the power of 
this court, upon writ of error, to protect any right 
secured or granted to an accused by the Constitution 
or laws of the United States, and which has been 
denied to him in the highest court of the State in 
which the decision, in respect of that right, could 
be had.”



34

Petitioner maintains that the Powers case still controls 
the federal case law on this question of removability, 
and that it has not been altered, modified, or watered- 
down by any subsequent decision of the Supreme Court, 
or any inferior federal court, except by the Fifth Circuit 
in this case, and in Peacock v. City of Greenwood, 347 
F.2d 679, (1965) which will be discussed later in this 
brief.

Thus, Petitioner has clearly shown that according to 
prevailing federal case law discriminatory state legislation 
which interferes with a constitutional right of defense 
by the defendant must exist before a case is removable 
under the civil rights acts. The Defendants’ Petition 
for Removal does not allege this. The only statute they 
mention is Georgia Code Annotated, 26-3005, which 
simply makes it unlawful for any person who is on the 
premises of another to refuse and fail to leave said prem­
ises when requested to do so by the owner or other person 
in charge of said premises. There is nothing discrimi­
natory about that statute, and nothing which in any 
manner deprives a defendant of any right of defense. 
The statute on its face has application to many situations 
other than racial ones. It authorizes prosecution of the 
drunken visitor in one’s home, the person behaving in a 
disorderly manner in one’s church, or the disreputably 
dressed, boisterous customer in a store, who refuses to 
leave when requested. If the gist of Defendants com­
plaint is that 26-3005 is being unconstitutionally applied, 
then they have no grounds for removal. Their remedy 
is to defend themselves through the State courts and 
then seek review by certiorari in the United States Su­
preme Court.

The Court of Appeals in their opinion impliedly rec­



35

ognize the lack of sufficient allegations in the removal 
petition. The majority refers to “the bare bones allega­
tion of the existence of a right,” and to “liberality of 
pleadings under the (Civil) rules.” Circuit Judge Bell 
refers in his partially concurring and partially dissenting 
opinion to the removal petition as “notice type plead­
ings.” In fact, the whole Court agreed to send the case 
back to the District Court to allow Defendants to prove 
the allegations of the removal petition, or as Judge Bell 
stated “to determine just what appellants do claim.” 
(R. 35)

A brief summary of the legislative history of Para­
graphs (1) and (2) of 28 U.S.C. 1443, under either of 
which these Defendants may attempt to justify removal 
of these cases, might be profitable here. In its present 
form Section 1443 sets out in two paragraphs circum­
stances under which civil actions or criminal prosecutions 
may be removed by the defendants to the federal district 
court embracing the place wherein the case is pending. 
These two types of cases are: (1) Against any person 
who is denied or cannot enforce in the courts of such 
State a right under any law providing for the equal rights 
of citizens of the United States, or of all persons within 
the jurisdiction thereof. Hereinafter in this Brief we 
will refer to this Paragraph as the “denial” clause, for 
the sake of brevity. (2) For any act under color of au­
thority derived from any law providing for equal rights, 
or for refusing to do any act on the ground that it would 
be inconsistent with such law. Hereinafter we will refer 
to this Paragraph as the “color of authority” clause.

The forerunner of Section 1443 was Section 3 of the 
first Civil Rights Act, 14 Stat. 27 (1866) enacted under 
power of the recently adopted Thirteenth Amendment



36

and prior to adoption of the Fourteenth. Section 1 of 
the Act confers on all persons born in the United 
States, of every race and color and without regard to 
previous condition of slavery or involuntary servitude 
the same rights enjoyed by white persons to contract; 
sue and be parties; testify; inherit, hold and dispose of 
property; and to the full and equal benefit of all laws 
and proceedings for the security of person and property, 
and to be subject to like punishment, pains and penalties 
and to none other.

Section 2 of the Act of 1866 made it a crime for any 
person “under color of law” to deprive any person of any 
right secured by the Act. Section 3 was the removal pro­
vision and authorized removal of criminal and civil causes 
“affecting persons who are denied or cannot enforce in 
the courts . . .  of the State . . . any of the rights secured 
to them by the first section of the Act.” Section 3 further 
authorized removal of any suit or prosecution com­
menced in any State court against “any officer, civil or 
military, or other person, for any arrest or imprisonment, 
trespass or wrongs done or committed under color of au­
thority derived from this Act . . .  or for refusing to do 
any act on the grounds that it would be inconsistent 
with this Act.”

Thus the first part of Section 3, Act of 1866, marks 
the first appearance of the “denial” clause, now Para­
graph (lj of Section 1443, and the latter part of Section 
3 is the predecessor of the “color of authority” clause, 
now Paragraph (2) of Section 1443.

Although the Act of May 31, 1870, 16 Stat. 140, added 
the safeguard of the equal rights of citizens to vote, and 
defined a crime for conspiracy to injure a citizen in the



37

exercise of Constitutional or statutory rights, it did not 
significantly alter the removal section of the Act of 1866.

However, in the Revised Statutes of 1875 and 1878, 
former Section 1 of the Act of 1866 became Title XIV, 
entitled “Civil Rights”, in two sections, 1977 and 1978 
which are now 42 U. S. C. 1981, 1982. The jurisdictional 
proceedings, both original and on removal, became part 
of Chapter 7, Title XIII, “The Judiciary”. Old Section 
3 of the Act of 1866 became Section 641 (See App. A, 
Page 72 for complete text) . Both the “denial” and the 
“color of authority” clauses were re-worded somewhat 
in Section 641, although the latter still retained the 
words “against any officer, civil or military, or any other 
person.”

Section 641 became Section 31, Judicial Code of 1911, 
35 Stat. 1096 without any real change. However, the 
1948 codification of Title 28, U. S. C. made a number 
of changes. Procedural details were split off into other 
Sections and structure was altered by dropping clauses 
and rearranging them. The most important changes 
were that the words “against any officer, etc.” were 
dropped from the “color of authority” clause, and noth­
ing was substituted therefor. Also, the words “arrest, 
imprisonment, wrongs or trespass” in that clause were 
shortened to “any act under color of authority.”

The 1948 codification of Title 28 made a significant 
change in the removal right of federal officers in Section 
1442. Formerly the class of persons with such removal 
right had been limited to officers acting under the reve­
nue laws. (Former Section 643, Title XIII; subsequently 
Section 33, Judicial Code of 1911, 36 Stat. 1097.) Sec­
tion 1442(a) (2) expanded this coverage to allow re­
moval by any federal officer, or persons acting under him



38

for any act done under color of such office or on account 
of any right claimed under any Act of Congress for the 
apprehension of criminals or collection of the revenue.

With this admittedly skimpy review of the history of 
present Sections 1443 (1) and (2), we will discuss four 
federal decisions of very recent vintage which bear di­
rectly upon the issue presented in this case. The first of 
these is People of the State of New York v. Galamison, 
2 Cir. 1965, 342 F. 2d 255, cert. den. 85 S. Ct. 1342 
(April 26, 1965), where some sixty persons were being 
prosecuted by the State of New York for acts committed 
during demonstrations conducted to publicize their 
grievances over “the denial of equal protection of the 
laws to Negroes in the City, State, and Nation with ref­
erence to housing, education, employment, police action, 
etc.” (342 F. 2d at 257). The demonstrators disrupted 
highway and subway traffic to the New York World’s 
Fair, passed out leaflets at a public school in protest 
against lack of integration, and staged a “sit-down” at 
City Hall protesting the same subject. The Defendants 
removed their cases to the respective federal district 
courts having territorial jurisdiction, and the federal 
district courts promptly remanded the cases to the New 
York Courts without evidentiary hearings. (342 F. 2d 
at 258) .

