Presley v. City of Monticello Record

    MULTIUTH RECORD

IN THE

UNITED STATES

C O U R T  O F  A P P E A L S
FOR THE FIFTH CIRCUIT

No. 24871

GLYNNELL PRESLEY,

A p p e l l a n t

v e r s u s

CITY OF MONTICELLO,

AppeUse

Appeal from the United States District Court 
for the Northern District of Florida.



I N D E X
Page No.

Petition For Removal ------------------------ 1
Motion To Dismiss Removal Petition And Motion 
To Remand----------------------------------- 6
Amended Petition For Removal ---------------  16
Motion For Leave To Amend Instanter And File 
Of Record The Said Amendment---------------  21
Order Of Remand----------------------------- 21
Western Union Telegram Dated March 6, 1967 —  23
Order Granting Extension Of Time In Which To
File Notice Of Appeal----------------------- 24
Order Granting Further Extension Of Time In
Which To File Notice Of Appeal-------------  24
Notice Of Appeal---------------------------- 27
Clerk's Certificate ------------------------- 28
Transcript Of Proceedings ------------------- 30

Mr. Clyde Malloy-----------------------  45
Mr. Aaron Thurmon---------------------- 71
Mr. D. R. Campbell, Jr.----------------  83
Glynnell Presley ---------------------- 87
Eddie James Miles--------------------- 102
Johnny Charles ----------------------- 113

Colloquy Between Court And Counsel And
Ruling Of The Court------------------------  114



1

IN THE UNITED STATES DISTRICT 
COURT, NORTHERN DISTRICT, 

TALLAHASSEE, FLORIDA.

GLYNNELL PRESLEY, )
Petitioner, ) (Filed: Sept. 30, 1966

-vs- )
CITY OF MONTICELLO, )

Respondent. )
____________________________________ )

PETITION FOR REMOVAL
COMES NOW the Petitioner, GLYNNELL PRESLEY, by and 

through his undersigned attorney and would show unto the 
Court the following facts, to-wit:

1. The Petitioner, GLYNNELL PRESLEY, is a Negro 
citizen of the State of Florida and of the United States.

2. That on September 24, 1966, the Petitioner sought 
the services of the prosecutor of this action, one ED 
BAILEY GULF SERVICE STATION, a citizen and resident of 
Monticello, Florida, as a business invitee for the purpose 
of securing gas for his automobile and to further use the 
facilities of the aforesaid person, normally and regularly 
used by other business invitees of the Caucasian Race and 
an incident to their business purpose.

3. That the aforesaid prosecutor of this action,



2

3. That the aforesaid prosecutor of this action, 
became incensed at the ambition and desire of the 
Petitioner to use said facilities and immediately made 
his hostility against the use of the toilet facilities
to members of the Negro Race, by failure to make available 
toilet facilities to members of the Negro Race, by failure 
to make available toilet facilities in violation of the 
equal protection of the law and the mandates of the Civil 
Rights Act of the Federal Government.

4. That the Petitioner, immediately upon being 
informed of the nature and extent of the hostility being 
directed against him soley by virtue and on account of his 
race and color, demanded that the prosecutor of this action 
remove from his automobile the gas that had just been 
pumped in and solely as a result of this demand, the pros­
ecutor of this action hostility for the Petitioner became 
more pronounced, and upon this Negro male an assault and 
battery was then and there committed, and as the Petitioner 
commenced to evidence signs of self-protection, he was im­
mediately arrested by a nearby officer and thrust in the 
city jail upon a trumped-up-charge of Disorderly Conduct, 
and released on bond, and the trial date hereof is set for 
Monday, October 3, 1966, at the hour of 10:00 o'clock A.M., 
in the City Court of Monticello, Florida, before the 
Honorable R. W. Norman, as Mayor of said City.



3

5. That the city policeman for the City of 
Monticello, a duly incorporated municipality under the 
laws of the State of Florida conspired, confederated and 
assisted the aforesaid prosecutor in lodging this criminal 
offense and effecting the arrest of the Petitioner, each 
full well knowing that the Petitioner was guilty of no 
conduct warranting his arrest and incarceration, all of 
which conduct is a further evidence of the local 
prejudices and hostilities against Negroes in the use, 
exercise and enjoyment of their basic constitutional and 
civil rights.

6. That the court of the city policeman of the 
City of Monticello and the prosecutor of this action 
prevented the Petitioner the free use, choice and enjoy­
ment of his civil rights, in violation of his right afore­
said.

7. By reason of the foregoing, Petitioner is being 
prosecuted for acts done under color of authority derived 
from the federal Constitution and laws providing for equal 
rights, that is, United States Const. Amends. I, XIV, XV; 
42 U.S.C., Sections 1971, 1983, 1985 (1958), and for re­
fusing to do acts on the ground that they would be in­
consistent with the Constitution and laws cited. Also
by reason of the allegations of Paragraphs 1 to 9.

8. Petitioner is unable to enforce his Federal



4

rights in the City Court of the City of Monticello be­
cause said court is hostile to Petitioner by reason of his 
race and color and as a result will impose upon him a dif­
ference in fines, pains and penalties than of members of 
the Caucasian race.

9. The City Court sets in a community which is 
hostile to and inflamed gainst Negroes and in particular 
hostile and inflamed gainst persons like Petitioner, who 
actually exercises the federal court rights in a lawful 
manner.

WHEREFORE, Petitioner prays that these criminal 
proceedings be removed from the City Court of Monticello 
for trial pursuant to 28 U.S.C. Section 1443, 1446 (1958); 
since the proceedings removed are criminal, no bonds or 
filing are required to be filed with this petition.

a. That THOMAS B. BIRD, the City Attorney of the 
City of Monticello, R. W. Norman, City Judge, and the Chief 
of Police of the City of Monticello and all persons acting 
in concert or participating with them be forthwith enjoined 
from taking any proceedings further to prosecute Petitioner 
in this matter in the City Court of the City of Monticello 
or any other court of the State of Florida and from taking 
or attempting to take Petitioner into custody in connection 
with any such prosecution; and

b. That the Court grant Petitioner such other relief



5

from time to time as it may appear just and reasonable
for the protection of the Petitioner's rights herein.

s/ H. E. Hill
HORACE E. HILL 
248 N. Campbell Street 
Daytona Beach, Florida 
Attorney for Petitioner

STATE OF FLORIDA, )
)COUNTY OF VOLUSIA. )

PERSONALLY APPEARED before me, the undersigned autho­
rity, duly qualified to take acknowledgments, GLYNNELL 
PRESLEY, the Petitioner herein, who after being duly sworn 
upon his oath, deposes and says that he is the Petitioner 
in the foregoing Petition for Removal and that he has read 
the same and that the contents contained therein are true 
and correct.

s/ Glynnell B. Presley 
GLYNNELL PRESLEY

(Seal)
Sworn to and subscribed
before me this 29th day of
September, 1966.
s/ Eva M. Tolbert 
Notary Public
My Commission Expires ________

...oOo...



6

IN THE UNITED STATES DISTRICT 
COURT, NORTHERN DISTRICT, 
TALLAHASSEE, FLORIDA

GLYNNELL PRESLEY,
Petitioner,

vs.

+ TALLAHASSEE CRIMINAL ACTION 
NO. 2795

+
(Filed: Oct. 24, 1966)

+
CITY OF MONTICELLO, + 

Respondent. + 
+ + + + + + + + + + + +

MOTION TO DISMISS REMOVAL 
PETITION AND MOTION TO 
REMAND___________________

TO: Judge of the United States District Court for
the Northern District of Florida.
Your respondent respectfully moves this Court to 

dismiss the above Petition for Removal and to remand same 
to the Municipal Court, City of Monticello, and in support 
of these Motions shows as follows:

1. A proceeding, as above entitled, is now pending 
and awaiting trial in the Municipal Court in the City of 
Monticello, Florida, such proceeding is a criminal proceed­
ing in which GLYNNELL PRESLEY is the defendant;

2. The petitioner, GLYNNELL PRESLEY, is charged with 
Disorderly Conduct pursuant to Section 13-14, Code of 
Ordinances, City of Monticello:

Sec. 13-14. Disorderly Conduct.
It shall be unlawful and an offense under



7

this Code for any person to disturb or 
endanger the public peace or decency by any 
disorderly conduct.

The following acts, among others, are 
declared to be disorderly conduct:

(3) Being drunk, or the extravagant 
use of spirituous liquors.

(8) Any noisy or riotous conduct to 
the disturbance of the public 
peace and tranquility.

(9) Engaging in promoting, encouraging, 
aiding or abetting any fight, riot 
or noisy and disorderly proceeding 
on any street or public place, or in 
any private building or dwelling when 
persons residing in the vicinity are 
disturbed.

(10) Assault and battery upon any person 
or any street or public place, or in 
any private building or dwelling, when 
persons residing in the vicinity are 
disturbed.

3. CLYDE MALLOY and AIRON THURMAN, Policemen for 
the City of Monticello, and D. R. CAMPBELL, JR., Deputy 
Sheriff, Jefferson County, Florida, on September 24, 1966,



8

were called to Ed Bailey's Gulf Service Station by Mr. 
Bailey's employee, RICHARD POWELL. Upon the arrival 
at the Station, City Policeman CLYDE MALLOY took charge 
of the investigation and determined the petitioner to be 
under the influence of spirituous liquors and to have 
engaged in noisy and riotous activities leading to 
disorderly conduct and arrested same for being in vio­
lation of aforementioned City Ordinance.

Petitioner was then informed that he was being 
arrested for disorderly conduct as a result of his 
drunken condition and noisy and riotous activities and 
was then taken to the Monticello City Police Station where 
the Policeman, CLYDE MALLOY, entered upon the Police 
Docket the petitioner's name, with charge, the date and 
the time of the arrest. Petitioner was thereafter taken 
to the Jefferson County Jail. Petitioner there requested 
that he be allowed to post bond, wherein petitioner was 
returned to the City Police Station for the purpose of 
posting bond. Petitioner, being unable to post bond, was 
then returned to the Jefferson County Jail. Approximately 
one hour from the time of arrest petitioner was released 
on bail after bond was posted in his behalf.

4. The respondent, City of Monticello, is without 
knowledge of the truth or falsity of the allegations set 
forth in petitioner's paragraph 1. through 4. of his



9

Petition for Removal. The respondent affirmatively 
states that the allegations set forth in these paragraphs 
have no application on the City of Monticello and this 
Petition for Removal and should be struck from the 
Petition for Removal.

5. The respondent denies that its City Policemen 
conspired, confederated or assisted any person in lodging 
this criminal offense and effecting the arrest against 
the petitioner and otherwise denies the allegations as set 
forth in paragraph 5. for the Petition for Removal.

6. The respondent denies that the petitioner was 
prevented the free use, choice and enjoyment of his civil 
rights.

7. The respondent denies that the petitioner is being 
prosecuted in violation of the United States Constitution, 
Amendments I, XIV, XV; 42 U.S.C., Sections 1971, 1983, 1985 
(1958).

8. The respondent denies that the petitioner is 
unable to enforce his Federal Constitutional rights in 
the City Court of the City of Monticello for any reason 
and particularly those reasons set forth in paragraph 8. 
for Petition for Removal.

9. The respondent denies that the petitioner will 
not receive a fair trial because of the location of its 
Court.



10

10. Respondent's (City of Monticello) Policemen 
arrested petitioner, GLYNNELL PRESLEY, on the charge of 
Disorderly Conduct by virtue of his overindulgence in 
spitituous liquors and his noisy and riotous activities, 
without regard to any political, social or religious 
affiliations and petitioner was at all times treated with 
equal dignity and respect as any other person under similar 
circumstances.

11. The petitioner has failed to set forth sufficient 
facts to establish grounds for removal and respondent 
therefore moves that this Court dismiss the Removal Peti­
tion and other relief requested and further moves that this 
case be remanded to the Municipal Court of the City of 
Monticello on the following grounds:

(a) The petition to remove does not set forth suf­
ficient or proper grounds for removal under 28 U.S.C. 1443,
28 U.S.C. 1446 or 42 U.S.C. 1981. The purpose of and grounds 
for removal of State and Municipal criminal prosecution is 
clearly set forth in the case of City of Birmingham, Alabama 
v. Henry Croskey et al, 217 F. Supp. 947, as follows:

The removal statute (Section 1443, Title 
28 U.S.C.) under which the case was 
removed to this Court, is to be strictly 
construed. Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 61 S.Ct. 868, 85



11

L.Ed. 1214 (1941). Generally, it has been 
said that, before the denial of civil rights 
will justify a removal to Federal Court, the 
denial of such rights must be primarily, if 
not exclusively, a denial of such rights, 
or an inability to enforce them, resulting 
from the constitution or laws of the State. 
Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 
(1879); Rand v. State of Arkansas. D.C. 191 
F. Supp. 20 (1961). Alleged discrimination 
and illegal acts, not authorized by a 
State's system of laws, do not make a case 
removable to Federal Court? because the 
remedy for these wrongs is through the 
State Courts with the right ultimately to 
present the matter by writ of error to the 
Supreme Court of the United States. White 
v. Renown. (D.C. Mass. 1919), 261 F. 814.
It is only where State legislation exists, 
interferring with the person's right of 
defense, that such person can have the cause 
removed. State of N. J. v. Weinberger. (D.C. 
N.J. 1930), 38 F.2d 298. A case may not be 
transferred unless some substantive or 
procedural rule of State law, as distinguished



12

from action of officials in disregard of 
State law, deprives a defendant of equal 
civil rights. In Re Haqewood's Petition 
(D.C. Mich. 1961), 200 F. Supp. 140.

It is not alleged that such practices, etc., 
if they exist at all, are maintained under 
State law. It has been held that when the 
constitution and laws of a State, as in­
terpreted by its highest judicial tribunal, 
do not stand in the way of enforcement of 
rights secured equally to all citizens of 
the United States the possibility that, 
during the trial of the particular case, the 
State Court may not respect and enforce the 
right to equal protection of the laws con­
stitutes no ground for removal. Gibson v„
Miss.. 162 U.S. 565, 16 S.Ct. 904 (1896),
Williams v. Miss., 170 U.S. 213, 18 S.Ct.
583, 42 L.Ed. 1012 (1898).

