Shuttlesworth v Birmingham AL Petition for Removal

    DUPLICATED RECORD

IN THE

UNITED STATES

COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 23840

FRED L. SHUTTLESWORTH,

Appellant

versus

CITY OF BIRMINGHAM,

Appellee.

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



I N D E X
PAGE NO.

Notice For Petition For Removal. . . . . . . .  1

Petition For Removal........................   . 2

Transcript Of Record Of Supreme Court Of The

United States. . . . . . . .  ..............  , . 11
Officer Robert L. Byars. . . . . . . . . . .  30”

Officer James P. Renshaw . . . . . . . .  . 68

Officer C. W. Hallman. . . . . . . . . .  . 98

Mr. John D. Allred. . . . . . . . . . . . .  109

Officer Cecil W. Davis. .................... 118

James Armstrong. . ......................  129

Robert J. Norris. ..........................  147

Walter King ..............................   . 161

Simpson Hall................................  171
Fred L. Shuttlesworth. . . . . . . . . . . .  179

James S. Phifer. ...........................  201
Rebuttal Testimony On Behalf Of Plaintiff... . 214

Officer James P. Renshaw...................  214

Motion To Remand. ..........................   . 237

Motion To Reconsider Order To Remand.......... 244

Order....................     . 246

Motion For Stay Pending Appeal................  246

Order................. .............. .. . . . 247

Notice Of Appeal...............................  248

Clerk's Certificate. . . .  ...................  249



1

CIRCUIT COURT OF JEFFERSON COUNTY )
BIRMINGHAM, ALABAMA 
CITY OF BIRMINGHAM,

Plaintiff

)
)
) CRIMINAL ACTION

FRED L. SHUTTLESWORTH
v

Defendant

) No. CR 66 203-s
)
)

TO: Honorable Elias C. Watson, Jr.
Circuit Judge, 10th Judicial Circuit 
Jefferson County, Alabama 
County Courthouse 
Birmingham, Alabama
William C, Walker, Esquire 
Assistant City Attorney 
City Hall
Birmingham, Alabama 

Gentlemen:
PLEASE TAKE NOTICE that a verified petition for re­

moval of the above-styled action from the Circuit Court of 
Jefferson County to the United States District Court for 
the Southern Division of the Northern District of Alabama, 
a copy of which is attached hereto, was duly filed this 
day in said United States District Court, at the office of 
the clerk of the Court, Birmingham, Alabama, dated the 17th 
day of May, 1966.

s/ Peter A. Hall
Peter A. Hall
Orzell Billingsley, Jr,

1630 Fourth Avenue, North 
Birmingham, Alabama 35203



2

JACK GREENBERG
JAMES M. NABRIT, III
NORMAN C. AMAKER 
10 Columbus Circle
New York, New York 10019

ANTHONY G s AMSTERDAM 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

ATTORNEYS FOR DEFENDANT,

...o0o/..

PETITION FOR REMOVAL

TO THE HONORABLE JUDGE OF THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA:

The petition of the above-named defendant, by Peter 

A. Hall and Orzell Billingsley, Jr., two of his attorneys, 

respectfully shows:

I
1) Petitioner Fred L. Shuttlesworth is a Negro ci­

tizen of the State of Ohio and'of the United States. He 

was formerly a resident of the City of Birmingham, Alabama.

He is well known to the city authorities, police and resi­

dents as a civil rights leader. He is also known through­

out the State of Alabama and the United States as a leader 

in the movement of American Negro citizens to obtain equal 

rights and equal protection of the laws.

2) Petitioner has been active since 1958 in orga­

nizing the Negro citizens of the City of Birmingham by

• lawful and peaceful means to obtain an end of racial



3

discrimination in all aspects of life in the city, and 
to protest the racial discrimination which the city and 
the State of Alabama by statute, ordinance, custom and 
usage have maintained in violation of the equal protection 
clause of the Fourteenth Amendment for on® hundred years 
and still maintain today. In the course of this activity, 
he has been arrested and prosecuted by the city more than 
a dozen times on account of lawful acts protected by the 
federal constitutional and statutory guarantees of free 
expression, free assembly ahd equal protection of the 
laws. The purpose of these prosecutions has been to harass 
and to punish him by reason of his advocacy of equality 
for Negroes, and to intimidate him and the other Negro 
citizens of the city from asserting their rights to equali­
ty and peacefully to protest racial inequality.

II.
3) On April 4, 1962, petitioner and five other 

Negro persons were walking in an entirely orderly man­
ner south on the west sidewalk of 19th Street in the down­
town section of the City of Birmingham. On that day 
there were very few Negroes in the downtown section, by 
reason of a selective buying campaign by which the Negro 
citizens of the city were attempting to persuade the 
city’s department stores to end discrimination in em­
ployment and service. Petitioner and his companions



4

walked two or three abreast on a wide sidewalk, and
in no way obstructed the sidewalk. As they slowed 
down for a red traffic light controlling pedestrian traffic,
at the intersection of 19th Street and Second Avenue, North, 
but before they had come to a stop, petitioner was accosted 
by Patrolman Robert E. Byars, Jr., of the Birmingham Police 
Department. Byars ordered petitioner to move along, but 
stationed himself directly in petitioner's path so that 
petitioner could not continue in the direction in which he 
had been walking. Petitioner thereupon attempted to move 
along by entering Newberry's Department Store at the corner 
of 19th Street and Second Avenue, North; Byars pursued 
him and arrested him. When one of the petitioner's compan­
ions, the Reverend James S. Phifer, attempted to talk to 
petitioner, Byars arrested Phifer as well. Petitioner and 
Phifer were both charged with loitering (Birmingham City 
Code 1142, as amended by Ordinance No. 1436-F) and non- 
compliance with a policeman's order (Birmingham City Code, 
Section 1231).

4) At no time prior to this arrest had petitioner 
done anything which could remotely be conceived to be loi­
tering or non-compliance with a policeman's order. At no 
time had he in any way obstructed any person or any passage 
on the sidewalk or interfered in any way with pedestrian 
or vehicular traffic. r'"'



5

5) Petitioner was tried April 5, 1962, in the Re­
corders Court of the City of Birmingham on the two charges 
described in paragraph 3 supra. He was convicted on both 
charges and sentenced to 180 days imprisonment at hard la­
bor, $100 fine and costs. He appealed for trial de novo 
in the Circuit Court of the Tenth Judicial Circuit. At his 
trial there, the testimony given was that reported in the 
Transcript of Record, Supreme Court of the United States, 
October Term 1965, No. 5, annexed hereto as Appfendix I and 
incorporated in this petition as though fully set out herein. 
He was again convicted and sentenced to 180 days imprison­
ment at hard labor, and to another 61 days imprisonment 
at hard labor in default of fine and costs. His contentions 
that he could not be so convicted and sentenced consistent? 
ly with the due process and equal protection clauses of the 
Fourteenth Amendment were rejected by the Court. On his 
appeal, the Alabama Court of Appeals also rejected his fe­
deral contentions and affirmed the conviction and sentence. 
Timely application for rehearing was denied by that Court; 
the Alabama Supreme Court denied certiorari and rehearing; 
but the Supreme Court of the United States granted certiorari 
and on November 15, 1965, reversed petitioner's conviction. 
True copies of the record of this proceeding are contained 
in the Transcript of Record described above, and are at­
tached hereto, and incorporated by reference herein. The



6

opinions of the Supreme Court unanimously reversing pe­

titioner's conviction are at 382 U.S. 87 (1965).

III.

6) The Alabama Court of Appeals, on remand from the 

Supreme Court of the United States, remanded the case to 

the Circuit Court of Jefferson County, Alabama (181 So. 2, 

628). Notwithstanding the reversal of petitioner's earlier 

conviction by the Supreme Court, the city has initiated a 

new prosecution on one of the two charges described in pa­

ragraph 3, supra, -- violation of Birmingham City Code No. 

1142 as amended by Ordinance No. 1436-F. It is this pro­

secution listed for trial in the Circuit Court of Jefferson 

County, Alabama, on May 18, 1966, which the present petition 

removes to this Court.

IV.

7) The acts for which petitioner is being held to 

answer for offenses, as described in paras. 1-3 supra, are, 

insofar as the acts charged have any basis in fact, acts

in the constitutionally protected exercise of petitioner's 

rights under the due process and equal protection clauses 

of the Fourteenth Amendment and under 42 U.S.G. Sections 

1981, 1983 (1964). Such rights include petitioner's right 

to use the sidewalks of the City of Birmingham for ordinary 

pedestrian activity free of racial discrimination and harass­

ment, petitioner's right to converse in an orderly and



7

non-obstructive manner with other persons on the public 
sidewalks, and petitioner's right against harassment and 
intimidation on account of his advocacy of equal rights 
for Negroes. Insofar as the offenses charged against peti­
tioner are based on allegations of conduct not protected 
by the federal Constitution and laws cited, these allegations 
are groundless in fact and the prosecution is maintained 
solely for harassment, in violation of the due process and 
equal protection clauses. Prosecution and conviction of 
petitioner on the charges agains him has and will punish 
him for the exercise of rights, privileges and immunities 
secured him by the federal Constitution and Laws, and has 
deterred and will deter him an other similarly situated from 
the future exercise of these rights, privileges and immu­
nities, for if the Birmingham ordinance under which he is 
prosecuted make petitioner's conduct criminal, they are un­
constitutional on their faces and as applied, whereas if 
the statutes are construed so as to save their constitu­
tionality under the federal Constitution, there is no evi­
dence upon which petitioner may be convicted consistently 
with the due process and equal protection clauses.

8) The arrest and prosecution of petitioner has been 
and is being maintained for the sole purpose and effect of 
harassing petitioner and of punishing him for, and deterring 
him and Negro citizens of the City of Birmingham from . :



8

exercising their constitutionally protected rights to equal 

protection of the laws, and their constitutionally protec™ 

ted rights of free expression to protest racial discrimi­

nation which the City of Birmingham and the State of Alaba­

ma now maintain by statute, ordinance, custom and usage.

This harassment is pursuant to a policy of racial discrimi­

nation which is encouraged, followed and enforced by legis- 

lation and by executive and judicial action of the City of 

Birmingham and the State of Alabama. Such harassment, which 

is manifested not only in the present groundless prosecution, 

but in the earlier similar prosecutions of petitioner des­

cribed' in paragraph 1, supra, denies him due process of law 

and equal protection of the laws; and further violates pe­

titioner's rights secured by the mandate of the Supreme Court 

of the United States in this case, which continued prosecu­

tion flouts.

V.

9) By reason of the foregoing, petitioner is pro­

secuted for an act done under color of authority derived 

from the federal Constitution and laws providing for equal 

civil rights, that is, U.S. CONST;, AMEND* XIV, and 42 U.S.C. 

Sections 1981, 1983 (1964); and he has been and is denied 

and cannot enforce in the state courts of Birmingham and 

Alabama rights under the same cited federel statutory and 

constitutional sections.



9

10) Moreover, petitioner is unable to enforce 
these rights in the state courts of Birmingham and of Ala­
bama because:

a) petitioner will be prosecuted in those courts 
by prosecutors and before judges who have been elected by 
an electorate from which Negroes have been excluded by 
reason of race, and which is hostile to Negroes and to pe­
titioner in particular by reason of his leadership in the 
movement for Negro equality;

b) those courts sit in a community which is hostile 
to petitioner for the same reasons, and from which a jury 
free of racial prejudice cannot be selected; and

c) Negroes are systematically excluded from jury 
service in those courts.

WHEREFORE, petitioner prays that jurisdiction over 
this cause be retained by the Court pursuant to 28 U.S.C. 
Sections 1443(1), (2), (1964), and that the prosecution 
against him be forthwith dismissed pursuant to FED. RULE 
GRIM. PRO. 12.

VI.

s/ PETER A. HALL 
PETER A. HALL 
ORZELL BILLINGSLEY, JR.

1630 Fourth Avenue, North 
Birmingham, Alabama 35203

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN C. AMAKER

10 Columbus Circle 
New York, New York 10019



10

ANTHONY G. AMSTERDAM 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

ATTORNEYS FOR DEFENDANT»

..„oQo...

STATE OF ALABAMA )
:SS.

JEFFERSON COUNTY )
VERIFICATION

FRED L. SHUTTLESWORTH being duly sworn, deposes and

says that he is the defendant herein and that he has read

the foregoing petition and knows the contents thereof, and

that the same is true to his own knowledge, except as to

those matters therein stated to be on information and
belief, and as to those matters he believes.-them to be true.

s/ Fred L. Shuttlesworth

Sworn to and subscribed before

me this 17th day of May, 1966.

s/ Pearl W. Cole 
Notary Pub1ic
My commission Expires May 1, 1967

(Sea 1)



11

TRANSCRIPT OF RECORD 
SUPREME COURT of the United States

OCTOBER TERM , 1964
NO. 423

FRED L. SHUTTLESWORTH^ PETITIONER
v s .

CITY OF BIRMINGHAM.
(Filed: May 

17, 1966

ON WRIT OF CERTIORARI TO THE COURT OF 
APPEALS OF THE STATE OF ALABAMA

PETITION FOR CERTIORARI FILED
AUGUST 21, 1964
CERTIORARI GRANTED MAY 1,1965

(fol. 1)
IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT 
of aLaBAM“Tn a'nd' EO'R JEFeERSON County

No. 23953

The State, City of Birmingham, 
vs

F. L. Shuttlessorth.

ORGANIZATION OF COURT
At a regular term of the Circuit Court of the Tenth 

Judicial Circuit of Alabama, at which the officers authorized 
by law to hold or serve said Court were serving, the follow­
ing proceedings were had in cause styled:



12

IN THE CIRCUIT COURT OF THE TENTH 
JUDICIAL CIRCUIT OF ALABAMA 
CITY OF BIRMINGHAM

APPEAL BOND -----Filed May 18, 1962
The State of Alabama,
Jefferson County,

We, Fred L. Shuttlesworth, principal and James Esdale 

sureties, acknowledge ourselves indebted to the City of 

Birmingham, a municipal corporation, in the sum of Three 

Hundred Dollars, for the payment of which, well and truly 

to be made, we bind ourselves, our administrators, and exe­

cutors. But the condition of the above obligation is sue hr, 

that whereas the above bounden principal was tried and 

convicted on the charge of Count 1. Violation Section 1142- 
G.C.C. As amended Ordinance 1436 F. Count 2, Violation 

(2) Section 1231- G.C.C. and has. prayed and obtained an ap­

peal to' the Circuit Court of Jefferson County, Alabama, from 

the judgment of the Recorder's Court of the City of Birming­

ham, adjudging him to pay a fine of One Hundred Dollars, 

Costs Five Dollars; Fees none Dollars, and to perform hard 

labor for 180 Days, rendered the 5 day of April 1962.

Now, if the said principal shall appear at present 

Term of the Circuit Court of Jefferson County, Alabama, and 
from term to term thereft.er until discharged by law, then 

this obligation to be void, otherwise to remain in full 

force and effect. And as against this obligation we waive 

all right under the laws of Alabama to claim any personal



13

property as exempt from levy and sale.
Witness our hand and seals this 5 day of April 1962.

F. L. Shuttlesworth (L.S.) 3164 29 Ave. N 
James Esdale (L.S.) 809 No. 21st St. Bham.
By A. E. Brooks (L.S.) Atty in fact

(fol.2)' Approved 5th day of April 1962,
Chas.?*H. Brown, Recorder of the City of Birmingham.

(File endorsement omitted)

IN THE CIRCUIT COURT OF THE TENTH 
JUDICIAL CIRCUIT OF ALABAMA

No. 23953
(Title omitted)

COMPLAINT --Filed in Open Court October 29, 1962
Count One

Comes the City of Birmingham, Alabama, a municipal 
corporation, and complains that F. L. Shuttlesworth, with­
in twelve months before the beginning of this prosecution 
and within the City of Birmingham, or the police jurisdic­
tion thereof, did stand, loiter or walk upon a street or 
sidewalk within and among a group of other persons #o as 
to obstruct free passage over, on or along said street or 
sidewalk at, to-wit: 2nd Avenue, North, at 19th Street
or did while in said group stand or loiter upon said street 
or sidewalk after having been requested by a police officer 
to move on, contrary to and in violation of Section 1142



14

of the General City Code of Birmingham of 1944, as amend- 

ed by Ordinance Number 1436-F.

COUNT TWO

Comes the City of Birmingham, Alabama, a municipal 

corporation, and complains that F. L. Shuttlesworth, within 

twelve months before the beginning of this prosecution and 

within the City of Birmingham, or the police jurisdiction 

thereof, did refuse-.to comply with a lawful order, signal 

or direction of a police officer, contrary to and in vio­

lation of Section 1231 of the General City Code of the City 

of Birmingham.

William C. Walker, Attorney for City of Birmingham. 

(File endorsement omitted)

.(fQ1. 3)
IN THE, CIRCUIT COURT OF THE TENTH 

JUDICIAL CIRCUIT OF ALABAMA

No. 23953
(Title omitted)

MOTION TO QUASH--Filed in Open Court October 29, 1962
Comes now the defendant in this cause, and respect­

fully shows unto this Honorable Court the following facts:

1. That this defendant was arrested on to-wit,

April 4, 1962, and charged with the violation of Sections 
1231 and 1142 of the General City Code of Birmingham, 1944. 
(4) 2. That said arrest came as a result of defendant



15

walking the streets in downtown Birmingham.
3. The complaint is not sufficient to support the 

ordinance under which the defendant was arrested.
4. The affidavit, or information, or warrant, alle­

ging that the defendant violated Sections 1231 and 1142 of 
the General City Code of Birmingham, 1944, is so broad that 
the defendant is not sufficiently apprised of what he is 
called upon to defend against, and, therefore, the charge 
is vague, indefinite and uncertain.

5. The affidavit, or information, or warrant, upon 
which this cause is based is insufficient to support pro­
secution in this cause, in that no offense is alleged which 
is cognizable by this Honorable Court.

6. That the allegations of the complaint, and each 
count thereof, are so vague and indefinite, as not to apprise 
this defendant of what he is called upon to defend.

7. The said Sections 1231 and 1142, of the 1944 Ge­
neral City Code of Birmingham, under which said complaint 
is brought, as applied to this defendant, violates Section 
4, of the Constitution of Alabama, and the First and Four­
teenth Amendments to the Constitution of the United States 
of America.

8. That the aforesaid Sections 1231 and 1142 as 
applied (fol. 4) to the defendant is unconstitutional on 
its face, and that it is so vague, as to constitute a



16

deprivation of liberty, without due process of law, in 

violation of the Fourteenth Amendment of the United States.

9. That the said Sections 1231 and 1142 as applied 

to the defendant, constitutes an abridgement of privileges 

and immunities guaranteed defendant as a citizen of the 

United States in violation of the Fourteenth Amendment to 

the United States Constitution.
10. That the said Sections 1231 and 1142, as applied, 

constitute a denial of the equal protection of the laws,

in (5) violation of the Fourteenth Amendment to the Consti­

tution of the United States of America.

11. For that said complaint is vague, indefinite and 

uncertain and in the event of a conviction, it would deprive 

the defendant of due process of law in violation of the 

Fourteenth Amendment to the Constitution of the United 

States.
12. For that said statute is on its face unconstitu­

tional in that it deprives the defendant of the due process 

of law under the 14th Amendment to the United States Cons­

titution and it violates Article 1, Section 6, Alabama Cons­

titution, 1901.
Respectfully submitted,

Orzell Billingsley, Jr.,
Peter A. Hall,
ATTORNEYS FOR DEFENDANT

(File endorsement omitted)



17

(fol. 5)
IN THE CIRCUIT COURT OF THE, TENTH 
JUDICIAL CIRCUIT OF ALABAMA

No. 23953 
(Title omitted)

DEMURRERS--Filed in Open Court October 29,1962
Comes now F. L. Shuttlesworth, defendant in this 

cause, and demurs to the complaint in this cause, and to
each and every count thereof, separately and severally, and 
as grounds for such demurrer sets out and assigns the follow­
ing, separately and severally:

1. The affidavit or information which supports the 
complaint in this cause, does not charge defendant with any 
offense under the Constitution and laws of the State of Alabama.

2. That the complaint, affidavit or information 
upon which this cause is based is insufficient to support 
prosecution of this cause, in that no offense is charged 
which is cognizable by this Honorable Court.

3. That the allegations of the complaint and each 
count thereof are so vague and indefinite as not to apprise 
this defendant of what he is called upon to defend.

4. That Sections 1142 as amended by Ordinance No.
1436, and 1231 of the 1944 General City Code of Birmingham, 
Alabama, are invalid in that they violate Section 4, Article 
1, of the Constitution of Alabama, and the First and Four­
teenth Amendments to the Constitution of the United States 
of America. : •

5. That Sections 1142 as amended by Ordinance No.



18

1436 and 1231 of the 1944 General City Code of Birming­

ham, Alabama, which supports the complaint, affidavit or 

information in this cause, constitutes and abridgment of 

freedom of speech and assembly violative of rights and 

liberties secured the defendant by the First and Four- 

teenth Amendments to the Constitution of the United States 
of America.

6. That the aforesaid ordinances are unconsti­
tutional on (fol. 6) their face in that they are so 

vague as to constitute a deprivation of liberty without 

due process of law in violation of the provisions of the 

Fourteenth Amendment to the United States Constitution.

7. That said Ordinances or Statutes constitute an 

abridgment of privileges and immunities guaranteed de­

defendant as a citizen of the United States}- in violation

of the Fourteenth Amendment to the United States Cons­

titution .

8. That said Ordinances constitute a denial of

equal protection of the laws in violation of the Four­

teenth Amendment to the Constitution of the United

States of America.

Orzell Billingsley, Jr., 
Attorney for Defendant.

(File endorsement omitted)



19

(fol. 7)
IN THE CIRCUIT COURT OF THE TENTH 
JUDICIAL CIRCUIT OF ALABAMA

No. 23953
(Title omitted)

MOTION TO EXCLUDE THE TESTIMONY AND FOR 
JUDGMENT— Filed in Open Court October 29, 1962

Comes now F. L. Shuttlesworth, defendant in this cause 
after all of the testimony and evidence for the City of 
Birmingham has been given and received and moves this court 
to exclude said testimony and evidence and to give judgment 
for defendant, and as grounds for said Motion sets out and 
assigns the following, separately and severally:

1. The City of Birmingham has not made a case against 
this defendant, under either count of the complaint in this 
cause.

2. All of the testimony and evidence given in this 
cause indicates that defendant during the time and on the 
occasion in question merely was exercising rights and pri­
vileges given to him as a citizen of the City of Birmingham 
and of the United States of America by the laws and the cons­
titution of the State of Alabama, and by the First and Four­
teenth Amendments to the Constitution of the United States
of America.

3. There has been absolutely no evidence introduced 
by the City of Birmingham to support the complaint or



20

warrant in this cause,

4, All of the testimony and evidence offered by 

the City of Birmingham does not prove defendant guilty 

of any violation of a Municipal Ordinance during the time 

in question.

Orzell Billingsley, Jr., Peter A. Hall,

(File endorsement omitted)

(8) (fol. 8)

IN THE CIRCUIT COURT OF THE TENTH JUDICIAL 
CIRCUIT OF ALABAMA

No. 23953 

(Title omitted)

MOTION FOR NEW TRIAL-- 
Filed in Open Court October 30, 1962

Now comes the defendant, F. L. Shuttlesworth, and 

moves this Honorable Court to set aside the verdict and 

judgment rendered on to-wit, the day of ,1962, and

that this Honorable Court will grant the said defendant a 

new trial, and as grounds for said Motion sets out and as­

signs the following:

1. That the verdict of the Court in said case is 
contrary to the law.

2. For that the judgment of the Court is contrary 
to the facts.

3. For that the judgment of the Court is contrary 
to the law in the case.



21

4. In that the verdict of the court is not sustain­
ed by the great preponderance of the evidence in the case.

5. For that the judgment of the Court is not sus­
tained by the great preponderance of the evidence in the 
case.

6. For that the verdict of the court is so unfair, 
as to constitute a gross miscarriage of justice.

7. For that the sentence is excessive.
8. The Court erred in overruling defendant's de­

murrers, filed in this cause.
9. The Court erred in overruling defendant's 

Motion to Quash.
10. The Court erred in overruling the defendant's 

Motion to exclude the evidence in this cause.
(9) 11. For that the Court erred in sustaining objec­
tions, by the City of Birmingham, to evidence the defend­
ant sought to introduce in his behalf in this cause.

(fol. 9) 12. The Court erred in finding the defendant
guilty of violating the laws or ordinances of the City of 
Birmingham, Alabama, in that the laws or drdinances under 
which this defendant Was charged and convicted, and as • 
applied to this defendant constituted an abridgement of 
freedom of speech, violative of rights and. liberties 
secured to the defendant §y the First and Fourteenth 
Amendments to the Constitution of the United States of Ame-

13. That the Court erred in refusing to find that
rica.



22

the ordinance under which this defendant was being tried, 

as applied to this defendant, constituted a denial of the 

equal protection of the laws, in violation of the Fourteenth 

Amendment to the Constitution of the United States of Ame­
rica .

Orzell Billingsley, Jr., Peter A. Hall, Attorneys 
for Defendant.

The foregoing Motion being presented this 3oth day 

of October, 1962, is hereby set for hearing before the Honor­

able George Lewis Bailes, Judge, on the day of ,

1962, at o ’clock, .M.

_________________, Judge.

Certificate*-of Service (omitted in printing).

(File endorsement omitted)
(fol. 10)

IN THE CIRCUIT COURT OF THE TENTH JUDICIAL 
CIRCUIT OF ALABAMA

(Title omitted)

Appealed from Recorder's Court

(Violating Section 1142 and Section 1231,
General City Code)

Honorable Geo. Lewis Bailes, Judge Presiding.

JUDGMENT ENTRY

This the 29th day of October, 1962, came Wm. C. Wal­

ker, who prosecutes for the City of Birmingham, and also 

came t.he defendant in his own proper person and by attorney, 

and defendant withdraws jury demand and the City of



23

Birmingham files written Complaint in this cause, and the 
defendant files motion to quash said complaint and said 
motion to quash being considered by the Court, it is or­
dered and adjudged by the Court that said motion be and 
the same is hereby overruled; and the defendant files 
demurrers and said demurrers being considered by the Court, 
it is ordered and adjudged by the Court that said demurrers 
be and the same are hereby overruled, and said defendant 
being duly arraigned upon the Compliant in this cause, for 
his plea thereto says that he is not guilty and the defend­
ant files motion to exclude the testimony and for judgment 
and said motion being considered by the Court, it is or­
dered and adjudged by the Court that said motion be and the 
srnae is hereby overruled.

This the 30th day of October, 1962, the defendant 
renews his motion to exclude the testimony and for judg­
ment and said motion being considered by the Court, it is 
ordered and adjudged by the Court that said motion be and 
the same is hereby overruled.

Upon considereation of the pleadings and evidence 
submitted in this cause, the Court is of the opinion 'that 
the defendant is guilty as charged in the Complaint and 
it is therefore the judgment and sentence of the Court that 
said (11) defendant is hereby sentenced to pay a fine in the 
sum of One Hundred Dollars ($100.00) and costs of this cause.



24

And said defendant being now in open Court, and hav­

ing presently failed to pay the fine of One Hundred Dollars 

(fol. 11) ($10.0.00) and the costs of $5.00 accrued in the 

Recorder’s Court of the City of Birmingham, or to confess 

judgment with good and sufficient security for the same, 

it is therefore considered by the Court, and it is ordered 

and adjudged by the Court, and it is the sentence of the Law 

that the defendant, the said F. L. Shuttlesworth, perform 

hard labor for the City of Birmingham for 52 days, because 

of his failure to pay said fine of $100.00 and costs of 

$5.00 accrued in said Recorder's Court, or to confess 

judgment with good and sufficient security therefor.

It is further considered by the Court, and it is or­

dered and adjudged by the Court, and it is the sentence of 

the Law that the defendant, the said F. L. Shuttlesworth, 

perform additional hard labor for the City of Birmingham 

for 180 days, as additional punishment in this cause.

And the costs legally taxable against the defendant 

in this cause amounting to Twenty-eight and 45/100 Dollars 

($28.45), not being presently paid or secured, and $4.00 
of said amount being, State Trial Tax $3.00 and Law Library 
Tax $1.00, leaving Twenty-four and 45/100 Dollars ($24.45) 
taxable for sentence, it is ordered by the Court that said 

defendant perform additional hard labor for the County for 

nine days, at the rate of $3.00 per day to pay said costs.