Before the Second Circuit Court of Appeals, the Ap­
pellants abandoned any reliance upon the “denial” clause 
of Section 1443 and relied entirely upon the second, or 
“color of authority” clause. In a most thorough, exhaus­
tive, and scholarly analysis of the entire history of Sec­
tion 1443, Judge Friendly in the majority opinion pre- 
termitted the contention of the State of New York that 
Section 1443 (2) , the “color of authority” clause, is lim­



39

ited to officers and persons assisting them or acting in 
some way on behalf of government. But moving beyond 
that contention, Judge Friendly held that the cases were 
not removable from state to federal district courts under 
the “color of authority” clause, stating in part:

“ . .. We begin by returning to the text we must 
construe. We have agreed with appellants that Sec. 
1443 (2) affords a ground for removal separate from 
Sec. 1443 (1) , and We are henceforth assuming, argu­
endo, that Sec. 1443 (2) is not limited to officers 
or persons acting at their instance or on their behalf.

it

“ . . . The officer granted removal under Sec. 3 
of the Civil Rights Act of 1866 and its predecessor, 
Sec. 5 of the Habeas Corpus Act of 1863, would not 
have been relying on a general constitutional guar­
antee, but on a specific statutory order telling him 
to act . . .  A private person claiming the benefit of 
Sec. 1443 (2) can stand no better; he must point to 
some law that directs or encourages him to act in a 
certain manner, not merely to a generalized consti­
tutional provision that will give him a defense or 
to an equally general statute that may impose civil 
or criminal liability on persons interfering with 
him.” (342 F. 2d at 264).

# # # # #

“ (4) . When the removal statute speaks of ‘color 
of authority,’ derived from ‘a law providing for 
equal rights,’ it refers to a situation where the law­
makers manifested an affirmative intention that a 
beneficiary of such law should be able to do some­
thing, and not merely to one where he may have a 
valid defense or be entitled to have civil or criminal 
liabilities imposed on those interfering with him.

“ (5) . When the removal statute speaks of ‘any 
law providing for equal rights,’ it refers to those laws 
that are couched in terms of equality, such as the



40

historic and the recent civil rights statutes, as dis­
tinguished from laws, of which the due process clause 
and 4,2 U.S.C. 1983 are sufficient examples, that 
confer equal rights in the sense, vital to our way of 
life, of bestowing them on all.” (342 F. 2d at 271).

Thus, the Second Circuit has held, in Galamison, 
supra, and this Honorable Court has denied certiorari 
on the issue, that the “color of authority” clause does 
not authorize removal of State prosecutions to federal 
district courts, although the removing defendants were 
attempting to justify their acts of protest and resistance 
under color of authority of the guarantees of free speech 
and petition embodied in the First Amendment and 
applied to the States through the due process clause of 
the Fourteenth Amendment, the equal protection clause 
of the latter Amendment, and statutory protection of 
rights conferred by the Constitution.

It may be argued with some surface plausibility by 
counsel for the Defendants that the majority opinion of 
the Second Circuit in Galamison, supra, is not really 
damaging to their position in the instant case. They may 
argue, first, that Galamison is not in point factually with 
this case because here the Defendants were attempting to 
exercise their equal rights to public accommodations as 
subsequently spelled out in the Civil Rights Act of 1964, 
whereas in Galamison the Defendants were attempting to 
exercise their rights of peaceable assembly and freedom 
of speech protected by the First Amendment, and the 
due process clause of the Fourteenth Amendment. Sec­
ondly, the Defendants herein may argue that, if the in­
stant cases are not removable under the “color of au­
thority” clause, they may still be removable under the 
first Paragraph of Section 1443, or the “denial” clause.

These arguments, if made by the Rachel, et al De­



41

fendants, must surely fail under the majority opinion 
of Galamison, which states, in part:

“ (14) It should be made clear that the obstacles 
we perceive to applying Sec. 1443 (2) to removal by 
civil rights demonstrators would not be at all pres­
ent in cases where an appropriate showing was 
made for the invocation of Sec. 1443 (1) . An alle­
gation that Negroes engaged in civil rights demon­
strations were being punished in the state courts 
whereas white persons engaging in similar demon­
strations were not, cf Cox v. Louisiana, supra, (379 
U. S. 536 — citation supplied), or that Negro dem­
onstrators were required to post high bail whereas 
whites were not, would constitute clear instances of 
denial to ‘any person’ of the right provided by 42 
U.S.C. 1981, that ‘all shall be subject to like punish­
ment, pains, penalties, taxes, licenses, and exactions 
of every kind, and to none other’.” (342 F. 2d at 
271 — emphasis supplied.)

Looking at the allegations of the Rachel, et al removal 
petition in the light of the italicized words of the Galam­
ison opinion setting out examples of when factual alle­
gations pursuant to Section 1443 (1) would allege ade­
quate grounds of “denial” to justify removal, we find no 
such allegations of discriminatory treatment of Negroes 
and white persons. In fact, the exact converse appears 
from the allegations of the Rachel removal petition, as 
follows:

“Members of the so-called white or Caucasian 
race are similarly treated and discriminated against 
when accompanied (to places of public accommoda­
tion and convenience) by members of the Negro 
race. (R. 1, 2. Explanatory words added.)

Nowhere in the removal petition for Rachel, et al is 
there a single allegation of discrimination between



42

Negro and white civil rights demonstrators, either as to 
punishment, bond setting, or anything else. Thus the 
Rachel removal petition utterly fails to meet this stan­
dard of “denial and inability to enforce rights” laid down 
by Galamison.

Further, the Second Circuit Court of Appeals in 
Galamison, supra, reiterates the exact contention that has 
been relied upon by counsel for Petitioner throughout 
the long and tedious course of this litigation in the 
federal courts, namely, that Virginia v. Rives, Neal v. 
Delaware, and Kentucky v. Powers, all supra, are still 
controlling and pose an absolute bar to removal of these 
cases under the allegations of the Rachel, et al removal 
petition. The Second Circuit majority states that what is 
now Section 1443 (1) “was largely deprived of effect by 
the decisions in (citing Rives, Neal and Powers, supra,) 
“Which limited its application to deiiial by state laws as 
distinguished from state practice.’’ (352 F. 2d at 271. 
Emphasis added.) The Second Circuit goes on to pre­
dict that Congress may re-examine these restrictive deci­
sions, “not, of course, by restricting the statute, as the 
dissent suggests, but by removing the restriction that had 
been judicially imposed on the first clause and by clari­
fying the scope of the second.” (342 F. 2d at 271-272) .

Our point is firmly this: Congress has not yet removed 
the judicial restriction imposed by prior decisions of 
this Honorable Court on removal of this type of case 
under the “denial” clause, and has not yet clarified the 
scope of such attempted removal under the “color of 
authority” clause. This being the case, these criminal 
prosecutions are not removable under either Section 
1443, Paragraph (1) or Paragraph (2) . Until such time 
as Congress takes such action, if indeed it ever will, cases



43

such as the instant one are not removable from State to 
United States District Courts at the trial level.

In one final comment on Galamison, supra, which 
counsel for Petitioner feel is most strongly in favor of 
our position, we must nevertheless confess a certain puz­
zlement in the fine distinction drawn in the majority 
opinion construing the “under any law providing for 
equal rights” clause of Section 1443 (2) between laws 
which are “couched in terms of equality” as distinguished 
from laws, of which the “due process” clause is one ex­
ample, that “confer equal rights in the sense . . .  of 
bestowing them upon all.” This seems to be semantic 
hair-splitting. It implies apparently that some cases might 
be removable when the alleged right being exercised by 
the defendants which resulted in their prosecution was 
created by a civil rights act of Congress, for example, 
whereas other cases might not be removable when the 
alleged right being exercised by defendants is vested in 
them by the Constitution or Amendments thereto. We 
see no compelling reason for such a distinction. Can it be 
said that an Act of Congress creating or defining rights 
in some specific area is in some way superior to a Con­
stitutional provision bestowing rights in other specific 
areas? If one is to be given superior weight over the other, 
should not the right conferred by the Constitution or an 
Amendment thereto which requires ratification by the 
States prevail over one conferred merely by a statutory 
act of Congress?