(b) The Removal Petition does not attack any Ordinance 
of the City of Monticello as being unconstitutional, but 
only attacks the application of such Ordinances to the 
petitioner, GLYNNELL PRESLEY. The problem of vague and 
indefinite Ordinances came under attack in the City of



13

Birmingham, Alabama case and the Court dismissed such 
objections on the grounds that the Ordinances themselves 
would have to be attacked as being unconsitutional and 
not the application of such Ordinances to the petition.

(c) The corrupt and mal administration of State 
and local laws is not a ground which will justify removing 
a case of this nature to the Federal Courts.

There is no right of removal under this 
Section where alleged denial of, or 
inability to enforce, any right of de­
fendant results from corrupt, illegal, 
or unauthorized administration of State 
Constitution or laws which are not dis­
criminatory and apply to all citizens 
alike. State of N. C. v. Alston. (D.C.
N.Y. 1964), 227 F. Supp. 887.

The petitioner is given adequate protection through 
the State Court procedures against any possible corrupt 
or mal administration of State and local laws.

Remedy of defendant who is denied or unable 
to enforce civil rights in a State proceeding 
because of mal administration of State laws 
and procedure by State Officials is not 
removable to Federal Court, but pursuit of 
State appellate remedy followed by a request



14

for review by United States Supreme Court.
State of Ark, v. Howard, (D.C. Ark. 1963)
218 F. Supp. 626.

(d) The Petition for Removal should be denied on 
the further grounds that petitioner is speculating that he 
will not receive a fair and just trial in the Municipal 
Court of the City of Monticello. The mere possibility 
or allegation that a fair trial will not be granted does 
not constitute proper grounds for removal.

When the constitution and laws of a State, 
as interpreted by its highest judicial 
tribunal, do not stand in the way of the 
enforcement of rights secured equally to 
all citizens of the United States, the 
possibility that during the trial of a 
particular case the State Court may not 
respect and enforce the right to equal 
protection of the laws constitutes no ground, 
under the Statute for removing the prosecu­
tion..... in advance of trial, Gibson v.
Miss., 1896, 16 S.Ct. 904, 162 U.S. 565,
40 L.Ed. 1075. See also Williams v. Miss,.
1897, 18 S.Ct. 583, 170 U.S. 213; State 
of N. J. v. Weinberg, D. C. N. J, 1930, 38
F. 2d 298.



15

WHEREFORE, YOUR RESPONDENT, CITY OF MONTICELLO, 
REQUESTS THE FOLLOWING RELIEF:

1. That this Court deny the petition for Removal 
and other relief as requested by GLYNNELL PRESLEY, 
petitioner-defendant.

2. That the Court deny petitioner's demand of 
jurisdiction pursuant to 28 U.S.C. Sections 1443, 1446 
(1958) .

3. That this Court grant respondent's Motion to 
Remand the criminal trial of GLYNNELL PRESLEY to the 
Municipal Court, City of Monticello, Florida.

4. That this Court award the City of Monticello 
their costs and a reasonable attorney's fee for its 
attorney in responding to this petition for removal.

5. Such other and further relief as to the Court 
may seem just and proper.

s/ T. Buckingham Bird

T. Buckingham Bird 
Attorney for Respondent 
City of Monticello

...oOo.«.



16

AMENDED PETITION FOR REMOVAL 
(Number and title omitted) (Filed: Feb. 8, 1967)

COMES NOW the Petitioner, GLYNELL PRESLEY, by and 
through his undersigned attorney and would show unto the 
Court the following facts, to-wit:

1. The Petitioner, GLYNELL PRESLEY, is a Negro 
citizen of the State of Florida and of the United States.

2. That on September 24, 1966, the Petitioner sought 
the services of the prosecutor of this action, one ED BAILEY 
GULF SERVICE STATION, a citizen and resident of Monticello, 
Florida, as a business invitee for the purpose of securing 
gas for his automobile and to further use the facilities
of the aforesaid person, normally and regularly used by 
other business invitees of the Caucasian Race and an in­
cident to their business purpose.

3. That the aforesaid prosecutor of this action, 
became incensed at the ambition and desire of the Petition 
to use said facilities and immediately made his hostility 
against the use of the toilet facilities to members of the 
Negro Race, by failure to make available toilet facilities 
in violation of the equal protection of the law and the 
mandates of the Civil Rights Act of the Federal Government.

4. That the Petitioner, immediately upon being informed 
of the nature and extent of the hostility being directed 
against him solely by virtue and on account of his race and



17

color, demanded that the Prosecutor of this action remove 
from his automobile the gas that had just been pumped in 
and solely as a result of this demand, the prosecutor of 
this action, hostility for the Petitioner became more 
pronounced, and upon this Negro male an assault and battery 
was then and there committed, and as the Petitioner com­
menced to evidence signs of self-protection, he was im­
mediately arrested by a nearby officer and thrust in the 
city jail upon a trumped-up-charge of Disorderly Conduct, 
and released on bond, and the trial date hereof was set for 
Monday, October 3, 1966, at the hour of 10:00 o'clock A. M., 
in the City Court of Monticello, Florida, before the 
Honorable R. W. Norman, as Mayor of said City.

5. That the city policeman for the City of Monticello, 
a duly incorporated muncipality under the laws of the State 
of Florida conspired, confederated and assisted the afore­
said prosecutor in lodging this criminal offense and 
effecting the arrest of the Petitioner, each full well 
knowing that the Petitioner was guilty of no conduct 
warranting his arrest and incarceration, all of which 
conduct is a further evidence of the local prejudices
and hostilities against Negroes in the use, exercise and 
enjoyment of their basic constitutional and civil rights.

6. That the court of the city policeman of the City 
of Monticello and the prosecutor of this action prevented



18

the Petitioner the free use, choice and enjoyment of his 
civil rights, in violation of his right aforesaid.

7. By reason of the foregoing, Petitioner is being 
prosecuted for acts done under color of authority derived 
from the deferal constitution and laws providing for equal 
rights, that is, United States Const. Amends. I, XIV, XV;
42 U.S.C., Sections 1971, 1983, 1983 (1958), and for re­
fusing to do acts on the ground that they would be in­
consistent with the Constitution and laws cited. Also
by reason of the allegations of Paragraphs 1 to 9.

8. Petitioner is unable to enforce his Federal 
rights in the City Court of the City of Monticello because 
said court is hostile to Petitioner by reason of his race 
and color and as a result with impose upon him a difference 
in fines, pains and penalties than a member of the Caucasian 
race. Further, on account of his race and color Petitioner 
is denied and/or cannot enforce in the courts, rights under 
the Constitution and Laws of the United States providing
for the equal rights of citizens of the United States in 
that the State of Florida by custom, usage and practice, 
supports and maintains a policy of racial discrimination; 
further the petitioner is being prosecuted for acts done 
under color of authority derived from the Constitution 
and laws of the United States and for refusing to do an 
act which was, and is, inconsistent with the Constitution 
and Laws of the United States.



19

9. The City Court sets in a community which is 
hostile to and inflamed against persons like Petit ioner, 
who actually exercises the federal court rights in a 
lawful manner.

WHEREFORE, Petitioner prays that these criminal 
proceedings be removed from the City Court of Monticello 
for trial pursuant to 28 U.S.C. Sections 1443, 1446 (1958); 
since the proceedings removed are criminal, no bonds or 
filing are required to be filed with this petition.

a. That THOMAS B. BIRD, the City Attorney of 
the City of Monticello, R. W. NORMAN, City Judge, and the 
Chief of Police of the City of Monticello and all persons 
acting in concert or participation with them be forthwith 
enjoined from taking any proceedings further to prosecute 
Petitioner in this matter in the City Court of the City of 
Monticello or any other court of the State of Florida and 
from taking or attempting to take Petitioner into custody 
in connection with any such prosecution; and

b. That the Court grant Petitioner such other 
relief from time to time as it may appear just and reason­
able for the protection of the Petitioner's rights herein.

s/ H. E. Hill
HORACE E. HILL
248 N. Campbell Street
Daytona Beach, Florida
Attorney for Petitioner



20

STATE OF FLORIDA, )
)COUNTY OF VOLUSIA. )

PERSONALLY APPEARED before me, the undersigned 
authority, duly qualified to take acknowledgments, GLYNNELL 
PRESLEY, the Petitioner herein, who after being duly sworn 
upon his oath, deposes and says that he is the Petitioner 
in the foregoing Amended Petit ion for Removal and that he 
has read the same and that the contents contained therein 
are true and correct.

s/ Glynnell B.Presley 
GLYNNELL PRESLEY

(Seal)
Sworn to and subscribed 
before me this 6th day of 
February, 1967.

s/ Eva M. Tolbert 
Notary Public 
My Commission Expires
Notary Public, State of Florida at Large 
My Commission Expires Aug. 15, 1967 
Bonded by American Fire & Casualty Co.

.•.O O O ..n



21

MOTION FOR LEAVE TO AMEND 
INSTANTER AND FILE OF 
RECORD THE SAID AMENDMENT

(Number and title omitted) (Filed: Feb. 8, 1967)
COMES NOW the Petitioner, GLYNELL PRESLEY, by and

through his undersigned attorney, and moves this Honorable
Court for leave to file instanter Amended Petition now on
deposit with the Clerk of this Court and a copy of same
is attached to and made a part of this motion.

s/ H. E. Hill
HORACE E. HILL 
248 N. Campbell Street 
Daytona Beach, Florida 
Attorney for Petitioner

• . . o 0 o * . .
ORDER OF REMAND

(Number and title omitted) (Filed: Feb. 23, 1967)
This cause came on for consideration on motion of the 

City of Monticello to remand this cause to that city's 
court from whence it was removed on petition by plaintiff 
here. Out of an abundance of caution a hearing was held 
although from the face of the petition for removal itself 
it affirmatively appears that this case fell within the pur­
view of Greenwood v. Peacock. 384 U. S. 808 (1966). Presley 
was arrested by officers of the City of Monticello on a 
charge of disorderly conduct and public drunkenness on 
September 24, 1966. Presley contends that this case should



22

be removed to this court on the authority of Georgia v. 
Rachel, 384 U. S. 780 (1966).

From the testimony of the arresting officers, Presley 
and another witness in his behalf, the Court has found as 
a matter of fact that there was probable cause for the 
arrest of Presley at the time and place on the charges 
made against him. There is not involved here any alleged 
unconstitutionality of a statute or ordinance. Presley 
contends, inter alia, that his arrest was unlawful and that 
he cannot receive a fair trial.

Based upon the pleadings and the testimony adduced 
at the evidentiary hearing the Court concludes that this 
case clearly is controlled by Greenwood v. Peacock, supra, 
wherein it is said at page 827:

"... It is not enough to support removal 
under § 1443(1) to allege or show that 
the defendant's federal equal civil rights 
have been illegally and corruptly denied 
by state administrative officials in 
advance of trial, that the charges against 
the defendant are false, or that the 
defendant is unable to obtain a fair trial 
in a particular state court. ..."
It is, therefore, upon consideration, hereby 
ORDERED that this cause be and it is hereby remanded



23

to the Municipal Court, City of Monticello.
DONE AND ORDERED in Chambers at Tallahassee this 

21st day of February 1967.
s/ G. Harrold Carswell
G. HARROLD CARSWELL 

United States District Judge
••.oOo...

WESTERN UNION TELEGRAM
(Rec. 4:25 p.m.

Wen
Dep. Clerk)

408P EST MAR 6 67 AA271
A DTA178 RX PD 7 EXTRA DAYTONA BEACH FLO 6 345PEST 
CLERK OF THE UNITED STATES DISTRICT COURT 

PO OFC BLDG RUSH DLY PLS 
TALLAHASSEE FLO

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN 
DISTRICT OF FLORIDA, TALLAHASSEE DIVISION, GLENNELL 
PRESLEY PETITIONER VERSUS THE CITY OF MONTICELLO RESPONDENT. 
NOTICE OF APPEAL, NOTICE IS HEREBY GIVEN THAT THE PLAINTIFF 
GLYNNELL PRESSLEY HEREBY APPEALS TO THE UNITED STATES COURT 
OF APPEALS, FOR THE FIFTH CIRCUIT, FROM THAT CERTAIN ORDER 
ENTERED BY THE FEDERAL DISTRICT COURT TALLAHASSEE DIVISION, 
LEON COUNTY, FLORIDA FILED OF RECORD OF FEB 23 1967. SAID 
ORDER ENTERED BY THE HONORABLE E HAROLD CARSWELL, DATED THIS 
6TH DAY OF MARCH 1967

HORACE E HILL 248 NORTH CAMPBELL ST DAYTONA BEACH 
FLA (01). ...oOo...



24

ORDER GRANTING EXTENSION OF TIME 
IN WHICH TO FILE NOTICE OF APPEAL

(Number and title omitted) (Filed: March 7, 1967)
Motion was made this date by telephone communication 

from counsel of record for plaintiff in this cause asking 
for ten (10) day extension of time in which to file formally 
notice of appeal. It is, upon consideration, hereby

ORDERED that motion for extension of time to file 
notice of appeal for a period of ten (10) days from the 
date of this order be and it is hereby granted.

DONE AND ORDER in Chambers at Tallahassee this 7th 
day of March 1967.

s/ G. Harrold Carswell
Go HARROLD CARSWELL 

United States District Judge
...oOo..«

ORDER GRANTING FURTHER EXTENSION 
OF TIME IN WHICH TO FILE NOTICE 

_____OF APPEAL________________________
(Number and title omitted ) (Filed: March 21, 1967)

The Court this day received telephonic communication
from counsel of record for plaintiff which advised the
Court that counsel considered his telegram dated March 6,
1967 to be sufficient to comply with the Rules perfecting
notice of appeal. The Court notes that on March 7, 1967
a further extension of time in which to file appeal was
granted by this Court on counsel's telephonic motion for



25

a period of ten (10) days. It is also noted that Rule 11 
cannot be interpreted to provide for a telegram being 
considered as formal notice of appeal, that the Rules 
require original and three copies of a notice of appeal 
formally signed by counsel of record plus payment of the 
necessary fee. No notice of appeal has, therefore, been 
filed to date, although check covering the fee was received 
after the expiration of the time already granted.

