Orange v. Alabama Brief for Appellee

    UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 24281

JAMES ORANGE, et al„ 
Appellants,

vs.

STATE OF ALABAMA, 
Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLEE

MacDONALD GALLION, As 
Attorney General of Alabama

GORDON MADISON, As Assistant 
Attorney General of Alabama

Administrative Building- 
64 North Union Street 
Montgomery, Alabama 36105
Attorneys for Appellee



In The

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 24281

JAMES ORANGE, et al„ 
Appellants,

vs.

STATE OF ALABAMA, 
Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLEE

JURISDICTION

There are five separate and distinct petitions for removal 
shown in the record, and five distinct notices of appeal. Under 
the heading, Volume I, page 1 of the record, the Case Number is 
3602-65; Volume II, page 18 of the record, the Case Number is 
3619-65; Volume III, page 22 of the record, the Case Number 
is 3620-65; Volume IV, page 27 of the record, the Case Number 
is 3621-65; and under Volume V, page 31 of the record, the 
Case Number is 3622-65.

The notice of appeal in each case is stated to be from the 
order of the court remanding the cases to the Alabama State 
Court for trial on the charge of trespass after warning (Code 
of Alabama, Title 14, Section 426) (R. 12, 21, 26, 30, and 35).

We do not believe that this court has jurisdiction or 
authority to consider five separate and distinct cases on one 
appeal record embracing all of the cases, and one brief of 
appellant supporting their position in all of said cases.

It is true that the District Judge entered one judgment 
remanding all of the cases to the appropriate forum in the 
judicial system of the State of Alabama (R. page 11). But the



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cases are separate. We suggest that Rule 75 (K), Federal Rules 
of Civil Procedure, applies to separate appeals by different 
defendants or parties in the same suit and not to the situation 
here presented.

MERITS

Although the notices of appeal state that these cases were 
remanded on the charge of trespass after warning, the petition 
states as to Orange, in Case No. 3602-65, that he is charged 
with contributing to the delinquency of minors (R. 12, 3).

As to Case No. 3619-65, under Volume II of the record, the 
petition shows that the petitioners were arrested for violating 
Title 14, Section 412, Code of Alabama, Recompiled 1958, which 
provides:

“ Every person who shall remain present at the place of 
any unlawful assembly, after having been warned to dis­
perse by a magistrate or public officer, unless as a public 
officer or at the request of any such' officer, he is assisting 
in dispersing the same, or in protecting persons or property, 
or in arresting offenders, shall be guilty o f a misdemeanor.”

And also Section 426 of Title 14, Code of Alabama, Recompiled 
1958, which provides as follows:

“ Any person who, without legal cause or good excuse, enters 
into the dwelling house or on the premises of another, after 
having been warned, within six months preceding, not to 
do so ; or any person, who, having entered into the dwelling 
house or on the premises of another without having been 
warned within six months not to do so, and fails or refuses, 
without legal cause or good excuse, to leave immediately 
on being ordered or requested to do so by the person in 
possession, his agent or representative, shall, on conviction, 
be fined not more than one hundred dollars, and may also 
be imprisoned in the county jail, or sentenced to hard labor 
for the county, for not more than three months.”

As to Case No. 3620-65, under Volume III of the record, 
appellants concede that these cases were properly remanded 
(appellants’ Brief, page 6).



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In Case No. 3621-65, under Volume IV of the record, 
petitioners were charged with violating Section 412, supra 
(R. page 28).

In the last case shown by the record, Case No. 3622-65, 
petitioners were arrested and charged with violating Section 
412, supra (R. page 33).

It is specifically pointed out at this point- that many 
marches, protests and arrests are averred in the five petitions 
for removal which have absolutely nothing to do with the 
activities and arrests of the appellants, but relate to others not 
involved in this appeal. Such does not help appellants.

The facts surrounding these appellants as averred in the 
petitions with the possible exception of Case No. 3619-65, under 
the heading Volume II, page 18 of the record, were arrests for 
marches and demonstrations around or near to the jail and 
county courthouse in the town of Marion, Alabama.

These cases are governed by City of Greenwood v Peacock, 
384 U.S. 808; Georgia v. Rachel, 384 U.S. 780; Hartfield v. 
State of Mississippi, 367 F.2d 362, and Adderly v. Florida, 385 
U.S. 39.

CONCLUSION

If the court rules that the appeals have been properly taken, 
the record shows that the court below was clearly correct as 
to all except possibly Civil Action No. 3619-65, shown on page 
18 of the record. Hartfield v State of Mississippi, supra.

Respectfully submitted,

MacDONALD GALLION, As 
Attorney General of Alabama

GORDON MADISON, As Assistant 
Attorney General of Alabama
Administrative Building 
64 North Union Street 
Montgomery, Alabama 36105
Attorneys for Appellee



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CERTIFICATE OF SERVICE
/& ir^

I hereby certify that on the day of April, 1967, I
served copies of the foregoing Brief for Appellee on the follow­
ing attorneys for Appellants by United States mail, postage 
prepaid (airmail where necessary):

Hon. Oscar W. Adams, Jr. 
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

Hon. Demetrius C. Newton 
408 North 17th Street 
Birmingham, Alabama 35203

Hon. Norman C. Amaker
10 Columbus Circle
New York, New York 10019

Hon. Jack Greenberg
10 Columbus Circle
New York, New York 10019

Hon. Charles H. Jones, Jr.
10 Columbus Circle
New York, New York 10019

Hon. Melvyn Zarr 
10 Columbus Circle 
New York, New York 10019

JON' MADISON, As Assistant 
Attorney General of Alabama