Appendix — Curtis v. Boeger

1 ie meats binant bald aoe nS ik Ee mene ee ee

— 35 —

APPENDIX A.

, United States Court of Appeals

for the Eighth Cireuit.

No. 18,011. . .

Louis Ford, et al.,’ Appellants,

|

vs.

‘William Boeger, Warden St. Louis

City Jail, _ Appellee.

No.- 18,032. Appeals from the

Robert B. Curtis, et al, —~ . United States Dis-

yg, ~—S—s«*s Appellants, |* triog Court for the

} j Eastern District of

William Boeger, Warden St., Louis |.

City Jail, Appellee. |

oe No. 18,033.- ay

Michela Grand, et al., Appellants,

Wiissouri.

vs. A

William Boeger, Warden St. Louis |

City Jail, -. Appellee. J

[July 6, 1966.]

Before Van Oosterhout and Mehaffy, Cireuit Judges, and

Van Pelt, District Judge.

®

Van Oosterhout, Circuit Judge.

Before us are three consolidated appeals from denial Y

the United States Distriet Court of -petitions for writs of. .

¢

— 36 —

habeas corpus. The petitioners datum the validity of

state convictions for criminal contempt and the resulting

sentences imposed ‘for: violation of restraining order en- —

tered on August 30, 1963, requiring petitioners to desist

and refrain from unlawfully interfering with the business

of the Jefferson Bank and Trust Company by physically

obstructing entrance. and exit of customers or by prevent- _

ing patrons usua ess to tellers’ windows.and other de-

. partments of the bark. Peaceful picketing was not pro-

‘seribed.* . , > wee

Petitioners’ atiiaiatiiee all arose out of asserted willful

violations of such order. Each of the three cases before

us involves separate and distinct violations of the re-

straining order occurring on different dates. Separate

hearings were had with respect to each. demonstration.

Case,No. 18,032. arose out of a demonstration at the bank

én August 30, 1963. Petitioners found guilty in this re-

spect, together with “the sentences imposed, are: =

Name - . City Jail — Fine

Robert B. Curtis 270 days - $1,000.00

William L. Clay | 270 days 1,000.00

‘Rev. Charles Perkins ©. 180 days —- 500.00 -

Lucien Richards - - - 9Odays - ~ 500.00

Norman Seay 90 days ni 500.00

Cake No. 18, 011. arose out of the October 4, 1963, dem- —

onstration. The petitioners found guilty, and the sen-

~ - tences imposed, are:

*

1 The terms of the restraining order may be found in Curtis

v. Tozer, 374 S.. W. 2d 557, 563.

a a FF

stil ALAA AAA

—— 37:

nae ae City Jail “Fine

Louis Ford . One Year $500.00

Taylor Jones OndYear 500.00

Benjamin Goins ' 180 days ~ 500.00

Ian Grand = = ___—_— 180 days” 500.00"

Mrs. Roberta Tournour 120 days - §00.00

Kenneth Lee ‘60 days 500.00

© Ronald Glenn *60 days 500.00

; " Case No. 18,033 arose out of the October 7, 1963, i

onstration.: The petitioners convicted, with the sentences

- imposed, are:

i_ \.." City Jail “Fine

James Peake = ‘One Year $500.00

_Micheala Grand 120 days . _ 500.00

Danny Pollock : 60 days .- 500.00

- Petitioners in all of these cases filed petitions for writ

of habeas corpus -with the St. Louis Court of Appeals.

They were’ given a full evidentiary hearing. Relief was.

denied all petitioners now before us. 2 The St. Louis Court

of Appeals in a fifty-page opinion, Curtis v. Tozer, 374

/ &. W. 2d 557, fully and fairly sets out the facts, the issues

os raised and the basis of disposition, of such issues.

Petitioners next applied to the Supreme Court of Mis-

souri for habeas corpus relief. Said Court o®-January 31, .