We move on more briefly to other recent cases. Since 
two of these cases are now pending in this Honorable 
Court on Petitions for Writ of Certiorari, and since we 
do not wish to improperly prejudice any of the parties to 
said actions, we will not engage in extended discussion



44

of the reasoning of the respective courts in said cases, 
except to point out important distinctions between those 
cases and the instant one.

In City of Chester v. Anderson, 3 Cir. 1965, 347 F. 2d 
823; Pet. for Cert, filed, No. 443, the Third Circuit 
Court of Appeals by an eventual margin of 4 to 3 (on 
petition for rehearing) affirmed the district court’s 
remand of removed State Court prosecutions. In this case 
the appellants relied upon the second, or “color of au­
thority” clause of Section 1443, asserting First Amend­
ment rights protecting freedom of speech. The majority 
of the Third Circuit, relying upon Galamison, supra, 
held that the cases were not removable under 28 U. S. C. 
1443 (2). Both the majority and the dissent cited the 
Rachel opinion in the Fifth Circuit wrhich this Court is 
now reviewing. This is still another Court of Appeals 
decision holding that remand was not authorized under 
the “color of authority” clause of 28 U. S. C. 1443. The 
State of Georgia, Petitioner, relies upon this case, as it 
applies to Paragraph (2) of said statute.

The Fifth Circuit Court of Appeals, relying almost 
entirely upon its opinion in the instant case, reversed an 
order of remand entered by the district court in Peacock 
et al. v. City of Greenwood, 5 Cir. 1965, 347 F. 2d 679; 
Pet. for Cert, filed, No. 471; and remanded the criminal 
prosecutions to the United States District Court for a 
hearing, with directions. The State Court prosecutions 
were for violation of a Mississippi statute making it 
unlawful to wilfully obstruct any public street. It was 
alleged in their removal petition that appellants were 
members of civil rights groups and at the time of their 
arrests they were engaged in a voter registration drive 
assisting Negroes to register and secure the right to vote,



45

as guaranteed by the Federal Constitution and by 42 
U. S. C. 1971, the Civil Rights Act of 1960. It was fur­
ther alleged that the Mississippi statute in question was 
vague, indefinite, and unconstitutional, both on its face 
and as applied to them, and that trial under it would 
contravene their First and Fourteenth Amendment 
rights. (347 F. 2d at 680-681.)

The Fifth Circuit Court of Appeals held that the 
cases were not removable under Section 1443 (2), the 
“color of authority” clause, just as the Second Circuit 
held in Galamison, supra, and as the Third Circuit held 
in Chester, supra. In this regard, the Fifth Circuit went 
a long step further than either the Second and Third 
Circuits, and decided the question pretermitted in Gala­
mison and not mentioned in Chester, i.e. “Is removal 
under the ‘color of authority’ or second Paragraph of 
Section 1443 not available unless the act for which the 
state prosecution is brought was done in at least a quasi­
official capacity derived from a law providing for equal 
rights?” The Fifth Circuit firmly answered this question 
in the affirmative, saying by a unanimous three-judge 
Court at page 686:

“Thus we feel that the original language and con­
text of Section 1443 (2) compel the conclusion that 
that section is limited to federal officers and those 
assisting them or otherwise acting in an official or 
quasi-official capacity. This conclusion is buttressed 
by the fact that appellants’ construction of para­
graph (2) would bring within its sweep virtually 
all the cases covered by paragraph (1), thereby ren­
dering that paragraph of no purpose and effect. 
Paragraph (I) requires a denial or the inability to 
enforce equal right in the state court. If paragraph 
(2) covers all who act under laws providing for 
equal rights, as appellants contend, this requirement



46

could be avoided simply by invoking removal under 
the second paragraph. Paragraph (1) is an adequate 
vehicle for the protection and vindication of the 
rights of appellants, and we find no warrant for 
giving paragraph (2) the strained and expansive 
construction here urged.” (Emphasis supplied.)

Counsel for Petitioner feel justified in urging this 
Court that Section 1443 (2), the “color of authority” 
clause, can be eliminated as an adequate vehicle for re­
moval in the instant case, in view of the foregoing deci­
sions of three Circuit Courts of Appeal, with none contra 
to our knowledge.

We will not discuss the further decision of the Fifth 
Circuit in Peacock, supra, with which we firmly and re­
spectfully disagree, that the cases were removable under 
the “denial” or first clause of Section 1443, except to 
note that the rationale of the unanimous Court is based 
almost entirely upon the Rachel, et al. case which is now 
being reviewed.

We do wish to point out some important factual dif­
ferences between Peacock, supra, and the instant case. 
In Peacock the removal petition alleged that the Missis­
sippi statute was both unconstitutional on its face and 
as applied. The removal petition in Rachel makes neither 
allegation as to the Georgia trespass statute. There is 
no hint in the Petition for Removal of Rachel, et al. that 
Georgia Code Section 26-3005 is unconstitutional on its 
face, and only by a very far-fetched and strained con­
struction of the removal petition can one reach the con­
clusion that it contains a claim that said Georgia Code 
Section is being unconstitutionally applied.

In the Peacock case, supra, the Fifth Circuit Court of 
Appeals cited with approval the opinion of District



47

Judge Clayton in City of Clarksdale, Miss. v. Gertge, 
N.D. Miss. 1964, 237 F. Supp. 213, in which Judge Clay­
ton likewise held that the second, or “'color of authority” 
clause of Section 1443 does not authorize removal unless 
the act for which the state prosecution was brought was 
done in at least a quasi-official capacity derived from a 
law providing for equal rights. Judge Clayton went much 
further, however, and also held that removal of the state 
prosecutions arising from racial incidents was not justi­
fied under the “denial” clause of Section 1443. He did 
not hold a heating but rendered his opinion on briefs 
directed to the face of the pleadings, i.e., the removal 
petition, which was far more detailed as to alleged denial 
of federally protected rights in Mississippi than is the 
skimpy, conclusionary removal petition in the instant 
case.

For the foregoing reasons, Counsel for Petitioner most 
respectfully insist that the divided majority of the Fifth 
Circuit Court of Appeals erred in reversing the remand 
order of the District Court in this case. We insist that our 
motion to dismiss the appeal should have been granted 
because the notice of appeal was not timely filed, and 
we do not waive that ground. But if this Court decides 
the timeliness of the appeal adversely to us, and reaches 
the merits of this case, the removal petition still does 
not allege sufficient grounds to justify removal.

(h) The removal petition must stand or fall upon 
its allegations alone, and there is no requirement for 
the District Court to hold an evidentiary hearing.

The Court of Appeals held that the district court 
should have held a hearing, to allow the Defendants



48

to prove their allegations and remanded the case to the 
District Court for such a hearing. Petitioner maintains 
that this was error. We find little legal precedent for such 
action/Removal petitions are considered on their face, 
by the factual allegations, in virtually every jurisdiction 
except the Fifth Circuit.

In Maryland v. Soper, Judge (No. 1) 1925, 270 U. S. 
9, the Supreme Court said:

“We think the averments of the amended petition 
in this case are not sufficiently informing and specific 
to make a case for removal under Sec. 33.” (at 
page 34)

“These averments amount to little more than to 
say that the homicide on account of which they are 
charged with murder was at a time when they were 
engaged in performing their official duty . . .  (at 
page 3 5 ) ...............