25

It is further orderd by the Court that after the sentence 
for the City, of "'Birmingham has expired, that the City 
authorities return the defendant to the County authorities 
to execute said sentence for costs.

It is further considered by the Court that the State 
of Alabama have and recover of the said defendant the costs 
in this behalf expended, including the costs of feeding the 
defendant while in jail, for which let execution issue.

This the 30th day of October, 1962, said defendant 
files motion for new trial and said motion being considered 
by the Court, it is. ordered and adjudged by the Court that 
said motion be and the same is hereby overruled.
(12) This the 30th day of October, 1962, Notice of Appeal 
being given and it appearing to the Court that, upon :t>he 
(fol. 12) trial of this cause, certain questions of Law were 
reserved by the defendant for the consideration of the Court 
of Appeals of Alabama, it is ordered by the Court that the 
execution of the sentence in this cause be and the same is 
hereby suspended until the decision of this cause by said 
Court of Appeals of Alabama.

It is further ordered by the Court that the Appeal 
Bond in this cause be and the same is hereby fixed at Three 
Hundred Dollars ($300.00), conditioned as required by Law.



(fol. 13)
IN THE CIRCUIT COURT OF THE TENTH JUDICIAL 

CIRCUIT OF ALABAMA

APPEAL BOND TO COURT OF APPEALS--Ftled October 30, 1962

Appeal Bond--Hard Labor Sentence

The State of Alabama 
Jefferson County

Know All Men by These Presents, That we F. L. Shut- 

tlesworth principal, and Jas. Esdale; Willie Esdale 

& Esdale Bail Bond Co., sureties, are held and firm­

ly bound unto the State of Alabama in the sum of Three 
Hundred & no/100--Dollars, for the payment of which well

and truly to be made, we bind ourselves, our heirs, exe­

cutors and administrators, jointly and severally, firmly 

by these presents; and we and each of us waive our rights 

of exemption under the Constitution and laws of the State 

of Alabama as against this bond.

The Condition of the Above Obligation Is Such, That 

whereas, the above bounden F. L. Shuttlesworth was on the 

30 day of Oct. 1962, convicted in the Circuit Court of Jef­

ferson County, Alabama, for the offense of VS 1142 & 1231 

and had assessed against him a fine of One Hundred & no/100 

--Dollars, together with the cost of this prosecution, and 

and on the 30 day of Oct. 1962, on failure to pay fine was 

sentenced to perform hard labor for the City of Birmingham 

for 180 days, and an additional term for the cost, at the 

rate of seventy-five cents per day, and as additional

26



27

punishment imposed the defendant was sentenced to per­
form hard labor for the County for , from which sen­
tence the said F. L. Shuttlesworth has this day prayed 
and obtained an appeal to the Court of Appeals of Ala­
bama .

Now, If the Said F. L. Shuttlesworth shall appear 
and abide such judgment as may be rendered by the Court of 
Appeals, aad if the judgment of conviction is affirmed, or 
the appeal is dismissed, the said F. L. Shuttlesworth shall 
surrender himself to the Sheriff of Jefferson County, at 
the County Jail, within fifteen days from the date of such 
affirmation or dismissal, then this obligation to be null 
and void, otherwise to remain in full force and effect.

Given under our hands and seals, this the 30 day of 
Oct. 1962.
(fol. 14) F. L. Shuttlesworth (L.S.), Jas. Esdale (L.S.), 
Willie Esdale (L.S.), By Jas. Esdale, Atty in fact (L.S.), 
Esdale Bail Bond Co. (L.S.), By Jas. Esdale.

Approved: Oct. 30, 1962, Julian Swift, Clerk of the
Circuit Court of Jefferson County.

(File endorsement omitted)
(14) (fol. 15) (File endorsement omitted)

IN THE CIRCUIT COURT OF THE TENTH JUDICIAL 
CIRCUIT OF ALABAMA
CRIMINAL DIVISION 

No. 23953



CITY OF BIRMINGHAM, Plaintiff, 

vs.
F. L. SHUTTLESWORTH, Defendant.

28

Transcript of Hearing --October 29 and 30, 1962

The Above-styled Cause came on to be heard before the 

Honorable George Lewis Bailes, Judge, commencing on October 

29, 1962, at 10:50 A.M., when the following proceedings 

were had and done:

APPEARANCES

William C. Walker, Assistant City Attorney, Birming­

ham, Alabama, for the Plaintiff.

Peter Hall, and Orzell Billingsley, Attorneys at Law, 

Birmingham, Alabama, for the Defendant.

Reported by Jummie Crumley

PROCEEDINGS

MR. WALKER:

Is it all right to try these two cases together? 

MR. BILLINGSLEY:

Yes, sir.

MR. WALKER:

The charges are identical.

THE COURT:

Counsel ready?

MR. WALKER:
Yes, sir, Your Honor.



29

MR. BILLINGSLEY:
We are ready, Your Honor.

MR. HALL:
If Your Honor please, we have a motion to quash 

the complaint.
MR. WALKER:

Judge Railes, I would like for the record to show 
that by agreement or stipulation the case of James S. 
(fol. 16) Phifer, No. 23944, and Fred L. Shuttlesworth, 
No. 23953, will be consolidated and tried together, the 
City being the Plaintiff in each case.
MR. BILLINGSLEY:

Your Honor, before proceeding the Defendant would 
like to file a motion to quash in both cases, No. 23953 
and 23944.
THE COURT:

Are they identical?
MR. BILLINGSLEY:

Yes, sir.
THE COURT:

Let the motions be overruled.
MR. BILLINGSLEY:

Take exception.
Your Honor, at this time the Defendants would like



30

to file demurrers in both cases.
THE COURT:

I imagine in substance the same legal principles 
are set out?

MR. BILLINGSLEY:

Well, generally you might say with few exceptions. 
THE COURT:

Well, let the demurrers be overruled.

MR. BILLINGSLEY:

We take exception.

Your Honor, we would like to ask for the rule. 

(Whereupon the rule as to witnesses was invoked.) 

EVIDENCE ON BEHALF OF THE CITY 

Officer Robert L. Byars, called as a witness, being 

first duly sworn, was examined and testified as follows: 

Direct examination.

By Mr, Walker:

Q State your full name, please, sir.

A Robert L. Byars, Jr.

Q What is your occupation?

A Police patrolman, City of Birmingham, Alabama.

Q How long have you been so employed?
A Four years.

Q Do you know the defendants in this case?
A At the present time, yes, sir.



31

Q Would you point them out, please?

A The one with glasses on is Defendant Phifer, the 

(fol. 17) other is Defendant Shuttlesworth, the second 

one to the left.

Q Now, Officer Byars, did you have an occasion to see 

these defendants, or either of them, on or about April 4th 

of 1962?

A Yes, sir, I did.

Q About what time did you first see the defendants?

A Approximately 10:30 A.M.

Q Now, tell the Court where you were at the time you 

first saw the defendants?

A I was located just north of the alley between 2nd

and 3rd Avenue North on 19th Street in the City of Birming­

ham.

Q Was that at the alley?
A Yes, sir, just north of the alley, on the west side 

of 19th Street.
Q Where is that in relation to Newberry's Department 

Store?

A It would be to the north.

Q Was it close to Newberry's Department Store?

A Yes, sir.

Q Where was the defendants at that time?
A They were walking south on 19th Street towards 2nd

Avenue North.



32

Q Did you know who they were at that time?
A Not by name, nos sir.
Q Were the defendants alone or in company or----

A They were in company with three or four other people.

Q What did you see the defendants do then, if anything?

A I saw them walk south on 19th Street, and as they

got farther toward 2nd Avenue I entered the alley entrance 

to Newberry’s store.
Q Now, what was the last thing you saw the defendants 

do at that time?
A Walking south on 19th Street towards 2nd Avenue 

on the west side.
Q Did you go into Newberry’s store?

A Yes, I did.
Q Did you have occasion to see the defendants there­

after?
A I walked in Newberry's store and walked up to the

(fol. 18) front entrance, which is located on the northwest 

corner of the intersection of 2nd Avenue and 19th Street;

I saw them outside the store standing with a group of some 

ten or twelve people all congregated in one area.

Q And these defendants were members of that group?

A Yes, they were.

Q Now, was there any other pedestrian traffic at that 

t ime ?



33

A There was some people moving back and forth.

Q Were they members of this group that was standing 

there?

A Not the ones moving, no, sir.
Q Were the ones that were walking along,there, were 

they able to walk down the street without any obstruction?

A No, sir. On some occasions people who were walking 

in an easterly direction on the north side of 2nd Avenue 

had to go into the street to get around the people who were 

standing there.
Q What was this group of people doing, if anything?
A Standing and listening and talking.
Q How many people in your opinion was in the group?
A In my best judgment ten or twelve people.
Q Was that more than was in the group you saw walking 

beside Newberry's store when you were at the alley?
A Yes, sir.

Q There was more?

A Yes, sir.
Q Now, where was this group of people standing?

A They were standing in the western half of the western 

cross walk of 2nd Avenue and 19 Street North.

Q Is that on the same corner that Newberry's is on?

A Yes, sir, it is.
Q Where were you when you first saw them standing 
on this corner?
A I was inside Newberry's store.



34

(18)Q You had walked from the alley entrance to the

front entrance through the store?

A Yes, sir.
(fol. 19) Q Did you observe the defendants in the group 

for any length of time?
A In my best judgment for a minute to a minute and

a half while they stood.
Q What did you do then after observing them, if any­

thing?
A I walked out of the store and informed the group

of people they would have to move on and clear the side­

walk so as to allow free passage and not to obstruct it.

Q What did you tell them again, please?

A I told them they would have to move on and clear the

sidewalk and not obstruct it for the pedestrians.

Q What did they say or do, if anything?

A Well, some of the group began to move gradually

away.

Q What happened then? Just tell in your own words.

A Not all of them began to move, and I waited for a

short time and again informed them they would have to 

move and not obstruct the sidewalk and allow free pas­

sage for the pedestrians east and west, at which time the 

Defendant Shuttlesworth stated, nYou mean to say we can't 

stand here on the sidewalk?



35

Q What did you say in response?

A I said nothing in return. I only hesitated again

for a short time and informed them for the third and last 

time I was informing them they would have to move and 

clear the sidewalk or else they would be placed under ar­

rest for obstructing the sidewalk, at which time the De­

fendant Shuttlesworth responded with the statement, "Do 

you mean to tell me we can't stand here in front of this 

store?" At which time I informed him he was under arrest. 

And then he said, "Well, I will go into the store," and 

started toward Newberry's department store.

Q What happened then, if anything?

A He got inside the door and I reached and got him and

told him again he was under arrest.

(19) Q When you arrested the defendant on that occasion, 

what happened, if anything?

(fol. 20) A I took him into custody and walked with him 

with my hand placed on his arm, after having informed him 

he was under arrest, to the west curb just north of 2nd 

Avenue on 19th Street.
Q Did you ever see the Defendant Phifer at that time 

or about that time?
A After Defendant Shuttlesworth had been placed into 

custody and taken to the west curb to await transportation 

to the City Jail the Defendant Phifer approached and began



36

conversing with the Defendant Shuttlesworth.

Q What happened then, if anything?

A I informed the Defendant Phifer that Shuttlesworth

was under arrest and in custody of the Police Department 

and he was not able at this time to talk with him since he 

was a prisoner.

Q What happened? Did the Defendant Phifer cease talk­

ing to the Defendant Shuttlesworth?

A The Defendant Phifer continued to talk with him.

Q What happened then, if anything?

A I informed him if he did not move away and discon­

tinue his conversation with the Defendant he too would be 

placed under arrest and taken to the City Jail.

Q Did you arrest the Defendant Phifer?

A Yes, I did.

Q When you first observed the group that was stand­

ing on the corner at Newberry's do you know if the Defend­

ant Phifer was in that group?

A I didn't know him by his name, but he was in the

group present at that time.

Q Did you see the Defendant Phifer when you first saw 

the Defendant Shuttlesworth walking down 19th Street?

A He was with Shuttlesworth, but again, I did not 
know him by name at that time.

Q Did either of these two defendants, or any other



37

person in their presence that was in the group they were

in3 did any of them state their purpose for being on the 

street corner?
t , . v' *

(20) A No other person made any statement to me other than 
(fol. 21) the Defendant Shuttlesworth and the Defendant 
Phifer.
Q And what statements did they make, if any?

A Shuttlesworth stated, "We are just standing here 

on the street.1' On the second occasion he stated to me,

"Do you mean to tell me we can't go into the store?" And 

on the third occasion he stated, "Well, I will go in the 

store."

Q But he was under arrest at that time?

A No, not at that time. At the time of the last
statement when he said, "We will go into the store," he 

had been placed under arrest at that time.

Q You testified a moment ago some pedestrians had to 

step off the curb. Was traffic heavy at that time-pe­

destrian traffic?
A I would say it was normal for a Wednesday at that'

particular time of day.

Q And you saw some people step off the curb?

A Yes, sir.
0 0 '

Q Was that necessary?
A Due to the people moving in a westerly direction 

along 2nd Avenue they would have had to have waited until



38

those people got by or either elect to go, onto the street
to pass the group of people standing there.
MR. WALKER:

I believe that is all.
CROSS EXAMINATION 

By Mr. Hall:
Q Mr. Byars, I am going to attempt to draw a picture 
of the intersectionmd I hope I can get a reasonable fac­
simile. (Drawing on blackboard) Now, this is 19th Street 
and this is 2nd Avenue. This is Newberry's. (Indicating) 
Do you understand what I am trying to draw here? 19th 
Street running up and down from north to south and inter­
sects with 2nd Avenue.
A I understand,
Q This is the Newberry's corner right on the north­
west corner of that intersection. I believe you testified 
with reference to some phone booth and some telephone 
poles there at that corner. About where would you say 
that phone booth is?
(fol. 22) A I don't recall testifying to a telephone pole 
or telephone booth,
Q Well, you dfd in the police court, let's say,
A I did in the police court, yes.
Q Do you recall ever having testified about the phone 
booth?



39

A Yes, I do.

Q Would you say there is a phone booth there?

A There was at that time.

Q About where was it?

A There are two poles located and a telephone booth.

Q Would you mind showing us on that picture, please,

sir, about where the poles are and where the booth is?

A If I have permission, I will show you the cross walk

too.

Q Yes, sirj fine, the entire setup.

A I would say the phone booth is approximately here,

and the poles on each side (drawing on diagram).

Q Now, where is the cross walk east to west on 19th 

Street?

A (Indicating).
Q Now, Mr. Byars, with reference to this particular 

intersection, the phone booth and the crosswalk, where 
would you say the Defendants were standing at the time you 

made the arrest?

A Just east and north of the cross walk on the side- 

wa Ik.

Q Would you show us again?

A (Indicating on diagram).
Q Now, Mr. Byars, they were standing about where you

drew that little X mark?



40

A That is where the Defendant Shuttlesworth was.

Q That left more than half of the north-south cross 

walk free, is that correct?

A If he was there alone would it have left it?

Q Well, we are only concerned with these defendants,

(22) Mr. Byars. We don't know what other persons made 

up the crowd.

A Would you restate the question?

Q I say assuming the defendants were standing where

(fol. 23) you drew that little mark there, t?hat would 

have left more than half of your north-south cross walk 

free,would it not?

A That is true.

Q And they didn't block the east-west cross walk at 

all, did they?

A They did not.

Q Now, Mr. Byars, what is your rank, please, sir?

A Patrolman.

Q How long have you been with the Birmingham Police

Department?

A About four years.

Q Have you had occasion before April 4, 1962 to ar­

rest the Defendant Shuttlesworth?

A Never.

Q Have you been present on occasions when he has been



41

tried in the City court or any other court?

A Never.

Q Do you know the Defendant Shuttlesworth or Phifer 
by sight or reputation before April 4, 1962?

A I did not.

Q You had never heard of either of these two people?
A I had heard of them.

Q You knew that they had been frequently arrested by 

the police of the City of Birmingham, did you not?

A Not to my knowledge that they had been frequently 
arrested.

Q You did not know that they had been--you were not 

aware of that fact on April 4, 1962?

A Other than what I read.

Q You had read that they had been frequently arrested?

A But that does not make me aware of it.

Q You had read it in the daily newspapers?

A I am still not aware of it. I had read it, yes.

(23) Q How many times had you. read about the Defendant 

Shuttlesworth's arrest prior to that?
MR. WALKER:

We object to the number of times he read (fol. 24) 

about--I think the Court would probably take judicial no­

tice of the history of--



42

THE COURT:

Let him answer if he can.

A I believe on two occasions I had read of his arrest.

Q Did you know on the occasion of his arrest on April

4, 1962 he and the Reverend Phifer, the other defendant, 

had just been released from jail?

A I did not.

Q You didn’t read that in the daily newspapers?
A No.

Q You didn’t see it on the television shows?

A No.

Q You didn't hear it on the radio?

A I did not.

Q You had not read prior to that time that he had been 

imprisoned for more than a month?

A I was aware that he had been in the City Jail.

Q You had never seen his picture before that time?
A I believe so.

Q You had seen him on the television screen before 
that time?

A I believe so.

Q You were familiar with his face and features, were 

you not?

A I was not.

Q Tell me, Officer Byars, what was your usual duties



43

on April 4, 1962?

A I was in charge of the direction and movement of all 

traffic at 3rd Avenue and 19th Street and four blocks in 

an east3 west, north and south direction.

Q What are your duties now, Officer Byars?

A The same.

Q What were your duties on March 4, 1962?

A I don't recall.

Q On April 3, 1962?

(24) A I was off that day I believe.

(fol. 25) Q April 2, 1962?

A I don't recall. I am a utility officer.

Q What does that mean?

A I am assigned to different locations each day, or 

was at that time.

Q How long did your assignment which you had on April 

4, 1962 last?

A From 10:00 A.M. to 6:00 o ’clock P.M.

Q Was the occasion of your assignment on April 4, 1962 

the fact there had been a selective buying campaign intro­

duced in Birmingham by some unidentified Negroes?

A It was not.

Q Isn't it a fact it was a part of your duties to sur­

vey that section and attempt to ascertain, if possible, 

who was behind the particular selective buying campaign?



44

A I was in charge of the traffic-.movement in that par­

ticular area in which I was assigned at that time.

Q You were aware of the fact there was a boycott or 

selective buying campaign going on at that time, were you 

not?

A Not aware of the fact. I had heard that there was. 

MR. WALKER:

We object. This is getting pretty far afield about 

boycott and selective buying campaign, whether this Officer 

knew about it or not is immaterial.

MR. HALL:

If Your Honor please, part of our case is that the 

Officer arrested the Reverend Shuttlesworth and the Rever­

end Phifer as a part of a campaign of harassment rather 

than because of violation of a City ordinance, and we 

would like to show that if possible.

MR. WALKER:
We suggest, Your Honor, counsel ask if the Officer 

knows whether or not the defendants were part of the 
boycott or not.
MR. HALL:

We have to establish it first, Mr. Walker. We are 
asking if he knows about it.
THE COURT:

What is the question 
(fal. 26) MR. HALL:

We asked the Officer if he knew there was a selective 
buying campaign being waged by Negroes in Birmingham on 
April 4, 1962. That is the date of the Defendant's arrest.



45

THE COURT:

Let him answer.

A Not to my knowledge.

Q You had not been informed that there was such a 

campaign in effect?

A By whom?

Q By anyone.

A By people on the street.

Q You had been informed by the store owners themselves?

A Not by the store owners.

Q Had you seen any leaflets--mimeographed sheets and 

announcements to the effect that there was a selective buy­

ing campaign going on?

A I had not.

Q You had not been informed there was such a campaign 

going on by your superiors?

A I had not.

Q Officer Byars, I believe when you first observed these 

defendants you said you were north of the alley. That is 

2nd or 3rd Alley?

A The alley between 2nd Avenue and 3rd Avenue North.

Q What alley would that be called?
A I suppose it would be called 2nd Alley.

Q You were north of that alley when you first observed

these defendants?



46

A Yes.

Q That is about the middle of the block, would that be 

about correct, sir?

A If the store was drawn to the alley.

Q About right there? That is Newberry’s. (Indicating) 

Now, you were on the north side of the alley when you first 

saw the defendants?

(fol. 27) A That is true.
Q What were they doing when you first saw them?

A Walking south.

Q Were they violating any ordinance at that time?

A Not to my knowledge.

Q Were they obstructing traffic at that time?

A Not at that time.

Q Now, what did you do when you saw them immediately

after observing them?

A Went into the store.

Q You went into the alley entrance of the store and 

proceeded immediately to the front of the store?

A Not immediately.

Q How long did it take you, sir?

A In my best judgment some forty-five seconds.

Q That is pretty quick, isn't it?

A Not to walk a half block.

Q Forty-five seconds after you entered the alley



47

entrance. Let's see, now, about how many feet would you

say it is from the alley to 2nd Avenue?

A Maybe 250 feet.

Q And then in forty-five seconds you walked that 250 

feet, is that correct?

A It is my best judgment.

Q And you went past customers on the inside of New­

berry's and went straight through and it took you forty- 

five seconds, but you went directly to the front of the 

store?

A From the alley to the front directly.

Q Is there a door that faces the intersection from 

Newberry's department store which would give you a view of 

the intersection?

A There is.

Q What did you do? Did you stand there and observe 

the defendants or go immediately out to the intersection, 

or what?

4 I stood inside the store looking out on the street 

at the traffic.

(fol. 28) Q How long did you stand there?

4 Some minute and a half.

Q Now, it took you forty-five seconds to get up here. 

When you got to this door where were the defendants?

4 In front.



48

Q In front where?

(27) A Where I have drawn the X.

Q They were standing there?

A That is true.

Q When you first saw them were they walking rapidly?
A Normal pace.

Q So, when you got there they were already there?
A That's right.

Q And you stood there another minute or so watching 
them?

A Yes.

Q Although you had come directly from the alley to - 
the front fairly rapidly?

A Fairly slow, forty-five seconds.

Q How many persons were standing there at that inter­
section when you first observed it?

A Some ten orotwelve.

Q Were they all colored or white people, or altogether 
or what?

A I didn't pay particular notice to the race.

Q You stood there a minute or minute and a half and 

then you went out and cleared the intersection?

A I went out and asked them to move.

Q Was that great big crowd out there and the intersec­

tion completely blocked? You testified you had half of



49

the scuth.-north cross walk free, that the defendants were 

not blocking half of the south-north cross walk, they 

were standing in the west part of the cross walk where 

they should be standing assuming they were going south, 

they were not blocking the east-west cross walk at all? 

Now, where was the crowd that was blocking?

(fol. 29) A They were all standing on the sidewalk.
Q You mean the crowd?

A That's right, including the defendant.

Q Now, you placed the defendants where you have the X. 

Now, the crowd is what wer are interested in now, the 

crowd they were blocking, where were they?

MR. WALKER:

We object. There has been no testimony that there 

was a crowd that was being blocked; the testimony is there 

was a crowd blocking the moving traffic.

(28) Q Are these defendants charged then with assembling 
the crowd or something? Who were they blocking? Where 
were the persons they were blocking, whese two defendants 
here?
A They were blocking half of the sidewalk causing the 
people walking east to go into the street around them.
Q The people walking east along what street?

Along 2nd Avenue.A



Q Along this way (indicating)?

A That’s right.

Q The people walking along 2nd Avenue from west to 
east had to go around them?

A That is true.

Q While they stood there?

A That is true.

Q And you observed that for a minute or minute and a
half?

A That is true.

Q And then you went out and you required them to move

on. Did you speak directly to the Defendant Shuttlesworth? 

A I spoke to the people standing assembled there.

Q They all moved but him, is that correct?

A Not on the first request they didn't all move. Some
began to move.

Q Well, all had moved by the time you made the arrest?

A Except Shuttlesworth.

Q Nobody was standing there but Shuttlesworth?

(fol. 30) A Nobody was standing; everybody else was in 

motion except the Defendant Shuttlesworth, who had never 
moved.

Q Was he talking to you during this time?

A He made a statement to me on two occasions when I 
informed him to move on on three occasions.

50



q Did he ask you where you wanted him to move?

A No.

Q Did you tell him where to move?

A I did not.

Q You didn't arrest anybody but Shuttlesworth?

A Not at that time.

Q You didn't know Shuttlesworth?

A Not at that time.

Q But you didn't arrest anybody but him?

A That is true.

Q Was there a police car on 2nd Avenue at this time?

A No, there was not. That is a bus lane and buses

were in movement at this time through that lane.

Q What did you do after you arrested the Defendant 

Shuttlesworth?

A Took him to the west side of 19th Street just north 
of 2nd Avenue.

Q That is along this side? (Indicating)

A Closer to the cross walk.

Q What did you do then?

A Waited until a patrol car came.

Q Did you call a patrol car, or how did the patrol car 
get there?

A Another officer on a motorcycle came up and called 

the patrol car.

51



5*2?

Q How many officers were on the intersection?

A I have no knowledge of who was there. I don’t make

the assignments.

Q You were in charge of traffic along that street, 

were you not?

(fol. 31) A. I was.

Q What do you mean v?hen you say in charge?

A Of movement of traffic.

Q But you had nothing to do with the other officers 

who were also there?

A That’s right.

Q And you were not regularly placed at that area?

A That is true.

Q You were not at that time regularly assigned a traf­

fic officer?

A I wa s.

Q You were temporarily as a utility man?

A For that shift.

Q For that particular shift? Do you have any idea 

or knowledge of who else was on that corner at that time? 

(30) A I do not.
Q No other police officer?
A There were two officers across the street

Q Where across the street?
A Diagonally across the street on the southeast corner.



53

Q This corner here? Did they assist you in arresting 

the Defendant Reverend Shuttlesworth?

A They did not.

Q Did they help you to call the police car?

A One of the officers called the patrol car, I belive.

Q How many officers were present when you put him in

the car?

Ao I would say six or maybe seven.

Q Six officers? Did he give you any trouble?

A No trouble.

Q Did he resist arrest?

A No resistance.

Q Officer Byars, this was on Wednesday morning, was it 
not?

A I believe that's right.

Q Is traffic pretty heavy on Wednesday morning on that 

street ordinarily?

(fol. 32) A What type traffic?

Q Foot traffic and pedestrian traffic.

A I don't know what you consider heavy is. I am unable 

to answer the question.

Q Well, in your best judgment tell us about how many 

people pass that corner going any way per given minute at 
about 10:30 in the morning. :

A It would vary.
Q At that time on April 4th at about 10:30 in the



54

morning in the year 1962 how many persons in your best 

judgment passed that corner per minute?

A In all four directions?

Q Any way, north, south, east and west.

A Seventy-five to one hundred.

Q Per minute?

A Per minute. At this particular time.

Q 10:30 in the morning.

A At that particular minute I was there I would say
seventy-five to one hundred.

0 How long had you been there?

A I had been at the next corner since 10:00 o'clock.

Q But that was your first time coming to this particular
intersection?

A That's right.

Q At that time in your best judgment the foot traffic, 

the pedestrian traffic, at 2nd Avenue and 19th Street in the 

City of Birmingham, Alabama, was seventy-five to one hundred 
persons per minute?

A On all four corners.

Q On all four corners?

A Yes, sir.

Q About seventy-five to one hundred per minute?

A That is my estimate and judgment.

Q What is your best judgment as to the traffic east
and west?



55

A Per minute?
(fol. 33) Q Yes, sir.

A About fifty people.

Q About fifty people? Would you say it would be equal­

ly divided, twenty-five going east and twenty-five going 

west, or would you say more goes east or more goes west?

A I have no way of knowing and have no idea.

Q And you would say about the same north -and south?

A Again, I have no idea. They could go each way.

Q By the same I mean the same number. You said fifty

east and west and fifty north and south?

A I would think so.

Q When you first approached the Defendant Shuttles- 

worth and Defendant Phifer you came from inside Newberry’s 

Department Store, did you not?

A That is true.
Q When you came to that corner did you address your­

self to these defendants or to just the crowd?
A I addressed myself to the people who were standing
and not moving at that time.
Q Did you address them from the front of from the rear? 
A From the front.
Q You got in front of them?
A Most of them I would say I was in front of them.

Q Were they near the curbline on 2nd Avenue at the time

you talked to them?



56

A You mean the crowd or the defendants?

Q The defendants,
A They were between the store and the curbline.

Q Now, would you say that was about--that was no

longer than two minutes after you had seen them at the 

alley on 19th Street, assuming it took you forty-five 

minutes to get to the front of the store and a minute 

and a half while you observed them, you would say about 

two minutes or two and one-half minutes?