1964, in an unreported opinion, denied relief, stating:

- °‘‘Application for .writ of habeas corpus denied be-

-eause petition and exhibits filed, including transcript —

-- of evidence submitted by petitioners to this Court, fail

' - to. show a claim on which relief can be granted for

the reasons stated in the opinion of the St. Louis

- Court of Appeals in the consolidated cases of : In the

2 The St: Louis Court of Appeals discharged four petitioners

not involved-in these appeals upon the grounds of insufficiency

of the. evidence {0 establish their guilt.

s

8. *

et’ al. v:; Martin L. Tozer, Sheriff, et al. No. 31,778,

and In the Matter of: Michela Grand et al. v. Martin.

L. Tozer, Sheriff, No. 31,779 certified copy of which |

opinion this Court has procured on its own motion.”’

Petitioners next sought habeas corpus relief from the

United States District Court. Such relief was first denied ~

- upon the. ground that the petitioners had not exhausted

their state remedies by reason of their failure to apply to

the United States Supreme Court for certiorari. Upon

appeal, we reversed and remanded. Curtis v. Boeger, 8

Cir., 331 F. 2d 675, stating: eee ees

" [T]he court determines: that: appellants were not,

as a prerequisite to a hearing upon the merits of their

_ application, required to petition the Supreme Court of .

the United States for writ of certiorari and further

determines that they have exhausted their state reme-

dies ‘within the teaching of Fay v. Noia, 372 U. §S.

391, 83 S. Ct. 822, 9 L. Ed. 2d 837.

Accordingly, the orders’ appealed ‘from should be

-and hereby aré vacated and the causes are remanded

to-enable-the District Court .to ‘consider the question —

on the basis of Fay v. Noia, supra, and to consider

' whether the issues sought to be raised are such as .

call for a hearing under Townsend v. Sain, supra.’’

"(372 U. 8. 293.] | sete

- Upon remand, the District’ Court determined. that the

. petitions presented only legal issues, that all fact issues-

had been fully tried and fairly determined’ by the state

courts, and that no asserted. federal constitutional rights

of petitioners had been violated. The petitions were dis-.

- missed. Ford v. Boeger, 236 F. Supp. 831; In Re Curtis’

Petition, 240 F. Supp. 475. These appeals are from such

dismissals.: a

“Matter of Robert B. Curtis et al. v. Martin L. Tozer,

Sheriff, et al., No. 31,777,In the Matter of Louis Ford ©

—

— 39 —

The legal issues presented by ail petitioners are in sub-

stance the same. The errors relied upon as a basis for re-

versal may be summarized as follows:

I. Improper denial of an evidentiary hearing.

II. Lack of jurisdiction in the state court to issue ‘the.

‘restraining order upon which the contempt convictions

were based. |

III. Procedures followed lceeued plaintiffs of rights

guaranteed by the Fifth, Sixth, and Fourteenth Amend-

ments.

IV. Conviction of Senin without benefit of jury trial .

constituted denial of due process.

V. The restraining order violates petitioners’ ‘right of |

free speech guaranteed - by the First, and. Fourteenth

Amendments.

VI. James: Peake’s punishment constituted cruel and

inhuman - punishment in violation of the Eighth. Amend-

ne.

vil. Other errors.

The facts ibchig upon the issues iieis us ‘are fully

_ and fairly set out in the opinions of the St. Louis Court

of Appeals and the District Court; heretofore cited. “The

demonstrations upon ‘which the contempt convictions were

based arose out of éfforts of CORE to have the Jefferson _

Bank and Trust Company employ four negroes in clerical

positions. The bank was advised that direct action would

' be taken against it if the requested positions were not

made available. The bank replied it had no openings.

The bank, acting upon information which it had obtained

that CORE planned sit-ins, stand-ins~and lie-ins at the

bank on August 30, instituted an action in the state court

for an injunction and restraining order. The order was

servéd.on most of the defendants before the August 30

a | - :

-

Pm

ee

demonstration and ‘upon: substantial evidence, the state

court found that all participating petitioners had notice

of the restraining order. before the demonstration in which

they participated. In thé demonstrations, the petitioners

blocked the entrance to the bank by standing in front of

the entrance locking arms. and blocked entrance to the

-tellers’ windows by sitting and, lying in front of sucli

- dows. While the demostrations’ were.in progress, the

restraining order was read by a bank - official, the demon-~*

strators were requested to leave and refused to do so. |

-- We now proceed to the consideration of the errors .

raised.