“. . . . But they (the removing defendants) should 
do more than this in order to satisfy the statute 
(Section 33, Judicial Code, formerly Section 643, 
Revised Statutes) . In order to justify so exceptional 
a procedure (removal of criminal cases to federal 
court), the person seeking the benefit of it should 
be candid, specific, and positive in explaining his 
relation to the transaction growing out of which he 
has been indicted, and in showing that his relation 
to it was confined to his acts as an officer. As the 
defendants in their statement have not clearly ful­
filled this requirement, we must grant the writ of 
mandamus directing the District Judge to remand 
the indictment and prosecution. Should the District 
Judge deem it proper to allow another amendment 
to the petition for removal, by which the averments 
necessary to bring the case within Sec. 33 are sup­
plied, he will be at liberty to do so. Otherwise the



49

prosecution is to be remanded as upon a peremptory 
writ.” (Italics and explanatory words in parenthesis 
added.)

Petitioner thus maintains that the removability of a 
case depends on the allegations of the removal petition 
itself. For example, in Birmingham, v. Croskey, D.C. 
N.D. Ala., 1963, 217 F. Supp. 947, the Courts’ opinion 
does not mention any evidentiary hearing, and reads in 
brief portions as follows (217 F. Supp. 950-51) :

“As will become readily apparent, the foregoing 
allegations (of the removal petition) are insufficient 
to justify the removal of the case to this Court” 
(at page 950) and “Considered in the light of the 
aforementioned authority, the petition for removal 
to this Court does not allege facts sufficient to justify 
the removal that has been granted” (at the bottom 
of page 950 and top of page 951).

In other cases where remand was ordered, the follow­
ing excerpts illustrate our point:

“The petition is probably insufficient also for the 
reasons, etc.” (North Carolina v. Jackson, supra at 
page 683) ; “Otherwise stated, even if the material 
factual allegations of the petition are accepted at 
face value, the Court is not convinced, etc.” (Arkan­
sas v. Howard, supra, at page 633.)

Petitioner could quote similar language from many 
other cases, showing that the allegations of the removal 
petitions are the only matters considered by federal dis­
trict courts, and that evidentiary hearings are not re­
quired or even indicated, but we feel it is unnecessary.

See also: City of Glarksdale v. Gertge, and People of 
the State of New York v. Galamison, both supra, wherein 
the District Courts remanded cases without a hearing 
and based on the pleadings in the removal petitions.



50

If District Courts are required to hold prolonged 
and detailed hearings every time an inadequate removal 
petition is filed, the work load of such Courts will be 
greatly increased. Such petitions should be, and have 
been in the past, considered strictly in the light of the 
facts alleged therein. Therefore, the District Court prop­
erly remanded the case without a hearing.

III. ASSUMING ARGUENDO THAT REMAND TO 
THE DISTRICT COURT FOR AN EVIDENTIARY 
HEARING WAS PROPER, THE DIRECTIONS GIVEN 
THE LOWER COURT WERE CLEARLY ERRO­
NEOUS.

The majority of the Court of Appeals directed the 
lower court to dismiss the prosecutions, if upon the 
hearing it appeared that racial reasons were the cause 
of Defendants’ removal from the various restaurants. No 
discretion whatever was left to the District Court by 
these directions, except to make a finding of fact as to 
that one issue.

(a) The aforesaid directions to the lower Court un­
duly limited the judicial discretion of that Court in 
applying the evidence to the doctrine of Hamm v. 
City of Rock Hill.

As Circuit Judge Bell points out (R. 34), such a hold­
ing is tantamount to applying Hamm in all its sweep 
against trespass statutes, retroactively to the State of 
Georgia, and is in effect a holding that Georgia has ap­
plied and will continue to apply its trespass statute con­
trary to the teachings of this Honorable Court in Hamm, 
even though Hamm had not been decided when the 
cases were in the State Courts, and even though those



51

State Courts have not had an opportunity to deal with 
these cases in the light of Hamm.

This holding assumes that any trespass prosecution 
growing out of racial causes is automatically abated by 
Hamm. Hamm does not hold this. It is strictly limited 
to peaceful and non-violent attempts to exercise a right 
to be served in places of public accommodation, without 
regard to race, color or creed. A number of recent Su­
preme Court decisions have also stressed the peaceful 
and non-violent actions of defendants prosecuted in va­
rious types of “sit-in” demonstrations, These cases are 
Thompson v. City of Louisville, 1962, 362 U. S. 199; 
Shuttlesworth v. City of Birmingham, Ala., 1963, 373 
U. S. 262; Peterson v. City of Greenville, S. C., 1963, 
373 U. S. 244; and Griffin v. Maryland, 1964, 378 U. S. 
130. If the evidence should show violence or vandalism 
on the part of Defendants, Hamm would not be ap­
plicable.

Another issue which might arise from the evidence 
in a hearing is whether or not any one of the restaurants 
involved is in fact a place of public accommodation 
within the meaning of the Civil Rights Act of 1964. The 
District Court should be allowed to determine these 
matters upon the evidence, and not be restricted to one 
issue as he is at present under the majority decision of 
the Court of Appeals.

(b) The District Court’s remand order should have 
been affirmed, and the criminal prosecutions returned 
to Fulton Superior Court, thus allowing the Courts of 
Georgia to consider the cases in the light of the Hamm 
decision.



52

Counsel for Petitioner respectfully submit that the 
Court of Appeals has gone one step further than this 
Honorable Court has ever done, in returning the cases 
to the District Court with directions to dismiss same if 
one specific finding, i.e., racial causes for the arrests 
of Defendants, is made. This wrests jurisdiction of the 
cases from the Georgia Courts without giving them a 
chance to apply the latest ruling of this Honorable 
Court. And there is not a single allegation in the Petition 
for Removal which indicates that the Defendants will 
not be treated completely fairly in the Georgia Courts, 
in the light of Hamm. Counsel for Petitioner agree with 
Circuit Judge Bell’s opinion that Defendants should be 
required to show that Georgia Courts will not apply 
Hamm fairly to them. If they fail to do this, the cases 
should be remanded to the State courts.

Counsel for the Defendants might conceivably argue 
in their Brief that the vitality of Circuit Court Judge 
Bell’s partially dissenting opinion in this case as to the 
course which he feels should be taken by the District 
Court upon a hearing, upon which Petitioner relies 
heavily, has been sapped by Judge Bell’s more recent 
opinion in Peacock, supra, in which he said in part, in a 
footnote, while writing the opinion of the Court:

“6; Proof of the allegations in this case would 
establish removal jurisdiction and ipso facto entitle 
appellants to dismissal of their prosecutions by the 
District Court. Failure of proof would require re­
mand to the state court for trial. (S47 F. 2d at 684)

Such an argument, if made, would ignore the vital 
fact that the Supreme Court of Georgia in Bolton v. 
State, 1965, 220 Ga. 632, 140 S.E. 2d 866, applied the 
doctrine of Hamm and abated several State Court tres­



pass convictions. Apparently there has been no such 
recognition of the controlling effect of Hamm by the 
highest appellate court of the State of Mississippi — at 
any rate, no such opinion is cited in Peacock, supra, and 
counsel for Petitioner know of no such opinion. This 
is a very important and indeed crucial distinction be­
tween Peacock and Rachel. Where the highest Court of 
the State of Georgia has unanimously recognized and 
followed the majority opinion of this Honorable Court, 
jurisdiction at the trial level should not be wrested from 
the Georgia Courts until they have been given an oppor­
tunity to consider these cases in the light of Hamm, 
supra, and Bolton, supra. Neither of these cases had been 
decided by the United States Supreme Court or the 
Supreme Court of Georgia, respectively, when the 
Rachel, et al, defendants removed their cases to the 
federal district court, and District Judge Boyd Sloan 
remanded them to Fulton Superior Court.