A Didn't take forty-five minutes; it took forty-five

seconds.
Q I am sorry. Forty-five seconds from the time you

first (fol. 34) saw them north of the alley and you went

into Newberry's and proceeded to the front of the store 

and it took about forty-five seconds and you watched them 

for about a minute or minute and a half, and between the 

time they passed you there about the alley and the time 

you arrested the defendant on 2nd Avenue and 19th Street 

was about two minute, is that correct?

A About four and one-half minute.

Q How do you account for that time?
A Because I spent a minute or minute and a half talk­

ing to them outside trying to encourage them to move.

Q So, you would say it was about two minutes from the 

time you saw them crossing the alley on 19th Street until



57

you first accosted the defendant, is that right?

A About two or two and one-half minutes.

Q Then you spent another minute talking to them and
placing them under arrest?

A In my best judgment.

Q Let’s proceed from there, Officer Byars. You are

rested the Defendant Shuttlesworth, you took him to 19th

Street, the west side of 19th Street, and you called the 

patrol car; then the Defendant Phifer came up. Did he > 

come up in answer to a request from the Defendant Shuttles­

worth, or did he voluntarily come up?

A I don’t know.

Q Did you see Defendant Shuttlesworth ask him to do 

something or request something of him? You don’t know 

what the conversation was?

A All I know is Phifer of his own volition walked up 
and began to talk.

Q Now, you arrested him at that time?

A After I had asked him to move some three times.

Q To move away from the Defendant Shuttlesworth?
A Yes.

Q This was where, now, on the west side of 19th Street? 

A Just north of 2nd Avenue.

(fol. 35) Q Just north of 2nd Avenue, and this is where 

you had the Defendant Shuttlesworth waiting on the patrol
car?



53

A That is true.

Q You were not standing in a cross walk at that point, 

were you?

A No, not any of us at that particular time were in a

cross walk.
Q Defendant Phifer didn't block any sidewalk or any­

thing then, did he?

A Not then.

Q Now, you didn't arrest the Defendant Phifer for block­

ing the sidewalk down on 2nd Avenue and 19th Street, did 

you?
A I was occupied with Shuttlesworth and when I arrest-

ed him Phifer was with him, but at the time I was trying 

to pursue Shuttlesworth into the store Phifer disappeared.

Q You wanted Shuttlesworth?

A And I wanted Phifer.

Q But you didn't arreet Phifer?

A I couldn't arrest Phifer for chasing Shuttlesworth.

Q Did he run?

A He moved quickly into the store.

Q You told him to move on?
A After he was arrested is when he moved on.

Q Did the Reverend Phifer run off anywhere?

A He disappeared.

Q But he came back of his own volition?

A That is true.



59

Q Did you then inform him he was under arrest? You 

told him to go ahead and let Fred alone, didn't you?

A Yes.

Q And only after he insisted on talking to Reverend

Shuttlesworth did you arrest him?

A That's right.

Q What did you arrest him for--f©r talking to Reverend

Shuttlesworth?

(fol. 36) MR, WALKER:

We object. The complaint speaks for itself, what 
he was arrested for.

MR, HALL:

We would like to know what the officer arrested 

him for, not what the City says he was arrested for.
THE COURT:

Let him answer.

A For violation of Section 1436(F) and Section 1231.

Q We understand that is what the written document 

says that is what you arrested him for, but what did 

you arrest him for on that date?

A That is what.
Q What did he do?
A Interfering with an officer, refusing to obey the 
lawful command of an officer, obstructing sidewalk so as 
to interfere with free passage of pedestrians.



60

Q Was he obstructing the sidewalk there while you 
had Defendant Shuttlesworth in your custody?
A He was not.
Q That is when you arrested him after you told him 

to go ahead and leave the Defendant alone?

A Yess that is -when I arrested him for violation of

Section 1231.

Q That is the only time you arrested him?
A I arrested him for two violations.

Q Had you arrested him before that time?

A I didn’t. I couldn’t find him.

Q You had not arrested him before that time?

A I could not find him.

Q When he came up didn't you tell him to go ahead and 

let that man alone?

A I didn’t tell him to go ahead and let that man alone;

I informed him he could not talk with the Defendant.

Q And when he didn't move on you arrested him?

A For violation of 1231, general code.

Q But you didn’t arrest him until that time, did you. 

Officer Byars?

(fol. 37) A I couldn't find him.

Q Did you look for him?

A I didn’t have time to look for him. I was checking

Shuttlesworth.



61

Q Didn't you have six officers there to help you?
A Not at that time. There wasn't six there when the 

arrest was made.

Q Did you arrest anybody else?

A No.
Q There was some other persons with the defendants 
when they were arrested?

A That is what they told me.

Q You were standing there looking at them, weren't 
you?

A That's right.

Q You didn't arrest any of them, did you?

A They obeyed.

Q You didn't arrest any, did you?

A They moved on. I didn't arrest any.

Q Now, as I understand it, you said you saw-ten or 

twelve persons standing near the corner of 2nd Avenue and 

19th Street at the time you arrested these defendants.

How many people were in the group you first saw up there 
by the alley with the defendants?

A Four to six people.

Q Now, were they all walking together?

A I would say so generally.

Q What do you mean generally?

Walking up the street like you and five other peopleA



62

would waIk up the street.

Q How did you identify these folks--because they were 
all colored?

A I didn't especially attempt to identify them, I

had no reason to; I just noticed them walking.

Q Were they loosely walking, walking four abreast, 

or two by two or one by one?

(fol. 38) A I don't recall any particular events or series 

in which they were waIking.

Q How did you ascertain they were together in a group?

A I didn't attempt to ascertain they were together; I

just said four to six people walking down the street.

Q Four to six people walking down the street and not 

necessarily together?

A They were together, but I don't know whether they

were--

THE COURT:

Intentionally together?

A That's right, yes, sir.

Q When you got to the intersection and found these ten 

or twelve persons in the group--what do you mean by ten 

or twelve in a group?

A That means like five and five are ten and two more 
is twelve.

Q How did you ascertain they were altogether?



63

A They were all standing and not moving.

Q Was the light against them?

A I am not aware of what the color of the light was 

at the time they were standing, but it changed some num­

ber of times while they were remaining in a stationary 

position.

Q Are you certain of that?
A I am quite certain.

Q Were all these group colored people or some white and 

some colored?

A I don't know what color they were.

Q It is possible it just might have been the ten or

twelve persons you were speaking of were probably other 

members of this pedestrian traffic moving along north, 

south, east and west?

A They were standing and not moving.

Q At some time, Officer Byars, isn't it true all pe­

destrians stand at intersections?

'A Necessarily to wait on the light to change.

Q For various reasons?

A For four and one-half minutes?
(fol. 39) Q I don't know whether you stand there four and 

one-half minutes. As I understood you, it took some time 

to get to that corner. You have said it took--your whole 

operation took four and one-haIf minutes--they had to get



64

from the alley too.

A It was forty-five seconds.

Q Maybe they can't walk that fast.

A They were there when I got there.

MR. WALKER:
We object to arguing with the witness .

MR. HALL:
This is cross examinations Your Honor, and the wit­

ness is arguing with me.
Q Isn’t it true, sir, all pedestrians stand at inter­

sections sometime or another?

A I don't know what other people do.

Q You are a traffic officer.

A They stand and wait on the lights.

Q So, this ten or twelve people, you don't know

whether they were acting in concert-or whether these de­

fendants were a part of them or what, do you?

A Only what they told me.

Q But you did race from the alley to the front of 

Newberry's and rush out there and arrest the Defendant 

Shuttlesworth and when Defendant Phifer sought to talk to 

him you put him under arrest?

A Walked casually from the alley to the front, no 

particular expediency, and there watched the traffic out­

side .



65

MR. HALL:
If Your Honor please, we are through with this wit­

ness .
We would like to move, if possible, that the-'Reporter 

be asked to copy our diagram and include it in the record. 

We would like to introduce it if there is no objection.

MR. WALKER: .

No objection.

(Whereupon the blackborard diagram was received in 

evidence and marked "Defendant’s Exhibit 1," a true and cor­

rect sketch of the same was made by the Reporter, and the 

Court Reporter hereby certifies that the reproduction of 

the same in this transcript is difficult or impracticable, 

(fol. 40) which fact is hereby certified to the Clerk of 

this Court.)

REDIRECT.EXAMINATION 

BY MR. WALKER:

Q I would like to ask one or two questions.
The X tehere. you say marks the spot where the group was 

standing--

A I believe that is where counsel asked me to desig­

nate Defendant Shuttlesworth's position.

Q Was he alone or with some people?
A There were some ten or twelve other people standing 
there with him.



66

Q What was this group doing, if anything?

A Just standing and talking.

Q Who were they talking to?

A Mostly to the Defendant Shuttlesworth.

Q Was the Defendant Shuttlesworth doing any talking?

A Quite a bit.

Q Did any of the others talk to the Defendant Shuttles­

worth?
A They were all trying to.

Q Now, you say, I believe, that you first saw the Defen­

dant back here at the north end of Newberry's at the alley? 

A Yes, sir.
Q And there were four or five people in the group with 

the Defendant at that time?

A Yes, sir.

Q And how many people was in this group that was

talking in front of Newberry's?
A In my judgment ten or twelve.
Q There were more than you had observed walking down
19th Street?
A Yes, sir.
Q Do you know where Che additional people in that group
came from?
A No, sir. I was inside the store when they all

gathered.

Q Where did the people step off the curb at that you 

(fol. 41) testified about earlier?



67

A On the west side of the telephone booth. It is the 

large spot drawn there.

Q In other words, they stepped off onto 2nd Avenue?

A Yes, sir.

Q And when you say they stepped off the curb thatmeans 

into the street as opposed to the sidewalk?

A Into the street.

MR. WALKER:

I believe that is all.

MR. HALL:

That is all.

(Witness excused.)

THE COURT:

The hour being what it is, do you want to begin with 

a new witness or not? ■ - >
MR. WALKER:

We are willing to recess, Your Honor.
THE COURT:

All right. 2:00 o'clock all right?
MR. WALKER:

That is fine.
MR. HALL:

Yes, sir.

(Whereupon at 12:25 P.M. the court was in recess un­

til 2:00 o'clock P.M.)



68

Officer JAMES P. RENSHAW, called as a witness, 

being first duly sworn, was examined and testified as 

follows:

DIRECT EXAMINATION 

BY MR. WALKER:
Q State your full name, please.

A James Paul Renshaw.

Q What is your occupation?

A Police patrolman, City of Birmingham.

Q How long have you been so employed?

(40) A A little over thirteen years. Be fourteen years 

next month.

Q Now, do you know the defendants in this case, Fred 

Shuttlesworth and James Phifer?

A Yes, I do.

Q Did you know the defendants when you saw them 

prior to April 4, 1962?

A I knew Shuttlesworth. I didn’t know the other defen­

dant .

(fol. 42) Q Now, on April 4th of this year did you have 

an occasion to see these defendants?

A I did.

Q About what time did you see the Defendant?

A Approximately 10:30 in the morning.

Q Where were you at that time?



69

A I was going south on 19th Street from 3rd Avenue to 

2nd Avenue.

Q You were between 3rd and 2nd on 19th?

A That is correct.

Q Where were the defendants when you saw them?

A They were over by Newberry's. That would be on

the northwest corner of that intersection.

Q If it helps anys I might turn this blackboard so you 

can see it. Can you see that to help you with your direc- 

tions?

A Yes, sir.

Q Where did you say the defendants were?

A On the northwest corner,

Q Was anyone with the defendants or were they alone?

A There were eight or ten or twelve.

Q And what were the defendants and this group of 

people doing at thatttime?

A They were looking at Officer Byars.

Q Where was the Defendant James Phifer? Do you 
recall?

A I don't recall at that particular time.

Q Do you recall where the Defendant Fred Shuttles- 

worth was at that time?

(41) A I believe he was about in the middle of the crowd. 

I can't be positive on that.



/ 0

MR, HALL:

If Your Honor please, we object to that answer and 

move it be stricken.

THE COURT:

Well, whatever his best judgment about the location 

is might be sufficient.

Q What did you do, if anything, when you saw Officer 

(fol. 43) Byars in this group of people?

A I got off my motorcycle and went over to the scene.

Q Was the crowd still there when you got there?

A The crowd was still there when I got there,

Q Tell the Court what, if anything, happened after you 

arrived at the scene?
A I heard Officer Byars tell this group of men, "This

is the third and last time I am telling you to move, you 

will have to clear the sidewalk," or words to that effect. 

Q About how big an area of the sidewalk did this group 

of men have covered? In other words, their bodies covered 

what portion of the sidewalk in your best judgment?

A I would say abofct half.

Q What happened, if anything, when Officer Byars told 

them this was the third and last time he was telling them 

to move on? What happened then?

A The Defendant Shuttlesworth said, "We are just stand­

ing here on the sidewalk." And Officer Byars told him he



71

was under arrest, and he said, "We will go in the store 

then." And he proceeded to go in the store and Officer 

Byars caught him and placed him under arrest.

Q Did you see the Defendant Phifer at the time Rever­

end Shuttlesworth was placed under arrest?

A Not to know him I didn't.

Q Did you ever see him again?

A I saw him a minute or so later.

Q What were the circumstances that you saw the Defend­

ant Phifer a minute or so later?

A We had taken the Defendant Shuttlesworth over to a 

motorcycle over close to the motorcycle by a mail box lo­

cated there at the corner, and the Defendant Phifer came 

up and started talking to Shuttlesworth. At that time 

Officer Byars told him he would have to leave, he couldn't 

talk to a prisoner.
i

Q What happened then?

A He said, " I am going to talk to him."

(fol. 44) Q Was there any more conversation after tba t?

A I don't recall if Officer Byars told him another time 

he would have to leave, that he was not allowed to talk to 

a prisoner, or not, and Defendant Phifer said he would just 

go with him, and he was placed under arrest.

Q Was the Defendant Phifer placed under arrest at that 
time?



72

A Yea, sir.

Q Let me ask you this: When you first saw this group
of people they were standing just outside of Newberry's 

at the corner where Newberry's is located?

A They were standing at the curb on the 2nd Avenue 

side at the cross walk that crosses over 2nd Avenue to 

Pizitz.

MR. WALKER:

I believe that is all.

CROSS EXAMINATION 

BY MR. HALL:
Q Officer Renshaw, are you a traffic policeman?

A That is correct.

Q Still in traffic?

A Still in traffic.

Q On this morning where were you patrolling, the morn­

ing of April 4, 1962?

A I was patrolli rg 19th Street. I work 18th and 19th 

Street.

Q Patrolling 19th Street? What was your job?

A All traffic enforcement.
Q Was there a heavy concentration of policemen on these 

streets on April 4, 1962?

A To my knowledge there was not.
Q Officer Byars was there on 19th Street I understand?



73

A He works the corner, I work a motorcycle.

Q What did Officer Byars work on that day?
A He worked an intersection.

Q Which intersection?

A I don't know which corner he was working on on that

day.

Q But there wasn't any particular heavy concentration 

of policemen down there at that time, was there?

(fol. 45) A There was no concentration of policemen.
Q More so than usual?

A Some might have been passing.

Q What time do you change your shifts?

A We don't have a shift. We go on at 10:00. We are 

kind of a split shift.

Q Go on at 10:00 o'clock in the morning?

A 10:00 o'clock in the morning.

Q At that time you would be going through your various 

assignments and you were just coming on duty?

A We had just come on about thirty minutes before,

Q That was about 10:30?

A That is correct.

Q How many policemen did you see at or about the corner 

of 2nd Avenue and 19th Street on the morning of April 4, 

1%2, at about 10:30?



74

A Now, the only one I saw at this particular time--

of course, in just a minute more came over, but when I 

first arrived the only one I saw was Officer Byars.

Q In a minute you say more came over?

A That's right.
Q Could you ascertain where they came from?

A I couldn't tell. I didn't see them until they ar­

rived there.
Q Officer, were you aware on that date?. that is, April

4, 1952 that the Negroes of the City of Birmingham were en­

gaged in a selective buying campaign with reference to the 

stores downtown?

A I had heard of it.
Q Do you know if the Police Department officially knew 

of this selective buying campaign at that time?

A I can't say about officially, if they officially

knew of it.
(44) Q Had you gotten any official word of this selective 
buying campaign at that time?

A Do you mean any official orders?
Q Any instructions from your superiors or your depart­

e d .  46) ment about the buying campaign?

A None that I recall.
Q You had not been instructed to patrol the streets 

very carefully and attempt to ascertain who, if anyone,



75

was carrying on this campaign?

A We had not been told of it.

Q You had not been instructed to keep out particular

watch for certain persons who might appear in town?

A We had not been told to watch for anyone.

Q The Police Department didn’t have special officers

in ordinary clothes stationed in Newberry’s and Loveman’s 

Department Store and Pizitz Department Store?

A That is possible. I didn’t go in the stores. I 

don't know.

Q Did you see any special officers?

A I did not see any special officers.

Q You do not know of any such officers who were sta­

tioned there for the particular reason that they were 

trying to police upon this selective buying campaign?

A Not to my knowledge.

Q Have you seen any mimeographed leaflets circulated 

about town with reference to the selective buying campaign 

urging Negroes to be careful where they shopped during 

the Easter season?

A I had seen them.

Q Had you seen them on April 4, 1962?

A Whether before or after I don't recall.

Q But this particular incident occurred right at the 

time when the selective buying campaign was going on, did



76

it not?

A It was about that time.

Q Now, Officer, you are a veteran policeman. I will 

ask you how long you have known the Defendant Shuttles- 

vjorth?

A I believe the first time I saw him was up at the

terminal station when we had a little trouble up there 

two or three years ago.

Q What sort of trouble was that?

(fol. 47) A He was sitting in the white waiting room up 

there.

Q In the waiting room reserved for white people?

A That's right.

Q Did you arrest him on that occasion?

A I did not.

Q Was he arrested on that occasion?

A Not while I was there.

Q Had you seen him after that and before April 4, 1962?

A I don't recall right offhand whether I did or not.

Q I will ask you, Officer, if you were on duty at any 

time during the so-called freedom rights at the Trailway 

Bus Station or Greyhound Bus Station?

A I wa s.

Q Were you present at the Greyhound Bus Station on the 

occasion when Fred Shuttlesworth was arrested there?



77

A That's right, I sure was.

Q Did you testify against him at his trial?

A I don11 remember.

Q But you were one of the officers present?

A I was present. In fact, I am sure I didn't arrest 

him.

Q You do know he was arrested at Greyhound Bus Sta­

tion on that occasion?

A I believe he was.

Q And charged with failure to obey the lawful commands 

of Police Chief Jamie Moore, you know that, do you not?

A Yes.

Q And you know he was subsequently tried on that 

charge?

A Yes.

Q And numerous members of the Birmingham Police De­

partment testified against him, did they not?

A Yes.

Q And you knew that on April 4, 1962, didn't you?

A Yes, I knew it.

Q Officer Renshaw, I will ask you if you did not know

that (fol. 48) the Defendant Shuttlesworth and Phifer were 

arrested as the result of an experience on the Birmingham 

Transit buses sometime early in 1962?



78

MR, WALKER:

We object. He couldn't know why the defendants were 

arrested.

THE COURT:

Well, if it goes to the length of recognition or 

knowledge of them, I guess it is all right.

A I recall, but at that time I don't know whether I 

recognized him as being Shuttlesworth or not. I know there 

was a busload, but whether or not I ever saw him I don't 

recall.

0 I will ask you this, Officer Renshaw: You were aware

of the fact that Reverend Shuttlesworth and the Reverend 

Phifer were arrested early in 1962 when it was alleged 

that their time for appeal had expired and that they were 

incarcerated in the Birmingham City Jail for more than 

a period of one month and were subsequently released as 

a result of an appeal to the United States Supreme Court-- 

were you aware of that fact?

A I was.

Q You knew that on April 4, 1962?

A I did.

Q As a matter of fact, these defendants were and are

fairly notorious ..persons in the field of civil rights in 

the City of Birmingham, are they not?

A Yes.



Q They have been for some time, have they not?

A That's right,

Q They have been arrested on numerous occasions in 

and about their efforts in the field of civil rights?
A Tba t ' s right.

Q Their faces have appeared on numerous television shows

and in the newspapers on many occasions, is that right?

A That is correct.

Q They are generally known to the Birmingham Police 

Department?

A To the ones who have seen them I would say they are. 

(iol. 49) Q They were so generally known on April 4, 1962, 
is that right?

A To me they were.

Q Now, Officer Renshaw, where did you say you were 

when you first observed these two defendants here on the 
morning in question?

A I was going south on 19th Street.

Q Will you indicate that on the board here that we have
drawn, please, sir?

A I was going south in this direction to about this >: 
point.

(Indicat ing)

Q About there? Now, where did you observe these de­

fendants when you reached this point?

79



80

A They were along in this position here. (Indicating) 

Q Would you tell us your best judgment how many feet 

you were from 2nd Avenue?
A I was in the curb lane, which is the right lane, and

I-would say I was ten or twelve feet from the curb and 

when I first observed them I would say I was roughly twenty 

or thirty feet north of 2nd Avenue.

Q Twenty or thirty feet north of 2nd Avenue?

A Yes.
Q You didn't see them prior to that time?

A No.
Q You didn't see them proceed down 19th Street?

A No.
Q Had you seen Officer Byars prior to that time?

A No, I had not.

Q When did you first see Officer Byars?

A When he was talking to them.
Q When you approached this corner and arrived at the 

point you have indicated on the board here Officer Byars 

was then on the curb talking to the defendants?

A That is true.
Q What did you do when you saw Officer Byars standing 

over there talking to them?
A I got off my motorcycle and walked over there.

(fol. 50) Q You walked over to the crowd?



81

A Yes.
Q Did you join Officer Byars?

A Not in the conversation.

Q But he knew you were there?
A Whether or not he did--when I got off the motor he 

had his back to me.

(48) Q Did you go to him and inquire as to whether or 

not he was having difficulty, or what did you do?

A Well, he was talking and I didn't interrupt his con­

versation.

Q You just stood there?

A I just stood there.

Q And listened to what he said?

A Yes.

Q And listened to what the defendant said?

A Yes.

Q Did you recognize the defendants when you looked at 
them?

A Which one?

Q Both of these defendants.

A I recognized one of them.

Q Which one did you recognize?

A Shuttlesworth.
Q Did you assist Officer Byars in arresting the Defen­
dant Shuttlesworth?



82

A That is true, I did.

Q You did assist him?

A That's right.

Q How did you assist him?

A Just by my presence. I would say that. As far as

using force, it wasn't necessary.
Q I am a little curious, Officer; did Officer Byars

ever turn around and note -your presence?

A I don't believe he knew I was there until I got up

to him.
Q So, when he testified here, or if he did, thtt no

other officer was present, he was probably correct, is 

that correct?

(fol. 51) A That is correct.
Q As a matter of fact, he didn't know you were there 

himself?
A Not unless he heard my motor coming up he didn't.

Q But if he said there was no other officer there, he

is not in error because he didn't see you?

A Not until the last he didn't see me.

Q You had nothing at all to say to the defendants?

A No, I did not.
Q How many times did you hear Officer Byars repeat

that they were to move on?

A I just heard him that one time.



83

q What did he say?

A First I heard him in a loud voice, but I couldn’t 

distinguish what he said, but then he said, "For the third 

and last time I am telling you you got to clear the side­

walk, that you got to move on," or words to that effect.

Q To whom was he addressing his remarks?

A To the crowd.

Q The entire crowd?

A Yes.

Q Was the crowd just standing there and looking at

him?

A Just standing there and looking at him.

Q What did they do after that third statement?

A Shuttlesworth said, "We will just go in the store."

Q "We will i.ust go in the store"?

A Yes.

Q Tell me about this crowd, how many people were in 

that crowd?

A I believe I said eight or ten or twelve.

Q Were they all colored or any white folks or Chinese
or Japs?

A In this one crowd they were all colored.

Q No white folks there at that corner al all?

A There were people on the corner and people crossing
the street.



84

Q Were there any standing up there?

(fol. 52) A Clarify that a little.
Q I am trying to find out when you refer to crowd to

whom are you referring?
A I am referring to a bunch of men that were standing

at one location.

Q Which location?
(50) A In the location I pointed out this group of men 

were standing in.
Q Would you mind pointing it out again? You pointed 

out where the two defendants were standing.

A Now, the whole group was here. (Indicating.) I see

you have the crosswalk drawn across. The whole group had 

the crosswalk approximately half blocked.

Q You say whole group, you mean all the colored folks 

present ?
A They were standing and listening to Officer Byars.

Q And you had all the colored folks grouped in one

group*
A I did not. I said all in this one group you are

speaking of,
Q What held them together and distinguished them for

you?
A They were just close and each one watching Officer

Byars.



85

Q Weren't other folks watching him too?

A If they were they were somewhere else, but they were

not immediately in front of him.

Q Officer Byars was not immediately in front of them?

A Or vice versa.

Q Where was Officer Byars standing, was he standing 

immediate iy in front of any particular individual?

A In front of this group you were talking about. He 

was standing in front of them.

Q With reference to these two defendants where was 

he standing?

A He was standing north of the two defendants and 

maybe a little northeast.

Q Was he directly in front of either of these defendants? 

A I couldn't say for sure if he was directly in front 

of either one of the two defendants.

(fol. 53) Q You don't know now--the crowd standing right 

there and you moved from twenty-five feet here to what por­

tion of that crowd where were you, outside the crowd, in 

front of it, or where?

A In front of it.

Q On this side?

A I was just a little east of Officer Byars.

Q Over this way?

A Yes.



Q
A

86

You were out in the crosswalk over here?

Yes .
Q And Officer Byars was at the front of you and to 

the west you say?

A That's right.

Q He was in front of you?

A Yes.

Q And you were behind him?

A Yes.

Q How close were you to Officer Byars?

A When I first walked up or at what time?

Q When you first walked up. How long did this arrest

take?

A Just a few seconds, I would say.

Q How many seconds?

A Within thirty seconds from the time I got there.

Q How close were you to Officer Byars during any one

of those thirty seconds?

A I would say I was within two or three feet of them.

Q How close were you to Defendant Shuttlesworth dur­

ing that time?

A Just add two or three feet to that. Five or six feet- 

Q Were there any persons between you and the Defendant 

Shuttlesworth?

A I would say none other than Officer Byars.



Q But he was in bold relief--you could see him?
A I could see him to recognize him.

(fol. 54) Q There were no persons between you-~there 

were a crowd of people there all rights but there was no 

persons between you and Shuttlesworth?

A I am talking about the crowd in particular. I don't 

recall if he was in the center of the crowd or on the edge, 

but I kind of believe he was in the center.

Q You could see him distinctly?

(52) A I said a hazy recollection, but I believe he was 

in the center of the crowd and I would be about five feet 

from him in that case.

Q This is what I am trying to get at, Officer Renshaw: 

You testified as to what this defendant said and what Of­

ficer Byars said and there seemed to be no difficulty about 

that, but what I was trying to see is how close you were 

to him or if there was someone between you and if somebody 

else might have said it.

A No, because I recall looking right at him when he 
said it.

Q And you also know what Officer Byars said?

A Yes, that's right. I heard the last statement.

Q When did Defendant Shuttlesworth decide to go in the 
store?

When did he decide to go in the store?

87

A



88

Q Yes. Were you there when he went in?

A I was there when he started in after Officer Byars 

told him he was under arrest.

Q And you distinctly heard that of course, but how 

far in did he get into the store?

A I would say almost to the door.

Q Was he walking fast or running?

A Just walked off with the rest of the crowd.

Q With the rest of what?

A The group.

0 All of them walked off into the store?

A Yes.

Q Had any of that group you are testifying about 

walked away prior to this time?

A It is possible some could have walked away. The

short (fol. 55) time I was there I don't recall.

Q Do you recall the Defendant Phifer walking away?

A I don't recall. I didn't know him when I see him.

Q Do you recall any of those colored folks walking

away?

A I don't recall it. Like I say, it is possible they 

could have.

Q When the group went into Newberry's or turned to go 

into Newberry’s, was the entire group arrested?

(53) A Just one.



89

Q The Defendant Shuttlesworth?
A That's right.
Q Defendant Phifer was not arrested at that time, was 
he.
A He was not.
Q Were you present when he was arrested?
A I wa s .

Q Where did that take place?
A Would you like me to draw it?
Q Yes, sir.
A It was about in this location here. (Indicating)
Q About how many feet would you say that is from the 

south curb of 19th Street--rather, the north curb of 19th 

Street and 2nd Avenue?