. I. *

No ‘error was committed in denying an evidentiary

hearing. At a pretrial: conference called to consider the

necessity. of an “evidentiary” hearing, petitioners limited

their request to produce/ additional. evidence to the fol- —

lowing items: (1) Nhe plature and extent of the alleged

labor disptite between CORE and the bank. (2) Bias and

prejudice on the part of special prosecutor Millsap. (3)

‘Discriminatory hiring practices of the bank.

It appears that full opportunity was afforded in the

.. state court to present evidencé upon each of said points

and no showing has been made that the proposed addi-

tional evidence would be material upon. any controlling

issue before us.

The trial court recognized that Townsend v. Sain re-

quites an evidentiary hearing when material facts are

in dispute. Judge Meredith, at p. 834 of 236 F. Supp.,

states that after reading petitioners’ application and brief,

it is his view that no. facts are in dispute and that: the

dispute relates only to conclusions of law. We agree.

-. Even when facts are disputed, an evidentiary hearing

_is unnecessary where-the state court after a full hearing

“a

—41 se

reliably found the relevant facts. Townsend v. Sain,. 372

‘U.S. 293, 312-13. See Case v. Nebraska, 381 U. S. 336,

345, Justice Brennan concurring.

II.

v

Petitioners in support of their contention.that the state.

court lacked jurisdiction ‘to issue the restraining order

urge that. CORE is a labor organization and that thé dis-

pute between CORE and the bank is a labor dispute of a

type with respect to which the federal government by

- means of the National Labor Relations Act, 29 U. S. C. A.,

§ 151: et seq., has preempted the ‘field.. Inasmuch as we

are of the view, as hereinafter set forth, that no preemp-

tion exists under the facts of this case, we shall in the

. interest of not. unduly prolonging this opinion assume

without so deciding that ‘CORE is a labor organization

and that the dispute is a labor. dispute covered by the Act.

“In Weber v. Anheuser-Busch, | Inc., 348 bes S. 468, 480- 81,

the Court states:

‘‘By the Taft-Hartley . Act, Coase did not ‘ex-

haust the full sweep of legislative power over indus-

trial relations given by the Commerce Clause. Con-

gress formulated a code whereby it ‘outlawed some

; aspects of labor activities and left others free for

the operation of economic forces.’ As to both cate-

gories, the areas that have been pre- -emmpted by federal

authority and thereby withdrawn from state power

are not suseeptible of delimitation by fixed metes and

‘bounds. Obvious conflict, actual or ‘potential,, leads

_ to easy judicial exclusion of state action. Such was

the situation in Garner v. Teamsters Union, supra.

But as the opinion in that case recalled, the Labor

Management Relations Act ‘leaves much to the states,

though Congress has refrained from telling us how

much.” 346 U. S.,.at 488. -The penumbral area ean’

7

oe

.

a en

; on be rendered ‘progressively clear only by the course

of-litigation. . . .”” a Se

‘To like effect, see San Diego, Unions v. Garmon, 359 U..S. - |

236, 240-241; International Association of Machinists v.

- Gonzales, 356 U. S. 617, 619; Garner v. Teamsters Union,

- 346 U. S. 485, 488. | Pag :

[Allen-Bradley Local v. Wisconsin Employment Rela- .

tions Board, 315 U. S. 740, the Court held that the Na-

_ tional Labor Relations Act did not preclude state action

restraining mass . picketing, obstructing entrance and

egress from the employer’s factory and obstructing public

roads and threatening injury «to. employees | desiring to

work. The Court states: ae

‘‘We agree with.the statement. of the United States

as amicus curiae’ that the federal Act was not de- .

signed to preclude ‘a State from enacting legislation

limited to the prohibition or regulation of this type

of employee or union activity. The Committee ‘Re- '

ports on the federal Act plainly indicate that it is not

‘a mere police court measure’ and that authority of

re - ws the several States may be exerted to control such con-—

duct. Furthermore, this Court has long insisted that

an ‘intention of Congress to exclude States from exert-

ing their police power must be clearly manifested.’ «

99 315 U. S. 740, 748-49.