Under the circumstances the Court will give one and 
only one additional extension of time in which to perfect 
appeal in accordance with the Rules. It is, upon con­
sideration, hereby

ORDERED:
1. Plaintiff is granted to and including March 31, 

1967 in which to formally file notice of appeal.
2. The Clerk of this Court is hereby directed to 

mail certified true copy of this order to plaintiff and 
to defendant.

DONE AND ORDERED in Chambers at Tallahassee this 
21st day of March 1967.

s/ G. Harrold Carswell
G. HARROLD CARSWELL 

United States District Judge



26

REGISTERED NO. 2189 
Value $ None Spec, del'y fee

(Tallahassee, Fla. 
Mar 21, 1967)

Fee $____ Ret. receipt fee $___
Subcharge $___ Rest, del'y fee $___
Postage $ _____ f (Airmail

Postmaster, By__B
From Clerk, U. S. District Court Bx 958 Tallahassee, Fla.
To Mr. Horace E. Hills- Atty a) Law 
Bx 248 N. Campbell St.

Daytona Beach, Fla.

INSTRUCTIONS TO DELIVERING EMPLOYEEO Show to whom and |— ■ Show to whom, date, ^  jDeliver
date delivered ■*— ' and address where ----'ONLY to

delivered addressee
(Additional charges required for these services) 

RECEIPT
Received the numbered article describe below. 

REGISTERED NO. Signature or Name of Addresse 
______2189____ (Must always be filed in)
CERTIFIED NO.
INSURED NO.

s/ H. E. Hill
Signature of Addressee's Agent, 

if any
___________ _ Show where delivered (only if
DATE DELIVERED (Daytona Beach, Fla. requested)
_______________  US PO M

March 22, 1967)(Reverse side - RETURN TO)Name of Sender
Clerk, U.S. District Court 

P. 0. Box 958
Street and No. or P. 0. Box 

Tallahassee, Fla.
Post Office, State, and Zip Code
«..oOo...



27

NOTICE OF APPEAL
(Number and title omitted) (Filed: March 27, 1967)

NOTICE IS HEREBY GIVEN that the Plaintiff, GLYNNELL 
PRESLEY, hereby appeals to the United States Court of 
Appeals for the Fifth Circuit, from that certain Order 
entered by the Federal District Court, remanding the above 
styled cause to the City Court, in and for Monticello, 
Florida, said Order being entered on the 21st day of 
February, 1967 by the Honorable G. Harrold Carswell pre­
siding.

s/ H. E. Hill
HORACE E. HILL
248 N. Campbell Street
Daytona Beach, Florida
Attorney for Plaintiff

...oOo...



28

CLERK'S CERTIFICATE
UNITED STATES OF AMERICA )

) ss
NORTHERN DISTRICT OF FLORIDA )

I, MARVIN S. WAITS c Clerk, U. S. District Court in 
and for the Northern District of Florida, do hereby cer- 
t ify that the annexed and foregoing documents herein listed 
below constitute the original Court file in the case of:

GLYNELL PRESLEY 
v.

CITY OF MONTICELLO,
being Tallahassee Criminal No. 2795 filed in the United 
States District Court for the Northern District of Florida.
DOCUMENT PAGE

NO. _________DESCRIPTION_________________ NO.
1. Certified copy of docket entries 1
2. Notice of Removal filed September

30, 1966 3
3. Petition for Removal filed September

30, 1966 4
4. Motion to Dismiss Removal Petition

and Motion to Remand 9
5. Amended Petition for Removal filed

February 8, 1967 15
6. Motion for Leave to Amend Instanter

and File of Record the Said Amendment 21



29

7. Order of Remand entered February
21, 1967 22

8. Western Union Telegram received
March 6, 1967 24

9. Order Granting Extension of Time in
Which to File Notice of Appeal entered 
March 7, 1967 25

10. Order Granting Further Extension of 
Time in Which to File Notice of
Appeal entered March 21, 1967 26

11. Notice of Appeal filed March 27, 1967 28
12. Clerk's Certificate 29

IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and affixed the

seal of the aforesaid Court at
Tallahassee, Florida, this 4th

day of May, 1967.
MARVIN S. WAITS, Clerk
By s/ Anne W. Perry 

Deputy Clerk
(Seal)

...oOo..



30

(1) IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA 
TALLAHASSEE DIVISION.

GLYNNELL PRESLEY, )
Petitioner, :

VS. )
CITY OF MONTICELLO, :

Respondent. )

Tallahassee, Florida 
January 24, 1967 
BEFORE:

HONORABLE G„ HARROLD CARSWELL, 
UNITED STATES DISTRICT JUDGE

APPEARANCES:
HORACE HILL, ESQ.,
248 N. Campbell Street,
Daytona Beach, Florida,

Daytona Beach, Florida,
Attorney for Petitioner

T. BUCKINHAM BIRD, ESQ., 
Monticello, Florida,

Attorney for the City of Monticello, 
Respondent.



31

(2) THE COURT:
Good morning. Be seated, please.
This is Tallahassee Civil Action No. 2793.

There is pending, here, a Motion to Dismiss the revoked 
issue and to remand this cause to the City Court of 
Monticello, Florida. It is your motion to dismiss and 
remand, Mr. Bird. Are you ready to proceed?
MR. BIRD:

I am, Your Honor. I would like to refer to my 
Motion to Dismiss and state, briefly, the facts that were 
denied and I would like to call three witnesses for that 
testimony.

It is rather hard for me to get into this without 
the Court being aware of the petition to remove and remand 
and the facts cited therein. I would like to go right 
into my motion and say that the petitioner, Glynnell 
Presley, was arrested in Monticello, Florida, on September 
24, 1966, for disorderly conduct and drunkenness, and that 
is under Section 13 and 14 of the City Code of the City 
of Monticello entitled Disorderly Conduct. And, the 
words in that is: "That it shall be unlawful for any
offense under this Code, or any purpose, endangering the
(3) public feature by any disorderly conduct, the follow­
ing acts, among others, are disorderly conduct, being 
drunk or extravagant use of spiritus liquors, being



32

noticeably riotous conduct, so-forth."
MR. HILL:

I don't know the procedure, Your Honor, with 
reference to the application for a petition —  I am say­
ing, here, that I hate to interrupt counsel in his presen­
tation that he has embarked upon at this moment, other 
than to state specifically that I am not clear on the 
procedure that the court intends to follow at this time; 
for the reason that I was impressed with the fact that, 
there was a motion to dismiss had been filed; that it 
would then go to the proficiency of the allegations of 
the petition for removal. And there would be a determi­
nation on the propriety and the legality as to whether or 
not the constitute of the petition allegedly met the re­
quirement of the law and; then, when such had been com­
plied with, either satisfactorily or the Court had come 
to the conclusion that the allegations for some reason 
under the law were insufficient, and had ruled on it, then 
they would (4) either permit us to amend, if the Court 
felt in its discretion that an amendment was proper, or 
allow —
THE COURT:

Let me ask you this: if the procedure, as in
any case, you have got a number of motions, or more than 
one motion, it is ordinarily better procedure I think to



33

get into the Motion to Dismiss, first, and in this par­
ticular instance I don't think it makes any difference 
which one comes first, because the net result will be 
the same, perhaps.
MR. HILL:

The only thing that strikes my mind, and my 
cause of action here in this wise, is that I cam prepared 
this morning to present, to address myself, to the legal 
basis for the application and there is one additional 
witness on the application for the hearing that is not 
available.
THE COURT:

What was the notice?
MR. BIRD:

It was on the Motion, Your Honor.
(5) MR. HILL:

I wouldn't have any objection, Your Honor, —
MR. BIRD:

The City of Monticello would be glad to yield 
if he would like to prove his case to remove first.
THE COURT:

Well, basically, what this Court has before it 
has been very much clarified, there is no longer any great 
deal of confusion about it, it was a few years ago, but 
by the passage of the Bill of Rights Act and the decision



34

of the Supreme Court, and the Green v. Peacock case, 
that has now been made very clear what the standards 
are in Court. It is my responsibility upon any petition 
for removal in this Court, followed by petition to re­
mand by another Court, or to another court, in such case 
involving any of this broad matter covered by the Civil 
Rights Act, of 1964, to have a hearing to determine 
whether or not the basic elements are there and whether the 
case should be remanded or not. As pointed out in Green­
wood there is no absolute right to remove every case on 
every charge from one court to another.
(6) There have been fifty cases decided in the
Fifth Circuit since the Grennwood case on that point. If 
you say you haven't had time, and you didn't get notice, 
didn't understand, and you want a hearing on the facts, 
how long will it take you to get your witness? I will 
schedule it at a later time.
MR. HILL:

I don't want to delay counsel, but this 
petitioner —  the other witness is in Kingston, Georgia, 
and I called him yesterday assuming that maybe counsel 
from the fact that he did state some factual matters 
along with the legal aspect of this thing in his Motion 
to Dismiss he cited authority by which this court should 
not exercise jurisdiction upon legal grounds, so I felt



35

that more than likely it would be divided into two 
aspects, from counsel's point of view.
THE COURT:

Well, actually, the whole thing can be disposed 
of, but I have got to go into the facts. I am going to 
have to hear, make a record here, and find out generally 
what has happened and why this arrest was made. I am 
not sitting here today to decide whether the man was drunk 
and disorderly, (7) for example. That isn't the issue 
before the Court. The question is before the Court, 
whether or not there was probable cause for his arrest 
in the absence of any overriding undercurrent, or 
denial of Constitutional Rights because of race, political 
affiliation or things covered by the Court. That is the 
sole issue. If I look into that and make a determination 
on that basis, it doesn't mean that I have decided the 
man is guilty if I send the case back, that is just simply 
to say it is in the wrong church, it needs to go back 
like all other disorderly cases, it needs to be tried 
where they are tried.
MR. HILL:

I see what Your Honor is saying and I am glad 
that I arose to my feet at this time because certainly 
petitioner needs to come forth with his witnesses and 
establish by necessary interrogation of the witnesses —



36

THE COURT:
Well, that is really all that I thought this 

was about today, I thought we would get right on into 
it. As far as I am concerned I will carry the motion 
and legal arguments along with it. I have to develop 
the record, (8) regardless, here. I don't see that it 
would serve any purpose in taking up time on anything else 
until we get into the facts. Will you get me my calendar, 
please?
MR. HILL:

I would like to get our subpoenas for the wit­
nesses too.
THE COURT:

I will schedule the date of the hearing and 
each of you will get such witnesses as you deem necessary 
at that time. We will go right into it.
MR. HILL:

All right, sir.
THE COURT:

I don't think it would serve any purpose here 
to do otherwise.
MR. BIRD:

Your Honor, at the next hearing, will the 
petitioner have the burden of proof in his petition first 
and then I come back with the City of Monticello's defense?



37

THE COURT:
Well, the status of the matter is you (9) have 

a right to petition under the law, and the case is auto­
matically removed upon the filing of papers, as you know. 
I really think that you are the moving party on your 
Motion to Remand and I think that it would be appropriate 
for you to place upon the record such proof as you wish 
to offer as to the basis of your motion to remand.
MR. BIRD:

We are prepared at this time for that.
THE COURT:

Beg your pardon.
MR. BIRD:

We are prepared at this time for that.
THE COURT:

Well, the difficulty with that is, then if you 
wish to offer any rebuttal you would have to bring the 
same witnesses back again, I would think.
MR. BIRD:

That is the reason I would like to have his 
witnesses first.
THE COURT:

I am not particular —  I don't think it really 
makes a great deal of difference. You have got, I (10) 
think, the technical burden to show that it should be



38

remanded. He has got the technical burden that he has a 
right to be here, and that brings you out in the same 
place. I really think that the respective burdens cancel 
each other and gives the matter for the court's determina­
tion, like standing a pin on its head. I don't really 
care which comes first, the chicken or the egg, it is all 
the same thing in that regard. If you have some particular 
purpose, I will have to lay down some rules if there is 
any disagreement between you. I don't think it is really 
world shaking. I do think you ail should have your witnesses 
here at that time and it is not to be chopped up into two 
separate procedures, then that might lead to a third, I 
would rather have it all and put it together and finish it 
up.

I can set this for next Monday morning, January 
30th. Is that sufficient notice?
MR. HILL:

It is going to put us, push us in the light of 
service, possibility of service, is the only thing I can 
think of.
THE COURT:

All right, I will set this on Tuesday (11) morn­
ing, February 21st, at 9:30 AM. I suggest that you do any­
thing here now to resolve this matter as to who comes 
first —  do you have any particular preference?



MR. HILL:
39

I think the Court expressed the position, it is 
our application which without their defenses, invoke the 
jurisdiction of this Court, in the event they are denied, 
which would make them technically the holder show what 
they mean, and we would come back and rebut it, shown by what 
authority both legally and factually.
MR. BIRD:

Your Honor, we will be happy to go ahead with the 
Motion to Dismiss.
THE COURT:

All right.
Well, then I will see you on the 21st. Court will 

be in recess.
(Whereupon Court stood adjourned until further 
order).

(12) IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA, 
TALLAHASSEE DIVISION

GLYNNELL PRESLEY, )
Petitioner : 

v s . )

CITY OF MONTICELLO, j
Respondent.