A The north curb of 2nd Avenue I would say would be 

twelve to fifteen feet.

Q So, the Defendant Shuttlesworth was taken to a point 

about twelve or fifteen feet from the north curb of 2nd 

Avenue on 19th Street, is that right?

A That’s right.

Q And he Was made to stay there and stand there while

the officer called the police?

A That’s right.

Q Were you still present during this time?

A I wa s .

Q Did you have your motorcycle or vehicle with you?



90

(fol. 56) A I did.

Q Does it have a two-way radio?

A Yes, it did.

Q Did you call the patrol car?

A I believe one of the other officers called the pa­

trol car maybe on my radio.

Q Which other officer was this?

A One of the other officers that was there.

Q How many officers were there in these thirty seconds 

you are talking about?

A Now, we have gotten a little--when we were standing

over here and you said we called the police on the two-way 

radio, there were four or five officers there at that time.

(54) Q Was it more than thirty seconds? How long had 

this whole operation taken?

A The whole operation I would say took ten or fifteen 

minutes.

Q Had it taken that long?

A Yes, that's right.

Q And there were four or five other officers present 

and they used your two-way radio?

A I would imagine that they ased mine.

Q And you were standing there with Officer Byars near 

Defendant Shuttlesworth?

A That's right.



91

Q When the Defendant Phifer came up to talk with him?

A That is correct.

Q Do you recall the circumstances of his coming up to 
talk? Do you know whether it was the result of being cal­

led?

A You mean if Shuttlesworth called Phifer over or not? 

Q Yes.

A I don't know.

Q You didn't hear that? How close were you to them at 

this point?

A I could have been within six feet.

(fol. 57) Q Now, did you say anything to either one of 

these defendants at that point?

A No, I didn't.

Q What did Officer Byars say to the Defendant Phifer 
there?

A He told him this man was under arrest and he would 

not be allowed to talk to him and to move on.

Q He said point blank that he would not be allowed to 

talk to him, is that right?

A He said, "You cannot talk to the prisoner," or words 

to that effect.

Q Said he was under arrest in violation of a city or­

dinance and he could not talk to him?

A That's right.



92

Q And he told him to move on?

A That's right,

Q Did Defendant Phifer move on?

A He said, "I will go with him,"

Q Did he move?

A He did not.

Q What did Officer Byars say then?

A He said, "You are under arrest too."

Q What did he tell him he was under arrest for?

A Refusing to obey the lawful command of an officer.

0 How many policemen were standing there with you at 

that time?

A At that time I would say there were four or five.

Q At least four or five?

A Yes.

Q And there were just these two defendants?

A That's right.

Q The arrest of the first defendant, ¥ L. Shuttles-

worth, had been for failure to clearvthe street?

A That's right.

Q Had he been searched?

A I don't believe he had at that time, or up until that 

time I would say.

(fol. 58) Q Was he a docile prisoner?

A He wa s.



Q Did he give you any difficulty at all?
A No.
Q Did the Reverend Phifer, the second defendant, offer 

any physical exertions on behalf of the first prisoner?

A None.
Q Did he resist arrest himself?

A He did not.
Q Did he make any threats or any attempt to relieve the 

first prisoner or himself?

A He did not.

Q Are these the only two persons in that crowd who were 
arrested?

A Yes.

Q What happened to the crowd after they were arrested? 

(56) A They disbursed and the four or five officers that 

were there kept moving people up and down the street and 

not letting them block the street.

Q After the arrest the crowd got bigger?
A It did.

Q As a matter of fact, the arrest itself obstructed *

traffic for some time, did it not?

A Like I said, when we went over to wait for the wagon 

or car there was a mail box there and a light pole; we 

were by the mail box and the light pole and of course na­

turally you would obstruct anyone that walked through there.

93



94

Q Officer Renshaw, how long had you been on this traf­

fic beat before April 4, 1962— how many weeks or months?

A You mean working 19th Street and 18th Street?

Q Yes.
A I would say two and one-half or three years.

Q Are you familiar with the flow of traffic at 2nd Ave

nue and 19th Street?

A I am.

(fol. 59) Q Do you know the opening times of the various 

stores located along 19th Street at 2nd Avenue?

A Normally I know the bigger stores.

Q The Newberry's Store opens at what time?

A I believe Newberry's opens about 9:30. Most of them 

open at 10:00.
Q Now, on the southwest corner is Pizitz Department

Store, is that correct?

A That is correct.
Q That is the southwest corner of 19th Street and 2nd 

Avenue intersection?

A That is correct.

Q And they are open about what time?

A They open about 10:00.

Q Are there other department stores along 19th Street

at about that intersection?
A: There is department stores. . You got your Green--no,



95

that is 2nd Avenue. You mean how close to the inter­

section?

Q Well, let's rephrase that. There are other stores 

selling merchandise, various stores, that is correct, isn't

it?
A That is correct.

Q And what is the general time that they open in April 

ordinarily?

A I would say anywhere from 9:00 to 10:00.

Q The larger stores open at 10:00, is that correct?

A Yes.

Q And the banks open at what time?

A 9:00.

Q 9:00 or 9:30?

A Yes, sir.

Q And there were no banks on 19th Street at that time?

A None at that time.

Q Only the stores, the department stores and merchan­

dise stores, is that correct?

A That is correct.
(fol. 60) Q And this did occur on Wednesday, did it not?

A I don't recall what day of the week it was.

Q Assuming it was Wednesday for the purpose of this 

question at about 10:30 in the morning during the first



96

week of April in any year, particularly this year, what in 

your best judgment would be the flow per minute of pedes­

trians north or south, east or west at that intersection?
A I cou Idn' t answer that--you mean normal flow of

traffic walking north or walking south or walking east or 

walking west?
Q Yes, per minute at about 10:30 on Wednesday morning 

in the first week of April under normal conditions.

A I have never given it any thought. I would say it

would be at least one hundred per minute walking in any 

direction. That might be a little high.

Q Does it increase or decrease as the time goes on? 

That is, when is the busiest time at that intersection?

A Around noon.
Q What in your opinion would you say the flow per min­

ute was?
A It would increase I would say fifty per minute.

Q It wouldn't increase by fifty per minute from the

very beginning of the early morning shopping time to high 

noon when employees and other persons moving about to get 

their lunch and come back in the store to go about their 

various chores?

A About fifty per minute.

Q And that is your best judgment?

A That is my best judgment.



97

MR. HALL:
Thank you. That is all.

REDIRECT EXAMINATION
BY MR. WALKER:

Q Officer Renshaw, let me ask you one or two questions. 

When you first saw this group were you able, or did you 

know whether or not the Defendant Phifer was in it?

A I do not.

Q Did you ascertain at any time after coming up on the 

corner whether the Defendant Phifer was in this group?

(fol. 61) A I don't know the defendant and didn't know 

him until the last instance where he was placed under ar­
rest .

Q One other thing. I would like to clear up on this 

diagram this part next to the curb on the northwest cor­

ner,that is, the line you drew indicating where the group 

was standing when you first saw Officer Byars talking to 
them.

A That is correct.
MR. WALKER:

That is all.
MR. HALL:

We have no further questions.

(Witness excused)



98

Officer G. W. HALLMANf called as a witness, being

first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION

BY MR. WALKER:
Q State your full name, please,

A Officer C. W. Hallman, City of Birmingham.

Q And you are a policeman?

A Traffic policeman.

Q How long have you been a police officer?

Q Be twelve years next April.

0 How long have you worked the traffic detail?

A Four years.

Q On April 4th this year were you working traffic?

A Yes.

Q Where were you working on April 4th?

A 2nd Avenue and 19th Street North.

Q On that occasion did you see either of these defend­

ants at about 10:30 in the morning on April 4th?

A Yes, sir.

Q Where did  you first see either or both of the defend­

ants?

A On the northwest corner of 2nd Avenue and 19th Street.

Q What were they doing at the time you saw them?

A At the time I first saw them they were standing-" 

these two defendants were standing with about five or six



99

more (fol. 62) with them in kind of a group and Officer 

Byars was talking to them.

Q Did you see both defendants in the group?

A Yes, sir.

Q What did you do then, if anything?

A At that time I didn't do anything. I was getting 

some information from another officer on the southeast 

corner of the intersection.

Q Was that in relation to this case?

A No, sir. It was to call my home.

Q What did you see happen on the northwest corner, if

anything, on that occasion?

A I noticed Officer Byars talking to the group and 

directly he motioned for me and Officer Davis to come 

over there where he was at, and we went over there and 

just as I stepped up on the curb I heard him tell this 

group, !li am telling you for the third time you will have 

to move on, you are blocking the crosswalk.'*

Q About how many was in the group at that:.time, if 
you know?
(60) A I would say five or six. It could have been more 
©£ less.

Q What happened to the group then, if anything?

 ̂ All of them disbursed except Shuttlesworth.

Q What happened after that?



100

A Officer Byars told him he was under arrest for block­

ing the sidewalk and placed him under arrest,

Q Where were you standing at the time you were hear­

ing this conversation?

A I was standing on the same corner they were, the

northwest corner.
Q What happened after the others had left and he told 

Reverend Shuttlesworth he would have to move on or he 

would arrest him? What happened then?

A All of them moved except him and he placed him under

arrest and carried him over to the edge of the curb to wait 

for the police car to come pick him up.

Q Was the Defendant Phifer there at that time?

(fol. 63) A He was there and moved on, but he came back.

Q Did you see him when he came back?
A Yes, sir. I would say I was standing on the north

side of where Shuttlesworth was standing.

Q What happened when the Defendant Phifer came back?

A He came up and said he wanted to talk to Shuttles­

worth and Officer Byars told him he couldn't, that he was 

under arrest, and he said, "Well, I want to talk to him an?

way." And he said, "Well, if you do, I will have to arrest

you too because I have told you to leave." And he said, 

"Well, I will have to be arrested." And he placed him un 

der arrest for failing to obey an officer.



101

MR. WALKER:
I believe that is all.

CROSS EXAMINATION
BY MR0 HALL:

Q How do you spell your name, H-a-l-l-m-a-n?

A That’s right.

Q Mr. Hallman, will you come up to- this diagram and 

show us where you were standing, assuming this is 19th - 

Running from top to bottom, and 2nd Avenue from side to 

side, this is the intersection here, this is Newberry's, 

this is Pizitz, that is the souteast corner and that is 

the northeast corner of the intersection. (Indicating.)

A You want me to show you where I was standing when I 
first saw them?

Q Yes.

A I was standing right here. (Indicating.)

Q Will you just print yioer name right there, please, 
sir?

A (Indicating.)
Q How long had you been standing there, Officer Hall­
man?

 ̂ I had been there approximately an hour. I had been 

forking traffic on that side of the street.

You had been working this intersection for approxi- 
mately an hour?



102

A Yes.
(fol. 64) Q When you first observed this business over 

here between Officer Byars and these defendants?

A That's right.

Q How many policemen ordinarily work that intersec­

tion, Officer Hallman?

A Just one.

Q But you had some help this morning?

A No.
Q How many policemen were on that corner at that time?

A Well, at that time there were three of us. There

was myself, Officer Davis was giving me information to call 

my home, and Officer Byars was standing on the other cor­

ner.
Q Wasn't there another officer there?

A I didn't see him at that time. I didn't notice him.

Q Did you ever see him--0fficer Renshaw?

A Yes, I saw him.

Q When did you see him?
A Before the two defendants were placed under arrest.

Q You didn't see him at the time the Officer Byars was

giving his third command to Shuttlesworth and Phifer?

A No, I was looking at Officer Byars. Only one time 

I heard him.
(62) Q You heard him say that just once?



103

A Yes.

Q He only said it once, is that right?

A I couldn't verify that. I was across the street and 
1 heard him say it once.

Q From the other side of the street?

A No. The side he was on.

Q You were standing there near him when he said it?

A When he said, "This is the third and last time I am

telling you you have to move on."

Q You didn't see Officer Renshaw standing there at that 

time?

A I told you I didn't.

Q But there were at least four officers on that inter­

section (fol. 65) at that time, is that correct?
A Three.

Q How long did it take to arrest these two defendants 

on that occasion?

A I would say the whole procedure took approximately

six or seven minutes counting the time they were arrested 

and the time for the car to get there and take them away.

Q After they were arrested the car came and picked them 

up and took them away and didn't take over six or seven 

minutes?

A Eight at the most. ‘ •

Q Now, you observe on these corners .from your position



104

here when you police that corner, do you not?

A I try to.
Q Had you seen these people over there blocking traffic 

before you saw Officer Byars?
A I saw him standing over there talkingto them.

Q Did you see them before he was talking to them?

A I saw them over there. I didn't pay any particular 

attention to them.
Q Did you get the impression they were waiting for 

the light to change?
A I couldn't answer that because I don't know what they

had on their mind.
Q You formed no impression when you first saw them? 

(63) A No.
Q You took no note of them when you first saw them, is 

that right?

A Just saw them standing over there.

Q The only time you made note of them standing over 

there was when you saw the policeman assisting you talk­

ing to them?
A When I saw him over there talking to them. He wasn't 

assisting me.

Q He wasn't assisting you with your corner.

A No.
(fol. 6 6) Q Officer Hallman, were you awarecon that date



105

that there was a selective buying campaign going on ini­

tiated by Negroes in the City of Birmingham against down­

town stores?
A I have no proof of such going on,

Q Were you aware of it?

A. It had been rumored.

Q You had some knowledge of it?

A Rumors.
Q Had you been told by your superior officers that such 

a thing was going on?

A No.

Q Had you seen any mimeographed copies of leaflets 

announcing there was a selective buying campaign going on?

A Never had seen such.

Q And advising Negroes to remain from the downtown area? 

A No.

Q Isn't that the reason you had so many policemen on

that corner?

A No.

Q Isn't it true the only reason Fred Shuttlesworth was

arrested that day was because he was downtown and the po­

lice thought he might have been encouraging the selective, 

buying campaign?

A ■ He was arrested for the charges placed against him 

and that is all.



106

Q Did the Defendant Phifer request permission of the 

officer who had arrested the Defendant Shuttlesworth to 

speak to him?

A He said he wanted to.

Q He asked the officer?

A That’s right.

Q And the officer said he couldn’t?

A The officer said he couldn't.

Q He didn’t walk up to the Reverend Shuttlesworth 

and start talking to him without asking the officer, did 

he?

A He came up and said something to him and Officer By­

ars told him he couldn’t talk to him, he was under arrest, 

and then he said, "i would like to talk to him." And he 

said, (fol. 67) "You can’t, he is under arrest.”

Q Did he tell the Defendant Phifer to move on?

A He told him to move. He said he wanted to talk to

him anyway and he said, "I will have to place you in jail 

too."

Q And that is when he arrested the Defendant Phifer?

A That’s right.

Q He didn't arrest him on that corner?

A He arrested him on that corner.

Q I beg your pardon. I don't quite understand you.

I said he didn't arrest him on the corner when he arrested 
Defendant Shuttlesworth?



107

A He was arrested on the northwest corner of 2nd Ave­

nue and 19th Street after he arrested Shuttlesworth.

Q Will you show me where you were when he was arrested, 
please? I don’t quite understand.

A When Shuttlesworth was placed under arrest I was 

standing right here behind Officer Byars. When Phifer 

was placed under arrest Shuttlesworth was standing here 

and I was standing here and Byars was standing right here 

behind Shuttlesworth. (Indicating.)

Q Now, how far in your best judgment was Officer Byars 

from the north curb of 2nd Avenue after he arrested Shut­
tlesworth?

A About a car length.

Q In your best judgment how far is that in feet?

A About ten feet or twelve or something like that.
Q That was ten or twelve feet from the point where he

had arrested Reverend Shuttlesworth, is that correct?

A I didn't say that. It was that far from the north 
curb line.

Q In your best judgment how far was it from the point 
he arrested the Reverend Shuttlesworth?

A I would say it would run across the corner this way 

would be about another eight or ten feet.

Q So, it was eight or ten feet away and it was about

five to ten minutes away in point of time, is that right?



108

A I would say it would be about three or four minutes

(fol. 6 8) from the time Shuttlesworth was arrested until 

Phifer was arrested.

Q And he was arrested for wanting to talk to Reverend 

Shuttlesworth?

A He was arrested for failing to move on when an of­

ficer told him to.

Q But it was only after he attempted to talk to Reverend 

Shuttlesworth?

A That’s right.

Q And the officer said he couldn’t and told him to move 

on?

A Yes.

Q And then he was arrested?

A That's right.

Q But he was not arrested at the outset when Shuttles- 

worth was arrested for blocking that sidewalk?

A No. He moved when he was told to because the side­

walk was being blocked.

MR. HALL:

Thank you very kindly.

THE COURT:

Anything further?

MR. WALKER:

No further questions.

(Witness excused.)



109

Mr. JOHN D. ALLRED, called as a witness, being first 

duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. WALKER:

Q What is your full name?

A John D. Allred.

Q How do you spell it?

A Allred.

Q Officer Allred, your occupation is a policeman?

A Yes, sir.
Q How long have you been so employed?

A Four years this past August.

Q What are your assignments, traffic or-- 

A Well, no, sir. I am in the.patrol division.

Q On April 4th of this year where were you working? 

(fol. 69) A I was working traffic downtown.

Q Traffic was your assignment then?
A Yes.

Q On that occasion did you see either of the defend­

ants or both of them?

A Yes, sir, I did.

Q About what time?

 ̂ Approximately 10:30.

Q Where were the defendants when you first saw them?

 ̂ When I first saw the defendants they were talking



110

to Officer Byars.
Q Where were you at that time?
A I would say I was approximately twenty-five or thirty

feet south of the alley by Newberry's.

Q And what did you do then, if anything?

A Well, I was giving some directions to some people 

at this time and I heard Officer Byars make a statement to 

a group they were going to have to move on.
Q How far were you from the group or from Officer 

Byars when you overheard that statement?
A Approximately from here to the back of the court 

room.
(67) Q What happened then, if anything?

A Well, as I say, I was giving directions and I saw 

Shuttlesworth and this other one walk off and then I saw 

Officer Byars go get them, and the next time I saw him he 

was leading one of them back to the curb.
Q Were you present when the Defendant Phifer was placed 

under arrest?

A Yes, sir.
Q When was the Defendant Phifer placed under arrest?

A He had Shuttlesworth standing at the curb and he came

up and said he wanted £o talk to him and Officer Byars 

told him he couldn't talk to him, he was under arrest.

Q Did you ever come from where you were first standing



Ill

(fol. 70) when you first saw the incident?

A Yes, sir, I came on up there,

Q You were present then when Phifer was placed under 

arrest?

A Yes.

Q What did Reverend Phifer say to Officer Byars and to 

Shuttlesworth and what did Office Byars say to Phifer?

A Well, now, I don't know what he said to Shuttles­

worth, but Officer Byars told him he couldn’t speak to 

Shuttlesworth because he was under arrest, and to the best 

of my knowledge he kept on insisting and Officer Byars 

told him he. would have to go with him, and he told him he 

wanted to with him, or something to that effect.

MR. WALKER:

That is all.

CROSS EXAMINATION
BY MR. HALL:

Q Officer Allred, how long have you been with the 

police department, please, sir?

A Four years this past August.

Q Have you been in traffic all that time?

A All but approximately a year.

Q About a year in traffic?
A All but a year.
(68) Q And you were in the traffic department on April



112

4th this year?

A I was.

Q Where were you stationed at that time?

A I was working on the corner of 3rd Avenue and 20th 

Street at that time. That was my regular assignment.

Q What was the occasion for you being on 2nd Avenue 

and 19th Street?

A We just walk around most anywhere.

Q Walk around? Is traffic that slow at that time of
morning?

A I won't say it is that slow, but when I was working

3rd and 20th I went most anywhere I wanted to in the down­

town area.

Q You could do that in comparative safety; there is no 

necessity then for policemen at those intersections?

A Yes, there is a necessity.

(fol. 71) Q What accounts for the fact you could walk 

around anywhere you wanted to and leave your particular 

post?

A Well, I can't say. I was just walking around.

Q You had no particular reason forvbeing at 2nd and
19th?

A No.

Q You hadn't received any radio call from police head

quarters?



-113

A No,
Q No one told you Shuttlesworth was on 2nd and 19th?

A No.

Q You knot'? the Defendant Shuttlesworth?

A Never had seen him before.

Q You had heard about him?

A I had heard about him.

Q You had read aha ut him?

A I had read about him.

Q Had you seen him on TV?

A Never had.

Q Had you heard about him on the radio?

A Not to my knowledge.

Q You knew he was a very ardentadvocate of civil 
rights.

A Just what I read.

Q You knew that on April 4, 1962?

A Just what I read in the newspaper.

Q And you didn't hear that morning, April 4, 1962,
that he was down at 19th Street and 2nd Avenue?

 ̂ I did not.

Q But you just left your post at 3rd Avenue and 20th 
Street?

I didn't leave 3rd Avenue and 20th Street. I was 

assigned to 3rd Avenue and 20th Street.



Q But you hadn't gotten there?

A I had never gotten there.

Q That was about 10:30 in the morning?

A 10:30.

Q You were on your way then to your post?

A Eventually I would have gotten there.

(fol. 72) Q Were you on a motor bike or patrol car?

A Walking.
Q And you were coming from roll call, is that right?

A No, I had been to roll call thirty minutes prior to

that.
Q But you had not reached your assignment?

A That's right.

Q Did I understand you to testify you were receiving 

some police information or some.instructions?

A I was giving some information.

Q You were giving some information? Did that infor­

mation have to do with this particular incident?

A It did not.

Q Or to either of these defendants?

A It did not.
Q To whom were you talking--another policeman?

A No.

Q Detectives?

A No.

114



llj

Q A commissioner?

A No.
(70) Q Where were you,.sir, when you first observed these 

people with reference to this particular diagram? Would 

you mind showing us with this piece of chalk?

A Is this going south?
Q This is south, this is 19th Street, this is 2nd Ave­

nue west to east here. (Indicating.) This is Newberry's and 

this is Pizitz and that is where Patrolman Hallman was stan­

ding.
A Well, I was approximately about here. (Indicating.)

Q You had just crossed the alley heading south on 19th 

Street?
A I was across the alley. I don't know exactly how 

far.

Q You were between the alley and 2nd Avenue going south 

on 19th Street?

A That's right.
Q At that time you saw Mr. Byars and the defendants 

(fol. 73) on this corner, is that right?

A I saw him with a group of people.

Q On that corner? Was that the first time you had seen

either Mr. Byars or the defendants that morning?

A No, I saw Officer Byars prior to that.

Q Where had you seen him prior to that?



116

A At roll call.

Q Had you seen him after leaving roll call?

A I saw him I believe in the basement at a place on

3rd and 19th having coffee. I am not positive, but I 

believe he was there.

Q But you had not seen him on 19th Street around this 

area before seeing him talking to the defendants?

A Not that I recall.

Q Now, when you first observed them what did you do? 

When you first observed them standing there on that corner 

what did you do?

A I didn't do anything.

Q Didn’t you proceed to the corner and join them?

A After I saw him bring Shuttlesworth out to the curb.

Q Was there a large crowd on that corner when you first

looked down there?

(71) A Well, I couldn't say there was a large crowd. To 

the best of my knowledge maybe ten or fifteen or twenty 

people.

Q Were they both white and colored people?

A Well, X know there was colored. There was probably 

white too.

Q But you saw the colored people?

A I saw that is who Officer Byars was talking to.

Q Was he talking to all colored folks?



117

A He was talking to a group. Who he was talking to 

in particular I don't know at this time.

Q He might have been talking to everybody on that 

corner?

A As far as I know, he was talking to a group.

Q And that group had some colored folks in it, you know, 

but you don't know whether it had white folks in it or not?

A I couldn't say.

(fol. 74) Q But ordinarily the average corner has both 

colored and white folks waiting on the light to change?

A Ordinarily.

Q And probably there was some white folks in that 

group?

A Could have been.

Q When you got up to Officer Byars after he brought the 

Defendant Shuttlesworth out to the curbline at the time 

you approached them, how many officers were there then?

A Well, to the best of my knowledge there was jaaybe 
two or maybe one.

Q Can you identify him?

A I believe Mr. Hallman was there. I don't know

whether Mr. Renshaw was there then or came up later.

Q When you arrived there what did you hear Officer 
Dyars say and do?

 ̂ He asked him for some identification I believe.



118

Q Asked who?

A Shuttlesworth.

Q And you knew him when you looked at him?

A I sure didn't.

Q What did he do then after he asked for the identifi­

cation?

(72) A Well, maybe he talked with him. I don't know.

Q You don't know what he said to him?

A Sure don't.

Q What happened between that time and the time he 

arrested Reverend Shuttlesworth? What did Mr. Byars 

say to the Reverend Phifer?

A He told him he couldn't speak to Reverend Shuttles­

worth.

Q Was that before or after Phifer had spoken to Shut- 

tlesworth?
A He came up and started talking to him.

Q And he told him.he couldn't talk to him and told 

him to move on?

A Something to that effect.

Q And when he told him to move on he arrested him? 

(fol. 75) A Maybe he told him that twice.
Q But after he refused to move on he arrested him?

A After he refused to move on he arrested him.

Q And that was ten or twelve or fifteen feet from the



curbline of 2nd Avenue on 19th Street, ten or fifteen feet 

away from the intersection?

A That is where he brought Shuttlesworth out.

Q How long was it between the time you first saw these 

people gathered on this corner and the time the police 

patrol came up and took them away to jail? In your best 

judgment tell us how long that took.

A From the time they were first arrested?

Q No, sir, from the time you first saw them until the
car drove away with them.

A I would say ten.

Q Could it have been less than that?

A It could have been less than that.

Q Might it have been five minutes?

A Could have been five or fen or fifteen minutes. I
don't know exactly.

Q Could have been five though?
A Could have been five. I don't know.
MR. HALL:

Thank you. That is all.
MR. WALKER:

No questions.
(Witness excused)

119



no

Officer CECIL W. DAVIS, called as a. witness, being 

first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. WALKER:

Q State your full name, please.

A Cecil W. Davis.

Q What is your occupation?

A Policeman, City of Birmingham.

Q How long have you been a police officer?

A Well, it will be twelve years this coming March,

(fol. 76) Q How long have you worked traffic?

A Eleven years.

Q Were you in traffic on April 4, this year?

A Yes, sir, I was.

Q On that occasion did you see either or both of these 

defendants?

A Yes, I did.
Q Where were you at the time you first saw the defen­

dants?

A I was on the souteast corner of 2nd Avenue and 19th

Street.

Q Was anyone with you?

A Officer Hallman when I first saw them.

Q What did you see on the corner by Newberry's?

On the corner at Newberry's I saw a group of coloredA



people standing in a group there at the crosswalk.
Q What were they doing?

A Well, they were just standing around in a group.

Q Was Officer Byars there at that time?

A Yes, he was.

Q What was he doing, if anything?

A Well, where I was standing I couldn't tell, other 
than he was talking to them,

Q He was talking to them?

A He was making motions like he was talking.

Q Were there more than these two people in the group 
A Yes.

(74) Q In your best judgment how many people were there 
in that group?

A Around ten or twelve.

Q Did you ever cross the corner to go over there?

A Yes, sir, I did.

Q What happened then, if anything, when you crossed
the street?

A That is when I got over across the street, Officer 

Byars motioned in my direction and I came over with 

Officer Hallman and I was operating a motor and when I 

got off of it I heard Officer Byars tell them they were 
under arrest.

(fol. 77) q  All of them? Was he speaking to the group



122

as a whole?

A Sir?

Q Do you know if he was speaking to the group as a
whole, or who was he talking to at that time?

A He was talking to the group but he told Shuttles- 

worth he was under arrest.

Q You heard him place Shuttlesworth under arrest?

A Yes.

Q Was the group still there at that time?

A There was a group of people around, yes.

Q What happened when he placed Reverend Shuttles­

worth under arrest?
A Well, my motor was parked over on the west side of 

19th Street. That is , the 19th Street side of Newberry's. 

And I went over there and used my radio and radioed for 

a car to come down.
Q Were you present subsequent to that or after that 

when Reverend Phifer was placed under arrest?

A I was.
Q Where were you when Phifer was placed under arrest?

A I was at the corner when he was placed under arrest.

Q Tell the court what you heard and saw at the time

Defendant Phifer was placed under arrest.
A I heard Officer Byars tell Phifer to go on, that

Shuttlesworth was under arrest and he insisted on talking



128

to him.

Q What happened then?

A He placed him under arrest too.

Q Did you see anything else on this occasion that you 
haven't testified to?

A No, sir.

MR. WALKER:

That is all.