In Auto Workers v. Wisconsin Board, 351 U. S. 266, the

Court holds that subsequent amendments to the ‘National.

: - Labor Relations Act have not impaired Allen-Bradley

aa; - holdings. The general rule that state courts may not en-

- join conduct which, has been made an unfair labor practice

is recognized. ‘The Court goes on to say:

“But our post-Taft-Hartley opinions have made it

élear that this general rule does not take from the

States power to prevent: mass picketing, violence, and

~~

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" tan be Sitlialign a. nor

heer

overt threats of violence. “The dominant interest of —

the State in preventing violence and property damage

cannot be questioned. It is a matter of genuine local

concern. Nor should the fact that a union commits a

federal unfair labor practice while engaging in violent

-» eonduct prevent States from taking steps to stop the

- violence. This conclusion has been explicit in the

opinions cited in note 12.

“fhe States ‘are the natural guardians of the \ public

against violence. It is the local communities that

suffer most from thé fear and loss occasioned by co-

ercion and destruction. We would not interpret. an

‘act of Congress to leave them powerless to avert such

emergencies without _compelling direction to that

effect.

‘“Wé hold that Wisconsin, may enjoin the violent

union eonduct here involved. . . .”’ 391 U. Ls 266,

274-75. : Pies ‘

“Additional recognition of the right of ‘a state to afford

. protection against union. violence is found in Teamsters

Union v. Morton, 377 U. S. 252, 257; San Diego Unions v. _

Garmon, 359 U. S. 286, 247; Youngdahl v. Rainfair, Inc., ._

355 U. S. 131, 138-39; Garner. v. * Teamsters bigs 346

“U.S. 485, 488.

* Examination of ‘the record before us eles that only

violent ‘conduct within the scope of matters left to state

jurisdiction, is here enjoined. Peaceful picketing is not

proscribed. We agree with the conclusion of the St. Louis

Court of Appeals upon: this issue, thus stated: ‘‘As al-

‘ready indicated, violence, intimidation and similar acts

may be restrained and enjoined even though they are

’ threatened or committed in connection with a- ‘labor dis-

pute.’’ °374 S. W. 2d 557, 595, 4 :

Petitioners’ reliance upon the Norris-LaGuardia anti-in-

junction Act, 29 U. S. C. A., $101 ét seq., is misplaced. -

ch i NM A Ne a hl ANAL i DS ie DOR ADS ik na

ay en

The Norris-LaGuardia injunction limitations are imposed*

only upon courts of the United States. The Court of Ap-

peals for the Third Circuit in American Dredging Co. v.

Local 25, 3 Cir., 338 F. 2d 83%, 850-56, clearly. and con-

- yineingly demonstrates why the prohibition applies only

to federal ‘courts—not to state courts. oF.

An additional separate and independent basis exists for -

~ upholding the criminal contempt convictions. United

States v. United Mine Workers, 330 U. S., 258, and cases

* cited therein, clearly hold that where a bona fide doubtful

question of jurisdiction is presented, the trial court has a.

right to issue a restraining order to maintain the status

quo while it is determining its own authority to grant in-

junetive relief. As a necessary consequence, the court has

the power to punish the violation ‘of a restraining order

so made by contempt: proceedings. The Court states:

° “Proceeding further, we find impressive authority

for the proposition that an order issued by a qourt

with jurisdiction over the subject matter and person |

must be obeyed by the parties until it is reversed by

orderly and proper proceedings. This is true without °

regard even for the constitutionality of the Act under

which the order is issued. In Howat v. Kansas, 258

U. S. 181, 189-90 (1922), this Court said:

An injunction duly issuing out of a court of

general jurisdiction with equity powers upon

pleadings properly invoking _ it action, and

served upon persons made es therein. and

within the jurisdiction, must be obeyed by them

however erroneous the action of the court may be,

even ‘if the error be in the assumption of the

validity of a seeming” but void law going. to the

" merits of the cage. It is for the court of first in-.

stance to determine the question of the. validity of

the law, and until its. decision is reversed for

2

° ?