Tallahassee, Florida 
February 21, 1967
BEFORE: HONORABLE G. HARROLD CARSWELL,

UNITED STATES DISTRICT JUDGE



40
APPEARANCES: HORACE HILL, ESQ.,

248 N. Campbell St.,
Daytona Beach, Florida

Attorney for Petitioner
T. BUCKINHAM BIRD, ESQ., 
Monticallo, Florida,

Attorney for Respondent.
(13) THE COURT:

Good morning. Be seated, please.
This is the case of Presley vs. The City of 

Monticello, Tallahassee Civil Action No. 2795. Is the 
plaintiff ready?
MR. HILL:

The plaintiff is ready.
THE COURT:

Is the defendant ready?
MR. BIRD:

The defendant is ready, Your Honor.
THE COURT:

The first matter before the Court is the Motion 
to remand and as I recall the previous hearing, suggestion 
was made perhpas some facts should be put upon this record 
here and out of an abundance of caution the Court scheduled 
another hearing. So, actually what we are here on is a 
hearing on the Motion to Remand. Counsel if you wish to 
put on any testimony, either one of you, I will take such 
as may be relevant, I am not just going to try the case



41

now on the merits.
(14) MR. BIRD:

Your Honor, I am prepared to proffer evidence 
from the arresting officer and the circumstances of the 
arrest.
THE COURT:

All right, do you wish to have the witneses sworn
now?
MR. BIRD:

Yes sir.
THE COURT:

Swear the witnesses, Mr. Clerk. Call their names
Mr. Bird.
MR. BIRD:

MR. D. R. CAMPBELL 
AARON THURMAN 
CLYDE MALLOY

THE COURT:
Note the presence of the three witnesses. Do 

you have any witnesses to be sworn?
MR. HILL:

ATTORNEY JOHN DUE 
JOHN CHARLES 

THE COURT:
Where is Mr. Due?



42

I just called his office and he was not in„
THE COURT:

Well, who is the other witness?
MR. HILL:

JOHN CHARLES
EDDIE JAMES MILES ( M I L E S  )
He lives in Albany and he left at 6:00 o'clock 

this morning from Georgia.
THE COURT:

Well, counsel, this hearing was scheduled weeks 
ago at your request. It will be your responsibility if 
they are here at the proper time -- you may make a proffer 
if they are not here. The one witness you called who is 
here what's his name?
MR. HILL:

Glynnell Terrell Presley.
(16) THE COURT:

Presley is present. And who is the other witness
present?
MR. HILL:

John Charles.
THE COURT:

Will you stand, please. Note the presence of 
the two plaintiff's witnesses and the three defendant's

MR. HILL:



43

witnesses. All are being sworn. Go ahead.
(Witnesses sworn by the Clerk).

THE COURT:
Do you wish the rule invoked, gentlemen, either

of you?
MR. HILL:

Yes sir.
MR. BIRD:

Your Honor, I have two possible witnesses for 
rebuttal purposes.
THE COURT:

The same rule will apply. If it is relevant and 
it becomes relevant, it will be your responsibility (17) 
to have them here at that time.
MR. BIRD:

I have them here, now, Your Honor.
THE COURT:

Well, let's have them sworn now. Otherwise, 
they might not be able to testify if the rule is invoked. 
Call them now.
MR. BIRD:

I have:
ED BAILEY
RICHARD POWELL



44

THE COURT:
Show the presence of these two witnesses and let 

them be sworn.
(Sworn by the Clerk)

THE COURT:
Whom do you wished excused from the rule, Mr.

Bird? Anyone?
MR. BIRD:

No sir.
THE COURT:

Well, Presley will be excused from the (18) rule. 
The other witnesses, all other witnesses, will have to 
stay out of the courtroom while this matter is being heard, 
and you are not to discuss what went on in the courtroom 
while the matter is being heard except with counsel in the 
case until you are excused as witnesses. Those of you who 
have been sworn as witnesses go out this way and we will call 
you as soon as possible.

(Witnesses out of the courtroom).
THE COURT:

It will be the responsibility of counsel to keep 
any possible witnesses out of the courtroom while this 
matter is being heard, otherwise, they will be disqualified 
to testify.

All right, Mr. Bird, call your witness.



45

I would like to call Mr. Clyde Malloy.
MR. CLYDE MALLOY

was first witness called in behalf of the City of 
Monticello, having previous been sworn, testified as 
follows:

DIRECT EXAMINATION
BY MR. BIRD:
Q Would you state your name and address, please?
(19) A Clyde H. Malloy. 18 East Post Street,
Monticello, Florida.
Q Would you state what your occupation is, please?
A I am a Police Officer for the City of Monticello.
Q How long have you been employed in this capacity,
Mr. Malloy?
A Eight years.
Q Eight years. Would you relate to the Court the
events surrounding the arrest of Glynnell Presley on or 
about September 24, 1966?
A It was one night —  I forget about what time it
was, but it was late —  Officer Campbell and Officer Thurman 
and myself were sitting on the west side of the courthouse 
when Richard Powell, he ran up to the car, and said that 
Mr. Ed, the man that he was working for was attacked by a 
colored man over there. So we ran over there to the station 
and Presley was there and I asked what was going on? They 
had done broke up, we didn't see this, and so, —

MR. BIRD:



46
MRo HILL:

Your Honor, please, I don't know just (20) the 
extent of the formality. First of all, the witness is 
testifying to matters he did not have personal knowledge 
and he is assuming.
THE COURT:

You can't relate what you didn't see. If you 
can, relate it, I don't know how you can answer the question 
other than what you saw —  I note your objection and the 
witness is instructed to answer, to make a statement, only, 
as to what you saw, not what you thought. Go ahead.
A Then I got Presley off to the side and I asked
him what was going on. And while I was talking to him I 
smelled alcohol on his breath very heavily. And he told 
me that he went to the restroom and it was real dirty; that he 
had bought $2.73 cents of gas and he said that the restroom 
was dirty and he wasn't going to pay for the gas, and he 
told the boy to drain the gas out that he wasn't going to 
pay for it. And, so, under those circumstances, the 
trouble that he had caused around there and they was arguing 
back and forth and I think they used some language —
MR„ HILL:

I object.
THE COURT:

Don't state anything unless you heard (21) him



47

say it, if you did, you may state it. And say who said 
what.
A Well, I taken Presley down to the Police Station
and I told him he was under arrest for disorderly conduct 
and drinking and that his bond would be $50. If he didn't 
post bond he would have to go to the county jail. And I 
entered his name into the docket and told him that he 
could make one phone call. So, he called somewhere down 
south. He said that he didn't have the money and I taken 
him down to the county jail. After I got him down to the 
county jail then he said he wanted to post bond, after I 
got him inside the jail house. So, I brought him back up 
town to post bond and he wanted to give me a check and I 
told him I couldn't take a check, he would have to put up 
cash. So, I taken him back down to the county jail and 
I locked him up. When I got back up town Eddy Miles was 
up there and he wanted to know if he could post his bond, 
and I told him, yes, that his bond would be $50.
THE COURT:

Who was that?
A Eddie Miles.
(22) THE COURT:

He said what?
A Said he would post his bond. So, I went back
down to the county jail and turned him out. And Presley



48

told me that I hadn't heard the last of it, he was going 
to get him a lawyer, and I told him that that was the thing 
to do.
MR. BIRD CONTINUING:
Q Will you relate again why you arrested Glynnell
Presley?
A The reason I arrested him was because there was
loud talking back and forth, cursing -- I don't remember 
to what amount the cursing was, damn or so-forth, I don't 
know.
MR. HILL:

To which we object, Your Honor.
THE COURT:

He can testify generally on the subject. Go
ahead.
A And there was a boy friend across the street
there and he came over there and broke up the fight. (23)
He was standing in the middle of Mr. Bailey and Presley 
when I got there, and I couldn't get any sesne out of either 
one of them because they were arguing back and forth, and 
that is why I taken Presley off to the side and asked him 
what was going on.
MR„ BIRD CONTINUING:
Q And that is when he told you he refused to pay
for the gas?



49

A That's right. He said, I refuse to pay for the
gas because the restroom was dirty and I told the boy to 
drain it out. It was $2.70.
Q And you also detected that he had been drinking?
A Yes sir.
Q Did you know Glynnell Presley before this time?
A I had never seen him before.
Q From the time of your arrest until the time that
he was released under bond, what would you estimate the 
period or elapse of time.
A Fifteen minutes.
(24) Q Fifteen minutes?
A Fifteen minutes.
Q And he was allowed to make a phone call?
A Yes, he made a phone call down south somewhere.
Q Now, did the purpose of this arrest have anything
to do with the racial problem?
A No.
Q It did not?
A No.
MR„ HILL:

We object to the conclusion of the witness.
THE COURT:

I note the objection and it will be carried with
the case.



50

MR- BIRD CONTINUING:
Q Was the arrest made for any racial purposes?
A Ask that again?
(25) Q Was the arrest made for any racial purposes?
A No.
Q Did you treat this man any differently than you
would any other person?
A No.
Q Would you have arrested anybody else for the same
thing under the same circumstances?
A Anybody.
Q Did the fact that Glynnell Presley belonged to
the negro race influence you in any way, or make any dif­
ference in your conduct as a policeman?
A No.
MR- BIRD:

You may examine. That is all I have. 
CROSS-EXAMINATION

BY MR. HILL:
Q If the Court please, sir, you are an attendant
at a service station in Monticello, also, are you not?
A Right.
Q What time do you perform your duties in (26) that
capacity as an attendant at this service station?
A No certain time.



51

MR. BIRD:
Your Honor, I see no relevancy.

MR. HILL CONTINUING:
Q Miss Court reporter will you repeat the question,
please?
REPORTER:

Read the question.
A No certain time. I am part time only there.
MR. BIRD:

I object to the question. I see no relevancy.
THE COURT:

I note your objection. We will carry it along 
with the case.
MR. HILL CONTINUING:
Q Continue?
A No certain time. I am part owner there and I go
and come as I please, there is no definite time.
(27) Q What time do you exercise your duties as a police 
officer for the City of Monticello?
A I work two different shifts. I work sometimes
three to eleven and sometimes eleven to seven.
Q How long had you been parked there besides this
Gulf station before this incident happened?
A Well to start off with, I wasn't beside the Gulf
Station. I was at the west side of the courthouse—  I



52

I wasn't beside the Gulf Station.
Q Weren't you parked out there by the side of
another gentleman who was sworn here this morning, sitting 
in the car with you?
A What do you mean? Ask the question, again?
Q Were you not parked there and the gentleman
sitting in the car with you who was sworn here as a witness 
this morning and excused from the courtroom by His Honor?
A There were three officers, as I said before,
Officer Campbell, Officer Thurman, that was (28) on duty 
with me, sitting in the car. There was two cars. Officer 
Thurman and myself was sitting in the City Police car and 
Deputy Campbell, who was sitting in his car, side by side, 
and we were talking.
Q And you all had been sitting there for sometime
prior this alleged incident?
A Five minutes.
Q Before the alleged incident occurred?
A Yes.
Q And that you were sitting in a position where you
could look upon the scene of this occurrence, weren't you?
A No, sho wasn't.
Q All right, where is this Gulf station located?
A On the south side of the courthouse.
Q On the south side of the courthouse?
A Yes.



53
Q And where was your car parked?
A On the west side. You could see the (29) station
if there wasn't any cars parked in the parking places be­
tween it. See, you have parking places and you also have 
a double telephone booth, and there are cars usually parked 
there all during the night making calls.
Q Well, were there any cars parked there?
A Yes, there were.
Q Were there cars parked there all during the
time?
A Yes, there were.
Q And you are saying to this court that your view
was blocked by these cars?
A Yes, definitely.
Q What attracted your attention to this alleged in­
cident there?
A When Richard Powell ran over to the car and told
me that a colored man was attacking Ed, and that is when 
Officer Thurman, myself, and Deputy Campbell, ran over to 
the station.
Q Now, let me ask you a further question —  how
far in distance was your car parked from the alleged (30) 
incident?
A In feet?
Q Yes?



54

A I would say about a hundred and twenty feet.
Q When this man came to you and told you this,
what did you do?
A We jumped out of the car and ran over to the
station.
Q All of you?
A All three. I think, except the deputy, and he
backed his car and drove over.
Q What did he tell you had occurred?
A Who?
Q This gentleman that came to you?
A All he said, he was real nervous and scared, he
is nothing but a boy, and he ran over to the car and said 
that there was a colored man attacking Mr. Ed, that is 
his boss man that runs the station, and he said, "hurry".
Q Did he say that Mr. Ed was doing anything (31) to
the colored man?
A No, he didn't say.
Q You and the other officers jumped out of the car
and ran over to this station?
A Yes, me and Officer Thurman. Deputy Campbell drove
over.
Q I see. About how long did it take you to get over
there from where you were?
A Oh, about a minute.



55

Q It took you a minute to go a hundred and twenty
feet?
A By the time you got out of the car, I presume
so. I didn't time myself. I'd say it was about a minute.
Q What was actually taking place when you got there?
A There was a boy from across the street that ran
a station across the street and he was standing between 
them, between Ed and Presley, and they were arguing back 
and forth between them.
Q Let me ask you this question—  as you were (32)
coming, when was it the first time you were able to see 
them in view?
A As soon as I got right upon them because a crowd
had gathered around there.
Q Then you couldn't see anything until you got
right upon them?
A That's right.
Q All right. And what were they doing when you got
right upon them?
A I state, again, Presley was standing on one side
and Ed on the other and this boy from across the street 
was standing between them. He had broken up the wrestle 
or what they were doing.
Q Do you know what they were doing?
A No, I don't. I didn't see it.



56

Q You didn't see it?
A No.
Q And you didn't hear it?
A No.
Q So you relied solely on what you were told?
(33) A I relied on what was going on when I got thereo
As I said, I made a case for disorderly conduct and drink 
ing.
Q But when you got there someone was standing be-
tween and it was all over with, wasn't it?
A No, sir, it wasn't all over.
Q Well, what was left to be done?
A I imagine that they would have went back to-
gether to fight again if somebody hadn't been there.
Q But they didn't go back together?
A
THE COURT:

No, they didn't.