CROSS EXAMINATION
BY MR. HALL:

Q Officer Davis, is there a rule that says once you 

arrest a man no one can talk to him?

A A written rule?

Q Yes, sir, any kind of rule.

(fol. 78) A There is a rule that we do that.

Q Is there a written rule— -is that part of the rules 

of your department, or is that the law?

A That is the procedure we take.

Q Do you have a rule of procedure that is written down?

A To my knowledge I don't know.

Q But that is your general rule of procedure?
A Yes.

Q Once you arrest a man no one can talk to him?

A That's right.

Q If you arrest my wife I can't say anything to her,



and if I do I am guilty of failure to obey an officer?

MR. WALKER:

I object to that as argument.

MR. HALL:

That is not argument.

THAT COURT:

That would be construed as argument by the Court of 

Review, and I assure you it will.

MR. HALL:

I will withdraw it, but may I inquire further into 

this rule?

THE COURT:

I will take the questions as they come.

Q Officer Davis, do you have a police manual to guide 

you?

A Yes.

Q Does the manual say this is the rule?

A In my particular manual I haven’t seen it in this

manual. I have read that manual now over eleven years. 

(76) Q Has anyone of your superiors told you that was a 

rule?

A Well, like I said, it is customarily what we .are 

supposed to do. When one is under arrest no one is to 
talk to him.

Q Have you been advised by the city legal department
that was the law?



125

A Not the legal department personally, no.

Q But it is your understanding that once you have 

placed a man under arrest, or a woman, for any charge then 

on one is to be allowed to converse with him?

A That's right.

Q On the morning of April 4, 1962, Officer Davis, you 

(fol. 79) were on a motorcucle or a motor scooter?

A Yes.

Q Do you have a particular area asigned to you that

morning?

A Yes.

Q What area were you assigned to?

A My territory covers 4th Avenue North.

Q All up and down 4th Avenue North?

A East and west.

Q That would be between what streets?

A Well, I control the parking regulations in that vi­

cinity on 4th Avenue I would say from 13th Street to 26th 

Street.

Q From 13th Street to 26th Street your job is to patrol 

the parking meters and to observe traffic along 4th Avenue? 

A That's right.

Q Now, that would be something like thirteen blocks?

A Something similar to that.

Q Do you have any other area, or did you have any other 
area at this time besides 4th Avenue?



126

A We are not confined to that specific area when you 

have a call to make.

Q You sometimes get calls?
A Yes.

Q You get them from your police headquarters?
A By radio or by word of mouth.

Q Now, on this morning had you reported to your as­
signed territory?
A I ha d .

Q Did you receive a call to proceed from there some
place else?
A I was told to go to 2nd and 19th and give the officer

on the corner there a call number, which is to call home.

Q You were told this by your superiors at the police 

headquarters ?

A It was word of mouth.

Q So, actually, what you were doing down there was

to tell Officer Hallman, the regularly assigned officer, 

something?

(fol. 80) A Right.

Q So, on this particular occasion you didn’t go there

yourself, you went there to carry this message to Officer 
Hallman?

A That’s right.

Q Tell me this, Officer Davis: Do you know Defendants



Fred Shuttlesworth and Reverend Phifer?

A Yes, I do,

Q You know both of them?

A I know them both.

Q Have you seen them on several other occasions?

A Yes, I have. My beat covers 4th Avenue down around 

17th and I see both of them down there quite often. I know 
them real well.

Q Are they generally known to the police department

of the City of Birmingham, would you say?

A I would say generally.

Q Would you say that was true on April 4, 1962?

A Then I don’t know.

Q That was just this April, but at that time you had 

been in the Police Department some eleven or twelve years 

and you know as a matter of fact both of them had been in­

volved in several actions against city laws having to do 

with segregation and integration?
A Yes.

Q You know they had been prosecuted several times by 

the City of Birmingham and arrested many times by police 

officers in the City of Birmingham?

A I don’t know that. I just know what I read in the
papers.

Q Had you read that in the papers that they had been



128

arrested several times for violation of municipal ordi­

nances having to do with segregation?

A Yes.
Q Officer Davis, were you aware on April 4, 1962 of 

the fact that Negro citizens of Birmingham were engaged 

in a selective buying campaign against downtown stores in 

the City of Birmingham?

A Say that again.

(fol. 81) Q Did you know on April 4, 1962 that the Negro 

citizens of Birmingham were engaged in a selective buying 

campaign against the downtown stores of Birmingham?

A All 1 knew of was a rumor.

Q You had heard rumors to the effect that that was true

A Well, I don't know whether it was true or not. I

heard it was a rumor.
Q That it was going on? Had anyone discussed it with 

you at police headquarters?

A No.
Q Had any of the downtown merchants discussed it with

you?

A No.
Q Do you know whether any plainclothes policemen were

assigned to downtown stores during this period of time?

A No, I don't.
Do you know whether or not police activities wasQ



129

concentrated in this area at this particular time in an 

effort to break up this ‘particular campaign?

A No.

Q You had not been briefed by any of your superiors?

A No, sir.

MR. HALL:'

That is all, Officer Davis. Thank you.

MR, WALKER:

No further questions.

(Witness excused)

MR. WALKER:

That is the City’s case, Judge Bailes.

MR. BILLINGSLEY:

Your Honor, at this time we would like to file mo­

tion to exclude the testimony and for judgments in both 

cases.

THE COURT:

The Court would have to overrule the motions.

MR. BILLINGSLEY:

Take exception, Your Honor.

MR. HALL:

If Your Honor please, may we have about five or ten 

Minutes recess?

(Short recess.)



130

(fol. 82) EVIDENCE ON BEHALF OF THE DEFENDANTS

JAMES ARMSTRONG,called aa a witness, being first duly 

sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. HALL:
Q Will you state your name and address, please, sir?

A James Armstrong, 227 9th Court West.

Q That is Birmingham, Alabama?

A Yes.
Q What is your occupation, please, sir?

A I am a barber.
Q Do you know the Reverend F. L. Shuttlesworth and

the Reverend Phifer?

A I do.
Q Did you know them on April 4, 1962?

A Yes.
Q On that date, Mr. Armstrong, were you in downtown

Birmingham at or near the intersection of 2nd Avenue and 

19th Street about 10:30 in the morning?
A I don't recall the date, but I was downtown with them

one morning.
Q On April 4, 1962 the Reverend F. L. Shuttlesworth
was arrested for failure to move on at the corner of 2nd 

Avenue and 19th Street in downtown Birmingham. On that 

occasion were you there?



131

A I was there.

Q Were you there when the Reverend Phifer was arrested 

when he attempted to talk to the Reverend Shuttlesworth?

A I was.

Q And that was on April 4, 1962?

A Yes.

Q Now, Mr. Armstrong, were you with the Defendant F.
L. Shuttlesworth on that occasion?

A I wa s .

(fol. 83) Q Had you traveled with him to the downtown 
area?

A That day?

Q That day.

A I wa s .

Q Had you been some place with him before you got 

downtown?

A Yes.

Q Where had you been?

A The post office court room.

Q That is the Federal Court, Federal post office?
A Yes.

Q Had you been involved in some legal matters there in 
the court room that morning?

A That morning I don't recall.

Q Had you been to court that morning?



132

A Yes.

Q What time were you in court?

A About 9:30. Between 9:00 and 10:00 o'clock.

Q Do you remember about what time you left the Fed­

eral Building?

A I don't remember exactly.

Q In your best judgment what time would you say it
was?

A It was past 9:30 because he was due in court at 9:30, 

and it was after 9:30 when we left I am sure.

Q Let's go back a little bit and ask you--you were due 

there at 9:30?

A Yes.

Q You had some matter set at that time?

A Sure.

Q And you were there at that hour?

A That's right.

Q Do you remember which court, whether it was Judge 

Grooms or Judge Lynne?

A Judge Grooms' court.

Q Do you recall how long you were in court, or do you

have some judgment as to how long you remained there in 

court?

(fol. 84) A It wasn't long. Just got to the door I 

and turned around.



133

Q In your best judgment would it be five or ten or fif­
teen minutes?
A No more than that.
Q No more than ten or fiftenn minutes?
A No more.
Q And you proceeded from there and did you go directly 
downtown?
A We walked downtown.

Q Now, where is the Federal Building?

A You mean what street?
Q Yes.
A It is 5th Avenue, I believe, and 19th Street or 18th 
Street either one.

Q 19th Street and 5th Avenue?
A Yes.

Q And you walked from that point to 2nd Avenue and 

19th Street. Were you walking fast?

A No, we weren't walking fast.

 ̂ You were walking slow?
 ̂ Yes ■

 ̂ Now, will you tell us, sir, what happened when you 

S t to 2nd Avenue and 19th Street? Before you go into

at> k°w many persons were with you?
A '

About four or five. I am not sure.
Walking along with you?



134

A With me?
0 Yes, sir, you and the defendants.
(82) A Reverend Phifer and Reverend Shuttlesworth was 

walking alone.
Q And who else?

A Well, the rest of them were behind us.

Q The rest of who--whoever was with you?

A Yes, and they are witnesses in the court.

Q Who was with you, sir?
A Nobody but Reverend Shuttlesworth and Reverend

Phifer.
(fol. 85) Q Now, you, Reverend Shuttlesworth and Rev­

erend Phifer got to 19th Street and 2nd Avenue, is that 

correct?

A That's right.

Q They were together when you got there?

A Yes.
Q Tell the court what happened when you got to 19th

Street and 2nd Avenue, or as you approached it. Begin
with 3rd Avenue and 19th Street and tell us what happened.

A Well, as we approached the corner on 19th Street and 

2nd Avenue, as we walked up to the corner the light changed 

which stopped us, and the police came out of Ndwberry s 

and said, "Move on." And he said, "Move on" again and 

pointed to Reverend Shuttlesworth.



13-5

Reverend Shuttlesworth asked him, "Where to," and 

he said, "Anywhere, just move on."

And Fred said, HI will go in the store." So, he 

arrested him.

Q And then he arrested him after the Defendant said he 

would go in the store?

A Yes.

Q Now, let's go back. As you came down 19th Street 

you were going south on 19th Street, is that correct?

A Yes.

Q Moving from 3rd Avenue to 2nd Avenue?

A That's r ight.
Q As you approached the alley did you see a police

officer?
A Well, I saw him--the whole time while I was there I 

saw policemen.
Q Did you see the policeman that stopped you at the 

corner of 2nd Avenue and 19th Street~-did you see him 

anywhere on 19th Street before the arrest?

A No, I didn't see him until he came out of the store. 

Q ! You saw him when he came out of the store?

A Yes.

Q When he came out how long had you been standing on 

that corner?

A Hadn't been standing.



136

(fol. 86) Q What happened, he came out Immediately as 

you came up to the corner?

A Yes.
Q Before you stopped he came out?

A That's right. We were still moving coming to the 

corner.
Q And he came out of Newberry's Department Store?

A Almost side by side.
Q And he said to move on. Now, where did he place

himself when he stopped you?
A He placed himself in front of me to Reverend Shut-

tlesworth.
Q In front of you so you could not move on?

A That's right.

Q What were you doing, were you moving south?

A Moving south.
Q To cross at the corner of 19th and 2nd Avenue?

A That's right.
Q And your reason for stopping there was what?

A The light.

Q The light changed and was against you?

A That's right,
Q Now, did the policeman say "Move on11 while the light 

was against you?

A Yes.



137

Q And he said "Move on” again?

A Yes.

Q And the defendant Shuttlesworth asked him ,!To 
move where?”

A That’s right.

(84) Q And what did the officer say?

A "Anywhere, just move on."

Q And what did Reverend Shuttlesworth say?
A "Well, I will go in the store,”

Q He started in the store?

A Yes.

Q Did you start with him?

A No.

(fol. 87) Q Did the Reverend Phifer start with him?
A No.

Q Reverend Shuttlesworth went on by himself?

A But he didn’t get hardly two steps in the store, he 

started to go in and the officer grabbed him by the arm.

Q What happened then?

A Well, he arrested him.

Q After he arrested him?

A What happened to me?
Q To anybody, or to everybody. What did the police do 

with Reverend Shuttlesworth?

A He carried him to the corner out on the curb of the
street.



138

Q I direct your attention to this diagram we have drawn

on the blackboard here, this is Defendant’s Exhibit 1 we 

are referring to, and it purports to be a drawing of the 

intersection of 19th Street and 2nd Avenue North. 19th 

Street is from top to bottom, thd: is north and this is 

south; 2nd Avenue goes from side to side, and this is 2nd 

Avenue West and that is 2nd Avenue East. (Indicating.)

On this corner, which is the northwest corner of the inter­

section, is the Newberry's Department- Store. Now, this 

is the corner, the northwest corner which you were approaching 

as you said, when the policeman came up, is that correct?

A That’s right.
Q Is there an entrance to the Newberry’s Store right

at this corner?

A Yes, there is.

Q Right at this corner there is an entrance to the New­

berry’s Store?

A Yes.

Q Now, after the policeman said for the Defendant

Shuttlesworth to move on, he said, "Well, I will go in the 

store," and he started in the store and your testimony was 

the officer stopped him after he got about two steps?

A Yes.

(fol. 88) Q And then he took him where?

A To the corner.



139'

Q Come and show us where you mean.
A Here. This is the corner here. (Indicating.)
Q Did he take him right on the corner?
A About three or four steps from the corner.
Q Along 19th Street?
A That's right.
Q How far from the corner would you say in terms of 
feet?
A Well, just four or five feet I guess,
Q Could it have been as many as ten or twelve feet?
A It could have.
Q When he took him over there what did he do?
A Well, I guess he called the patrol wagon.
Q Don’t guefts. What did he do?
A That is all I could see.
Q How close were you to him?
A I was up beside the wall of Newberry's on 19th Street 
Q About here? (Indicating)
A That's right. Observing.
Q How many persons were along that wall with you?
A I didn't pay any attention to how many.
Q In your best judgment how many were there? Were 
there more than one or was there more than yourself there?
A At the time he was arrested I guess maybe five or six
Q Five or six people were standing along this wall over
here watching?



m o

A Sure.
Q And you were standing there. Did you see the Rev­

erend Phifer walk ud the arresting officer and the

Defendant Shuttlesworth?

A Yes.
Q How close were you to them then?

(86) A I was standing in the same spot.
Q How many feet would you say in your best judgment?

(fol. 89) A The whole distance about ten feet.

Q Could you hear what they said very easily?

A No.
Q Did you hear what the Reverend Phifer said?

A No.
Q You couldn't hear that?

A No.
Q Did you hear what the officer said to him?

A No, I couldn't hear what he said.
Q Did you see them take the Reverend Phifer into cus­

tody?

A Yes, I did.
Q Were you approached by the arresting officer and

placed under arrest?

A No.
Q How many officers were present on the scene at that 

time?



141

A I believe there was about three or four.
Q Could we say that is your best judgment?
A In my best judgment three or four.
Q Could there have been as many as six?
A On the arrest, no.
Q At this particular time were they all standing there 
together, all these officers?
A Yes.
Q How long would you say it took them to arrest the 
Reverend Shuttlesworth and the Reverend Phifer and to 
take them away from the scene after you first arrived at 
the intersection?
A Oh, I don’t know. Maybe about five or six minutes 
or something like that.
Q A very short time?
A Very short time.
Q The arrest was within minutes, would you say?
A Sure.
Q And after the arresting officer had removed the defen­
dant to the side how long did it take the patrol car to then 
(fol. 90) come up and take them away?
A I don't recall seeing a patrol car.
Q Did you see any car at all come and take him away?
A No.
Q You don't remember how he was taken away?



142

A I don't remember how he was taken away.

MR. HALL:

That is all.
CROSS EXAMINATION

BY MR0 WALKER:
Q Your name is James Armstrong?

A Right.
Q I believe you testified that you were coming down

19th going south on 19th coming from the Federal Court­

house?

A That's right.
Q There were four or five people in the group you were 

in or straggled out, coming together from the courthouse?
A Sure.
Q Now, when you got to the intersection of 2nd and 

19th did you meet any friends you knew at that intersec- 

t ion?

A No, I did not.
Q Did anybody come up that knew the Reverend Phifer
or the Reverend Shuttlesworth?
A Not at that intersection.
Q H0w many people were in ;your group at the inter­

section of 2nd and 19th?

A I didn't have a group.

Q Well, the people you were with.



143

A Well, some of them were behind.
Q Well, the ones that were behind and the ones that were 
--how many were coming from the courthouse?
A About four or five.
Q All told?

A Maybe, yes.
(88) Q I believe you said you stopped at that intersect 
tion waiting for a light?
(fol. 91) A That’s right.
Q Do you know how long the light holds red at that 
particular intersection?
A I really don’t know.
Q Do you have an opinion?
A Well, sixty seconds I imagine.
Q You don’t know that it holds, seventeen seconds?
A I don't know that.
Q How long were you standing at that intersection?
A I was walking to the intersection. I didn’t get a
chance to stand.
Q Do you know whether the light changed while you 
were at the corner of 2nd and 19th?
A Changed against me?
Q For you or against you.
A That is what we were waiting for, for it to change 
In my favor, but it did not.



MR. WALKER:

No further questions.
REDIRECT EXAMINATION

BY MR* H ALL:

Q Do I understand you to say the officer came up to the 

intersection at the same time that you, the Reverend Shut- 

tlesworth, and Reverend Phifer reached the intersection?

A Yes.

Q And he began talking to you there?

A Began talking "M0ve onn, yes, sir.

Q And at that time the light had changed against you, 

is that right?

A That's right.

Q Did the light change while the officer was talking, 

or do you know?

A No, the light was still holding.

Q Where was the officer standing with reference to 

where you all were standing? Was he standing in front of 
you or behind you?

(89) A He was standing almost beside me.

(fol. 92) Q Was he in front or behind the Defendant Shut- 
tlesworth?

A ; He was behind him but right at him.

Q So, he came up at the same time that you reached the
intersection?



145

A That’s right.
Q You had not been standing there at all?
A No, no. We walked there together.
Q Incidentally, there has been some reference to the 
size of your group. Tell us were there many Negroes in 
town at all on this particular day?
A No.
Q Did you see any?
A Very few.
Q Isn't it a fact that this was during the time the 
Negroes of this city were carrying on a selective buying 
campaign in the downtown area?
A Yes.
Q Were you aware of that campaign?
A Sure.
Q Were Negroes generally aware of it?
A Well, I guess so.
Q Those with whom you came in contact communicated
to you that they were aware of that campaign?
A That's right, sure.
Q And in your best judgment were they observing the 
campa ign?
A Well, I think so.
Q They were not going into the downtown area, is that

correct?



146

A That’s right.
Q So that when you went downtown your group was 
conspicuous because of the fact there were very few 
Negroes in the downtown area?
A Sure.

MR, HALL:
That is all.

MR. WALKER:
No question.

(Witness excused.)
(fol. 93) THE COURT:

Could we come back in the morning?
MR. HALL:

Yes, Judge.

THE COURT:

What hour?
MR. WALKER:

9:00 o ’clock.

(Whereupon at 4:15 P.M. the court was adjourned until 

9:00 o ’clock A.M., October 30, 1962.)

ADJOURNMENT

October 30, 1962--9:00 A.M.

(Whereupon court was reconvened pursuant to adjourn­
ment .)



147

ROBERT J. NORRIS, called as a witness, being first 

duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. HALL:

Q State your name and address, please.

A Robert J. Norris, 109 15th Court North.

Q What is your occupation, please, sir?

A Railroad mechanical helper, retired.

Q Mr. Norris, are you also a minister?

A I am.

Q Are you presently engaged in the ministry?

A Part time.

Q Reverend Norris, are you acquainted with these de­

fendants here, F. L. Shuttlesworth and the Reverend Phifer? 

A Yes, I am.
Q Were you acquainted with them on April 4, 1962?

A Yes, I was.
Q On that date at about 10:30 in the morning did you 

see them in downtown Birmingham?

A I did.
(91) Q Did you observe them at or about 19th Street and

2nd Avenue North?

A I did.

Q At that time will you tell the court what you saw 

happen, if anything?



148

(fol. 94) A As we arrived they were talking just ahead 

of me,

Q You were walking where?

A On 19th Street.

Q Were you walking north or south on 19th Street?

A Going south on 19th Street,

Q Where?

A Between 2nd and 3rd Avenue.

Q As you arrived where, at 2nd Avenue and 19th Street? 

A At 2nd Avenue and 19th Street.

Q All right. Go ahead,

A As we arrived at 2nd Avenue and 19th Street, them

being just ahead of me, we all came to a slowdown for thd 

traffic light and at that time the officer came out and-- 
Q Came out from where?

A From the entrance to Newberry*s Store on the corner, 

and walked around ahead of the Reverend F. L. Shuttles- 

worth and said, "Move on." And the Reverend Shuttles - 

worth said, "Move where, Officer?" And he says, "Any­
where but here."

So, the Reverend Shuttlesworth said, "I will go in 
the stcfce then."

So, the officer chased around and got up to him and 

caught him and told him he was under arrest,

Q How close were you to the Reverend Shuttlesworth at



149

that time?

A Approximately five feet away.

Q Were you walking with the Reverend Shuttlesworth?

A No, I was just behind him.

Q About five feet behind him?

A About five feet behind him«

Q Now, had you seen the officer before he appeared at 

that intersection?

(92) A Well, yes, sir, I saw the officer inside the store 

Q Where was the officer when you first saw him?

A Passing the door just before you get to the corner.

He passed the door about the same time I did on the outsiie 

(fol. 95) I was on the outside and he was on the inside.

Q As you passed the door on the outside, that is the

Newberry's door?

A That’s right.
Q How close is that door to the corner of 2nd Avenue

and 19th Street?
A I don't recall just exactly the distance, but it is

a very short distance. I am not sure whether it is middle- 

ways the store or a little closer to the corner than to the 

alley side.
Q Reverend Norris, will you look at this diagram here 

on the blackboard which is Defendant’s Exhibit 1 purport­

ing to be a drawing of the 19th Street and 2nd Avenue



150

North intersection. I direct your attention to this dia­
gram. 19th Street runs from top to bottom, that is, from 
north to south on this board, and 2nd Avenue runs from west 
to east. Now, the Newberry's Store, this little oblong 
situation here is supposedly Newberry's Store, and it shows 
here on the diagram it is on the northwest corner of that 
intersection. Now, can you indicate here inhere in your best 
judgment that door is that you were talking about in this 
building?
A There is a door on the 19th Street side. I believe 
it is near the center.
Q Will you come up here and indicate it for us?
A In my best judgment this door on the 19th Street side 
seemed to be somewhat along here. (Indicating.)

Q About the center of the building?

A About the center of the building.

Q Is there another entrance here at the corner?
A Yes, there is.

Q Right there?

a Here. (Indicating.)

Q Now, let the record show the witness is indicating 

about the center of this oblong on 19th Street as being an 

entrance and the corner at 2nd Avenue and 19th Street as 
being an entrance.

Now, where you first saw the officer did you see him



151

at (fol. 96) the center door as you passed?

A He was headed toward the front the same as I was.

Q You were walking on the outside on the sidewalk?

A That's right.

Q Alongside Newberry's Store?

A That's right.

Q And you saw the officer inside the store-- that door 

is a glass door, is that right?

A That's right.

Q And you saw this officer walking inside toward the 

front of the building?

A Yes.
Q How fast were you walking?

A Just a slow pace that you would walk:in town.
Q Just an ordinary pace?

A Yes.
Q How was the officer walking when you saw him?

A He appeared to be a little bit faster than I was 

waIking.

Q Where did you next see this officer?

A At the corner entrance. When I arrived at the corner

entrance he was coming out the corner entrance.

Q He was coming out as you arrived there?

A He was coming out.
Q Did you know the officer's name at that time?



152

A I did not.
Q Have you since foud out who the officer was?
A No, I have not.
Q Was that the officer that arrested Reverend Shuttles- 

worth on that occasion?

A ,•It was the one.
Q And if I told you his name was Officer Byars, that 

would be the same man that arrested Reverend Shuttles - 

worth on that occasion? You were there, were you not?

A Yes, sir.
(fol. 97) Q Did you arrive at that corner about the same 

time that Reverend Shuttlesworth did?

A Almost. Just a step or two ahead.

Q And the officer came out of the store at that same

time?

(94) A That's right.

Q Was the Reverend Shuttlesworth standing on that 

corner when the officer arrived?

A I might say he was standing because he had just 
come to a stop,

Q He had just come to a stop?

A The light had turned ted and everybody going that 

way was supposed to stop.

Q And the officer came up there?

About the same time. It all happened about the sameA



153

time. About the time he stopped he walked around in front 

of him and said, "Move on." And then he asked, "Move on 

where, Officer?" because he was in front of him and he 

asked, "Move on where?"

He said, "Anywhere but here." So, then he turned and 

says, 'Veil, I will go in the store."

Q The officer had not at that time placed him under ar­

rest?

A No, he had not.

Q Did you hear the officer when he said, "You are under 

arrest"?

A Yes.

Q Was that after the Reverend Shuttlesworth had at­

tempted to go in the store?

A It was.

Q Now, you were standing there at that corner at that 

time. Did you move on when the officer said "Move on"?

A No, I did not. I had nowhere to go, nowhere to

move on.

Q Did you see anyone else move anywhere?

A No one but the Reverend Shuttlesworth.

Q He is the only one who attempted to move, is that 

right?

A That's right.
Q Did the officer arrest anyone else other than the



154

Reverend Shuttlesworth?
(foi. 98) A No, not at that particular moment.

Q Were you still there on that corner when that officer 
arrested the Reverend Phifer?
A I wa s.
Q Where were you standing at that time?
A Almost in the same place.

Q Almost in the same place?
A Just turned around.
Q You hadn't moved from that spot?
A That's right.
Q After the officer arrested Reverend F. L. Shuttles­

worth what did he do with him?
A He taken him over near the corner at the police car.

Q The police car?
A He taken him over near the corner--I don't know 

whether it was a police car on that corner or not, but he 

taken him over at the corner at the edge of 19th Street.

Q At the edge of 19th Street near the curb on 19th 

Street?

A Yes.

Q About how far from the intersection there of 2nd 
Avenue?

A How far from the intersection?
Q Yes.



1.55

A It was right on the particular corner.
Q Right on the corner?
A Yes.

Q Directing your attention again to Defendant's Ex­

hibit ls Reverend Norris, and pointing out to you this is 

2nd Avenue, this is the north curbline of 2nd Avenue, and 

this is 19th Street; now, this is the corner where the in­

cident occurred. (Indicating) Where with reference to 

that corner, in your best judgment, did the officer take 

the Reverend Shuttlesworth after he arrested him?

A You want me to come and point it out?

Q Yes, please.

A Right here. (Indicating)

Q Now, that is the entrance to Newberry's Store. Now, 

(fol, 99) this is the.curbline here.

A Right here. (Indicating).

Q About right there? In your best judgment about how 

far is that from the 2nd Avenue curbline?

(96) A From the 2nd Avenue curbline?

Q Yes.
A It is across the walkway. I would say about eight

feet, whatever the distance of that walkway is.

Q Could have been ten or twelve?

A Could have been.

Q So, he took him over there on that curbline?



156

A Yes.
Q Will you tell the court what happened there?

A He called for Reverend Phifer.
Q Who called for him?

A Reverend Shuttlesworth.
Q Where was the Reverend Phifer?

A Reverend Phifer was standing some place in the same 

crowd. We had all gotten mixed together at that time.

Q Where, there on that corner?

A Near that corner. We had stopped there first to ob­

serve that traffic light.
Q There were quite a few people there on that corner 

then?

A That’s right.

Q Were there some white persons standing there then?

A There were.

Q And some colored persons?

A Yes.

Q And you were all standing there watching the officer 

and the Reverend Shuttlesworth, is that right?

A That's right.

Q Now, go ahead and tell the Court what happened. You

say Reverend Shuttlesworth called for Reverend Phifer?

A That’s right. And the Reverend Phifer went over to 

(fol. 100) him and the officer said, "You can't talk to



157

him unless you want to go to jail." And immediately he 

put Reverend Phifer under arrest and said, "You are also 

under arrest." So, they stood the two up side by side.

Q All during this time you remained there on that 
corner?

A I did.

Q You were there when the officer first walked up?

(97) A That's right.

Q And you were there after they took the Reverend Shut- 

tlesworth and the Reverend Phifer to jail.

A That is true.

Q Were there other persons there who remained there all 

during this time?

A Yes, quite a number of them.

Q Quite a number out there on that corner observing 

this arrest?

A That's right.

MR. HALL:

That is all. Thank you.