— 45 —=

error OY orderly review, either by fitself or by a

higher court, its orders based on its decision are

to Wine, and disobedience of them is con-

tempt of its lawful authority, to be punished.’

Violations of an order are punishable as criminal con-

tempt even though the order is set aside on appeal,

Worden v. Searls, 121 U. S. 14 (1887), or though the

» basic action has become moot, Gompers v. Bucks

Stove & — Co., 221 U. S. 418 (1911).”’ 330 U. S.

. 258, 293-94. |

See United States v. Shipp, 203 U. 8. 563; Carter v. United

States, 5 Cir., 135 F. 2d 858.

Similarly, in our present case the court issuing the re-

’ straining order had jurisdiction and at least a bona fide

question exists on the court’s right to issue the injunction

sought. The court has power to preserve existing condi-

tions while it is determining its own authority to grant

injunetive relief. - IY .° .

: a

i

In our present case, the record before us shows that the |

_ Cireuit Court of St. Louis, after due notice to all parties

and full hearing, granted a permanent injunction on De-

cember 6, 1963, enjoining substantially the same conduct

‘ prescribed by -the restraining order. So far as we can ~

ascertain, no appeal was taken from such order. "The.

district court in the present case in its opinion correctly

held, ‘‘The Court had jurisdiction over the subject mat- ©

ter and the parties and until reversal by orderly and -

proper proceedings, disobedience to the restraining order |

was subject to punishment for: contempt. »» 240 F. Supp.

475, 482-83. :

III.

Petitioners next urge that the proceedings followed in

the state court deprived them of rights guaranteed by

the Fifth, Sixth and Fourteenth Amendments. Under

— eee as Pat en as? fa Re har a >

— 46—

this heading, they urge that they were deprived of a fair

trial by reason of the following: (1) Petitioners in Ford,

No. 18,011, were not allowed a reasonable time to prepare =

for trial. (2) Appointment of attroney: Millsap as special

prosecutor, and the prejudicial manner in which- he con-

ducted the proceedings. (3) Insufficient notice of nature

of ‘charges made. (4) Extensive eqveres newspaper and .

radio =

@

All of such contentions were fully heard and fairly con-

sidered by the St. Louis Court of Appeals As. reflected

by its ‘opinion. Upon the basis of the record, such court |

was justified in determining that petitioners’ constitu- |

tional rights were not violated in the respects claimed.

The United States District Court hearing these cases was

warranted in determining as it did that the petitioners had

a fair trial and that their constitutional rights were not

violated in the respects ene. 3

The prejudicial publicity i issue was not Saiviy oued

either in the state court or in the federal district court.

The contempt proceedings were tried to Judge Scott with-

out a jury. It is not likely that an experienced judge will

‘ be influenced in his decisions by such publicity. The con-

ions reached by the state trial court were supported

by substantial evidence and it is difficult to see how the

court could have fairly arrived at any other conclusions

with respect to the guilt of contempt. ;

Iv.

*.

’ Petitioners urge, that the substantial sentences imposed

without benefit of a jury trial constitute a denial of due

process under the Sixth, Eighth and Fourteenth Amend-

ments.‘ This contention. was never raised in the state

courts. 28 U.S. C. A:, § 2254 specifically requires a. state

_ prisoner to exhaust all available state remedies before

he can resort to federal habeas corpus relief. The Su-- :

“7

ae

vn shinai in testes Babee

—"

fat

preme Court in Case v. Nebraske, 381 U. S. 336, particu- ©.

larly: in. the concurring opinions, points out the desir-

ability of minimizing the’ necessity for state prisoners to

resort to federal habeas corpus and urges the prior utili-

zation of available state procedure for’ testing claims: of

violation of . federal constitutional rights.