Any possible conjecture that Georgia Courts will not 
fairly apply the doctrine of Hamm to any and all defend­
ants similarly situated to these Defendants should have 
been laid to rest in Bolton, supra. The Negro defendants 
in Bolton were convicted for violation of the same anti­
trespass law involved in the instant case, for sitting down 
in, and refusing to leave a public eating place in Athens, 
Georgia, after having been refused service. The Supreme 
Court of Georgia, in reversing the convictions, said in 
part, in a unanimous opinion:

“. . . So applying the rules of Sec. 201 (b) (2), 
(c) of the Civil Rights Act of 1964 to the facts of 
this case, we find and hold that this public eating 
place offers to serve interstate travelers and under 
the majority holding of the Supreme Court of the 
United States in Hamm v. City of Rock Hill (South



54

Carolina) , and Lupper' v. State of Arkansas, 379 
U. S. 306 (13 L.E. 2d 300)  ̂ both of which were 
decided in one opinion on December 14, 1964, these 
convictions must be vacated and the prosecutions 
dismissed, notwithstanding the offense charged 
against each of these defendants was committed and 
convictions therefor were obtained prior to the pas­
sage of the Civil Rights Act of 1964. In those two 
cases the majority held that the Civil Rights Act of 
1964 forbids discrimination in specified places of 
public accommodation and removes peaceful at­
tempts to be served on an equal basis from the cate­
gory of punishable activities. While those majority 
holdings do not accord with our conception of the 
meaning and purpose of the provisions of the Con­
stitution of this State and the Constitution of the 
United States which prohibit the enactment of ex 
post facto or retroactive laws (Code Sec. 1-128, 
2-302), we are, under our oaths, nevertheless re­
quired to follow them and we will therefore do so 
in these cases; and being so required, we therefore 
hold, that these pending convictions are abated by 
the 1964 Civil Rights Act and it is ordered that the 
sentences imposed on each of these defendants be 
vacated and that the charge against each defendant, 
be d is m is s e d (Emphasis supplied)

Counsel for Petitioner most respectfully insist that the 
Georgia Courts should be afforded an equal opportunity 
to rule on these cases, unless Defendants can show that 
their equal rights will be denied them in the Georgia 
Courts.

CONCLUSION
As previously stated in Petitioner’s Summary of Argu­

ment, counsel for Petitioner are not concerned with the 
future outcome of these prosecutions if they are re­
manded to the State Courts. We are deeply concerned,



55

however, with the issues of whether the notice of appeal 
was timely filed, whether these cases are removable to 
federal district court under the meager allegations of the 
removal petition, and whether the directions given by 
the Court of Appeals to the District Court to dismiss 
the prosecutions upon the finding of one factor only 
were erroneous.

Counsel for Petitioner therefore respectfully urge this 
Honorable Court:

(1) To hold that the time limit for filing a notice of 
appeal of the remand order in the instant case is con­
trolled by Rule 37 (a) (2), Fed. R. Crim. P.; that the 
appeal thus is not timely; that the Court of Appeals 
therefore had no jurisdiction to entertain the appeal and 
should have granted Petitioner’s timely motion to dis­
miss; and to reverse the decision of the Court of Appeals 
without ruling upon the merits of this case.

(2) In the event this Court rules adversely to Peti­
tioner’s first ground and holds that Defendants’ appeal 
is timely, to hold that these State prosecutions are not 
removable under 28 U.S.C. 1443 (1) (2) based on the al­
legations in Defendants’ Petition for Removal; that an 
evidentiary hearing by the District Court is not proper or 
required; that the allegations of the removal petition 
must be considered on its face, without supplementation 
by oral evidentiary hearings before the District Court; 
and to reverse the decision of the Court of Appeals on 
the merits, thus giving effect to the original Order of 
Remand entered by the District Court returning these 
prosecutions to Fulton Superior Court.

(3) In the event this Court rules adversely to Peti­
tioner’s first two grounds, and holds that the appeal was



56

timely, and that the Court of Appeals was correct in 
returning the case to the District Court for an eviden­
tiary hearing, to hold that the instructions given by 
the Court of Appeals to the District Court to dismiss 
the prosecutions if one sole finding of fact is made, i.e., 
that the removal of the Defendants from the various 
places of public accommodation was done for racial 
reasons, were erroneous, and to reverse that portion of 
the decision of the Court of Appeals. We urge this 
Court in that event to hold that the District Court, upon 
such evidentiary hearing, could and should consider any 
and all factors relevant to the removability of these cases, 
and that these Defendants should be required to prove 
in such a hearing that they cannot receive fair trials in 
Georgia Courts, in view of the Bolton decision, supra, 
by the Georgia Supreme Court, before the District Court 
would be authorized to retain jurisdiction of the cases, 
and that should the Defendants fail to prove this, the 
District Court should remand the cases to Fulton Su­
perior Court.

Therefore, Petitioner insists that the decision of the



Fifth Circuit Court of Appeals should be reversed, in 
whole or in part.

Respectfully submitted,

judicial Building /  A ________ _
Atlanta, Ga. 3 0 3 0 3 ^ A rthur  K. B o l to n ,

Attorney General of the 
State of Georgia

ew is  R . Sl a to n , J r ., 
Solicitor General 
Atlanta Judicial Circuit

Fulton County 
Courthouse
Atlanta, Ga. 30303 Assistant Solicitor General 

Atlanta Judicial Circuit

(c) __ __________________
l  G eorge K. M cP h erso n , J r.,

C / j .  R o bert  Sparks,
Assistant Solicitor General 
Atlanta Judicial Circuit

Counsel for Petitioner



58

CERTIFICATE OF SERVICE
Georgia, Fulton County

I. J. Robert Sparks, of counsel for the State of Georgia, 
Petitioner, certify that I have this day served copies of 
the foregoing Brief for Petitioner and Appendix, upon 
Defendants by depositing in the United States Post Office 
in Atlanta, Georgia two copies of same in an envelope 
addressed to Donald L. Hollowed and Howard Moore, 
Jr., Esquires, Attorneys at Law, 859Vz Hunter Street, 
N.W., Atlanta, Georgia 30314; two copies of same in an 
envelope addressed to Jack Greenberg, Esquire, Attorney 
at Law, 10 Columbus Circle, New York, New York 
10019; and two copies of same in an envelope addressed 
to Professor Anthony G. Amsterdam, Esquire, Attorney 
at Law, University of Pennsylvania Law School, Phila­
delphia, Pennsylvania; counsel of record for Defendants, 
with sufficient first class postage affixed thereto, plus air 
mail postage for Mr. Greenberg’s and Mr. Amsterdam’s 
copies.

This day of November, 1965.

b
Assistant Solicitor Gene 
Atlanta Judicial Circuit

Solicitor General



A P P E N D IX



59

APPENDIX “A”
PERTINENT PARTS OF CONSTITUTIONAL 

PROVISIONS AND STATUTES INVOLVED
AMENDMENT I, CONSTITUTION OF THE 
UNITED STATES

“Congress shall make no law respecting an establish­
ment of religion, or prohibiting the free exercise there­
of; or abridging the freedom of speech, or of the press; 
or the right of the people peaceably to assemble, and to 
petition the Government for a redress of grievances.”