CROSS EXAMINATION

BY MR. WALKER:

Q Reverend Norris, you testified, I believe, that the 

Defendant Shuttlesworth called Phifer; is that true?

A That is true.

Q Now, what was the conversation that transpired when



158

the Defendant Phifer came on the scene?
A When he came to the Reverend Shuttlesworth?

Q That's right.
A I know of no conversation. I know the officer placed

him under arrest.
Q What did the officer say to him?

A The officer said, "You can’t talk to him."

Q Had Phifer attempted to talk to the Defendant Shut-

tlesworth at that time?

A He hadn't quite got to him.

(fol. 101) Q And he just said, "You can't talk to him," 

before he ever said a word?

A That's right.

Q And then he arrested him before he ever said any­

thing?

A Unless he said something though that I couldn't hear. 

I couldn't hear what transpired over there. I was about 

eight or ten feet away, but he arrested him immediately.

(98) Q And there was no conversation you say to the effect 

that, "I am going to talk to him," and the officer says,

"I told you three times already you are not going to talk 

to him, I will arrest you;" that didn't transpire, or words 
to that effect?

A I heard no words of that nature.

Q And is it your testimony that the defendant Phifer



159

just came out of a store, or wherever he was, and came up 

to the Defendant Shuttlesworth who was being arrested and 

the officer out of a clear blue sky says, "You can't talk 

to this defendant"?

A That's right.

Q And then he arrested him forthwith?

A That's right.

MR. WALKER:

No more questions.

REDIRECT EXAMINATION
BY MR. HALL:

Q Now, was the Reverend Phifer standing on the corner 

near you when the Reverend Shuttlesworth called him?

A He wa s.

Q He wasn't in a store, was he?

A No.

Q He was there on that corner where Reverend Shuttles­

worth had been arrested?

A Yes, sir.

Q You heard the Reverend Shuttlesworth call to him?

A Yes, I did.

Q And the Defendant Phifer responded to that call and 

walked up to the officer and Reverend Shuttlesworth?

A Yes.

(fo. 102) Q You heard the officer say, "You can't talk to



160

the man, he is under arrest*'?

A That's right.
Q But you didn't hear any other conversation?

A No, I did not.
Q Is it possible there was some other conversation ‘

that you may not have heard?
A I hardly think so, buy $ret there could have been be­

cause sometimes the crowd was a little noisy and there 

might have been something said I didn't hear.

Q But you did hear the officer say, "You can't talk to 

this man, he is under arrest"?

A That's righti

Q Reverend Norris, when the officer first approached

at that corner did he address the Defendant Reverend Shut- 
tlesworth by name?

A When he first arrived at the corner?

Q Yes, when he said, "Hove on."
A No.

Q Did he ever address the defendant by name?
A No, not that I know of.
MR. HALL:

That is all.
MR. WALKER:

No questions.
(Witness excused.)



161

WALTER KING, called as a witness, being first duly- 

sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. HALL:

Q State your name and address, please, sir.

A Walter King.

Q And your address?

A 4225 43rd Avenue North.

Q That is in the city of Birmingham?

A Yes.

Q What is your occupation, please, sir?

(fol. 103) A Well, I haven*t had an occupation about ten 

years. I am on a pension.

Q You are retired?

A I am.

Q What was your former occupation?

A Boilermaker helper for the L&N.

(100) Q For the L&N?
A Yes.

Q That is the Louisville Nashville Railroad?
A Yes.

Q And you have been retired for sometime?
A Yes, 1954.

Q Are you acquainted with the Defendant F. L. Shuttles-
worth?



162

A Well, I have been knowing him for a good little while. 

Q Are you acquainted with the Defendant Phifer?

A I have been seeing him a good little while.

C) Did you know them on April 4, 1962?

A Yes. I knew him then.

Q Did you see them on the morning of April 4, 1962 at 

about 10:30 o’clock in the morning?

A Yes.

Q Where did you see them?

A I seen them down on 19th Street between 3rd and 
2nc Avenue.

Q Between 2nd and 3rd Avenue?

A That's right.

Q Will you tell the court what happened on that occa­
sion, if anything?

A Well, I was walking along behind him, me and Mr. 

Norris, and just before I got to the light--

Q Just a moment. You were walking along 19th Street 
behind them?

A Yes.

Q Which way were you going on 19th Street?
A Going south.

(fol. 104) Q You were going between 3rd and 2nd Ave­
nues?

A That’s right.



163

Q All right. Go ahead for a minute.

A Well, when I got up to the light the light turned red.

They were stopped and I was right behind them, and all at 

once the police came from«somewhere and come by me and 

says, "Get on." Reverend Shuttlesworth says, "Where to?"

He says , "I don't care where you go just so you 

leave here." And he said, "Well, I will go back in the s 

store."

And turned around; and I wanted to see what it was all

about and I turned and went behind them and just before I

got inside Newberry's Store he come by me again snd said, 

"You are arrested," and pulled him on back.

Q Was this at the corner of 2nd Avenue and 19th Street 
North?

A Wha t ?

Q Was this at the corner of 2nd Avenue and 19th Street 

North in the City of Birmingham?

A That's right.

Q Did you know the officer's name at that time?

A No, I am not acquainted with any of the officers as

long as I have been in Birmingham.

Q Had you seen that officer before that time?

A If I did 1 didn't know it.

Q Were you arrested at that time?

A No, he didn't say anything to me.



164

Q How close were you to the Reverend Shuttlesworth 

when the officer first appeared?

A Right behind him.

Q Right behind him?

There was one couple in front of me and him.

Q Another couple of people between you and the Rever­

end Shuttlesworth?

A Yes.

Q How long did you say the Defendant Shuttlesworth

(fol. 105) had been standing there at the corner when the 
officer appeared?

A Looked like about three or four minutes or not hardly 
that long.

Q Did the light change while he was standing there at 

19th and 2nd Avenue? Did the light change, the traffic 
signal?

A The light was red when they walked up there but after 

this trouble come I don't when it changed again because I 
didn't pay no more attention.

(102) Q When you first walked up what was the traffic 
signal?

A It was red.

Q That means it was red to pedestrians?
A Yes.

Q And you couldn't cross the street?



165

A No, not unless you violated the law.

Q You had to wait until it turned green?

A That's right.

Q Did that light turn green before the officer came m 

up?

A I don't know.

Q You don't know?

A I didn't pay any attention to that light. I didn't

pay any attention because when I walked up there it wasn't 

too long before the police passed by me and I didn't pay 

any attention to the light any more.

Q And you don't know whether there was a change or 

not?

A No.

Q Did you hear the officer when he first told Reverend

Shuttlesworth that he was under arrest?

A Yes.

Q Did you hear the entire conversation between the of­

ficer and the Defendant Shuttlesworth?

A No more than what he said, "Leave on."

Q Well, you heard him say leave here or leave on or 

"Move on"?

A Yes, and he asked him, "Where to" and he said,"l 

don't care as long as you leave here."

Q How many times did you hear the officer ask



166

Rev- (fol. 106) erend Shuttlesworth to move?

A That is all I heard.

Q One time?
A That is all I heard.
Q Was there other folks there besides you and Rev­

erend Shuttlesworth?
A Lots of people standing there, white and colored.

Q Was the officer addressing his remarks to the defen­

dant Shuttlesworth or to all these people who were stand­

ing there?

A He was looking at his face. He was looking right 

at him.

Q When you say looking at his face to whom are you-i 

referring?

A Reverend Shuttlesworth

Q He was looking into Reverend Shuttlesworth's face?
A Yes,

Q Did the officer place himself directly in front of

the Defendant Shuttlesworth?

A Just right about halfway in front of him and said, 
"Move on."

Q Now, tell me this: Did any of the other persons
standing there on the corner move on?

A If they did, I didn't see them.
Q Did you move on?



16 7

A No. I stepped back a little bit.

Q You stepped back?

A Yes.

Q Did you see the Reverend Phifer at that time?
A Yes.

Q You saw all the persons. Would you say there were

eight or ten or twelve people standing there on that cor­
ner at that time?

A Yes.

Q Did they all remain standing there during this entire 

conversation?

A Wasn't too long. Yes, they all stood there because 

they had to wait until the light changed. Now, I don't 

know whether they ever did disappear.

(fol. 107) Q How long did all this take?

A Well, I don't know exactly how long it was.

Q In your best judgment?

A I guess about five minutes.

Q All of it took about that long in your best judgment?

So, you heard the officer ask the Reverend Shuttlesworth 

one time to move on, is that correct?

A Yes.

Q And the Reverend asked him where?

A That's right.

(104) Q And the officer said, "Anywhere but here"?



168

A Uh huh,
Q So,, the defendant says, "Well, I will go in here 

into Newberry's"?
A Yes, "Well, I will go in the store." And he turned 

immediately around and went to the door, and I wanted to 

see what it was about and I turned and went behind them.

Q When you say he turned immediately around and went 

to the door, let me direct your attention to this diagram, 

Defendant's Exhibit 1, purporting to be a drawing of the 

intersection of 2nd Avenue and 19th Street North, showing 

here in this little oblong figure which purports to be 

Newberry's Department Store situated at the northwest cor- 

ner of that intersection-- 

A That's right.

Q Assuming that thi,s corner here, the northwest corner, 

where the incident occurred and that this is the corner of 

Newberry's Store there. (Indicating.) Will you indicate 

to us what door the Reverend Shuttlesworth went in or 

where the door was located he went into?

A Right on the corner of 2nd Avenue and 19th Street.

Q There is a door into the store right at that corner?
A Right at that corner.

Q Approximately how far from the place where the 

Reverend Shuttlesworth was standing waiting on the light 
to change in your best judgment?



169

(fol. 108) A Well, I don't know. Some people was in 

front of him.

Q I want to know about how far is that door to New­

berry's Store from the place where the Reverend Shuttles- 

worth was standing talking to the officer?

A I couldn't even place how far that was. Looked to 

me like fifteen or twenty feet.

Q That is your best judgment?

A Yes.

Q So, the Reverend Shuttlesworth turned around then

and proceeded to go into the store?

A Yes.

(105) Q You turned around and went right behind them?
A Yes.

Q Were you ahead of the officer when you started in 
the store?

A Yes.

Q How far did you all get before the officer caught up

with the Reverend Shuttlesworth?

A When I noticed the officer he was passing by me and 

reached and got Reverend Shuttlesworth by the shoulder 

and said, "You are arrested."

Q Had the Reverend Shuttlesworth got into the store at 
that time?

A Just inside the door.



170

Q Where were you?

A I was just behind.

Q You were not in the store?

A No.
Q But you were close enough to hear the officer say, 

"You are under arrest?"

A Yes.
Q The officer passed you; he didn't say anything to 

you?

A No.

Q Did he ever arrest you?

A No.

(fol. 109) Q Did he ever say anything to you at all?

A No, never said anything to me at all.

Q And that is the first time you heard him say any­

thing about arrest?

A That is the first time I heard him say anything about 
arrest.

Q And during all this time you were in the immediate 
vicinity of both parties?

A I was near enough to hear the conversation.
MR. HALL:

Thank you.
MR. WALKER:

No questions.
(Witness excused)



171

SIMPSON HALL, called as a witness, being first duly 

sworn, was examined and testified as follows:

DIRECT EXAMINATION
BY MR, HALL:

Q Will you state your name and address and occupation 

to the court.

A Simpson Hall, employed at Loveman*s.

Q Where do you live?

A 2421 Carlos Avenue, Powderly.

Q Do you know these two defendants, the Reverend 

Shuttlesworth and the Reverend Phifer?

A Yes, I do.

Q Did you know them on the 4th of April, 1962?

A Yes, I did.

Q On that date did you see these two defendants on 

19th Street at about 2nd Avenue North about 10:30 in the 

morning?

A Yes, I did.

Q Will you tell the court what happened at that time, 

if anything?

A Well. I was traveling from 3rd Avenue going south 

on 19th Street. I were I guess about six or seven feet 

behind Reverend Phifer and Reverend Shuttlesworth walking. 

Q Excuse me. When you say you were going south on 

19th Street, that means you were going from 3rd Avenue



172

toward 2nd Avenue on 19th Street.

(fol. 110) A That’s right.

Q Go ahead.
A I was walking behind them and this officer come from

out of this Newberry’s. Before the Reverend Phifer and 

Shuttlesworth could get to the light he come and kind of 

stepped in front of Reverend Shuttlesworth and told him 

to move on. So, he asked the officer, says, nMove on where?” 

and he said, "Anywhere but here."
So, then, Reverend Shuttlesworth turned and went to 

go back into the store and he walked in the store and told 

Reverend Shuttlesworth he was under arrest.
Q Now, when you say he turned and attempted to go back 

into the store, which store eas that?

A Newberry's Store.
Q And he attempted to go into —  is there an entrance to 

Newberry’s near this corner?
A Yes, it is the side entrance, the one that is facing 

19th.

Q Facing 19th?

A Yes.

Q How close were you to the officer and to Reverend 

Shuttlesworth at that time?

A I was I guess five feet.

Q Five feet?



173

A Yes.

Q Could you clearly hear what the officer said and what

the Reverend Shuttlesworth said?

A Well,.all I heard Reverend Shuttlesworth say to the 

officer was to ask him where to move and so, he said, flAny 

place but here."

Q You heard the officer make that statement?

A Yes.
Q How many times did you hear the officer ask the Rev­

erend Shuttlesworth to move?

A Once.

Q In your best judgment how long did the Reverend Shut­

tlesworth stand there between the time the officer (fol. Ill) 

came up and his attempt to go into the store?

A Well, the minute that he told him to move Reverend 

Shuttlesworth asked him to "Move where?" and he said,

"Any place but here," and, so, he turned and went into the 

store.

Q Turned around?

A Yes.

Q He didn't say anything, just turned to go in the 

store?

A Yes.

Q What did the officer do?

A He put his hand on his shoulder and said he was



174

under arrest.
Q Were there any other persons standing on that cor­

ner at the time the officer came up?
(103) A Well, that I can't recall right now.

Q You hadn't quite reached the corner?

A No, I hadn't.
Q Do you know whether the light was green or red?

A Well, they really hadn't got to the light, they were 

still walking and approaching the light.
Q And we have reference of course to the traffic signal 

right there?

A Yes.
Q The one that controls pedestrians?

A Yes.
Q You don't know whether that traffic light was green 

or red?

A No, I can't recall right now.
Q You don't know whether or not other persons were 

standing on that corner besides the Reverend Shuttles- 

worth?

A No, I don't.

Q Did you see some other persons standing with Rev­

erend Shuttlesworth?

A Well, Brother Armstrong.

Q You saw him?



175

A Yes, those three.

Q You saw the Reverend Phifer too?

A Yes.

(fol. 112) Q And all of them were standing there at that 

same time?

A Well, I never did see them standing.

Q You saw them approach the corner?

A Yes.

Q I mean all of them were together about the same time? 

A Yes.

Q Did you remain in that vicinity during the time that 
the Reverend Phifer was arrested?

A Yes,I did.

Q Will you tell the court the circumstances of that 

arrest?

A Well, I wasn't watching Reverend Phifer, I was look­

ing at Reverend Shutllesworth and I don't know how Rever­
end Phifer got arrested.

Q You don't.

A No.

Q You didn't hear any conversation between Reverend

Phifer and the officer?

A No, I didn't.

Q You were working at Loveman's during that time?

A Yes.



176

Q Loveman's is a department store in downtown Bir­

mingham?

A Yes.
Q Would you say it is perhaps the largest store in

the Birmingham area?

A Well, it is supposed to be.

Q Did you know at that time that there was a selective 

buying campaign being carried on by the Negroes in the 

City of Birmingham?

A Well, that I really don't know.

Q Do you recall hearing this matter discussed in your 

department store at any time?

A No, I don't.

Q Do you remember seeing Negroes at all in Loveman's 

Department Store during this time?

A I really don't work in the department store. I work 
(113) in the warehouse.

Q So, you would have no knowledge af what was going 
on downtown?
A No.

MR. HALL:

Thank you very much.

CROSS EXAMINATION
BY MR. WALKER:

Q Your name is Simpson Hall?
That's right.A



Q And you were going south on 19th Street?

A That's right,

Q Were you coining from the post office?

A No. I hadn't been to the post office,

Q Now, you say that the Defendant Shuttlesworth when

he was told to move on, says, "I will go into Newberry's," 

and went into the side entrance?

A That's right.

Q Will you come and point out the side entrance?

A This would be Newberry's here. (Indicating) It would

be this door right here.

Q Let me ask you this: Is there a side entrance to

Newberry's?

A Yes.

Q How many entrances do you have on the 19th Street 

side?

A On the 19th Street side? There is three if 1 am not 

mistaken. There is one on the alley, one in the middle of 

the store, and this entrance here.

MR. WALKER:

That is all.

REDIRECT EXAMINATION

BY MR. HALL:

Q The entrance you say the Reverend Shuttlesworth

went into is located on the corner of 19th Street and 2nd 

Avenue North, is that right?



178

A That's right.
Q And that is the entrance you indicated in response 

to Mr. Walker's questions?

A Yes.
(fol. 114) Q In your best judgment how far was that 

entrance from where the Reverend Shuttlesworth was stand­
ing when the officer first accosted him?

A When he told him he was under arrest?

0 No, when he first fold him to move cn.

A Well, I guess maybe from here to the end of that 

thing there.
(Ill) Q From here to the end of this desk?

A Yes.
Q In your best judgment how many feet is that?

A I guess about six feet.

Q About six feet? Could it be eight or ten?

A Yes, it could be.

MR. HALL:

Thank you.
MR. WALKER:

No more questions.
(Witness excused.)



179

FRED L. SHUTTLESWORTH, called as a witness, being

first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. HALL:

Q Will you state your name and address, please?

A Fred L. Shuttlesworth, 3164 29th Avenue North.

Q What is your occupation, Reverend?

A Minister.

Q Are you one of the defendants in this case?

A Yes.

Q Reverend Shuttlesworth, on April 4th, 1962 did you 

have occasion to walk down 19th Street in the City of Bir­

mingham at or near 2nd Avenue North :at about 10:30 o'clock 

in the morning?

A That is correct.

Q At that time on that date did you have an experience 

--did an incident occur involving the City Police Depart­

ment of the City of Birmingham?

A That is correct.

Q Will you tell the court what happened, please?

(fol. 115) A Yes, James Armstrong, Phifer, and I had 

been up in Federal Court, and after some time after we 

left we walked down 19th Street. At this particular time 

we were walking as pedestrians walk approaching the light 

at the intersection of 19th Street and 2nd Avenue North in



180

Birmingham. Almost instantaneously or simultaneously

(112) with me as I got practically to the corner the offi­

cer came out of this door to my right and stepped in front 

of me. Along with me or beside me were Phifer and Arm­

strong. I think Armstrong was a little in the rear, as 

I recall.

The officer got in front of me and he said these

words:

"Move on.” I said, "Move where, Officer?"

He said, "Anywhere but here, but move on." I said, 

"All right, I will go into the store."

So, immediately I turned and walked into Newberry's, 

the corner entrance there, and I had gotten approximately 

four or five steps inside the store and this same officer 

puts his hand on my right shoulder I believe and said,
"You are under arrest."

And I said, "All right, sir."

He took me then to the curb line on 19th Street and 
there we stood for a few minutes.

Knowing I was under arrest and had to have hail and 

bond, I called Phifer and beckoned for him at the same 

time. I think he was standing at that time nearer New­

berry s. I think he was up near Armstrong. Armstrong was 

standing besides Newberry's and Phifer was between the 

corner and Newberry's. I called his name and beckoned to



181

him concerning getting a bail bonding company and check­

ing with the attorney, and he came up and I started telling 

him what to do and the officer said to him, "You can't talk 

to him," or something like that, "or you are under arrest." 

And so, almost instantaneously he was under arrest too.

Then they put us I believe in a squad car on the 19th 

Street side, as I recall now, and we sat there for awhile 

and then they took us away.

Q Reverend, had you seen this officer before he arrested 

(fol. 116) you on that morning?

A I can't say that I saw him. There were several of­

ficers in that vicinity at that time.

Q Several officers in the vicinity?

A Yesf I mean I didn't know particularly whether that 

was the one I had seen or not.

Q When you say officer you are of course referring to 

the police officer?

(113) A Yes.

Q Did you know that officer's name at that time?

A Not at the time.

Q Do you know his name now?

& I believe Officer Byars.

Q Officer Byars?

A Yes.

Q That is the same officer whom you heard testify here?



182

A Yes.
Q Concerning the facts or the alleged facts of your 

arrest?
A That's right.
Q On this morning, Reverend Shuttlesworth, of April 4, 

1962 had you reached the corner of 2nd Avenue and 19th 

Street?
A I was approaching the corner. I guess I was a step 

or two away. See, the officer got in front of me, so, he 

was nearer the curb than I was, and I was right at the cor­

ner. So, he came and walked beside me and got in front of 

me.. Had I walked on I would have walked into him.

Q What we want to know, Reverend, were you still in

motion when the officer appeared, or had you come to test? 

Were you still walking or were you standing when the of­

ficer came up?

A I would say I was approaching within a step or two 
of the corner.

Q Then you were still walking, is that right?
A Yes.

Q And the officer came out and placed himself in front 
of you.

A In front of me and the curb, yes.

(fol. 117) Q Do you recall what the .traffic signal in­

dicated there at that corner at that time?



183

A I think it was changing.

Q It was changing at that time as you came up?

A Yes, and we were slowing up, but at the same time

I was observing traffic he was coming in so that my atten­

tion was on him.
Q Did he address you by name?
A No.
Q Do you recall how many other persons were there at

that corner?

(114) A With me James Armstrong, Phifer and I were right 

together, and I don't--things moving so swiftly there, I 

don't recall. There was two or three behind us, and there 

might have been another person or two on the corner at the 

time of my arrest.

Q Do you have any recollection as to whether there were 

any white persons there on the corner at this time?

A I would think so.

Q You don’t recall?

A No.

Q Do you remember whether or not traffic was heavy at 

that corner on the morning in question?

A You mean pedestrian traffic?

Q Yes.

A No.

Q There was no heavy pedestrian traffic that morning?

A No.



184

Q In either direction, neither up and down 19th Street 

or up and down 2nd Avenue?

A There was not.
Q Traffic was very light, is that what you are saying?
A That's right.
Q Did you stand there at the corner one or two minutes
before the officer came up to arrest you?
A I couldn't have stood at the corner one or two min­
utes. I was approaching the light.

Q Did you?

(fol. 118) A No.
Q How long between the time you approached that cor­

ner and the officer appeared and the time you were ar­

rested?
A It couldn't have been over fifteen or twenty seconds. 

I guess it would have to be time for him to say, ’'Move on," 

and I to say, "Move where, Officer," and he said, "Any­

where but here, but move," and I said, "All right, I will 

go into the store." And I immediately just whirled and 

went into the store and it couldn't have been any length 

of time.

Q In your best. judgment then how long was it?

A Maybe fifteen or twenty seconds.

(115) Q Could it have been as much as a minute?

A From the time he said to me--



185

Q From the time he approached you and the time he ar­

rested you.

A Oh, no, because he got to the corner about the time

I did or before I did or simultaneous,

Q And you were under arrest within a minute?

A Within a half minute almost.

Q Within a half minute after he appeared?

A Yes.

Q Reverend Shuttlesworth, you are fairly well known to 

the Police Department of the City of Birmingham, are you
not?

A I would say quite well.

Q You have been frequently arrested because of your ac­

tivities in the field of civil rights, have you not?

A That's right.

Q On the morning in question had you been involved in 

some civil rights litigations in the Federal Court?

A I was supposed to have been.

Q There was a trial then pending in the Federal Court,

is that correct?

A That's right, on my release from jail.

Q Release from jail? What were the circumstances of 

your being in there?

(fol. 119) MR. WALKER:

We object, Your Honor. That has no bearing on this

case.



186

MR. HALL:
If Your Honor please, we insist it is very perti­

nent. It goes to our theory thereason for the arrest and 

the heavy penalty.

MR. WALKER:
Your Honor, this is getting far afield from the 

charge.

THE COURT:
Sustain the objection.

MR. HALL:

We want an exception, your Honor.

Q Was there wide publicity given to this Federal hear­

ing?

A Yes.

Q Had it been published in the newspapers?
A It had.

(116) Q Was there publicity over the radio and by way 
of the television?

MR. WALKER:

We object to this.
THE COURT:

Susta ined.
MR. WALKER:

It serves no purpose.



187

MR. HALL:
Exception, Your Honor.

Q How many times have you been arrested by the police

of the City of Birmingham because of your civil rights ac­

tivities?

MR. WALKER:
We object, Your Honor. Immaterial.

THE COURT:

Susta in.

MR. HALL:
We except. Your Honor.

Q After you were arrested on the morning of April 4, 

1962 did you at any time resist this arrest?

A No.
Q After the Reverend Phifer was arrested did he at any 

time resist the arrest?

A He did not.
Q When were you told why you were arrested?

A When was I told why?
Q Yes, or what charge you had been arrested on.

A I believe the only time that I heard of it--some of­

ficer came to the car as Phifer and I were sitting inside 

discuss- (fol. 120) ing what they were going to put against 

us or something like that.
Q They were discussing the charge to put against you?



Q
A

188

They were discussing the charge to put against you? 

Yes.
Q How many officers were present at that time?

A I believe two was in the car and one was standing on

the outside that came up from where we had been standing. 

There were some more on that side too.

Q Do you recall how many were on that side?

A You mean all told?

Q All told, yes, sir. How many officers were in the 

vicinity of 2nd Avenue and 19th Street at about the time 

of your arrest on April 4, 1962?

(117) A Well, let me see. I would think there ware 

around five in that immediate area when I was arrested.

Q Reverend, we want your best judgment--!! you don't 

remember the exact number, we want your best judgment 
as to the number.

A I am saying I think there were--because: there were 

two across the street and this officer came outside and 

there was one officer at the alley and one across the 

street on the other side across the street from the alley, 

and then there was one I believe across diagonally from 

the corner where we were arrested, and in the area there 

had to be at least five officers when I was arrested.
Q Is that your best judgment?

Yes, of course.A



189

Q Did they all come over to the corner when you were 

arrested?

A During the time or after I was arrested, yes.

Q They came over to that corner?

A Yes, around the corner.

Q Did they all participate in your arrest?

A You mean did they all restrain me some way?

Q Consult with each other?

A Yes.

Q And discussed the charge to be put against you?

A Yes.
(fol. 121) Q Aid and abet each, or whatever officers do 

in making an arrest, they all consulted and got together?

A They discussed it and were talking, yes.

Q Reverend Shuttlesworth, had you gotten into Newberry's

Store when the officer arrested you?

A I had gotten at least three or four strides inside

the store.

Q Inside the store?

A Yes, inside.
Q Was this the first time he told you you were under 

arrest?

A That's right.
Q Did he ever tell you at any time before he stopped

you in that store that you were under arrest?



190

A Oh, no.
Q Did he ever mention arrest before that time?

A He made only two statements, as I recall, at the cor

ner: "Move on," and "Anywhere but here.”

Q And you turned to go in the store and then he came 

in the store and told you you were under arrest?

A That's right.

Q He never told you before that that you were under 

arrest?

A The only time an arrest was mentioned was when he 

put his hand on my shoulder inside the store and told me 

X was under arrest.

Q And he arrested no one else standing on that corner 
with you?
A No.

Q And he arrested no one else subsequently except the
Reverend Phifer?

A That's right.
MR. HALL:

That is all.

CROSS EXAMINATION
BY MR. WALKER:

Q How far is a stride? You say three or four strides 

in Newberry's Reverend Shuttlesworth. How far is a stride

A Well, I don’t know. It depends on how you are step­
ping.



191

(fol. 122) Q Well, in that particular case how far were 

you in Newberry's?

A To make it simpler, maybe four or five feet inside 

tbe store, or six. I hadn't gone very far inside the store. 

I was well inside the store, however.

Q Now, you were coming and walking along 19th Street 

going south, I believe you testified?

A That's right.

Q And I believe you testified that Defendant Phifer, 

Armstrong, King, and Norris were with you or immediately 

behind you, is that correct?

(119) A That is correct.

Q Where were you all going?

A It was our intention at that time to go across the 

street, turn right at Pizitz, and go down that way back 

down to the motel. We had just left the court, Phifer and 
Armstrong and I, and these people caught up behind us.

It was our intention to go to the right of Pizitz and go 

on back down to the motel.

Q What motel were you going to?

A We discussed going down to Gaston's Motel and have 

coffee or something.