Counsel the issues here are very narrow.
MR. BIRD:

Yes sir.
THE COURT:

I mean we are not going to try this case on 
the merits, that is not what we are here for. The whole 
thing here is whether or not it is the Greenwood-Peacock 
type situation. If there is anything here in the way (34) 
of statutes, allegedly unconstitituional, the writ or



57

hearing on this matter is not indicated by anything from 
the pleadings and I ask your assistance about briefing it. 
I see no reason unless you have got something to show 
this unconstitutional application of the law —  this is 
just clearly covered by the Supreme Court opinion in the 
case of Greenwood v. Peacock. There is no question about 
that.
MR. HILL:

Your Honor, I feel that this case is covered by 
Georgia vs. Rachael and by Schuman.
THE COURT:

What is your case?
MR. HILL:

Georgia vs. Rachael.
THE COURT:

Do you have it?
MR. HILL:

Yes sir.
THE COURT:

I would like to see it. Does it in any (35) way 
attempt to, directly or indirectly, overrule Greenwood v. 
Peacock?
MR. HILL:

No sir.
THE COURT:

A 1965 opinion of the Supreme Court of April?



58

MR. HILL:
It was on the eve of those that we come here 

on issues that were specific. The Greenwood vs. Peacock, 
all those cases were up there at the same time. In your 
book there, Your Honor, you will notice Georgia vs.
Rachael precedes Greenwood vs. Peacock.
THE COURT:

Well, what is the citation?
MR. HILL:

The citation, if Your Honor, please, is page 780.
THE COURT:

Is immediately prior to this. Well, I have here 
the clear language which there must at this point have been 
hundreds of cases that have been (36) remanded on the 
authority of Greenwood v. Peacock. Just in one the other day 
without any hearing on it, incidentally in Monticello, 
Jefferson County Court, on very similar allegations, that 
there couldn't be a fair trial, resulting in a jury verdict 
incidentally of not guilty. This reason of Greenwood v. 
Peacock, removal under this section cannot be supported 
merely by showing that there has been an illegal denial 
of civil rights by State officers in advance of trial.
That the charges against the defendant are false, or that 
the defendant cannot obtain a fair trial in a particular 
State court. Now, that is an opinion of the Supreme Court



59

of the United States last April 26th. And it is still the 
law. I want to know what it is that you contend takes this 
out of that situation? I think we are exercising futility 
here at this point.
MR. HILL:

The Court in Greenwood vs. Peacock, Your Honor, 
drew a clear line of demarkation between the Greenwood 
case and the Georgia vs. Rachel case,
THE COURT:

All right, you are saying to me now that it (37) 
fits in the Georgia v. Rachael case?
MR. HILL:

It says here, at page 824, in Greenwood v. Peacock 
—  We come here to the issue that this case raises as to 
the scope of 28 USCA 1443(1). In Georgia v. Rachael decided 
today, we have held that the removal of State Court trespass 
can be had under Section 1443 (1) upon petition alleging 
that the prosecution prosecuted him exclusively from the 
petitioner's peoples exercise of their rights to equal

v

accommodation in establishing it under color by the Civil 
Rights Act of 1964, Section 204, 201.

Since that act in itself has been approved by 
this Court in Hannon vs. City of Rockhill. Specifically 
it guarantees that the conduct in the removal proceedings 
in Rachael may not be subject of trespass prosecution.



60

The defendants inevitably are denied, or cannot enforce 
in the Courts of the States, a right under any law pro­
vided for equal civil rights by merely being brought 
before a State court to defend such a prosecution. The 
present case, however, afforded (38) (that is the 
Greenwood case) in the first place Federal Court in­
voked by the individual petitioner of the truth, some 
that clearly cannot qualify them under statutory defi­
nition as rights under the law provide equal civil rights. 
The first amendment in this instance —  there was a first 
amendment and it does down further.
THE COURT:

I am reading it here. Excuse me for interrupt­
ing, but I am reading it.
MR. HILL:

So,
THE COURT:

Let me read it.
I remember this quite clearly. I know the 

deliniation between the Peacock case and the other one 
decided, and they go right down to say that this matter 
cannot be removed. And he says, that there is no Federal 
law that confers an absolute right on private citizens, 
on civil rights advocates, on negroes, or anyone else, to 
obstruct the public streets, contribute (39) to the



61

delinquency of a minor, drive an automobile without a 
license, or to fight a policeman.

Second, no Federal law confers the 
of State law on such charges. That is the Supreme Court 
of the United States speaking. And this matter of alleged 
disorderly conduct and drunkenness is right in that cate­
gory. If that's the case in every such charge made it would 
have to be tried in Federal court. That is what the Supreme 
Court says, don't do. There is no law in the Georgia case 
—  that was trespassing, where you had a statute in the 
State of Georgia attempting to be enforced on the grounds 
of trespass; and, of course, that just couldn't be done 
and struck it down. You don't attack the validity of the 
law against public drunkenness and disorderly conduct.
There is a perfectly valid law and any kind of society 
has got to have those kind of laws. The gist of all al­
legations that you can't get a fair trial over there, 
those people are under the same kind of constitution as 
this Court, and you can ultimately reach the Supreme Court 
of the United States by either (40) route, and it is simply 
a matter of orderly judicial administration, they are bound 
by it under the Constitution of the United States just as 
much as this court is. And if you are denied in any 
procedural constitutional guarantee by any of the courts, 
no matter where they be in this country, you have got full



62

retract, but the point is your allegation that you can't 
get a fair trial on this kind of case —
MR. HILL:

Your Honor, we are not here saying only that 
he cannot get a fair trial, we are saying that Section 201 
of the Civil Rights Act, the public accommodation section 
of the Civil Rights Act of 1964, as was in Georgia v. 
Rachael, was prohibited —
THE COURT:

That was part of it. The other part of it 
was the trespass act on it. If* on this hearing, out 
of an abundance of caution I am going to go on along here 
and let you develop it. I am not going to try this whole 
case here this morning. We might as well go on and have 
the trial if we do that, (41) but it is more important 
that we keep this thing in perspective. It is far more im­
portant than the merits of this particular case, the de­
termination as to where it is proper to be tried because 
these things are extremely important in that context. I 
am going to go on here with the showing, the whole in­
cident, and let this record show that I am making here 
out of an abundance of caution —  I have dismissed a 
number of petitions just as clearly under Greenwood v. 
Peacock, as this one, without a hearing, immediately upon 
it being filed and brought to my attention, and remanded



63

it immediately to the State court, because that is the 
law. It is not a matter of what I think about it, it is 
a matter that it is the law and I am bound by it. So, 
the proceeding here, today, is limited only to one thing,
I will let you make some kind of record if you can to 
show:

1. Will counsel for the defendant, here, the 
City is trying to do, that there was reasonable probable 
grounds for the arrest? If there were under any interpre­
tation of any law, you don't get (42) into Federal court. 
You don't get into Federal court no matter what the other 
activities were, there just simply couldn't be any organ­
ized system of court if that were the case and things 
were different, and that is what the Supreme Court has 
held. So, even under that —  I don't think I even need 
to do that —  This thing must be remanded on the doctrine 
of Greenwood v. Peacock, but out of an abundance of 
caution, I want the facts to be developed here to show 
whether or not there was reasonable grounds for the 
arrest. If they were that, then there is nothing more 
to the matter.

Prior to Greenwood v. Peacock we all held hear­
ings in every manner of case whether or not there was 
reasonable grounds for arrest. If the arresting officer 
at that time —  it doesn't mean that he has got to be



64

right, that the man was actually being disorderly, or 
the man actually be drunk, for example, it is just that
he, the arresting officer, had probable cause to make the
arrest. If he did, that ends the matter. I have remanded 
a number of those, all manner of alleged crimes, disorderly 
conduct, indecent exposure, and everything else, that have 
been (43) brought in and they have tried to make Federal 
cases out of them under that theory, and the sole test for 
it is whether or not there was probable cause for the arrest.
If there was, it went back to the State court that it came
from. If they didn't get a clear trial they have a clear 
way all the way to the Supreme Court of the United States.
We will go ahead with this case, with this in mind. I am 
going to limit it very rigidly with was there probable cause 
for the arrest and we will take no other testimony on this. 
MR. HILL:

Your Honor, I am not trying to make this a 
Federal case, solely, for the purpose of Federal juris­
diction. I will attempt to show by the evicence and if 
we fail by your standard we will have to be governed by 
it in this matter.
THE COURT:

Certainly. Let's go ahead. My only remark here 
now is that I am not going to try this case all day. If 
it is not relevant to whether or not there was probable



65

grounds for the arrest, then (44) I don't have any 
further responsibility. It is a waste of your time and 
mine too, that's all I am saying. Go ahead.

MR. CLYDE MALLOY
was the witness still on the witness stand, and testified 
as follows:

CROSS-EXAMINATION
BY MR. HILL:
Q At this service station that you have, is it not
a fact, you had different privileges?
MR. BIRD:

I object to the question.
THE COURT:

Sustained.
MR. HILL CONTINUING:

On direct examination he asked this officer 
whether or not he had any privileges whether or not he 
had the right to treat a white person as a negro. That 
was the scope of his direct examination.
MR. BIRD:

As a police officer, not as an individual.
THE COURT:

I sustain the objection, counsel. (45) The 
other testimony the court doesn't consider it pertinent 
and I don't consider this either, I will put it in the same



66

category. You can rest at ease on that point. This 
matter will not be decided on that matter, if he had 
probable cause for the arrest, and that is the conclu­
sive matter under the Georgia case.
MR. HILL CONTINUING:
Q Did you know of your own personal knowledge
what was said and done when you arrived at the service 
station?
A Like I told you before, it has been six month,
they were arguing back and forth. It has been a long time 
but they were arguing back and forth, and you are excited 
when you come upon something like this and you don't re­
member the details as to what was said.
Q Well, what was Glynnell Presley saying?
A They were arguing back and forth about the
gasoline, paying for it, $2.70.
Q Well, what was he saying?
(46) A Like I say, I don't remember. It has
been over five months. I couldn't tell you exactly what 
was said.
Q What was Mr. Bailey saying?
A As I told you before, I don't know.
Q Well, what else was done in your peresence that
you know was done that you arrested him for?
A Because of the disturbance that he had made and



67

the arguing back and forth and the cursing.
Q What was distinctive? The disturbance?
A There must have been quite a bit of disturbance,
a crowd gathered around.
Q But you didn't see it or hear it?
A I told you I came up there and they would have
been fighting if this boy from across the street hadn't 
been between them.
Q Let me ask you another question —  you didn't
arrest Mr. Ed Bailey did you and charge him with disorderly 
conduct?
A
(47)
A

No.
Q He is not arrested as of this day, is he?

No.
Q He was talking just like Glynnell was talking?
A He wasn't saying anything.
Q You just said, —
A The man was hurt. He is a peg-legged man.
Q But you said they were talking back and forth?
A All Ed said was that he wanted his money from
him. He was not cursing. The man just wanted what was his. 
He had sold a product for $2.70 and he wanted his money.
It is just that simple.
Q You mean to tell this court that nobody was curs­
ing but Glynnell and Mr. Ed Bailey was not saying anything?



68

A All he said was that he wanted his money for the
gas.
Q And you remember that?
A Yes.
(48) Q But you don't remember anything else?
A What do you mean, "anything else"?
Q Anything else that was said between them?
A Like I said, they were arguing back and forth.
THE COURT:

I think this is repetitious at this point.
A And I taken Presley to the side because I couldn't
get anything out of either one and tried to find out what 
happened.
MR. HILL CONTINUING:
Q Let me ask you another question —  did you give
him any kind of test, he was not drunk?
A Yes, I would say he was drunk.
Q Why?
A Because of his speech, because of his odor, you
see he was right up at me, that he had on his breath.
His conduct. The way he acted. Any (49) man at all I 
don't think would act like that.
Q And it was solely based upon that judgment, alone?
A Yes, and what I saw.
Q And what you saw after you got there?



69
A Yes.
Q And someone was between them and he did nothing
else but talk?
A Yes, argue.
Q Arguing back and forth?
A Mr. Bailey stated that he wanted his money for
the gas, $2.70.
MR. HILL:

I have no further questions.
THE COURT:

Any questions?
REDIRECT EXAMINATION

BY MR. BIRD:
Q Mr. Malloy, you testified Mr. Presley, himself,
told you what?
A He told me, himself, that he went around to use
the restroom and it was nasty and he wasn't going to pay 
for the gas, and he told the boy (50) to drain it out that 
he wasn't going to pay for it.
MR. BIRD:

That's all.
RECROSS EXAMINATION

BY MR. HILL:
Q Did he tell you that the service attendant wouldn't
let him use the bathroom?



70

A No, he did not.
MR. BIRD:

Object, that is irrelevant, Your Honor.
THE COURT:

Overruled.
MR. HILL CONTINUING:
Q At that service station don’t they have segre­
gated facilities, bath facilities?
A No.
MR. BIRD:

Object, Your Honor.
THE COURT:

Overruled.
MR. HILL CONTINUING:
Q Don't they have segregated facilities (51) at
your service station?
A The restrooms themselves, we have got two, one
for men and women, is what it says.
Q But the negroes don't use it?
A They use it if they want to, it is there for all
customers.
Q Haven't you told customers that they couldn't
use your facilities?
A The customers I have use the facilities that I
have for them, my customers.



71

MR. HILL:
No further questions.

THE COURT:
All right. You may come down. Call your next

witness.
MR. AARON THURMON

was next witness called in behalf of the defendant, having 
previously been sworn, testified as follows:

DIRECT EXAMINATION
BY MR. BIRD:
Q State your name, please?
A Aaron Thurmon.
(52) Q What is your address?
A 480 West Dogwood Street, Monticello.
Q What is your occupation, Mr. Thurmon?
A I am a police officer.
Q In the City of Monticello?
A Yes sir.
Q How long have you been employed in this capacity?
A About four years.
Q About four years. Could you relate to the Court
an incident involving the petitioner, Glynnell Presley, on 
or about September 24th, 1966?
A Well, Mr. Malloy and myself were sitting in a
police car on the corner near the station where it happened.



72

The Powell boy he ran over and told us, he said Mr. Bailey 
was having trouble over there with this colored fellow 
over there. And we went over there but it was all over 
when we got there. We asked him what happened and they 
told us that —
(53) Q Who is, "they"?
A Mr. Bailey and the Powell boy said the colored
man went to the wash room and came back and he wouldn't 
pay for the gas, they had filled his car up with gas in the 
meantime, and he said he would not pay for the gas because 
the wash room was dirty.
Q Did you talk to the petitioner, yourself,
Glynnell Presley?
A Yes, I asked him, I said, "why didn't you just
pay the man and go on", and he said they got into an 
argument and Mr. Bailey said he pushed him around a little 
bit. We didn't see this.
Q What did you notice when you went up there, where
were the parties situated?
A They were in the drive there at the station.
Q Did you notice any conduct by Glynnell Presley
that would lead to his possible arrest?
MR. HILL:

I object. The officer has already (54) said 
that everything was already over with when they got there.