AMENDMENT XIV, CONSTITUTION OF THE 
UNITED STATES

“Section 1. . . . No State shall make or enforce any 
law which shall abridge the privileges or immunities of 
citizens of the United States; nor shall any State deprive 
any person of life, liberty, or property, without due 
process of law; nor deny to any person within its juris­
diction the equal protection of the laws.”

ACT OF 1866, SEC. 3 (14 STAT. 27, 28)
“An Act to protect all persons in the United States 

in their Civil Rights, and furnish the means of their 
vindication.

“Section 3. And be it further enacted, That the district 
courts of the United States, within their respective dis­
tricts, shall have, exclusively of the courts of the several 
States, cognizance of all crimes and offenses committed 
against the provisions of this act, and also, concurrently 
with the circuit courts of the United States, of all causes, 
civil and criminal, affecting persons who are denied or 
cannot enforce in the courts or judicial tribunals of the



60

State or locality where they may be any of the rights 
secured to them by the first section of this act; and if 
any suit or prosecution, civil or criminal, has been or 
shall be commenced in any State court, against any such 
person, for any cause whatsoever, or against any officer, 
civil or military, or other person, for any arrest or im­
prisonment, trespasses, or wrongs done or committed by 
virtue or under color of authority derived from this 
act or the act establishing a Bureau for the relief of 
Freedmen and Refugees, and all acts amendatory thereof, 
or for refusing to do any act upon the ground that it 
would be inconsistent with this act, such defendant shall 
have the right to remove such cause for trial to the 
proper district or circuit court in the manner prescribed 
by the ‘Act relating to habeas corpus and regulating 
judicial proceedings in certain cases,’ approved March 3, 
eighteen hundred and sixty-three, and all acts amenda­
tory thereof.

ACT OF 1887, SECS. 2 AND 5 
(24 STAT. 553, 555)

“Section 2..................Whenever any cause shall be
removed from any State court into any circuit court of 
the United States, and the circuit court shall decide that 
the cause was improperly removed, and order the same 
to be remanded to the State court from whence it came, 
such remand shall be immediately carried into execu­
tion, and no appeal or writ of error from the decision 
of the circuit court so remanding such cause shall be 
allowed.”

“Section 5. That nothing in this act shall be held, 
deemed, or construed to repeal or affect any jurisdiction 
or right mentioned either in sections 641, or in 642, or



61

in 643, or in 722, or in title 24 of the Revised Statutes 
of the United States, or mentioned in section 8 of the 
act of Congress of which this act is an amendment, or 
in the act of Congress approved March 1, 1875, entitled 
‘An act to protect all citizens in their civil or legal 
rights.’ ”

ACT OF 1875, SEC. 5 (18 STAT. 472)
“Section 5. That if, in any suit commenced in a circuit 

court or removed from a State court to a circuit court 
of the United States, it shall appear to the satisfaction 
of said circuit court, at any time after such suit has been 
brought or removed thereto, that such suit does not 
really and substantially involve a dispute or controversy 
properly within the jurisdiction of said circuit court,
............. , the said circuit court shall proceed no further
therein, but shall dismiss the suit or remand it to the 
court from which it was removed as justice may require, 
and shall make such order as to costs as shall be just; 
but the order of said circuit court dismissing or remand­
ing said cause to the State Court shall be reviewable by 
the Supreme Court on writ of error or appeal, as the 
case may be.”

SECTION 71, FORMER TITLE 28, U. S. C. 
(JUDICIAL CODE, SEC. 28)

“. . . . Whenever any cause shall be removed from 
any State court into any district court of the United 
States, and the district court shall decide that the cause 
was improperly removed, and order the same to be re­
manded to the State court from whence it came, such 
remand shall be immediately carried into execution, and 
no appeal from the decision of the district court so 
remanding such cause shall be allowed. ...............”



62

SECTION 74, FORMER TITLE 28, U. S. C. 
(JUDICIAL CODE, SEC. 31)

“When any civil suit or criminal prosecution is com­
menced in any State court, for any cause whatsoever, 
against any person who is denied or cannot enforce in 
the judicial tribunals of the State, or in the part of the 
State where such suit or prosecution is pending, any 
right secured to him by any law providing for the equal 
civil rights of citizens of the United States, or of all per­
sons within the jurisdiction of the United States, or 
against any officer, civil or military, or other person, 
for any arrest or imprisonment or other trespasses or 
wrongs made or committed by virtue of or under color 
of authority derived from any law providing for equal 
rights as aforsesaid, or for refusing to do any act on the 
ground that it would be inconsistent with such law, such 
suit or prosecution may, upon the petition of such de­
fendant, filed in said State court at any time before the 
trial or final hearing of the cause, stating the facts and 
verified by oath, be removed for trial into the next dis­
trict court to be held in the district where it is pending. 
Upon the filing of such petition all further proceedings 
in the State courts shall cease, and shall not be resumed 
except as hereinafter provided................. ”
SECTION 76, FORMER TITLE 28, U. S. C. 
(JUDICIAL CODE, SEC. 33)

“When any civil suit or criminal prosecution is com­
menced in any court of a State against any officer ap­
pointed under or acting by authority of any revenue 
law of the United States, or against any person acting 
under or by authority of any such officer, on account 
of any act done under color of his office or of any such 
law, or on account of any right, title, or authority



63

claimed by such officer or other person under any such
law ,..............the said suit or prosecution may at any
time before the trial or final hearing thereof be removed 
for trial into the district court next to be holden in the 
district where the same is pending upon the petition of
such defendant to said district court....................... ..
and thereupon it shall be the duty of the State court to 
stay all further proceedings in the cause, and the suit 
or prosecution, . . .

ACT OF FEBRUARY 24, 1933,
C. 119, 47 STAT. 904

Be it enacted by the Senate and House of Representa­
tives of the United States of America in Congress as­
sembled, That the Supreme Court of the United States 
shall have the power to prescribe, from time to time, 
rules of practice and procedure with respect to any or 
all proceedings after verdict in criminal cases in district 
courts of the United States, including the District Courts 
of Alaska, Hawaii, Puerto Rico, Canal Zone, and Virgin 
Islands, in the Supreme Courts of the District of Co­
lumbia, Hawaii, and Puerto Rico, in the United States 
Court for China, in the United States Circuit Courts of 
Appeals, and in the Court of Appeals of the District of 
Columbia.

Sec. 2. The right of appeal shall continue in those cases 
in which appeals are now authorized by lawy but the 
rules made as herein authorized may prescribe the times 
for and manner of taking appeals and of preparing rec­
ords and bills of exceptions and the conditions on which 
supersedeas or bail may be allowed.

Sec. 3. The Supreme Court may fix the dates when 
such rules shall take effect and the extent to which they



64

shall apply to proceedings then pending, and after they 
become effective all laws in conflict therewith shall be of 
no further force.

Approved, February 24, 1933.
ACT OF MARCH 8, 1934,
C. 49, 48 STAT. 399

Be it enacted by the Senate and House of Representa­
tives of the United States of America in Congress as­
sembled, That the Act of February 24, 1933 (ch. 119), 
entitled “An Act to give the Supreme Court of the 
United States authority to prescribe rules of practice 
and procedure with respect to proceedings in criminal 
cases after verdict” (U.S.C., title 28, sec. 723a), be, and 
the same is hereby, amended to read as follows:

“That the Supreme Court of the United States shall 
have the power to prescribe, from time to time, rules of 
practice and procedure with respect to any or all pro­
ceedings after verdict, or finding of guilt by the court if 
a jury has been waived, or plea of guilty, in criminal 
cases in district courts of the United States, including 
the District Courts of Alaska, Hawaii, Puerto Rico, Canal 
Zone, and Virgin Islands, in the Supreme Courts of the 
District of Columbia, Hawaii, and Puerto Rico, in the 
United States Court for China, in the United States Cir­
cuit Courts of Appeals, in the Court of Appeals of the 
District of Columbia, and in the Supreme Court of the 
United States: Provided, That nothing herein contained 
shall be construed to give the Supreme Court the power 
to abridge the right of the accused to apply for with­
drawal of a plea of guilty, if such application be made 
within ten days after entry of such plea, and before sen­
tence is imposed.