Q Gaston's Motel would be the other direction, wouldn't 

it? Isn't it on 4th? You would have had to turn around 

to get on 5th or 4th where the motel was?



192

A Not if we had gone across the street and turned 

right at Pizitz--then we would have turned back, yes, down 

there.
Q Why would you cross over to Pizitz side?

MR. HALL:
We object to that. He is a free American citizen and 

has a perfect right to be in downtown Birmingham and go any 

way or anywhere he wants to go. It has no bearing on this 

case.

THE COURT:
Well, let him answer.

MR. HALL:

Exception, Your Honor.
A What was the question?

Q Why had you chosen to cross the street, which would 

be further? I am trying to find out for sure where you 

were (fol. 123) going, or if you were going some place be­

fore you got to the Gaston Motel.

A Why did we want to cross the street?

Q To get to the Pizitz side of the street.
A We could have just as easily wanted to go past Pi­

zitz. We just decided to cross the street and go down be­
side Pizitz corner.

Q You were meeting anybody?

A No. Just had got out of court a few minutes earlier.



193

Q Where is the Gaston Motel?

A 16th Street and 5th Avenue North.

(120) Q And when you were arrested just prior to being 

arrested where were you walking?

A. On 19th Street between 3rd and 2nd Avenue, going 

south on 19th Street toward the corner of Pizitz.

Q And your destination was the Gaston Motel?

A We had no particular destination. While walking to 

the corner, I don't know whether it was Armstrong said he 

hadn't had any breakfast and let's go to the motel and get 

some coffee, see, and that is why we said okay, we will go 

on to the motel, cross the street and turn right and go on 
to the motel.
Q Then you weren't waiting for a change in the traffic

light at the intersection--in other words, if you were going 

to Gaston Motel, there was no need for the traffic light 

to be green for you to cross the street?

A Well, you don't cross on a green light, do you?

Q Well, if you were going to Gaston Motel there was 

no need to cross 2nd Avenue? Where is Pizitz located?

A You are talking about need. I don't know whether 

there was any need or not. We had just determined to go 

across the street.

Q This is the intersection here. Where in regard to 

this diagram was Pizitz Department Store locatsd?



194

A Right below there. Right there. (Indicating)

Q What corner is that?
A I guess you would call that the south corner.

(fol. 124) Q Would that be the southwest corner if this 

is west and this is south?

A I believe so.
Q And if you had crossed with the green light you would 

have crossed 2nd Avenue?
A What do you mean by cross with the green light? You 

mean the walking light?
0 Yes, the walking light. There has been a lot of tes­

timony here that you stopped here waiting for a light to 

change. Now,'what I want to find out is if you were wait- 

ing to cross here on your way to the Gaston Motel?

A The Gaston Motel has no—

(121) Q Other than it was your destination?
A No, we had said coming to the light--Phifer wanted 

some coffee and that was about the only place we could get 

it. We couldn't get any downtown.

Q And you were going to cross with the green light here, 
is that correct?

A When the walking light came on, yes.
MR. WALKER:

That is all.



195

REDIRECT EXAMINATION

BY MR. HALL:
Q Reverend Shuttlesworth, when you left 3rd Avenue 

going down 19th Street toward 2nd Avenue were you headed 

to Gaston’s Motel?

A No.

Q Where were you going then?

A Just downtown looking.

Q Downtown?

A Yes.

Q When you approached 2nd Avenue and 19th Street was 

it your intention--well, we don't ask that. What happened 

as you approached 2nd Avenue and 19th Street?

A We were coming to the edge of the curb, practically 

the edge of the curb.

(fol. 125) Q Were you going across 2nd Avenue?

A We were going to cross 2nd Avenue.

Q Down 19th Street towards 1st Avenue, is that correct?

A That is correct.

Q And you were stopped there by the policeman?

A That is correct.

Q In your best judgment was the light on that corner

with you or against you--the traffic control light?

A I think it was changing when we approached the

corner.



196

Q When you say changing, it was turning red so you 

would have had to come to a stop?

A Yes.
Q You remember that?

A Yes.
Q But that was not stopped you, was it; the officer

stopped you, is that correct?

A The officer stopped me. I would have had maybe an­

other step or two to the curb.

Q He stopped you before you got to the curb and told

you to move on? Were you in fact going toward Pizitz 

Department Store?

A Toward the corner, yes.

Q Do you recall, Reverend, if there was a selective

buying campaign going on in the City of Birmingham at that 

time which was carried on by the Negro citizen® of this 

community against the downtown stores?
A There was.

Q You know that that is true?
A That's right.

Q On this date and during this time did you see many 
Negroes in town at all?

A Very very few.

Q And there were quite a few officers in and about this 
vicinity?



197

A Yes.

Q Now, 2nd Avenue and 19th Street and 3rd Avenue and 

(fol. 126) 19th Street would be considered the heart of 

the downtown shopping district, would it not?

A Yes.

Q And oridnarily there would be many Negroes in that 
area ?

A Yes, and white.

Q But on this occasion there were very few?
A Extremely few.

Q At that time had there been leaflets circulated among

the Negroes urging them to not shop in downtown Birming­
ham?

A There had been.

Q You had seen such leaflets?

A Yes.

(123) Q Do you know whether or not Negroes were abiding 

by the request of the persons who circulated these leaflets? 
A Yes.

Q Now, you have testified that the three of you had 

decided to go across 2nd Avenue to Pizitz. That is a 
department store, is it not?

A That's right.

Q Pizitz is located on the south side of 2nd Avenue and 

on the corner of 2nd Avenue and 19th Street?



198

A That is correct.
Q And in order to get to Pizitz Department Store you 

would have to cross 2nd Avenue and 19th Street, is that 

correct?
A That is correct.
Q You never did get to Pizitz Department Store, did 

you?
A No.

Q On that particular occasion?

A We did not.
Q Did I understand you on cross examination to tell

Mr. Walker that the three of you had discussed going to 

Pizitz and then going down to the Gaston Motel?

A Yes. Phifer mentioned he had had no breakfast at all 

and a cup of coffee would do, and we had to go somewhere 

(fol. 127) else to get this; we couldn't get it down there. 

Q And I believe Mr. Walker brought out on cross exami­

nation that Gaston Motel was at 16th Street and 5th Ave­
nue North ?

A Yes.

Q Which would be quite a few city blocks from the place
where all this occurred?
A Yes.

Q Now, I will ask you if the Gaston Motel--is that the
A. G. Gaston Motel?



199

A Yes.

Q Is that a colored institution?

A Yes o

Q That belongs to Negroes?

A Yes,

(124) Q They serve Negroes there in their cafe?

A That’s right.

Q Why was it necessary for you to leave 19th Street 

and 2nd Avenue and go to 16th Street and 5th Avenue to get 

a cup of coffee?

MRo WALKER:

We object to that,Your Honor, why.

MR. HALL:

Mr. Walker brought it out on cross examination.

He made a big show of the distance.

THE COURT:

Leave it out.

MR. HALL:

We want an exception, Your Honor.

Q Are there any restaurants in the vicinity of 2nd Ave 
nue and 19th Street North which serve Negroes?

A Not to my knowledge, or not at that time.

MR. HALL:

That is all.



200

RECROSS EXAMINATION

BY MR. WALKER:

Q Reverend Shuttlesworth, why were you going to Pizitz?

A For the same reason anybody else would go.

Q Well, they had this selective buying campaign on.

Were you going to make some purchases in Pizitz?

(fol. 128) A. I don’t knew what I would have decided to 

do after I got over there.

Q You didn’t have any plan or any reason to go to 

Pizitz, you were just going to Pizitz?

A You might say that.

Q Isn't it a fact you just now, realizing the route to 

Gaston, that instead of having been the content at the time, 

you just presently formed the intent to go to Pizitz?
A I knew where Gaston M.otel was a long time ago.

Q And that is where you were going?

A No, we were near the corner when Phifer mentioned he
hadn’t had any coffee.

(125) Q Well3 were going to Gaston or going to Pizitz?

Did this suggestion for coffee come up before or after you 
were arrested?

A Just before.
MR. HALL:

Excuse me. I object to this particular argument on 
this ground: The witness testified in answer to your first



201

question he was going to Pizitz and then to Gaston. That 

was on your cross examination.

MR. WALKER:

I don't believe he answered that.

MR. HALL:

We could let the reporter read it back and I think 

you will see he did say he Was going to Pizitz and then 
to Gaston. ■

Q Were you going to get coffee at Pizitz?

A As I understand it, they don't serve coffee to Ne­
groes at Pizitz,

Q Then that would just kill time so you would be hungry 
when you gqt to Gaston's?

A That is your interpretation.

MR. WALKER:

No further questions.

MR. HALL:

That is a 11.

(Witness excused)

JAMES S. PHIFER* called as a witness, being first 

duly sworn, was examined and testified as follows:-- 

(fol. 129) DIRECT EXAMINATION

BY MR. HALL:

Q Is this the Reverend James S . Phifer?



202

A It is.
Q Reverend, are you one of the defendants in this

cause?

A I am.

Q Will you give us your address, please?

A 22 17th Avenue South, Birmingham, Alabama.

Q You are a minister?

A I am.

(126) Q Reverend Phifer, on April 4, 1962 at about 10:30 

in the morning were you in the vicinity of 19th Street and 

2nd Avenue North in the City of Birmingham, Alabama?
A I was.

Q Will you tell the court what, if anything,.occurred
at that time and on that occasion?

A At that time and on that occasion we came from the 

court house--probably not court house, but the post of­
fice--

Q Reverend Phifer, may I ask you this one question: 
When you say we do you mean to refer--will you identify' 
everyone with you by name?

A Reverend Shuttlesworth and Armstrong-.
Q Just the three of you?
A The three of us.

Q Were proceeding from the post office?
A Yes.



203

Q Where is the post office located?

A On 19th Street and 5th Avenue.

Q North?

A North.

Q And you started from the court house and you left the

post office and walked down 19th Street in the city of Bir- 

mingham-~now, you walked from 5th Avenue on 19th Street 

toward 4th Avenue, 3rd Avenue and 2nd Avenue and 1st Avenue 

--you were walking south, is that right, on 19th Street? 

(fol. 130) A South, yes.

Q Go ahead and tell the court what happened from that 
point.

A Well, as we were approaching the intersection of 19th

Street and 2nd Avenue an officer walked from our right and 

stepped just before Reverend Shuttlesworth just before we 

got to the curb and told him to keep moving. He asked him, 
"To where, Officer?"

He said, "Anywhere but here." And he said, "l will 
go in the store."

And he turned to go in the store and I turned. Short­

ly after he turned and he entered just inside the door of 

the (127) entrance and the officer walked inside the door; 

and put his hand on his shoulder and said, "You are under 
arrest."

And he said, "Well, I am under arrest then."



204

And he carried him over to the curb of 19th Street 
and stood him on the curb, and at that time he said, 

"Phifer, come here."

Q When you say he said it--
A Reverend Shuttlesworth.

Q That is the Defendant Shuttlesworth here?
A Right .

Q Go ahead. And he was beckoning to you?

A He called my name and said, "Phifer, come here."

And I walked over within three or four steps of him and he 

was telling me to call the bailing and bonding company to 
come bond him out, and just as he said, "Call bailing and 

bonding company--" before I answered him or said anything 

back to him in reply the officer said, "You can't talk to 

him unless I arrest you with him."

And I stood there to hear what he was going to say 

and he said,"You are under arrest." And he put me over on 
the curb with him.

Q They then took you on to jail?

A Yes.

Q Did he tell you at that time why he was arresting
you? Did he place any charge on you then?

A No, he did not tell me.

(fol. 131) Q When did you find out why you had been ar.* 
rested?



205

A Well, later in the car I heard.

Q Later in the car?

A Yes.

Q Isn't it a fact that the charges hadn't been placed

on you until later on when your attorneys and bondsmen came 

to the city jail to get you out?

A Yes.

Q They had to place a charge on you then so they could 

place a bond, isn't that correct?

A Right1.

(128) Q Reverend Phifer, whsn you refer to officer do you 

mean a police officer of the City of Birmingham, Alabama?
A I do.

Q Did you know the arresting officer at the time you 
were arrested?

A No, sir, I didn't.

Q Do you know him by name now?

A Officer Byars,

Q That is the same Officer Byars who testified in this
court?

A It is.

Q Now, Officer Byars says that--you heard him, you sat 

here at the table and heard the Officer Byars testify-he 

testified he spoke three times to F, L. Shuttlesworth or 

to the crowd on the occasion of you stending on that corner



206

there at 2nd Avenue and 19th Street and he said, "i am 

telling you for the first time and second time and third 

and last time to move." Did you hear him say such a thing? 
A I did not.

Q How long had you stood there at that corner before 
the officer approached?

A I didn't stand at all.

Q He was there by the time you got there?
A Right.

(fol. 132) Q Now, where was the first point at which you 

saw Officer Byars on the morning of April 4, 1962?

A When he came out of the store to my right.

Q Out of the Newberry's Store to your right?
A Yes.

Q Had you seen him earlier on 19th Street down around
the alley at any place?

A Not to my knowledge.

Q Had you observed him anywhere along 19th Street as
he might have been observing you as you walked along?
A Not to my knowledge.

Q And you are saying, sir, that at the same moment you 
arrived at the corner of 2nd Avenue and 19th Street Officer 
Byars arrived there, is that what you said?

(129) A When I saw him he was coming out around the en­
trance to my right.



207

Q Were you already on the corner?

A We were, approaching the corner. We hadn't stopped.

Q So, when you got to the corner he got to the corner

about the same time?
A Just before we got to the curb he stepped around in

front of Reverend Shuttleswcrth.

Q He stepped around in front of Reverend Shuttles-

worth?

A Yes.
Q Did I understand your testimony--what were his

words when he stepped around in front of him?

A He said, "Keep moving."

Q Was he addressing his words to the crowd in general 

or was he looking at the Reverend Shuttlesworth?

A He was looking at Reverend Shuttlesworth and stand­

ing directly in front of him.
Q And when he said,. "Keep moving," what did the 

Reverend Shuttlesworth say?
A He said, "Where, Officer?" He said, "Anywhere."

Q And then what happened?
(fol. 133) A He said, "l will go in the store." And he 

whirled immediately to go in the store and I turned around 
also and Reverend Shuttlesworth started in the door and he 

put his hand on his shoulder and said, "You are under ar­

rest."



208

Q How long did this little interchange take in point

of time?
A Within seconds.
Q Are you saying it didn't take a minute?

A No, it didn't take a minute.
Q That is from the time the officer walked up to the

intersection and until the time he reached over and told 

the Reverend Shuttlesworth that he was under arrest, is 

that correct?

A Correct.

Q Less than a minute?

A Yes.
(130) Q At this time were you and the Reverend Shuttlesworth 

involved in some civil rights litigation in the Federal 

Court?
A Yes, we were.
Q Was it given wide publicity in the daily newspapers?

A It was.

Q Would you say headlines?

A Sure.

MR. WALKER:
We objedt to this line of questioning. It is im­

material about a proceeding being held in Federal Court.

MR. HALL:
We think it is very material.



209

THE COURT:

Please leave it out.

MR. HALL:

We want an exception. Your Honor.
Q Reverend Phifer, have you been arrested many times 

by the city police in the City of Birmingham?

A Yes, I have.

MR. WALKER:

We object to that, Your Honor. It has no bearing 

how many times the defendant has been arrested.

THE COURT:

Sustain the objection.

MR. WALKER:

And move to exclude the answer.

THE COURT:
Sustained.

(fol. 134) MR. HALL:

We want an exception, Your Honor.

Q Reverend Phifer, are you very well known by the city 

police of Birmingham because of your civil rights activ­

ities?
A I would say yes.

Q Directing your attention to the corner of 2nd Avenue 

and 19th Street on the morning of April 4, 1962, had you 

seen any Negroes in that vicinity other than your group?



210

A Not to my knowledge.

Q How many policemen had you seen along that street? 
as you walked down that street?

A Well, I saw probably four or five, in different direc" 

t ions.

Q Was that an unusual number of policemen . for that 

particular section at that time of morning?

A To my knowledge it was.

Q You are familiar with that area, aren't you?

A Yes.

(131) Q You had walked along that street many times?

A Yes.
Q You had never been molested before for walking along 

that street, had you?
A No.

Q You had stood on corners and waited for lights to

change, had you not?

A Yes.
Q Had you had occasion to stand on corners as long as

two or three minutes and wait on lights to change at other 

times?

MR. WALKER:

We object to standing on corners at other times.

The only thing material is this occasion.



211

MR. HALL:

We contend all this other is material. This is 

not a simple case of just obeying an officer.
THE COURT:

That is all he is charged with and we will stick to 

the charge and I guarantee you you will be safer when you 

get to Washington.

MR. HALL:

We want an exception. Your Honor.
(fol. 135) THE COURT:

You have it.

Q Reverend Phifer, when the Reverend Shuttlesworth

turned after the officer accosted him on the occasion in 

question did you turn with him?

A I turned immedalately after he turned.

Q When you say immediately after what do you mean?

A When he turned to go into the store I turned too.

Q To go into the store also?

A Not necessarily.

Q Where did you proceed--fco what point did you go?

A Well, after he put his hand on his shoulder and said,

"You are under arrest," I walked across--would you mind 

me pointing out?
Q No- Would you please let the recsrd show this wit­

ness is pointing to Defendant's Exhibit 1 purporting tc be



212

a diagram of the area in question.

A When he approached this intersection and he told him 

to keep moving he said, "Where?” and he told him, "Any 
place." And he said, "I will go in:the store,” and he - 

turned to walk in the store.
(132) Q How far away was the entrance to the store in your 

best judgment?
A I will say probably eight or.nine feet, and he stepped

insiie the door. I don't know how far the officer walked 

in, and laid his hand on his shoulder and said, "You are 

under arrest.”
Q Were you near him when he laid his hand on his 

shoulder?
A I had turned around a couple steps toward the en­

trance and he carried him over to the curb and I stood be­

side the building just opposite the door and he was stand­

ing with Reverend Shuttlesworth somewhere in this area. 

(Indicating)
Q When you say somewhere in this area will you iden­

tify where you are pointing?
A 19th Street about twelve or fourteen feet from the

corner.
Q Twelve or fourteen feet from the north curb of 2nd 

(fol. 136) Avenue along 19th Street?

A Yes.



213

Q That is north of the intersection there of 2nd Ave­

nue and 19th Street?

A Yes.

Q And the officer was holding Reverend Shuttlesworth 
right there?

A Yes.

Q And the Reverend Shuttlesworth then did what?
A Just stood there.

Q What happened then, if anything?

A He called me and beckoned for me to come to him.

Q All right. What did you do?

A I walked over within probably three feet of him and

he was telling me to get in touch with the bail bonding 
company to bond him out.

Q And that is when the policeman arrested you?

A And the police interfered and said, "You can't talk 
to him." And I remained standing, I didn't move immedi­

ately, and he said, "You are under arrest."

Q You knew at the time that this occurred there was a 

selective buying campaign instigated by the Negro citizens 
of this city against the downtown stores, did you not?
A I did.

(133) Q And to your knowledge were Negroes going to the 

stores downtown? Were they doing any trading in the down­
town area?



214

A Well, few, if any.

Q Did you see any doing any buying on the morning in

question?

A No, I didn't.

MR. HALL,:

That is all.

MR. WALKER:
No question.

(Witness excused.)

MR. HALL:
That is our case, Your Honor.

MR. WALKER:
Your Honor, we would like to recall Officer (fol. 

137) Renshaw for just one question.

REBUTTAL TESTIMONY ON BEHALF OF PLAINTIFF 
Officer JAMES P. RENSHAW, recalled as a witness, being 

previously duly sworn, was examined and testified further 

as follows:
DIRECT EXAMINATION

BY MR.. WALKER: .

Q This is Officer Renshaw?

A Officer James P. Renshaw.

Q I believe you were sworn yesterday?

A Yes, sir,



Q And you testified yesterday, is that correct?

A Yes, sir.

Q I want to ask just one question, Officer Renshaw. 

Describe to the court the time interval on the traffic 

light at 2nd Avenue and 19th Street North. First, is that 

where the defendants were arrested?

A That is correct.

Q Then, if you would, describe the time intervals on 

the traffic light at that intersection.

A Now, I can't say exactly what those lights are set 

at.

(134) Q Do you know what they were set at on April 4th?

A I can't say exactly what they were set at. I can
estimate.

Q All fight. Give your best judgment.

MR. HALL:•

If Your Honor please, we object. The best-evidence 

is the actual record of the setting of the lights. That 

could be obtained. It is in the possession of the City in 

one of their departments.

MR. WALKER:

We withdraw the question. That is all. Come down. 

'Witness excused.)
MR. WALKER:

The City has nothing further, Judge Bailes.

215



216

MR. BILLINGSLEY:

Your Honors at this time we would like to renew our 

motion to exclude the evidence and enter a judgment for the 

defendants in this case.

(fol. 138) THE COURT:

Overruled.

MR. BILLINGSLEY:
Take exception, Your Honor.

MR. HALL:

We are through, Your Honor.

MR. WALKER:

The City is through. We don't care to argue.

MR. HALL:

We will submit on the testimony.

THE COURT:

Very well. Thank counsel. I will consider the mat- 

ter further.

(After a recess the following occurred:)

(The judgment and sentence of the court were read by 

the Court in open court.)

STIPULATION

(It was stipulated by counsel in open court and with 

the approval of the Court that defendants have an exception 

to each adverse ruling in the minute entries and to rulings



217

on oral objection in the trial.)

MR. BILLINGSLEY:

If Your Honor please, the defendants in both cases 

file now cheir motion for a new trial and ask the Court 

to suspend sentencing pending hearing on these motions. 
THE COURT:

Identical motions asking for a new trial?
MR. BILLINGSLEY:

Yes, sir.

THE COURT:

I will enter theso further entries. October 30,
1962, the defendant files motion for new trial; motion 

overruled; and I take it that the defendants give notice 
of appea1?

MR. BILLINGSLEY:

Yes, sir, and take exception to the ruling on the 
motion for new trial.

THE COURT: '

And the appeal bond is fixed in tte sum of.$300.00.

THE FOREGOING WAS ALL THE TESTIMONY 
" AND PROCEEDINGS IN T HE CASE

* -k -k i t

(fol. 139) Court Reporter’s Certificat to foregoing trans­
cript (omitted in printing).

(fol. 140) Clerk's Certificate to foregoing transcript 
(omitted in printing).



218

(fol. 141)
IN THE CIRCUIT COURT OF JEFFERSON COUNTY

No. 23953

F. L. SHUTTLESWORTH, 

vs.

CITY OF BIRMINGHAM.

ASSIGNMENTS TO ERROR
1. The Court erred in denying and overruling the 

defendant's Motion to Quash the affidavit, warrant and/or 

complaint filed in this cause (Tr. 3,4, 10, 15, 16).

2. The Court erred in denying and overruling the 

defendant's demurrer to the affidavit, warrant and/Or com­

plaint filed in this cause (Tr. 5,6, 10, 16).

(136) 3. The Court erred in denying and overruling the 

defendant's Motion to Exclude the Testimony and For Judg­

ment (Tr. 7, 10, 81, 137, 138).
4. The Court erred in denying and overruling defen­

dant's Motion for New Trial (Tr. 8, 9, 11, 138).
5. The Court erred in sustaining the objections by 

the City of Birmingham as to reasons for the arrest and 

conviction of the appellant, especially regarding bis 
civil rights activities (Tr. 118-134).

Orzell Billingsley, Jr., Peter A. Hall, Attorneys for 

Appellant.



219

Certificate of service (omitted in printing).

(fol. 142)

IN THE COURT OF APPEALS OF ALABAMA 

JUDICIAL DEPARTMENT 

OCTOBER TERM, 1964 

6 Div. 929

F. L. SHUTTLES’*ORTH 

v.

CITY OF BIRMINGHAM

Appeal From Jefferson Circuit Court 

January 25, 1963

Transcript Filed 

April 18, 1963
Come the parties by attorneys, and submit this cause 

on briefs for decision.
JUDGMENT-“November 19, 1963 

Come the parties by attorneys, and the record and 

matters therein assigned for errors, being submitted on 

briefs and duly examined and understood by the court, it 

is considered that in the record and proceedings of the 

Circuit Court there is no error. It is therefore con­

sidered that the judgment of the Circuit Court be in all



220

things affirmed. It is also considered that the Appellant 

pay the costs of appeal of this court and of the Circuit 

Court.

(fol. 143)
IN THE COURT OF APPEALS OF ALABAMA 

JUDICIAL DEPARTMENT 

OCTOBER TERM, 1963-1964 

6 Div. 929

F. L. SHUTTLESWORTH, 

v .

CITY OF BIRMINGHAM

Appeal From Jefferson Circuit Coury

PER CURIAM OPINION--November 19, 1963 
Appellant, Fred L. Shuttlesworth, appeals from a 

conviction by the Circuit Court of Jefferson County, Ala­

bama, of violating Sections 1142 and 1231 of the General 

City Code of Birmingham, Alabama. The case was heard by 

the Circuit Judge sitting without a jury. The first count 

of the complaint charges the'appellant with loitering on 
a street corner with others so as to obstruct free passage 

along the sidewalk. The other count charges appellant with 

failure to obey the lawful command of a police officer.



221

(fol. 144) Section 1142 of the General City Code of 

Birmingham, Street and Sidewalks to Be Kept Open For Free 
Passage, reads:

(138) "Any person who shall obstruct any street or side- 
wa Ik or part thereof in any manner not permitted by this 

code or other ordinance of the city with any animal or ve­

hicle, or with boxes or barrels, glass, trash, rubbish or 

display of wares, merchandise or sidewalk signs, or other 

like things, so as to obstruct the free passage of persons 

on such streets or sidewalks or any part thereof, or who 

shall assemble a crowd or hold a public meeting in any 

street without a permit, shall, on conviction, be punished 
as provided in Section 4,

"it shall be unlawful for any person or any number 

of persons to so stand, loiter or walk upon any street or 

sidewalk in the city as to obstruct free passage over,on 

or along said street or sidewalk. It shall also be unlaw­

ful for any person to stand dr loiter upon any street or 

sidewalk of the city after having been requested by any 
police Officer to move on."

Section 1231 of the General City Code of Birmingham, Obe­
dience to Police, reads as follows:

"it shall be unlawful for any person to refuse or 

fail to comply with any lawful order, signal or direction 
of a police officer."



222

The evidence, as introduced by the City, tended to 

show that the defendant was a member of a crowd of about 

ten or twelve people standing on the corner of 19th Street 

and 2nd Avenue, North, in the City of Birmingham, and that 

this crowd was blocking the sidewalk to such an extent that 

some of the other pedestrians were forced to walk into the 

street to get around them. The crowd was accosted by one 

Officer Byars and asked to clear the sidewalk so as not to 

obstruct, pedestrian traffic. The evidence further showed 

that the crowd remained and when requested to disperse for 

the third time by Officer Byars, defendant Shuttlesworth 

said, "You mean to tell me we can't stand here in front of 

this store? at which time Officer Byars informed the de- 

fendant that he was under arrest. Officer Byars testified 

that at the time of the arrest everyone had moved or was 

moving away except Shuttlesworth. After being told that 

he was under arrest, Shuttlesworth moved away saying, "Well 

I will go into the store." Officer Byars then followed 

Shuttlesworth into Newberry's Department Store and took him 

into custody.
(fol. 145) The appellant’s first two assignments of error 

addressed to the action of the lower court in overruling 

appellant's motion to Quash and Demurrers to the complaint 

were overruled on the authority of Phifer v. City of Bir­
mingham, 6 Div. 930, Ct. of Appeals Manuscript, which case



223

was combined and tried with this one.

The third assignment of error presented by appellant 

is that the Court erred in denying and overruling the defen­

dant's motion to exclude the testimony and for judgment.

When there is sufficient evidence on the part of the pro­

secution to make out a prima facie case, a motion to exclude 

the evidence should be overruled. Drummond,v. State, 37 

Ala. App. 308, 67 So. 2d 280.

Appellant's fourth assignment of error was that the 

court erred in denying and overruling defendant's motion 

for a new trial. All the grounds set out and argued in 

appellant's motion for new trial, except ground 1 1, were 
grounds of a general nature and were properly overruled 

as sufficient evidence was introduced for the court to 

find the defendant guilty under the complaint.

The 11th ground of appellant's motion for a new trial 

is the same as his fifth assignment of error and reads:

"The court erred in sustaining the. objections by the 

City of Birmingham as to reasons for the arrest and con­

viction of the appellant, especially regarding his civil 
rights activities."