73

THE COURT:
To the form of the question, the objection is 

sustained. You may reframe the question.
MR. BIRD CONTINUING:
Q When you arrived on the scene what was Glynnell
Presley doing? What were his actions?
A Well, he was loud. He was talking very loud
and he acted like he had been drinking. He was very 
loud arguing with Mr. Bailey.
Q Did you smell any alcohol?
A Yes, I could smell something.
Q Were you —
MR. HILL:

Your Honor, I object. I ask that it be stricken, 
the officer said he smelled "something". It is not re­
sponsive to the question.
THE COURT:

He said he acted like he had been (55) drinking 
and he smelled something. You may cross-examine. It is 
a matter of getting clarity, that is all.
MR. BIRD CONTINUING:
Q I believe you went further and said he smelled
like he had been drinking what?
A Gin.
Q Were you the arresting officer?



74

A Well, I was one of the arresting officers.
Q What did you all do with Mr. Presley after
you told him he was under arrest?
A Well, we taken over the obvious and he asked to
make a phone call, which we let him make a phone call.
Q Did he talk to anybody, did he make contact?
A I don't know who he talked to, it was a long
distance call.
Q He did talk to someone?
A Yes, he did.
(56) Q Then what did you all do?
A Well, we asked him did he want to put up a bond
and he said, "no". So, Mr. Malloy taken him to the jail 
and locked him up.
Q Were you around when he was released on bond?
A I was on duty but I didn't release him.
Q Did you have knowledge of it at the time he was
released?
A Yes, Mr. Malloy told me.
THE COURT:

Don t relate that unless you know it of your own 
personal knowledge.
MR„ BIRD CONTINUING:
Q Did the purpose of this arrest have anything to
do with a racial problem?



75

A No, it didn't have anything to do with it,
regardless of who it was. I try to keep peace and do
the right thing by everybody.
q Did you know Glynnell Presley before this in­
cident?
(57) A No. I had never seen him before.
q Did you treat this man any differently than you
would any other person under arrest?
A No, not under the circumstances.
Q The fact that Glynnell Presley belonged to the
negro race influence you or make any difference in your 
conduct as a policeman toward him?
A That has nothing to do with me, we make no
difference between the people we are dealing with. We 
don't look at it like that.
MR. BIRD:

That is all.
THE COURT:

Any questions?
CROSS-EXAMINATION

BY MR. HILL:
Q When you and this officer here arrived every­
thing was over with, was it not?
A Well, they were arguing when we got there.
Q What was said when you say they were arguing



76

between them, whom are you referring to?
(58) A Mr. Bailey and Mr. Presley.
Q Will you be so kind as to tell us what they were
saying?
A Well, I don't remember the exact words, but Mr.
Bailey wanted him to pay for the gas and he said he was 
not going to pay for the gas.
THE COURT:

Mr. Thurmon speak a little louder, we are having 
a little trouble hearing you.
A They arguing, trying to tell us about what it
was all about, this and that, and who was pushing who and
all that.
MR. HILL CONTINUING:
Q When you got there then, Mr. Bailey wanted him
to pay for the gas and Mr. Presley didn't want to pay
for it, and that is all? That is all you heard of the 
conversation, wasn't it?
A Well, naturally, we tried to find out who
started it and who was pushing, and all that. They were 
both so loud it was a little hard to get the correct 
story on it.
(59) Q But you didn't charge Mr. Bailey —  no
charge has been placed against Mr. Bailey at all?

No, we didn't charge Mr. Bailey. We talked toA



77

Presley and he said that he wouldn't pay for the gas 
that the wash room was dirty.
q Are you sure, officer, reexamine your thoughts
closely and see whether your mind would be refreshed, 
the reason being he was denied the use of the toilet 
facilities —  was anything said about that?
A Yes. He said the washroom was dirty.
MR. BIRD:

I object.
THE COURT:

The objection is overruled. You may answer the
question.
A What do you mean by that?
MR. HILL CONTINUING:
Q Was anything said about Glynnell (60) not being
able to use the toilet facilities?
A There was nothing said about that.
Q There was nothing said about the use of the bath­
room at all that you heard?
A Nothing other than he said the bathroom was
dirty.
Q Who told you that, sir?
A He told me that.
Q When you say, "he", are you referring to
Glynnell Presley?



78

A Presley.
Q You don't really know what happened that made,
or caused, both of them to be talking in a loud voice 
when you arrived?
MR. BIRD:

I object, Your Honor. It is immaterial to 
the question before the Court.
THE COURT:

Objection is sustained.
MR. HILL CONTINUING:
Q Approximately how long did it take (61) you
all —  about how far were you from the place where this 
alleged incident took place?
A Oh, I would say about a quarter of a block from
the station to where we were sitting.
Q About how many feet wouH you say?
A Oh, I would say around two hundred feet, I would
think.
Q Could you look over to the station from where you
were parked?
A Yes, we could look over but Mr. King was there
talking to us and we just had not noticed. There were 
cars coming in and out all the time.
Q But if you had looked you could have seen it?
A We could have probably seen part of it. I



79

don't know if we could have seen them, depending on 
which side of the cars they were on.
Q The side of your car?
A The side of their car.
Q Other than his car you could have (62) looked
over there?
A Probably.
Q And you may have seen it?
A It is possible.
Q In other words, it was in clear view, your line
of vision?
A Well, it might have been if they were on the
side of the car towards us.
Q What side of the car were they on when you got
there, officer?
A I really didn't pay that much attention to it,
I think they were more or less in the front.
Q Could you look and see from where you were if
you wanted to look?
A I believe so.
Q Is it not a fact, officer, that the bathroom
facilities in that station are segregated, the bathroom 
facilities for white and colored?
MR. BIRD:

Object, Your Honor.



80

Overruled.
A Well, I don't know. I know they have dif­
ferent wash rooms there but how they manage it I don't 
know.
Q One marked for white and one marked for colored?
A Well, i don't know if they are marked or not.
Q Well, one is used by colored and one is used by
white, isn't it?
A I don't know. I never looked. That is their
business.
Q Well, that is the practice and custom and use
of it, you know that to be a fact, don't you?
MR. BIRD:

I object, Your Honor. He has said he doesn't
know.
THE COURT:

He may answer the question.
Q Would you mind repeating that?
REPORTER:

READS QUESTION.
(64) MR. HILL CONTINUING:
Q One is used by white and one by colored, isn't
it?

(63) THE COURT:

A Well, i don't know if they worked like that all



81

the time. I have seen some go in different washrooms 
but whether it works like that all the time I don't know.
Q And that has been going on for sometime, hasn't
it?
A That I don't know. I don't know how they worked
that.
Q You don't kiow how long it has been going on?
A No.
Q Mr. Bailey, other than this loudness that was
going on, neither Mr. Bailey nor Glynnell Presley were 
cursing, were they?
A Well, that I don't remember for sure just what
the words they were saying and how they were saying them.
I know they were loud, but the language I don't remember 
exactly in words what was said.
Q And as I remember, you and this (65) officer,
here, you were there together?
A Yes sir.
Q Who decided, which one of you decided to arrest,
make the arrest?
A Well, Mr. Malloy told him that he was under
arrest.
Q Did he tell him what he was under arrest for?
A Yes sir, for disturbing the peace and being loud
in the man's place of business.



82

Q And that was the basis for the arrest?
A Well, yes, naturally we talked with him, asked
questions and found out what it was all about.
Q But this man was not drunk?
A I wouldn't say he was drunk. I said he was
drinking.
MR. HILL:

That's all.
THE COURT:

Any questions?
(66) REDIRECT EXAMINATION
BY MR. BIRD:
Q Mr. Thurmon, the position of where your cars
were and the filling station, is there anything in there 
that could have possibly obstructed your view?
A Yes sir, the phone booth there.
Q Is there parking along there too?
A Yes sir, there is parking there, cars park there
to use the telephone.
Q And cars could have been parked there using the
phone?
A Yes sir.
MR. HILL:

I object, Your Honor.



83

Objection overruled. You may answer the question. 
I don't think it is relevant but you both got into it and 
we are going to get through it.

THE COURT:

THE COURT:
Any other questions?

MR. HILL:
No, Your Honor.

(67) THE COURT:
You may come down. Call your witness.

MR. D. R. CAMPBELL, JR.
was next witness called in behalf of the defendant, having 
previously been sworn, testified as follows:

A Yes sir.

DIRECT EXAMINATION
BY MR. BIRD:
Q Would you state your name and address to the
Court please?
A D. R. Campbell, Jr., Box 262, Monticello, Florida.
Q On September 24th, 1966, what was your employment?
A Deputy Sheriff, of Jefferson County.
Q And how long have you been in that capacity for
them?
A
Q

At that time approximately five years. 
Approximately five years. Would you relate to



84

the court an incident which (68) occurred on September 24th 
involving Glynnell Presley? Just relate of your own know­
ledge what you saw?
A I was sitting in a patrol car on the corner of
the courthouse, which is only a couple of hundred feet 
from the station, and my patrol car was facing the end 
of the curb and the police department car was back of it.
We were sitting close together. The first thing that I 
knew was the boy that worked at the station came running 
over to where the patrol cars were and said that there was 
some trouble over at Ed Bailey's station and that is when 
we come over there. The police that were there at the car, 
them being headed out, got to the station before I did.
In fact I think they walked over there, but I drove the 
patrol car over there and they got there a little ahead 
of me. Mr. Clyde Malloy of the City Police Department 
was talking to Presley at the time when I got there.
I didn't get involved in the thing, they got there first, 
and I let the City handle it. I stood off to the side.
Q After that, when was your next encounter with Mr.
Presley?

The next time that I saw him, I (69) had gone 
to the county jail, at the time Mr. Malloy brought him 
down there, and I was sitting in the office inside the 
jail and Mr. Malloy brought him in.



85

q Was there anything out of the ordinary that you
noticed about Glynnell Presley at that time?
MR. HILL:

I object. The question being indefinite.
THE COURT:

Overruled. You may answer the question.
MR. BIRD CONTINUING:
Q Did you notice anything in particular about
his conduct?
A Yes, his conduct was very bad. He was very loud
and at that time I detected that the man had been drinking. 
I detected that even at the station, without waiting for 
this particular time, at the jail.
Q Did you know Glynnell Presley before this time?
A Just street talk. I heard he had (70) been
in Monticello before.
Q But you did not know him?
A I did not know him, no.
Q And you, as a county deputy, did not take part
in the arrest?
A I didn't take part, the idea being the police
department has beat me to the place. I would have if I 
had got there first.

I have no further questions.
MR. BIRD:



86

You may examine.
CROSS EXAMINATION

BY MR. HILL:
Q Sir, this rudeness that you noticed, was nothing
more than would be expected of a person that had suffered 
—  had had some unsatisfactory experience?
A Well, I wouldn't classify any other experience.
The only thing I can say is the witness seemed shook up 
about something and was loud talking and he definitely 
was under the influence of alcoholic beverages.
(71) Q But not drunk?
A I would have arrested him myself as being drunk,
for public drunkenness if the City had not gotten there 
first.
Q You made no tests, this was from your personal
observation?
A From personal observation and my experience as
a law enforcement officer.
Q And you are just judging by looking at him?
A Exactly. I ran no tests at all.
Q You made no other test than that?
A I have made my living fooling with drunk people
and what have you, and I would certainly classify him as 
one.
Q But you made the case —  it was your conviction
there were the two things that you mentioned, the way he

THE COURT:



87

conducted himself and his loudness?
A Yes sir, and his loudness and the smell of
alocholic beverages on his breath, yes.
MR. HILL:

I have no further questions.
(72) THE COURT:

You may come down.
MR. BIRD:

I have no further witnesses at this point, Your
Honor.
THE COURT:

You may call your witness.
MR. HILL:

I would like to call Glynnell Presley.
GLYNNELL PRESLEY

was called as a witness in his own behalf, having pre­
viously been sworn, testified as follows:

DIRECT EXAMINATION
BY MR. HILL:

A
Q

Q Will you state to this Court your name, please? 
Glynnell V. Presley.
Where were you living at the time this incident

occurred?
A 1045 1st Street, Monticello, Florida.
Q And how long had you been living in Monticello
Florida?
A Since 1956.



88

(73) Q Do you know this officer, here?
A When I seen him work.
Q What happened on the evening, you have heard
the testimony here?
A On the 9th month, the 24th day, '66, I stopped
at a Gulf station operated and owned by, operated by Mr.
Ed Bailey. I stopped to refuel, and as the attendant was 
refueling the automobile I seeked permission to use the 
restroom and the restroom I attempted to use I was denied 
permission.
MR. BIRD:

I object, Your Honor. This is irrelevant and 
immaterial.
THE COURT:

I note the objection. You may continue.
A Thank you, Your Honor. I was denied permission
to use this restroom, and being denied permission I went 
back to the attendant who had finished servicing the gaso­
line in the automobile, and I informed him of the fact —  
well, I told him that (74) if I was denied the use of 
the public facility that was supposed to be there for 
people in general, then I would desire him to remove his 
gasoline from my automobile. Whereupon, he stated, —
Q What kind of automobile were you driving?
A A 1965 Volkswagon.