“Sec. 2. The right of appeal shall continue in those



65

cases in which appeals are now authorized by law, but 
the rules made as herein authorized may prescribe the 
times for and manner of taking appeals and applying for 
writs of certiorari and preparing records and bills of 
exceptions and the conditions on which supersedeas or 
bail may be allowed.

“Sec. 3. The Supreme Court may fix the dates when 
such rules shall take effect and the extent to which they 
shall apply to proceedings then pending, and after they 
become effective all laws in conflict therewith shall be of 
no further force.”

Approved, March 8, 1934.
ACT OF JUNE 29, 1940, C. 445, 54 STAT. 688

Be it enacted by the Senate and House of Representa­
tives of the United States of America in Congress as­
sembled, That the Supreme Court of the United States 
shall have the power to prescribe, from time to time, 
rules of pleading, practice, and procedure with respect 
to any or all proceedings prior to and including verdict, 
or finding of guilty or not guilty by the court if a jury 
has been waived, or plea of guilty, in criminal cases in 
district courts of the United States, including the district 
courts of Alaska, Hawaii, Puerto Rico, Canal Zone, and 
the Virgin Islands, in the Supreme Courts of Hawaii 
and Puerto Rico, in the United States Court for China, 
and in proceedings before United States commissioners. 
Such rules shall not take effect until they shall have been 
reported to Congress by the Attorney General at the be­
ginning of a regular session thereof and until after the 
close of such session, and thereafter all laws in conflict 
therewith shall be of no further force and effect.

Approved, June 29, 1940.



66

ACT OF NOVEMBER 21, 1941, C. 492, 55 ST AT. 776
Be it enacted by the Senate and House of Representa­

tives of the United States of America in Congress as­
sembled^ That the provisions of the Act entitled “An 
Act to give the Supreme Court of the United States au­
thority to prescribe rules of practice and procedure with 
respect to proceedings in criminal cases after verdict”, 
approved February 24, 1933 (47 Stat. 904, U. S. C.. title 
18, sec. 688), as amended, and the provisions of the Act 
entitled “An Act to give the Supreme Court of the 
United States authority to prescribe rules of practice, 
pleading, and procedure with respect to proceedings in 
criminal cases prior to and including verdict, or finding 
or plea of guilty”, approved June 29, 1940 (54 Stat, 688, 
U. S. C., title 18, sec. 687), are hereby extended to pro­
ceedings to punish for criminal contempt of court.

Approved, November 21, 1941.
ACT OF JUNE 25, 1948, C. 645, 62 STAT. 683, 
SECTIONS 3731 & 3732
§ 3731. A p p e a l  by U n it e d  States

An appeal may be taken by and on behalf of the 
United States from the district courts direct to the 
Supreme Court of the United States in all criminal cases 
in the following instances:

From a decision or judgment setting aside, or dis­
missing any indictment or information, or any count 
thereof, where such decision or judgment is based upon 
the validity or construction of the statute upon which 
the indictment or information is founded.

From a decision arresting a judgment of conviction for 
insufficiency of the indictment or information, where



67

such decision is based upon the invalidity or construc­
tion of the statute upon which the indictment or infor­
mation is founded.

From the decision or judgment sustaining a motion in 
bar, when the defendant has not been put in jeopardy.

An appeal may be taken by and on behalf of the 
United States from the district courts to a circuit court 
of appeals or the United States Court of Appeals for the 
District of Columbia, as the case may be, in all criminal
cases, in the following instances:

From a decision or judgment setting aside, or dis­
missing any indictment or information, or any count 
thereof except where a direct appeal to the Supreme 
Court of the United States is provided by this section.

From a decision arresting a judgment of conviction 
except where a direct appeal to the Supreme Court of 
the United States is provided by this section.

The appeal in all such cases shall be taken within 
thirty days after the decision or judgment has been ren­
dered and shall be diligently prosecuted.

Pending the prosecution and determination of the 
appeal in the foregoing instances, the defendant shall be 
admitted to bail on his own recognizance.

If an appeal shall be taken, pursuant to this section, to 
the Supreme Court of the United States which, in the 
opinion of that Court, should have been taken to a circuit 
court of appeals, or the United States Court of Appeals 
for the District of Columbia, the Supreme Court of the 
United States shall remand the case to the circuit court 
of appeals or the United States Court of Appeals for the 
District of Columbia, as the case may be, which shall 
then have jurisdiction to hear and determine the same



68

as if the appeal had been taken to that court in the first 
instance.

If an appeal shall be taken pursuant to this section to 
any circuit court of appeals or to the United States Court 
of Appeals for the District of Columbia, which, in the 
opinion of such court, should have been taken directly 
to the Supreme Court of the United States, such court 
shall certify the case to the Supreme Court of the United 
States, which shall thereupon have jurisdiction to hear 
and determine the case to the same extent as if an appeal 
had been taken directly to that Court.
§ 3732- Taking of Appeal; Notice; Time—(Rule)

SEE FEDERAL RULES OF CRIMINAL 
PROCEDURE

Taking appeal; notice, contents, signing; time, Rule 
37 (a).
SECTION 1443, TITLE 28, U. S. C.

“Section 1443. Civil rights cases
“Any of the following civil actions or criminal prose­

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

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

“ (2) For any act under color of authority derived from 
any law providing for equal rights, or for refusing to do 
any act on the ground that it would be inconsistent with 
such law. (June 25, 1948, c. 646, 62 Stat. 938.) ”



69

SECTION 1446 (a), (c), (d), TITLE 28, U. S. C.
“Section 1446. Procedure for removal
“ (a) A defendant or defendants desiring to remove 

any civil action or criminal prosecution from a State 
court shall file in the district court of the United States 
for the district and division within which such action 
is pending a verified petition containing a short and 
plain statement of the facts wrhich entitle him or them 
to removal together with a copy of all process, pleadings 
and orders served upon him or them in such action.

“ (c) The petition for removal of a criminal prosecu­
tion may be filed at any time before trial.

“ (d) Each petition for removal of a civil action or 
proceeding, except a petition in behalf of the United 
States, shall be accompanied by a bond with good and 
sufficient surety conditioned that the defendant or de­
fendants will pay all costs and disbursements incurred 
by reason of the removal proceedings should it be de­
termined that the case was not removable or was im­
properly removed.”
SECTION 1447 (c), (d), TITLE 28, U. S. C.

“Section 1447. Procedure after removal generally

“ (c) If at any time before final judgment it appears 
that the case was removed improvidently and without 
jurisdiction, the district court shall remand the case, 
and may order the payment of just costs. A certified copy 
of the order of remand shall be mailed by its clerk to 
the clerk of the State court. The State court may there­
upon proceed with such case.



70

“ (d) An order remanding a case to the State court 
from which it was removed is not reviewable on appeal 
or otherwise. (June 25, 1948, c. 646, 62 Stat. 939, 
amended May 24, 1949, c. 139, Section 84,, 63 Stat. 102.) ”
SECTION 2107, TITLE 28, U. S. C.

“Section 2107. Time for Appeal to Court of Appeals.
“Except as otherwise provided in this section, no ap­

peal shall bring any judgment, order, or decree in an 
action, suit or proceeding of a civil nature before a court 
of appeals for review unless notice of appeal is filed 
within thirty days after the entry of such judgment, 
order or decree.