=”

In instances where adequate state procedures are avail-

able, this court’ has repeatedly Held that the exhaustion

_ of such state remedies is required before federal habeas’

corpus may be entertained. Ellenson- v. Fugate, 8 Cir.,°:

346 F. 2d 151; Dabney v. Sigler, 8 Cir., 345 F.. 2d 710;

Witt v. Nash, 8 Cir., 342 F. 2d 791; Cyronne-DeVirgin v.

State of Missouri, 8 Cir., 341 F. 2d 568.

_ The Witt case, supra, arose out of a aneiies convie-

‘tion. . We there re-expressed our view that the Missouri ~

Supreme Court Rule 27.26 is the substantial equivalent of

28 U.S. C. A., § 2255 and that it provides for a fair post-

conviction review of federal constitutional vigations

charged in state trials resulting in conviction. @Ve re-

manded with direction-te.the district court to dismiss the

proceeding without prejudice to. i tenceal s right to seek

relief : in the state court. =

It is also a well-established principle of appellate re-

view that generally issues not fairly raised in the trial

court cannot be considered upon appeal. Vincent v. United

States, 8 Cir; :.. F. 2d ... (June 7, 66); Masters v.

Eide, 8 Cir., 353 F. 2d 517, 518: Haynes v. Harris, 8 Cir.,

344 F. 2d 463, 466; Sutton v. Settle, 8 Cir., 302 F’. 2d 286,

288; see Yakus v. United States, 321 U. S. 414, 444; Whit-

ney v. California, 274 U. S. 357, 362-63; Page v. United =

States, 8 Cir., 282 F. 2d 807, 810.

Petitioners at the state court trial were represented .

by numerous ‘competent counsel. ‘At the time of the trial

‘in 1963, no right to a jury trial in criminal contempt -

eases had been established. See Green v. United States,

| — 48 — i

- ! .

a8 U.S. 165, 186-87. Doubtless because of this state of

the law, no jury trial was demanded.

- United States v. Barnett, 376 Uv. S. 681, decided after

a

~ denial of habeas corpus by the St. Louis Court of Appeals,

and Cheff v. Schnackenberg, ... U. S. , decided June -

6, 1966, indicate that a view ‘hes: ‘dovdeeel in the Su- _

preme Court to the effect that a jury trial\should be

granted in. criminal contempt cases in instances where

substantial penalties are imposed. Contempt convictions

were affirmed in each of these cases. Each case arose out

of a federal contempt.conviction. In Cheff, the Court

after deciding the case before it goes on to say:

‘Therefore, ‘in the exercise of the Court’s _super-

_ yisory power. arid under the peculiar power of the.

federal courts to revise sentences .in contempt cases,

we rule further that sentences exceeding six months

for criminal contempt may not be imposed by federal

‘courts unless a jury trial has. been received or waived.

_Nothing we have said, however, restricts the power

of a reviewing court, in appropriate circumstances, to.

revise iia in — eases tried with or with-

ce out juries.’ . U.S. wet

Since - the Court states the uae position is : taken:

on the basis of its supervisory power over federal courts,

not on the basis of violation of* a constitutional right to ~

a jury trial,it would appear that the pronouncement does - |

- not apply directly to state criminal contempt convictions.

The last sentence of the pronouncement may indicate that

a federal conviction without a jury can be validated by

reduction of the sentence to six months of less. We find

.nothing in the cases just discussed which indicates the

new policy is. to. be retroactively applied. Here the state

convictions became final at least in 1964.

Inasmuch as ‘the jury issue was not fairly presented

either to the state court or the federal district court, no

* error was committed in not deciding such issué.