89

Q Continue?
A The attendant who was a young acting young man,
around seventeen or eighteen years of age, seventeen I 
guess, anyway, he informed me —  he said, he could not re­
move the gasoline from the automobile. I asked, well, 
where is the owner? So, he said that he was at home. 
Anyway, I told him, since I can't use the facilities here, 
call him and tell him I would like to have the gasoline 
removed, if you don't have the authority to do it. In 
response, he entered the building and made a telephone 
call and a few minutes later Mr. Ed Bailey drove up like 
he was going to a fire, jumped out of his automobile and 
stated, "you are going to pay me for my damages, for my 
damages".
(75) Q By the way, what is your position?
A Well, I coach, football and basketball at
Richardson High School at Lake City.
Q How long have you been coach?
A Eleven years.
Q You say eleven years, basket ball and foot ball?
A Beg your pardon.
Q Eleven years. And what did you say when he drove
up?
A I said, well, I am going to tell you the same
thing I told your attendant, if I cannot use the facilities



90

here you remove your gasoline from my automobile, here.
At this point, he stated, "put it upon the rack". So, 
speaking in this manner, I said the key is in the car, you 
put it upon the rack. He said, "I am not going to do a damn 
thing. You are going to pay me for my gasoline". I said, 
"this is my car, and that is your gasoline. And I repeat, 
if I can not use the facilities here, your restroom 
facilities, then I don't want your gasoline." At this point, 
he launched forward (76) with his shoulder and chest, he 
did this, and I was astonished, you know —  the next move 
was this —
Q What do you mean by "this"?
A He collared me right here (indicating). Right here.
Q With which hand?
A I am not sure. I don't know which hand but I know
when I looked he had a hand in my collar and my next 
move was to wrestle away, I knocked him away, and as he 
spun around I pinned him. That was the extent of the 
altercation there.
Q Were there any officers around in this area?
A Only one policeman came and that was the car
that Officer Malloy and the other officer that was last in 
this chair were sitting in. This car was just a few feet 
away. And as I entered the station the car was parked, 
they were on the west side of the station, the car



91

was headed south. There was not a parking lot, as such 
in between, but an open space from the station to the 
place where they had their car (77) parked, there was a 
telephone booth which did not actually obstruct their view, 
they could see what was going on. So, after I pinned him, 
they rushed over. Officer Malloy rushed and without 
questioning anybody, said, "you are under arrest".
Arrest for what? Disorderly and being drunk. I said, 
okay. I entered the car with Officer Malloy and the 
other officer I think he must have searched the auto­
mobile, I am sure that he did, —  and I entered the police 
vehicle, and he made this statement, "I don't understand 
you people, I don't know what is wrong with you people," 
and I asked him, "What do you mean, you people"? You 
know. I am just one person. I don't understand what you mean 
by, "you people". You are disorderly and you are drunk 
and he took me to the station, he bookedme for drunkenness 
and I think on the charge was disorderly conduct.
Q Now, how long had this altercation —  where were
you in this event when the officers came up?
A We were between my Volkswagon and the pump,
the gasoline pump, when the officers came up.
(78) Q Let me ask you this, —  what did Mr. Bailey 
say after Officer Malloy came?
A Well, he was busy abusing me and being profane



92

and what not.
Q Did Mr. Bailey use profane language?
A Yes.
Q Like what?
A Like Damn, words of that nature. They were
not extremely harsh words but they were abusive.
Q And what were you saying?
A Well, I was saying the same thing when he came
up. I asked him to remove his gasoline from my automobile 
if I couldn't get the facilities.
Q Did you curse?
A No. No profanity by me.
Q What did, —  did Officer Malloy hear anything
else between you, what was said?
A They couldn't have heard because they were a
distance away. They probably saw, but they couldn't have
heard it., It appears to me that as soon as he collared
me, I knocked him away, he (79) spun and I pinned him, you 
know, my hands around him, and they rushed over at that
point.
Q At that time he had you under arrest?
A At that time he walked up and stated without
any reservation or anything and said, "you are under
arrest". Those are the words that he used. 
Q You said nothing to him?



93

A Nothing was said. "You are under arrest" are
the words that he used. I asked, Why? And he said, 
"Drunkenness and Disorderly conduct".
Q Was there anybody else there in the area?
A Eddie James Miles was in the area.
Q Is that the one that the officer testified posted
your bond?
A Yes.
Q Are the facilities there in the Monticello service
station segregated?
A It is an unwritten law —
MR. BIRD:

I object to the question, Your Honor.
(80) THE COURT:

I sustain the objection in the form of the
question.
MR. HILL CONTINUING:
Q Are the facilities in that service station
segregated?
A Yes.
Q In what manner, how can you tell?
A Well, inasmuch as this fellow before me, I have
forgotten the model, but he carried 46-988 tag, was there 
in the station as I pulled in. He was a white fellow and 
had just left the restroom, and the same restroom I was



94

denied permission to use was the restroom that he had just 
left. I assumed I could use it but I was unable to use it. 
Q He wouldn't let you?
A No, he said, "you can't use it". That means that
he wouldn't let me use it.
Q Did he say why?
A No, he just said, you are not allowed to use the
restroom. And it is common knowledge (81) knowledge in the 
City of Monticello that this thing goes on. As a matter of 
fact, —
MR. BIRD:

I object, Your Honor.
THE COURT:

I will have to sustain the objection, counsel.
This is beyond the purview of this hearing.
MR. HILL CONTINUING:
Q Do you know Mr. Malloy as a service station
attendant there?
A Yes sir, I do.
Q What is the name of the service station?
A Sims Service Station.
Q Is it near the service station where this incident
occurred?
A It is just across the street from the Gulf station
where this incident occurred.



95

Q Do they allow negroes to use that —
MR. BIRD:

I object, Your Honor, it has nothing (82) to 
do with this particular hearing.
THE COURT:

Counsel I fail to see how this has any possible 
bearing on the narrow issue before this court.
MR. HILL:

Your Honor, counsel has repeatedly asked whether 
or not this officer would treat negroes the same as whites 
as a police officer.
THE COURT:

I will let you answer the question. But let me 
say this, I don't think that either that question or the 
answers here made to either one are relevant to the issue 
before this court. The question is, whether or not the 
testimony of this case was a reasonable ground to make the 
arrest. That is all. That is the sole limited issue. If 
it is relevant, go ahead and you may answer the question.
A The facilities at the service station are segre­
gated, the bathroom, the restroom facilities. It is known 
in the City of Monticello (83) that the negroes are not 
permitted to use the restrooms in the service stations.
THE COURT:

I sustain the objection to that statement. It has



96

to be something based on his personal knowledge in it.
MR. HILL:

In that case the Court speaks about policy --
THE COURT:

I understand that, but it is just vague. If he 
has got the knowledge of his own, he may testify about it.
MR. HILL CONTINUING:
Q Do you have personal knowledge of the custom, know­
ledge and usage to negroes of facilities, public facilities, 
in that City?
A Yes, I have. I have lived there for —
THE COURT:

Now, we are talking about the City. We are not 
trying the whole thing and everything that (84) happened.
You have got to know and be more specific than that. In 
the first place, I don't think that any of it is relevant 
and we are not only getting now from one station, but we 
are getting all over the city. Be more specific.
MR. HILL CONTINUING:
Q Among the service stations in Monticello, is it
their policy and custom and usage to segregate the negroes 
and whites in the public facilities in that city?
A Yes, there is. And this has been a custom since
1966, since I have been there.



97

MR. BIRD:
The same objection, Your Honor. I don't think 

he should be allowed to elaborate on this unless he can be 
more specific.
THE COURT:

I think it would have to be something more —  go 
ahead, counsel. We are getting far afield from the narrow 
issue we have.
(85) MR. HILL CONTINUING:
Q Were you intoxicated?
A Definitely not.
Q Had you been drinking?
A I had a beer. One. A beer. That is all.
Q But you had some odor?
A Naturally one beer leaves an odor.
Q But you were coherent and were you responsive to
the officer?
A Definitely. He said, you are under arrest without
any provocation I said, okay. Those are not the actions 
of a drunk man. The specific actions that I took was not 
the action of a drunk man.
Q Why did you take the actions that you took?
A I told the actions that I took in self defense.
Had I stood with the man with his hand in my collar, I 
don't know what he would have done (86) next. The only



98

thing I knew to do was to try to protect myself, knowing 
the prejudice and the hostilities that exist in Monticello 
against negroes -- 
MR. BIRD:

I object, Your Honor.
MR. HILL:

That is all.
RECROSS EXAMINATION

MR. BIRD:
Q Mr. Presley, what happened after you were told
you were under arrest, where were you taken?
A I was taken to the City —
Q City Hall?
A —  City Hall.
Q Did you request to make a telephone call?
A Definitely, I did.
Q Were you allowed that privilege?
A I was allowed to make one call.
Q Did you talk to somebody, contact someone?
A I think both police officers previously (87)
stated that.
Q I am asking you —  did you talk to anyone on the
other end of the line?
A I did, yes sir.
Q You did. After that where were you taken?



99

A To the county jail.
Q To the county jail. Did you then make a request
to post bond?
A I imagine I did.
Q What was the bond? What was your bond?
A $50.00.
Q $50.00?
A Exactly.
Q Who finally posted this bond for you?
A Eddie James Miles, Jr., posted bond.
Q Approximately how long after you were arrested
that this bond was posted?
A About fifteen minutes.
(88) Q About fifteen minutes?
A Somewhere in the neighborhood.
Q You were arrested, allowed to make a telephone
call, and released after posting $50.00 bond, all within 
fifteen minutes after your arrest?
A No, you misconstrue me.
Q Well, how long was it after your arrest?
A The entire thing, from the time of the statement
made by Officer Malloy, you are under arrest, until the 
release, I don't know, approximately, less than thirty 
minutes.
Q Were you put under interrogation at this time, or
threatened?



100

A No, I was not abused, as such. The only state
ment made by Mr. Malloy, it was made in an angry tone, I 
don't understand what is wrong with you people. He made 
that statement.
Q Were you hurt?
A Beg your pardon.
Q Were you physically threatened, (89) anybody
threaten you with violence?
A Not in words, no.
Q What about actions, anybody hit you, or beat you?
A No. But there was a bit of intimidation. There
is an intimidation there always by officers in the City of 
Monticello.
Q You heard Mr. Malloy testify that you told him
that you weren't going to pay for the gas because the 
restrooms were dirty. Do you deny that statement?
A He said that. I didn't tell him that.
Q Do you deny that?
A Yes, I do.
Q You did not tell him that?
A I did not tell him that. I deny that.
MR. BIRD:

Your Honor, I don't know exactly how much to go
into.
(90) THE COURT:

I leave it to you. I don't think we need to try



101

the whole case, I emphasize that. The case on the merits 
should be tried in this length of time. Do you have any 
further questions?
MR. HILL:

Yes sir.
REDIRECT EXAMINATION

BY MR. HILL:
Q Why was this charge lodged against you, Mr. Presley?
A This charge was under circumstances. I think it
would have been lodged against any negro in that position.
MR. BIRD:

I object, Your Honor.
THE COURT:

I will have to sustain the objection. The court 
notes that the objection is well taken.
MR. HILL CONTINUING:
Q When the officers came, was Mr. Bailey's voice
as loud as yours?
(91) A Well, I think I was the calmest one in the 
surroundings.
Q You were the calmest one?
A Yes, I was.
Q And he was using curse words?
A Well, I know he used damn, I know that was used
more than once, definitely.



102

Q Did you ever hear the officers say that he was
under arrest?
A He made no approach to him. His initial approach
was to me, "you are under arrest", without any question as 
to what happened or what went on.
Q Was there any question of Mr. Bailey as to his
conduct?
A None whatsoever, at the time I was present.
MR. HILL:

No further questions.
THE COURT:

Any questions?
MR. BIRD:

No, Your Honor.
(92) THE COURT:

Come down. Any further testimony at this time?
MR. HILL:

Yes sir. Eddie Jame Miles.
THE COURT:

Does this relate to the incident of the arrest? 
The Court is confining it to that. Any other testimony 
is not relevant at all.

EDDIE JAMES MILES
was next witness called in behalf of the petitioner, after 
being first duly sworn by the Clerk, testified as follows:



103

DIRECT EXAMINATION
BY MR. HILL:
Q Would you state your name?
A Eddie James Miles.
Q Where do you live?
A Monticello.
Q How long have you lived in Monticello?
A Overnight.
Q Do you know Glynnell Presley?
(93) A Yes, I do.
THE COURT:

It is a little hard to hear in here, so talk 
loud enough so they can hear you back there.
A Yes, I do.
MR. HILL CONTINUING:
Q What is his position?
A Coach, Glynnell Presley.
Q Did you have occasion on or about September 24th
to witness an incident that occurred in and about the Gulf 
station in Monticello?
A That's right.
Q Was Glynnell Presley involved in that incident?
A Yes, he was.
Q What were you able to observe that happened?



104

MR. BIRD:
Your Honor, could I interrupt here?

THE COURT:
Yes, you may.

(94) MR. BIRD:
If this particular witness was at the station, 

present, at the time the policemen arrived on the scene —
THE COURT:

I think it would make it a little more clear if 
when and where.
MR. HILL CONTINUING:
Q On the night of the events of this occurrence, there
at the Gulf station, was Glynnell Presley there, did you see 
him get any gas or see him have any words with this gas 
attendant or the proprietor of that station?
A Yes, I did.
Q Will you relate —
MR. BIRD:

Your Honor, I have reason to believe that he 
was not present there at the time the policemen arrived. 
Therefore, his testimony is not material.
MR. HILL:

Your Honor, he has the right to (95) cross­
examination.



105

THE COURT:
That's true. Objection is overruled. You may

proceed.
MR. HILL CONTINUING:
Q Will you please state what you observed at the
time and place?
A When I arrived at the Gulf filling station, I
saw Mr. Presley's car parked there in front. The fellow 
that worked there was putting gas in it, so I went inside 
to get a patch of rubber. Then I came out. Presley, he 
was coming up from the back where they had the bathrooms.
He asked the guy where was the manager and he said he 
didn't know. So, he asked him again. And he said, he 
isn't here, but I will call him. He went in and called 
Mr. Bailey who was the owner of the station and in less 
than five minutes he drove up and when he drove up he got 
out of the car and came over and he asked him to pay for 
the gas. So, Presley then asked him about the bathroom —
Q What did he ask about the bathroom?
(96) A He asked him why was it so nasty. Why it
hadn't been cleaned up. And at that time Mr. Bailey grabbed 
Mr. Presley and one was back and forth and another, and this 
guy from across the station he ran over and the fellow that 
was working there at the Gulf station went up about half 
a block where some cars were parked and they came down.