“In any such action, suit or proceeding in which the 
United States or an officer or agency thereof is a party, 
the time as to all parties shall be sixty days from such 
entry .............
CIVIL RIGHTS ACT OF 1964, 78 STAT. 241 
(Pp. 289-291)

§201:

“ (b) Each of the following establishments which 
serves the public is a place of public accommodation 
within the meaning of this title if its operations affect 
commerce . . .

#  *  *  *  #  #  #  #

“ (2) any restaurant, cafeteria, lunchroom, lunch 
counter, soda fountain, or other facility principally en­
gaged in selling food for consumption on the premises, 
including, but not limited to, any such facility located on 
the premises of any retail establishment . . .

“ (c) The operations of an establishment affect com­



71

merce within the meaning of this title if . . .  it serves or 
offers to serve interstate travelers . .

§203:
“No person shall (a) withhold, deny, or attempt to 

withhold or deny, or deprive or attempt to deprive, any 
person of any right or privilege secured by section 201 
or 202, or (b) intimidate, threaten, or coerce, or attempt 
to intimidate, threaten, or coerce any person with the 
purpose of interfering with any right or privilege secured 
by section 201 or 202, or (c) punish or attempt to punish 
any person for exercising or attempting to exercise any 
right or privilege secured by section 201 or 202.”
SECTION 1404, TITLE 18 U. S. C.

Section 1404, Motion to Suppress — Appeal by the 
United States

In addition to any other right to appeal, the United 
States shall have the right to appeal from an order grant­
ing a motion for the return of seized property and to 
suppress evidence made before the trial of a person 
charged with a violation of —

(1) any provision of part I or part II of subchapter
A of chapter 39 of the Internal Revenue Code of 1954
the penalty for which is provided in subsection (a) or

(b) of section 7237 of such Code,
(2) subsection (c), (h), or (i) of section 2 of the

Narcotic Drugs Import and Export Act, as amended 
(21 U. S. C , sec. 174), or

(3) The Act of July 11, 1941, as amended (21 U.
S. C., sec. 184a) .
This section shall not apply with respect to any such



72

motion unless the United States attorney shall certify, 
to the judge granting such motion, that the appeal is not 
taken for purposes of delay. Any appeal under this section 
shall be taken within 30 days after the date the order was 
entered and shall be diligently prosecuted. Added July 
18, 1956, c. 629, Title II, Sec. 201, 70 Stat. 573.
SECTION 1981, TITLE 42 U. S. C.

“Section 1981. Equal Rights under the law
All persons within the jurisdiction of the United States 

shall have the same right in every State and Territory to 
make and enforce contracts, to sue, be parties, give evi­
dence, and to the full and equal benefit of all laws and 
proceedings for the security of persons and property as 
is enjoyed by white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses, and exac­
tions of every kind, and to no other.”
REVISED STATUTES, TITLE XIII,
THE JUDICIARY, SEC. 641

“When any civil suit or criminal prosecution is com­
menced in any State court, for any cause whatsoever, 
against any person who is denied or cannot enforce in 
the judicial tribunals of the State, or in the part of the 
State where such suit or prosecution is pending, any 
right secured to him by any law providing for the equal 
civil rights of citizens of the United States, or of all per­
sons within the jurisdiction of the United States, or 
against any officer, civil or military, or other person, for 
any arrest or imprisonment or other trespasses or wrongs, 
made or committed by virtue of or under color of au­
thority derived from any law providing for equal rights 
as aforesaid; or for refusing to do any act on the ground 
that it would be inconsistent with such law, such suit



73

or prosecution, may, upon the petition of such defendant, 
filed in said State court, at any time before the trial or 
final hearing of the cause, stating the facts and verified 
by oath, be removed for trial into the next circuit court 
to be held in the district where it is pending. Upon the 
filing of such petition all further proceeding in the State 
courts shall cease, and shall not be resumed except as
hereinafter provided...................... But if, without such
refusal or neglect of said clerk to furnish such copies 
and proof thereof, the petitioner for removal fails to file 
copies in the circuit court as herein provided, a certifi­
cate, under the seal of the circuit court, stating such 
failure, shall be given, and upon the production thereof 
in said State court, the cause shall proceed therein as 
if no petition for a removal had been filed.” (Note: No 
mention made here of remand orders, except upon fail­
ure to file copies of proceedings in circuit court, or of 
the right to appeal a remand order.)

RULE 37 (a) (2), TITLE 18, U. S. C.

“Rule 37. Taking Appeal; and Petition for Writ of 
Certiorari

“ (a ) ......................

' ‘ ( I ) .........................

“ (2) Time for Taking Appeal. An appeal by a de­
fendant may be taken within 10 days after entry of the 
judgment or order appealed from, but if a motion for 
a new trial or in arrest of judgment has been made within 
the 10-day: period an appeal from a judgment of con­
viction may be taken within 10 days after entry of the 
order denying the motion............. ”



74

RULE 45 (a), TITLE 18, U. S. C,
“Rule 45. Time
“ (a) Computation. In computing any period of time 

the day of the act or event after which the designated 
period of time begins to run is not to be included. The 
last day of the period so computed is to be included, 
unless it is a Sunday or legal holiday, in which event 
the period runs until the end of the next day which is 
neither a Sunday nor a holiday. When a period of time 
prescribed or allowed is less than 7 days, intermediate 
Sundays and holidays shall be excluded in the compu­
tation. A half holiday shall be considered as other days 
and not as a holiday.”
RULE 54 (b) (1), TITLE 18, U. S. C,

Rule 54. Application and Exceptions 
“ (b) Proceedings.

“ (1) Removed Proceedings. These rules apply to 
criminal prosecutions removed to the United 
States district courts from state courts and 
govern all procedure after removal, except 
that dismissal by the attorney for the prose­
cution shall be governed by state law.”

RULE 59, TITLE 18, U. S. C.
Rule 59. Effective Date.
These rules take effect on the day which is 3 months 

subsequent to the adjournment of the first regular ses­
sion of the 79th Congress, but if that day is prior to Sep­
tember 1, 1945, then they take effect on September 1, 
1945. They govern all criminal proceedings thereafter 
commenced and so far as just and practicable all pro­
ceedings then pending.



RULE 73 (a), TITLE 28, U. S. C.
“Rule 73. Appeal to a Court of Appeals
“ (a) When and How Taken. When an appeal is per­

mitted by law from a district court to a court of appeals 
the time within which such an appeal may he taken 
shall be 30 days from the entry of the judgment appealed 
from unless a shorter time is provided by law, except 
that in any action in which the United States or an 
officer or agency thereof is a party the time as to all 
parties shall be 60 days from such entry,
GEORGIA CODE ANNOTATED, 26-3005

“26-3005. Refusal to leave premises of another when 
ordered to do so by owner or person in charge. — It 
shall be unlawful for any person, who is on the premises 
of another, to refuse and fail to leave said premises when 
requested to do so by the owner or any person in charge 
of said premises or the agent or employee of such owner 
or such person in charge. Any person violating the pro­
visions of this section shall be guilty of a misdemeanor 
and upon conviction thereof shall be punished as for a 
misdemeanor. (Acts I960, p. 142.) ”
RULE III, RULES OF PRACTICE AND 
PROCEDURE AFTER PLEA OF GUILTY, ETC.
292 U. S. 662

“III. Appeals. An appeal shall be taken within five (5) 
days after entry of judgment of conviction, except that 
where a motion for a new trial has been made within the 
time specified in subdivision (2) of Rule II, the appeal 
may be taken within five (5) days after entry of the order 
denying the m otion......... ”



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