Mae oe no rasa ea Niall aN stat ait Sealine eee YS

Petitioners on brief here urge that the restraining order

issued and the contempt convictions based thereon violate

petitioners’ right of free speech and assembly guaranteed

under the First and Fourteenth Amendments. Defendant.

asserts that the issue of free speech and assembly was not

raised in the state court or in the United States District

Court. Petitioners have not answered this contention.

Petitioners in the United States District Court did in very

general and broad language assert violation of the First

Amendment but the issue was not pressed. in the district

court nor was it passed upon... In our view, the issue was

not fairly or adequately raised. Upon the basis of the.

authorities cited in the previous division, issues not raised

in the state court cannot’ be pursued y a state prisoner in

federal,habeas corpus. In any event, we are satisfied for

reasons hereinabove discussed, that petitioners conduct

-goes well beyond. protected free speech. See Pritchard v.

Downie, 8 Cir., 326 F. 2d 323.

VI.

| | a |

In the cases before us for revigw, petitioners raise the

issue that sentences imposed upon them were excessive

and constituted cruel and unusual punishment i in violation

of the Eighth and Fourteenth Amendments. The sen-

_tences imposed were within the limits provided by the

applicable Missouri statute, V.. A. M. S., § 476.120. As

properly pointed out in the trial court’s opinion, p. 485 of

240 F. Supp., p. 834 ‘of 236 F. Supp., state sentences au-

thorized by statute are not: subject to attack - federal

habeas corpus. : ae

% At the time the sentences were imposed, the repetitive vio-

Jent demonstrations created a situation which required “effective:

state action to re-establish law and order. Looking at the situa-

tion in retrospect after a considerable lapse of time, some of

the penalties may seem rather severe. Defendants, after serving

. F .

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ee

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gan yet ee

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, On this appeal, the only sentence sttecke’ on the cruel

and unusual punishthent grounds is that, of James Peake.

' Peake was sentenced” to-one ye year’s imprisonment of which

he has served’ some fifty-five days. ‘It ‘is undisputed that

.Peake is a paraplegic and that he cannot move without

- the aid of a-wheel chair. Such physical condition is a

factor which is entitled to consideration by the sentencing

: court and by prison ‘officials. ‘There is no record before

-us with respect to any undue hardship | suffered by Peake

in serving his sentence. | Statements’ in brief without rec-

ord support cannot -be considered.

Should Peake be required to. serve the balenee of his

sentence, we. cannot assume that the Missouri courts and

prison officials will not give proper consideration to his

ee Lert

f “=

physical handicaps. In any event, we are of the view that | |

Peake should. exhaust: state remedies available before

_ seeking federal habeas — relief.

Other issues urged do not rise to the stature of federal

constitutional rights. The issue of the validity‘of the bond .

filed presents only a question of contract. interpretation

and state law. - The issue of whether some of the defend-

_ ants were within’ the class of those restraified or whether’

they. were guilty by. reason of wrongfully and knowingly |

acting in collusion with those restrained was fairly tried

- and determined. The’ exhaustive opinion of the St. Louis.

Court of Appeals clearly reflects that full and fair, con-

' sideration -was given to all of petitioners’ complaints and -

that no fundamental federally guaranteed constitutional

Tights were denied petitioners.

’ part of their sentences, have Sion released upon bail. We have

determined that the sentences were constitutionally imposed and

' valid. We have no-clemency powers. The power to reduce or

suspend | the sentences imposed lies with the Sppropriate Mis-

souri ‘courts and officials.

° oe

4

es —— |

a Petitioners have failed to establish ‘that the United |

| States District Court committed any error in denying their

petitions for federal habeas corpus relief. |

“The judgments diamissing the sittiede for’ wih of

- habe Corpus are ones. \

‘A trite copy. a NS

Attest: | a it ee ee

-~ Oler'x, U, 8. Court of Appeals, Eighth Citenit.

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APPENDIX B.

United States Court of Appeals —

* For the Wighth Circuit. |

~~ September Term, 1965.