The following objections and rulings of the court 
thereon are alleged to be error by the appellant:

"Q. There was a trial then pending in the Federal

Court, is that correct?



224

"A That's rights on my release from jail.

"Q Release from jail? What were the circumstances 

of your being in there?

"Mr. Walker:
We object. Your Honor. That has no bearing on 

this case.
"Mr. Hall:

If Your Honor please, we insist it is very per­

tinent. It goes to our theory the reason for the arrest 

and the heavy penalty.

(fol. 146) "Mr. Walker:
Your Honor, this is getting far afield from the

cha rge.
"The Court:

Sustain the objection.

"Mr. Hall:
We want an exception, Your Honor.

"Q Was there wide publicity given to this Federal

hearing?
"A Yes.
"Q Had it been published in the newspapers?

"A It had.
"Q Was there publicity over the radio and by way 

of the television?

"Mr. Walker:

We object to this.



225

"The Court:

Susta ined.

"Mr. Walker:

It serves no purpose.
"Mr. Hall:

Exception, Your Honor.

"Q How many times have you been arrested by the 
police of the City of Birmingham because of your civil 
rights activities?

"Mr. Walker:

We object, your Honor. Immaterial.
"The Court:

Sustained.

"Mr. Hall:

We except. Your Honor."
■k -k -k -k -k

"Q Why was it necessary for you to leave 19th Street 

and 2nd Avenue and go to 16th Street and 5th Avenue to get 
a cup of coffee?

"Mr. Walker: ;

We object to that, Your Honor, why.
"Mr. Hall:

Mr. Walker brought it out on cross-examination.
He mad a big show of the distance.



226

"The Court:

Leave it out.

"Mr. Hall:

We want an exception, Your Honor."

The sustaining of the objections to the foregoing 
questions was proper as such questions were irrelevant and 
immaterial to the issues involved.

The trial court, therefore, did not err by sustaining 
such objections.

The judgment of the Circuit Court is 
Affirmed.

(fol. 147)

IN THE COURT OF APPEALS OF ALABAMA 

APPLICATION FOR REHEARING--December 4, 1963 

AND OVERRULING THEREOF--January 7, 1964 
Now comes the. appellant in the above styled cause, 

and respectfully moves the Court for a rehearing of this 

cause, and prays that upon such rehearing, that the Order 
and Judgment of this Court made and entered on the 19th 

day of November, 1963, affirming the decision of the Cir­

cuit Court of Jefferson County, Alabama, finding appellant 

guilty of violation of Sections 1142 and 1231 of the Ge­

neral City Code of Birmingham, Alabama, and fixing his 
punishment and fine at $100.00 and One Hundred Eighty (180)



227

days at hard labor for the City of Birmingham be set aside 

and held for naught, and that in liew thereof a Judgment 

and Decree of this Court made and entered, reversing the 

said Judgment and sentence of the Circuit Court of Jeffer­

son County, Alabama.

Peter A. Hall, Grzell Billingsley, Jr., Attorneys 

for Appellant.

January 7, 1964
It is ordered that the application for rehearing be 

and the same is hereby overruled.

Per Curiam.

(142)

(fol. 148) (File endorsement omitted)

IN THE SUPREME COURT OF ALABAMA 

SIXTH DIVISION

Ex parte: Fred L. Shuttlesworth

No. 65

FRED L. SHUTTLESWORTH, Appellant,

vs.
CITY OF BIRMINGHAM, Appellee.

DOCKET ENTRIES
January 22, 1964--Submitted on Briefs 

February 20, 1964--Writ Denied (No Opinion)



228

March 6 , 1964--Application for Rehearing Filed 

March 26, 1964--Application for Rehearing Overruled

(fol. 149) (File endorsement omitted)

(fol. 150)
IN THE SUPREME COURT OF ALABAMA 

SIXTH DIVISION 

No. 929
(Title omitted)

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS 
--Filed January 22, 1964

To the Honorable Chief Justice and Associate Justices of 

the Supreme Court of Alabama:

1. Comes the Appellant, by and through his attor­

neys, Peter A. Hall and Orzell Billingsley, Jr., and res­

pectfully petitions this Honorable Court to review, revise, 

reverse, and hold for naught that certain Judgment of the 

Court of Appeals rendered on to-wit: November 19, 1963,

wherein Fred L. Shuttlesworth was Appellant and the City 

of Birmingham was Appellee, which Judgment affirms a Judg­

ment of the Circuit Court of Jefferson County, Alabama.

2. Your petitioner avers that application to the 

Court of Appeals for a rehearing of said cause and Brief
in support thereof were duly filed by your petitioner within 

the time required by law, and that said application for



229

rehearing was overruled by said Court of Appeals on the 
7th day of January, 1964.

3. Your petitioner respectfully shows unto the 

Court that this cause arose from a complaint filed by the

City of Birmingham, charging your petitioner with violating 

Sections 1142, as amended, and 1231 of the General City 
Code of Birmingham, viz:

Count One

Comes the City of Birmingham, Alabama, a municipal 

corporation, and complains that F. L. Shuttlesworth, within 
twelve (12) moa^hs before the beginning of this prosecution 

and within the City of Birmingham, or the police iurisdic- 

tion thereof, did stand, loiter or walk upon a street or 

sidewalk within and among a group of other persons so as 

to obstruct free passage over, on or along said street or 

sidewalk at to~wit: 2d Avenue, North, at 19 Street or did

while in said group stand or loiter upon said street or side 

walk after having been requested by a police officer to 
move on, contrary to and in violation of Section 1142 of 

the General City Code of Birmingham of 1944, as amended 
by Ordinance Number 1436-F.

(fol. 151) COUNT TWO

Comes the City of Birmingham, Alabama, a municipal 

corporation, and complains that F. L. Shuttlesworth, within 
twelve (12) months before the beginning of this prosecution



230

and within the City of Birmingham or the police jurisdic­

tion thereof5 did refuse to comply (144) with a lawful 

order, signal or direction of a police officer, contrary 

to and in violation of Section 1231 of the General City 
Code of the City of Birmingham.

4 Your petitioner filed a Motion to Quash the 

Complaint and Demurrers to the Complaint, on grounds that 

the Complaint was so vague and indefinite as not to apprise 
the Appellant of what he was called upon to defend, and 

further, that the ordinances which formed the basis of the 

prosecution, as applied to Appellant, constituted an abridg­

ment of the privileges and immunities guaranteed by the 

Constitution of the United States and that the ordinances 

were unconstitutional on their faces.

5. The Court overruled the Motion to Quash and the 

Demurrers whereupon petitioner was tried without a jury, 

and was found guilty as charged and fined One Hundred Dol­

lars ($100.00) and costs, and sentenced to a term of One 

Hundred and Eighty (180) days of hard labor for the City 
of Birmingham.

6 . Your petitioner filed a Motion to Exclude the 

Evidence, at the close of the City's case, which Motion was 

denied. After judgment and sentence, petitioner filed a 
Motion for a New Trial, which Motion was denied and peti­
tioner perfected his appeal.



231

7. Petitioner on appeal argued that at the time and 

place in questions he had done only what he had a consti­

tutional right to do5 and that his arrest was an attempt

to enforce racial segregation in violation of the U.S. Con­

stitution, but the Court of Appeals discounted thir argu­

ment and affirmed his conviction.
8 . That the Propositions of Law involved, which pe­

titioner claims should be reviewed and revised by this 

Court, are as follows:

A That the Ordinance and Complaint, the basis of 

the prosecution, are unconstitutional in that they are so 

vague, indefinite and uncertain as to constitute a depriva­

tion of liberty without due process of law, in violation 

of the Fourteenth Amendment to the United States Constitu­

tion.

(fol. 152) B. That the Ordinance and Complaint, the ba­
sis of the prosecution and conviction, as applied to pe­

titioner, constitutes an .abridgment of the privileges and 

immunities, and a denial of due process of law, the equal 

protection of the laws, all in violation of the Fourteenth 

Amendment to the United States Constitution.

Wherefore, your petitioner most respectfully prays 

that a Writ of Certiorari be issued out of and under the 

seal of this Court, directed to the Court of Appeals of 

Alabama, commanding and requiring said Court to certify



232

and send to this Court, on a day certain to be designated 

by this Court, a full and complete transcript of record, 

and all proceedings of said Court of Appeals of Alabama, 
in the Cause numbered and entitled aforesaid, to the end 

that this cause may be reviewed and determined by this Ho­

norable Court, as provided by law and the rules and practice 

of this Court, and that this Court thereupon proceed to 

review and correct the errors complained of and to reverse 

the Judgment of the Court of Appeals or render such Judg­
ment as said Court should have rendered.

Petitioner prays that this Honorable Court suggest 

and require the Court of Appeals to Stay or recall its 

Certicate of Affirmation of said cause, during the pendency 

of this petition.
And petitioner prays for such other, further and ad­

ditional relief in the premises as to this Court may seem 

appropriate, and to which he may be entitled, and your pe­

titioner will ever pray.
Respectfully submitted,

Peter A. Hall, Orzell Billingsley, Jr., At­

torneys for Appellant.
(fol. 153) Duly sworn to by Peter A. Hall, jurat omitted 

in printing.
Certificate of service (omitted in printing).



233

(fol. 154)

IN THE SUPREME- COURT OF ALABAMA 

6fch Div. 65
The Court Met Pursuant to Adjournment 

Present: All the Justices

Ex Parte: Fred L. Shuttlesworth

Petition for Writ of Certiorari to Court of Appeals 

(Re: Fred L. Shuttlesworth vs. City of Birmingham)

Jefferson Circuit Court 

ORDER DENYING WRIT AND DISMISSING PETITION—  

February 20, 1964
Come .the parties by attorneys and the Petition for 

Writ of Certiorari to the Court of Appeals being submitted 

on briefs and duly examined and understood by the Court, 
it is considered and ordered that the Writ be and the 

same is hereby denied and the petition dismissed at the 

cost of the petitioner, for which costs let execution issue 
accordingly.

No Opinion

(fol. 155) (File endorsement omitted)

IN THE. SUPREME COURT OF ALABAMA 

SIXTH DIVISION 

No. 65



234

APPLICATION FOR REHEARING--Filed March 6 , 1964 

Now comes petitioner, in the above-styled cause, and 

respectfully moves this Honorable Court to grant to him a 

Rehearing in said cause, and reverse, revise and hold for 

naught its Judgment rendered on to-wit; the 20th day of 

February, 1964, denying petitioner the Writ of Certiorari 
(147) and his petition, and to enter an Order reinstating 

petitioner's said petition, and directing that a Writ of 

Certiorari be issued out of and under the Seal of this 

Court, to the Court of Appeals of Alabama, to the end that 

this cause may be reviewed and determined by this Honorable 

Court.

Petitioner further moves the Court to grant a Stay 

of Execution in this cause, during the pendency of this 

Application for Rehearing.

Submitted herewith is a Brief and Argument, in sup­

port of said Motion.

Peter A. Hall, Orzell Billingsley, Jr., 1630 Fourth 

Avenue, North Birmingham, Alabama 35203, Attorneys 

for Appellant.

(fol. 155a)

IN THE SUPREME COURT OF ALABAMA

6 th Div. 65



235

The Court Met Pursuant to Adjournment 

Present: All the Justices

Ex Parte: Fred L. Shuttlesworth

Petition for Writ of Certiorari to Court of Appeals 

(Re: Fred L. Shuttlesworth vs. City of Birmingham)

Jefferson Circuit Court 

ORDER OVERRULING APPLICATION FOR REHEARING--
March 26, 1964

It Is Ordered that the application for rehearing 
filed in the above styled cause on March 6 , 1964, be and 
the same is hereby overruled.

(foi. 156) Clerk's Certificate to foregoing transcript 
(omitted in printing).

(fol. 157) Clerk's Certificate to foregoing transcript 
(omitted in printing).

(148)

(fol. 158)

SUPREME. COURT OF THE UNITED STATES 

No. --October Term, 1963

FRED L. SHUTTLESWORTH-, Petitioner,

vs.

CITY OF BIRMINGHAM



236

ORDER EXTENDING TIME TO FILE PETITION FOR WRIT OF 

CERTIORARI--June 19, 1964 

Upon Consideration of the application of counsel 
for petitioner,

It Is Ordered that the time for filing petition for 

writ of certiorari in the above-entitled cause be, and the 

same is hereby, extended to and including August 23, 1964 

Hugo L. Black, Associate Justice of the Supreme 

Court of the United States.
Dated this 19th day of June, 1964.

(fol. 159)

SUPREME COURT OF THE UNITED STATES 

No. 423— October Term, 1964

FRED L. SHUTTLESWORTH, Petitioner, 

v.

CITY OF BIRMINGHAM

ORDER ALLOWING CERTIORARI--March 1, 1965 

The petition herein for a writ of certiorari to the 

Court of Appeals of the State of Alabama is granted.

And it is further ordered that the duly certified 

copy of the transcript of the proceedings below which 
accompanied the petition shall be treated as though filed 

in response to such writ.



MOTION TO REMAND

(Number and Title omitted) (Filed: May 26, 1966)

Comes City of Birmingham, a municipal corporation 

of the State of Alabama, plaintiff in the above-styled 

cause, and appearing specially for the purpose of this mo­

tion only, moves the court to remand this cause to the Ala­

bama Circuit Court, Tenth Judicial Circuit, and separately 

and severally assigns the following separate and several 

reasons:

1. For that said petition for removal was not time­

ly filed.

2. For that said petition for removal was filed too

late.

3. For that the petition for removal fails to state 

facts showing that defendant was entitled to remove the ac­
tion from the state court under the provisions of Section 

1443 of Title 28, or Sections 1981-1983 of Title 42 of
the United States Code.

4. For that the petition fails to state facts suf­

ficient to give this court jurisdiction of the action.

5. For that the petition fails to state facts show­

ing that defendant is denied or cannot enforce in the judi­
cial tribunals of the State of Alabama any rights secured 

to them by any law providing for the equal civil rights

of citizens of the United States, or of any persons within'



238

the jurisdiction of the United States, within the provisions 

and purview of Section 1443 of Title 28, or Sections 1981- 

1983 of Title 42 of the United States Code,

6 . For that the action was improperly removed from 
the Circuit Court of the Tenth Judicial Circuit of Alabama 
as it involves no dispute or controversy within the juris­
diction of this Court.

7. For that the trial and conviction of defendant 

violated no rights secured to defendant by the due process 

and equal protection clauses of the Fourteenth Amendment, 

or under 42 U.S.C., Sections 1981-1983 (1964),

8 . (a) For that the transcript of the record of

the hearing or trial in the Circuit Court of the Tenth 

Judicial Circuit of Alabama, attached to and made a part 

of said petition is at variance with and contradictory of 

the conclusionary averments of said petition: that the

arrest and prosecution of petitioner has been and is being 
maintained for the sole purpose and effect of harassing 

petitioner and of punishing him for, and deterring him

and Negro citizens of the City of Birmingham from exercising 

their constitutionally protected rights of free expression 

to protest racial discrimination which the City of Birming­

ham and the State of Alabama now maintain by statute, or­

dinance, custom and usage; and the further inferences or 

innuendoes contained in said petition that his arrest and



239

prosecution stem from his notoriety as a Negro civil rights 

leader in Birmingham, Alabama, and elsewhere in;the nation.

(b) Such record shows the arrest and prosecution of 

petitioner for obstructing free passage over the sidewalk 

at Second Avenue and Nineteenth Street in Birmingham, after 

having been requested three times by Robert L„ Byars, J r ,

a police officer of said City, to cease such obstruction 

(R. 15-39), not in any manner claimed by petitioner to be 

incident to nor in any manner related to any demonstration, 

parade, petition or other activity involving free speech 
or free assembly.
(R. Ill, 112)

(c) Such record shows without dispute that the arr­

esting officer, Byars, did not know petitioner prior to 

the arrest (R. 29), and did not address him by name (R.112). 

Petitioner did not know the officer (R. 113). The same is 

true as to James Phifer, arrested about the same time

(R. 16, 22, 23, 128). The arresting officer did not know 

whether the group, of which petitioner was a part, was all 
colored or not (R. 36).

(d) Said arrest and conviction was reviewed during 

the October Term 1965 by the U.S. Supreme Court on certio­

rari to the Court of Appeals of Alabama on contentions by 

petitioner, not that any act or incident related to demons­

trations, parades or other activities involving freedom



240

of speech or freedom to assemble and petition were involved 

in such arrests, but rather that city ordinance 1142 as 

amended by Ordinance 1436-F was unconstitutional in viola­

tion of the First and Fourteenth Amendments, on its face 

and as applied to petitioner's conduct for vagueness and 

over breadth; in tht the ordinance was broad enough to in­

clude arrest of petitioner, a "notorious" civil rights lead­

er in Birmingham, Alabama, for engaging in demonstrations 
or other similar activities to sponsor civil rights causes 

and in that the petitioner was not sufficiently advised of 

what conduct- the ordinance proscribed.

(e) The opinion and decision written for the majority 

of the Supreme Court by Mr. Justice Stewart reversed the 

prior conviction in the Circuit Court of Alabama, as to 

said Ordinance 1142, as amended, on the ground that such 

ordinance had been construed in decisions rendered two 

years after the trial in the Circuit Court by the Court of 

Appeals of Alabama to require for conviction both proof 

of blocking free passage of the sidewalk and also refusal 

to move on after request by a police officer to do so, and 

the Circuit Judge having failed to make a finding of fact, 

it was uncertain whether that court had at the time of 
trial construed the ordinance as requiring proof of both 

the element of obstruction and the element of refusal to 

obey the officer's request to move on. The ordinance as



241

thus construed by the Court of Appeals of Alabama was held 

constitutional. The case was remanded to the Alabama Court 

of Appeals for proceedings not inconsistent with such opi­

nion 3 86 Sup. Ct. 211. In turn, following the mandate

of the Supreme Court, the Court of Appeals of Alabama has 
reversed such conviction and remanded the case to the Cir­

cuit Court, Tenth Judicial Circuit for re-trial in confor­

mity with the opinion rendered by the United States Supreme 
Court. 181 So. 2d 628.

WHEREFORE, the plaintiff prays that the above enti­

tled action be remanded to the Circuit Court, Tenth Judi­
cial Circuit, Birmingham, Jefferson County, Alabama.

s/ Earl McBee 
Earl McBee

s/ William C. Walker 
William C. Walker'

ATTORNEYS FOR CITY OF BIR­
MINGHAM,
PLAINTIFF

. ..oOo...

CRIMINAL ACTION

(Number and Title omitted) (Filed: June 28’, 1966)

THIS CAUSE was submitted to this Court on the Mo­
tion of the City of Birmingham to remand the action to 

the Circuit Court of Alabama, Tenth Judicial Circuit. 

Consideration is upon the petition for removal, upon the 

sufficiency of which this Court's jurisdiction must rest



242

and upon the motion to remand.

The allegations of the petition for removal con­

tain conclusionary averments very similar to and substan­

tially the equivalent of those dealt with in Peacock v, 

City of Greenwood, 347 Fed. 2d. 679, 684, (C.A. 5th Cir.

1965), reversed by the United States Supreme Court,____ U.S.

____(June 20, 1966). That is petitioner alleged he was a

civil rights worker of some note; that he was arrested and 

charged"*" with violating a city ordinance making it an of­

fense to obstruct free passage upon a street or sidewalk 

after having been directed by an officer to move on (Or­

dinance 1142-F, as amended by Ordinance 1436-F); that he 

was not guilty of the offense charged; that his arrest and

1 .

He also alleges that at the time of his arrest he 
was charged with violation of Section 1231 City Code, which 
the Alabama Court of Appeals found to be an ordinance li­
mited to regulation of vehicular traffic, a charge not sup­
ported by the evidence. That Court, however, sustained his 
conviction under Ordinance 1142-F. Such conviction was re­
versed on certiorari to the United States Supreme Court, 
and remanded, by that Court to the Court of Appeals of Ala­
bama, 86 Sup. Ct. 211, 382 U.S. 87 (1965). Reversal appears 
to have been predicated upon the uncertainty existing as 
to whether the trier of the facts (Circuit Judge) tried the 
case on the theory tha t either the obstructing of the side­
walk or the failure to obey the order to move was suffi­
cient to satisfy the demands of the ordinance, whereas, â 
constitutional application of such ordinance requires both. 
The Court of Appeals of Alabama subsequently gave the lat­
ter construction to the ordinance, but the trial court did 
not have the benefit of such construction at the original 
hearing. Hence remandment to the Court of Appeals and by 
it to the Circuit Court for trial in accordance with the 
opinion rendered by the Supreme Court.



243

prosecution is being maintained, to quote from the peti­

tion: "for the sole purpose of harassing him and deter­

ring him and Negro citizens from exercising constitu--. 

tionally protected rights to equal protection of the laws, 

and their constitutionally protected rights of free ex­

pression to protest racial discrimination which the City 

of Birmingham and the State of Alabama now maintain by 

statute, ordinance, custom and usage".

CONCLUSIONS OF LAW

Differing from the petition in Peacock, the removal 

petition here has attached to it and made a part thereof 

a copy of the record on certiorari to the United States 

Supreme Court. While this record shows a conflict in the 

evidence, that presented by the City is at variance from 

the conclusions of the removal petition above quoted. It 

is, therefore, probable that this difference would remove 

this case from the doctrine of Peacock as delineated in 

the opinion of the Circuit Court of Appeals, Mengel v, 

Nashville Paper Products and Specialty Workers Union, 221 
Fed. 2d 644 (C.A. 6th Cir. 1955), Simmons v.Peavy Welch 

Lumber Co., 113 Fed. 2d. 812, 813 (C.A. 5th Cir. 1940).

It is also apparent that the petition to remove, 

coming after trial in the Circuit Court of Alabama, appeal 

to the Court of Appeals of Alabama and reversal and re- 

mandment by the United States Supreme Court was not timely



244

filed. It was not filed "before trial" as required by 
statute. 28 U.S. Code 1446 (c).

However, in any event, it is the duty of this Court 

under the majority opinion of the United States Supreme

Court in City of Greenwood v. Peacock, U .S.____ , to

remand this action to the Circuit Court of Alabama, Tenth 

Judicial Circuit for further proceedings in that court.
The defendant, Fred L. Shuttlesworth, is hereby required 

to appear in the Circuit Court of Alabama, Tenth Judicial 

Circuit, on the 18th day of July, 1966, and from day to day 

thereafter as may be ordered by said Circuit Court of Ala­

bama .

This the 28th day of June, 1966.

s/ G, W, Allgood_____________ _United States District Judge

...oOo...
MOTION TO RECONSIDER ORDER TO REMAND 

(Number and Title omitted) (Filed: July 5. 1966)
Comes now petitioner Fred L. Shuttlesworth, by and 

through one of his attorneys, Peter A. Hall, and moves 

this Honorable Court to reconsider its Order, entered with­

out notice and hearing, on to-wit; June 28, 1966, remanding 

the above-said cause back to the Circuit Court of Alabama, 

Tenth Judicial Circuit, for trial on the 18th day of July, 

1966, and further to stay its prder on remand pending a



245

decision on the motion to reconsider, and as grounds for 

said motion to reconsider, petitioner sets out and assigns 
the following:

1. This Honorable Court in its conclusion of law 

ascertains that it is probable that the difference in the 

allegations of the remova1 petition and evidence presented 

by the city, as.reflected in the transcript of record on 

certiorari to the U.S. Supreme Court, would remove this 

case from the doctrine of City of Greenwood v Peacock, 

recently decided by the U. S. Supreme Court. Nevertheless, 

this Honorable Court held that Peacock would control dis­
position of the instant case.

2. This Honorable Court, as a part of its conclusion 

of law, determined that the instant case which was remanded 

by the U. S. Supreme Court on certiorari to the Alabama 

Supreme Court and then to the Circuit Court for a new trial 

could not be removed before said trial, as removal came too 
late.

Petitioner would rely on the rule as laid down by 

the Fifth Circuit Court of Appeals in Cox v Louisiana 

and insists that said rule would apply in the instant case.

Respectfully submitted,

s/Peter A. Hall 
! Peter A . Ha 11

Orzell Billingsley, Jr.
1630 Fourth Avenue, North 
Birmingham, Alabama 35203



246

Jack Greenberg 
James M. Nabrit, III 
Norman C. Amaker 

10 Columbus Circle 
New York', New York 10019

Anthony G. Amsterdam
3400 Chestnut Street 
Philadelphia, Pennsylvania

19104
ATTORNEYS FOR DEFENDANT 

...o0o ...
ORDER

(Number and Title omitted)' (Filed: July 6 , 1966)

This matter is before the court on motion of the 

petitioner, Fred L. Shuttlesworth, to reconsider order to 
remand. After due consideration of the grounds alleged 

therein, this court is of the opinion that petitioner's 

motion should be denied.
It is, therefore, ORDERED-, ADJUDGED and DECREED 

that petitioner’s motion to reconsider order to remand be 

and the same hereby is denied.

Done, this 6th day of July, 1966.

s/ C.W. Allgood
UNITED STATES DISTRICT JUDGE

. . , o 0 o . . .

MOTION FOR STAY PENDING APPEAL 
Comes now defendant Fred L. Shuttlesworth, by and 

through one of his attorneys, Peter A. Hall, and moves this 

Honorable Court to stay its Order on remand of the above- 

entitled case back to the Circuit Court of Jefferson County,



247

Alabama, entered on June 28, 1966, pending a decision on 

appeal by the U.S. Court of Appeals for the Fifth Circuit.

Defendant has this day filed notice of appeal in this 
Honorable Court.

Respectfully submitted,

s/Peter A. Hall
Orzell Billingsley, Jr.

1630 Fourth Avenue, North 
Birmingham, Alabama 35203

Jack Greenberg 
James M. Nabrit, III 
Norman C. Amaker

10 Columbus Circle
New York, New York 10019

Anthony G. Amsterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania

Counsel For Defendant
Dated this 6th day of July, 1966.

Motion For Stay approved and granted .

C. W. Allgood.
...oOo,..
ORDER

(Number and Title omitted) (Filed: July 6 , 1966)
This matter was submitted to the court upon defend­

ant's motion for stay pending appeal.

Upon consideration of said motion and for good cause
shown.

It is hereby ORDERED, ADJUDGED and DECREED by the 
court that the defendant's motion for stay pending appeal



248

be and the same hereby is granted.

Done, this 6th day of July, 1966.

s/ C. W. Allgood
United States District Judge

...oOo...

NOTICE OF APPEAL
(Number and Title omitted) (Filed: July 6 , 1966)

The defendant named in the above-numbered removed 

criminal case hereby appeals to the United States Court of 

Appeals for the Fifth Circuit from the Order of this Court, 
Honorable Clarence W. Allgood, presiding, on the 28th day 

of June, 1966, remanding this cause to the Circuit Court 

of Jefferson County, Alabama.

s/ Peter A. Hall 
Peter A. Hall 
Orzell Billingsley, Jr,

1630 Fourth Avenue, North 
Birmingham, Alabama 35203 

Jack Greenberg 
James M. Nabrit, III 
Norman C. Amaker

10 Columbus Circle 
New York, New York 10019 

Anthony G. Amsterdam 
3400 Chestnut Street
Philadelphia, Pennsylvania

19104
COUNSEL FOR DEFENDANT 

DATED the 6th day of July, 1966.

...oOo...



249

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN 

DISTRICT OF ALABAMA SOUTHERN DIVISION

CITY OF BIRMINGHAM
Plaintiff

vs.

FRED SHUTTLESWORTH,
Defendant.

)
) ’-
)
) CRIMINAL ACTION
) No. 66-203-
)
)
)

CLERK’S CERTIFICATE

I9 WILLIAM E. DAVIS, Clerk of the United States Dis­
trict Court for the Northern District of Alabama do here­

by certify that the foregoing pages numbered from one (I)to • 
one hundred (100), both inclusive, comprise the original 

pleadings in the above-styled criminal action and are here­
with attached as a full, true and correct transcript of the 

record on appeal in the Matter of FRED L. SHUTTLESWORTH, 

Appellant, vs. CITY OF BIRMINGHAM, Appellee, Criminal Action 

66-203, Southern Division, as fully as the same appears of 
record and on file in my office.

IN WITNESS WHEREOF, I have hereunto subscribed my

name and affixed the seal of said Court of Bir­

mingham, Alabama, in said District, on this the 
20th day of July, 1966.

WILLIAM E. DAVIS, CLERK 
UNITED STATES DISTRICT 
COURT,
NORTHERN DISTRICT OF 
ALABAMA
s/ Mary L. Tortorici

(Seal) Chief Deputy Clerk



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