106

Q Did Glynnell Presley ever strike or hit Mr.
Bailey?
A I didn't see him hit him.
Q Did Mr. Bailey strike, hit Glynnell Presley?
A When Mr. Bailey got there, he was raising sound,
and he pushed him up against the car to try to get the credit 
card away from Presley which Presley had in his hand.
Q Did Mr. Bailey grab Presley in the collar?
A Yes, he did. He grabbed him in his collar and
pushed him up against his car, and Presley pushed him back, 
and then he grabbed him again and by that time the guy from 
across the street at the Sinclair (97) station came and 
he broke it up.
Q Did Glynnell ever hit Mr. Bailey?
A No, I didn't see him hit Mr. Bailey.
Q Did the law enforcement officers come up?
A Yes, they came up.
Q And what did they do?
A Well, the arresting officers were seated over
there and the first thing he asked us had he been drinking.
He told them, no. And then, he asked him who was he to 
question a person about the bathroom. And so Presley told 
him he was a citizen and he thought he had the right to 
question the owner about the bathroom by him holding a Gulf
Credit Card.



107

Q Did Mr. Presley want to use the bathroom facilities
they had there?
A That's right. They had one on the back which was
kept pretty dirty and things.
Q And is that the one that the negroes used?
A That's right.
(98) Q Isn't it a fact that they have segregated
bathroom facilities there?
A Well, there is one, and the other one had "manager"
or "private" on it. And the mens had the same thing on it 
too.
Q And negroes don't go in the "manager" or "private"-
one?
A They go in the one on the back.
Q But white people go in the "manager's" or the
"private" one?
A That's right.
Q Does Mr. Malloy have a service station?
MR. BIRD:

I object, Your Honor.
THE COURT:

I note the objection and agree that it is irrele­
vant. We will allow the answer. You may answer the question. 
Go ahead.
A Yes, he runs the Shell service station.



108

(99) MR. HILL CONTINUING:
Q Was Glynnell any louder than Mr. Bailey while
you were there?
A I didn't detect it if he was.
Q Did you observe Glynnell Presley disturbing the
peace or being guilty of disorderly conduct?
MR. BIRD:

I object, Your Honor. That is for the policeman
to say.
THE COURT:

Objection sustained in the form of the question. 
MR. HILL CONTINUING:
Q In other words, did he reflect any conduct that
you were able to see and determine that it would be against 
the public interest?
A Well,
THE COURT:

Counsel, that calls for a conclusion of the wit­
ness. Objection sustained, in the form of the question.
He can only relate what he saw.
(100) MR.HILL CONTINUED:
Q What did you see Mr. Glynnell Presley do, only
what you just testified to?
A That is the only thing I saw him do.
Q As far as the altercation was concerned Mr. Bailey



109

did everything to him, is that right?
A That's right.
Q Did you hear Mr. Bailey curse?
A No.
Q Was Mr. Bailey loud?
A Yes, he was loud and kind of a raging stage.
Q Was the situation in Monticello at that time, was
it such, the conduct such as to frighten you?
MR. BIRD:

I object, Your Honor.
THE COURT:

Objection sustained.
(101) MR. HILL CONTINUING:
Q Are the facilities at the service station, at
the Shell service station which Mr. Malloy operates,
segregated?
MR. BIRD:

Object, Your Honor.
THE COURT:

I note the objection. You may answer the question. 
A To my knowing they isn't. They have men and
women, that is my last knowing of. I was there some four 
months ago, I think.
THE COURT:

They are or are not? I didn't understand your
answer.



110

A They are integrated.
MR. HILL CONTINUING:
Q You can go in either one of them you want to?
A Yes sir. The women for the women and the men
for the mens.
Q Have you ever been in either one (102)
Q When was it?
A When I was working with Harrison & Wright.
Q Was that on one occasion or more than one occasion?
A It was on one occasion.
Q Was that recently or has that been a policy of
that particular service station?
A Well, from the time that station was built to my
knowing of it, and the new law was passed, it has been like 
that ever since.
Q When was it, to your knowledge, that the new law
was passed?
A I know it has been in ever since, 1966.
Q Do you know whether it was before then?
A Well, before then I don't think the station was
built. They used to be a big building there and they tore 
it down and built this station.
(103) Q Since this service station has been there you
have been able to use these facilities?
A Yes, I have.



Ill

Q Do you know anyone else that has been denied?
A One time they said it was out of order and I
didn't see no one else go in it.
MR. HILL:

That is all.
THE COURT:

Any questions?
CROSS-EXAMINATION

BY MR. BIRD:
Q Mr. Miles, you testified that Mr. Presley said
to Mr. Bailey that the restroom was dirty?
A Yes sir.
Q He was complaining that the restroom was dirty?
A Yes sir.
Q Did he make any complaint to the boy that was
there, Richard Powell?
A He did.
(104) Q What complaint did he make to him?
A He asked him why didn't he keep it clean and he
said it was not his job.
Q Did you ever hear him complain that he was not
allowed to use the restroom?
A Well, he didn't give him the key to the other
restroom that was private.
Q He didn't say he was denied the use of the rest
room?



112

A Those particular two?
Q Any restroom?
A I don't follow you.
Q His complaint was that the restroom was dirty,
is that right?
A The one that stays open all the time.
Q That is the one that he was complaining about,
wasn't it?
A Yes.
Q And he complained to Richard Powell, (105) the
attendant, and to Mr. Bailey, because the restroom was 
dirty?
A Yes sir.
MR. BIRD:

I have no further questions, Your Honor.
THE COURT:

Any questions?
REDIRECT EXAMINATION

BY MR. HILL:
Q But the attendant did not give him the key to this
Manager's bathroom or this one that was marked private?
A He didn't have the key.
THE COURT:

What was your answer, I didn't hear you?
A He said he did not have the key to those restrooms.



113

Q So, Mr. Presley did not go into either one?
A Nothing but the one on the back.
(106) MR. HILL:

No further questions.
THE COURT:

Any questions?
MR. BIRD:

I have no further questions, Your Honor.
THE COURT:

All right. You may come down.
MR. HILL:

Johnny Charles.
JOHNNY CHARLES

was next witness called in behalf of the petitioner, having 
previously been sworn, testified as follows:

DIRECT EXAMINATION
BY MR. HILL:
Q You have been sworn?
A Yes sir.
Q Would you mind stating your name, please?
A My name is Johnny Charles.
Q And where do you live?
(107) A i live in Daytona Beach, Florida.
Q What is your occupation?
A My occupation is coach.
Q Where do you coach?

MR. HILL CONTINUING:



114

A West College in Jacksonville, Florida.
Q Have you ever been a coach in Jasper, Florida?
A Yes, I have.
Q Have you ever been a coach in Monticello or
Madison?
A No.
Q Have you ever been to any of those places with
other teams in that area?
A Yes, I have.
Q When were you last in Monticello?
A Last in this area in September.
Q Of what year?
A Of this year.
THE COURT:

You mean, 1966?
(108) A That's right.
MRo HILL CONTINUING:
Q Did you have an occasion to use the facilities
of a Shell service station?
THE COURT:

Counsel, this issue here is limited to matters 
concerning the arrest and nothing else. It is the matter 
of the Petition for Removal and Remand. That 's all. I 
confine the issue to that. If he has no knowledge about 
the arrest, his testimony is not pertinent.



115

Sir, it goes to the veracity.
THE COURT:

You may make the proffer. And let the record 
so show it, but that would not be relevant to this limited 
issue. If he doesn't have personal knowledge of that, it 
would not be relevant.
MR. HILL:

Personal knowledge of the arrest?
THE COURT:

That is correct. As to the reasonableness of 
the arrest, that is the sole issue for (109) determination 
by this court today at this hearing. It doesn't mean that 
the man has to be guilty of what he is charged with, it 
is the reasonableness of the arrest.
MR. HILL:

I offer here as a proffer to show that there is 
a policy and custom of the station and a denial of the 
public accommodations to members of the negro race.
THE COURT:

Let the record so show and the Court just repeats 
what it said before. The trial in some other context is 
not before this Court on this hearing on remand. Is there 
amy other testimony with respect to the reasonableness of

MR. HILL:

the arrest?



116

We have none, Your Honor.
THE COURT:

Mr. Hill?
MR. HILL:

No, Your Honor, other than I was (110) going 
into the question of a fair trial.
THE COURT:

I think that is completely precluded from the 
hearing on this case. If you don't get a fair trial there, 
or anywhere else, they are all under the same cover of the 
United States Constitution, and anticipatory acts of other 
courts, and assuming inability to get a fair trial are not 
relevant inquiries on petition to remand, as is clearly 
stated and flatly stated by the majority opinion in Green­
wood v. Peacock.
MR. HILL:

And denial of the right and a denial the court has 
held of his right.
THE COURT:

All those matters have been ruled on by the Supreme 
Court in Greenwood v. Peacock, and said he would get those 
same things protected in State court just like you can 
here, and they guarantee them. If they fail to do so, 
you have got a good adequate (111) remedy. It was recently

MR. BIRD:



117

proven over there in that very city. We don't presump­
tively assume that everybody is going to violate the law.
We certainly have to assume that our courts are going to 
operate within the law and if they don't they are going 
to get reversed. This is what happens.

On this petition to remand the Court on the basis 
of the inquiry here concludes that this case must be re­
manded to the court from whence it was removed and ap­
propriate order will be entered to that effect. The 
basis of this is the case of Greenwood v. Peacock.

And the distinction attempted to be noted in 
Georgia v. Rachael is just simply not practical in the 
contents of this case, either upon the pleadings or upon 
the proof adduced, or upon the proof proffered of all three 
of them. So the cause will be remanded as of this date on 
the authority of that case.
MR. HILL:

Your Honor, I would like to know (112) the 
allotted time in which to appeal the matter?
THE COURT:

Well, you have got that, the rules provide that, 
of course. I honestly don't recall offhand. Is there 
any objection to setting an arbitrary time? You have got 
ten days to do it.



118

I was wondering whether or not, I am not too 
familiar with the time, and I wanted to consider it a little 
bit.
THE COURT:

Well, you wouldn't be barred within the next ten 
days. Counsel do you have any objection to that being made 
a part of it? I think you are entitled to it, to ten days, 
and if you aren't that's it anyway. If the rules decide 
you are entitled to more than that, you get that too. What 
I am saying is you are guaranteed that you have at least 
ten days. It may well be that neither one of you will ever 
hear any more about this case.
MR. BIRD:

Your Honor, the City of Monticello (113) requests 
that it be awarded costs and a reasonable attorney's fee 
in the expenses of removal in this case.
MR. HILL:

Your Honor, I feel that such a request is out of 
proportion of the usual demand.
THE COURT:

I am going to say this, on these Greenwood cases, 
in another context it might be more applicable to award 
costs; for example, we had one attempted removal of a 
case that was set down for trial in State court some month

MR. HILL:



119

or six weeks, and on the day before the trial after all 
the witnesses had been gathered from a good many different 
places, then they file a petition for removal to come over 
here, and it was just clearly a case that fell in the 
Greenwood v. Peacock category. That could have been 
very expensive and called for a complete breakdown of 
any kind of orderly procedure among our courts. The 
cause was remanded the same day it was filed, no petition 
in there was made for the costs, (114) however, had there 
been, the Court would have considered it had they done that. 
I will say in this field, now, in denying your request —
MR. BIRD:

Your Honor, —
THE COURT:

Yes.
MR. BIRD:

—  the basis for this request is that the expense 
of the City of Monticello that on these types of removal 
and remanded to the City back for trial, the defendant, nor 
his attorney, even bothered to show up for trial. The bond 
was escheated. If the petitioner is willing to tell the 
court in good faith they will pursue this and attend the 
trial, and they are right and show good faith in it, I 
can certainly understand why the court would deny court 
costs, but if they are just going to drop it now, and it



120

is their intention to purely act in bad faith, then the 
city should be awarded their costs.
(115) MR. HILL:

Your Honor, I will say this to counsel and to 
this court, having practiced for nineteen years, and 
counsel knows me, and I have never backed off of a cause, 
and it is certainly inconsistent with my request of ad­
ditional time in which to further advance this cause by 
virtue of appeal. So, it certainly is not changed and 
it is not our intention.
THE COURT:

I am not so much concerned about the costs on 
those grounds advanced by counsel as I would be the cause 
of one to resist the temptation to put everything into a 
Federal case which we simply can't handle and under the 
law it is not required. We have a very elaborate and a 
long established system of dual courts in this country 
and for every trial judge on the Federal bench from 
Gainesville to Pensacola, and there is one of them, there 
must be at least forty or fifty, perhaps sixty, other trial 
judges under the State system, and the great bulk of (116) 
the law is and has been, and I dare say will long continue 
to be, administered by tribunals that are State in origin. 
And this being the case we have got to have some sensible 
bookkeeping between the two and in accordance with the law



121

as the Greenwood v„ Peacock very clearly points out.
I am going to at this time deny the costs. I 

am going to say this though, that in these type cases, 
unless there is a valid, a clearly valid situation, such 
as in Georgia v. Rachael, and it is clear, I will in the 
future give consideration to awarding costs in those type 
cases. It has not been completely settled in this field 
yet, the '64 Civil Rights Act and the 1966 opinion is settled, 
and it has been the law now about ten months, and all who 
come into the establishment of our law, and it is rather 
recent, so until it is done I will deny the costs within 
that context and with that observation.

Anything further?
Court will be in recess.
(Whereupon Court stood adjourned).

(117) I, HATTIE BELL LOVE, do hereby certify that the
within and foregoing constitutes a true and correct transcript 
of my shorthand notes taken, and Audograph recording, in re: 
GLYNNELL PRESLEY Vs. CITY OF MONTICELLO, on January 24th,
1967 and February 21, 1967, in UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF FLORIDA.

This 18th day of August, 1967.
s/ Hattie Bell Love

OFFICIAL COURT REPORTER 
NORTHERN DISTRICT OF FLORIDA.

. e . O0O. e .



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