-. No. 18011 :

Louis Ford, et al., ps on ) ‘Appe oe fm the

ie ppe . United: States Dis-—

a ‘William Boeger, Warden,

«St. Louis City Jail. ~ ~ 7

Missouri.

| No. 18032 oy

Robert B. Curtis, et wg ms 3 . Appeal ‘Wie te

oe United States Dis-

; . _\triet Court for the

| William Boeger, Warden, . ae —— ” ot.

_ St. Louis City Jail, j—

: A

No. 18033 oy

Michela Grand, et al., yA ppeal from the

% ——, -™ United| States Dis-

trict Court for the

Eastern District of

Missouri.

Vs.

William Boeger, Warden,

St. Louis City. Jail.

4

Petition of appellants for rehearing filed in this cause

- having been considered, it is now here. ordered by this

Court that the same be, and it is hereby, denied.

- August 16,, 1966

J Order entered at direction.

‘w - Robert C. Tucker,

‘Slerk, U. S. Court of se. sth Cireuit? \.

PO tH ARE TI TD NILE O86

trict Court for the - ©

‘Eastern District of «—

»

i | or ° ; oO ve F Si ; ,

APPENDIX C. : |

In the Supreme Court of Missouri,

y ;

In Banc. - _ 4 an z.

| January 31,1964. ©

- In the Matter of: Robert B. : ede : eae eye ) |

William L. Clay, Lucien/Richards, |. ~~. .

Rev.: Charles Perkins, and Norman | - eh

Beays | }

Petitioners, |

ee 7 4 > | No. 50,596.

Martin L. Tozer, Sheriff of the City .

of St. Louis, and William Boeger,

Wardegpof . the Munici ipal Jail, |

iis of St. Louis, ’ |

Respondents. :

. hovteetion for writ.cf habeas corpus denied because > oe

petition and exhibits filed, including transcript of evi- |

~ ‘denice submitted by petitioners-to_this Court, fail to show —_.___.

a claim on which relief can be granted for the refsons |

stated in the opinion of the St. Louis Court of Appeals in |

the consolidated cases of: In the Matter of Robert B.

Curtis et al. v. Martin L. Yozer, Sheriff, et al., No. 31,777,

. In the Matter of Louis Ford et al. v. Martin L. Tozer,

Sheriff, et al., No. 31,778, and In the Matter of. Michela

Grand et al. v. Martin L. Tozer, Sheriff, No. 31,779 certi- .

fied copy of which opinion this Court has procured on its <—

own motion.. © 7 |

| Day-to-Day

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Henry I. Eager, Chiet qt iia.

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OES ENS NE FETT I e NNTS ANE

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ARRAS Nic eN A ipa i tN Nat nai A Tos

. * °

an * oem

f.

APPENDIX D. ne

o Teatithony of Major Walter ici Scene.Commander

: . Bt. Louis Police Reger, in the case of Curtis et al. —

Page 411: | |

Q. Did you make any arrests out there, Major?

5 A. Not a one.

Q.\Do you know whether or not any of the police

_: officers made any | arrests out there? -

A. I. know that none of them did. .

Q. Did anybody request that you arrest anybody

-out there? :

eae ; A. No, sir, they did not.

a. Q. None of the bank: officials? !

‘° * A. None of them.

* * * , ; 4 .

Page 416: ’ * >

® Mr. Wilson: Did you “@bberve any of the demon-

strators after they came into the bank attempt to.

transact any business at the windows? —--

A. No, I did not. I don’t know if ail were demon-

. . strators or not.

Page 416a: ,

Q. Did any of them. attempt to. aah to ais loan sec-

‘tion of. the bank? |

so -A. No. No one attempted to go into the hia section. ae

o Q. Did they anges to~-any—behind { the:

; aa

A. No, si¥. No attempt.

=e Q. Could you see the. stairway from where you were

i es stationed leading upstairs to the mezzanine?

A. If I stood =~ see, if I stood up I could see it.

Py

rs fece F : ae nie eds Was ee

a oe

biriaet, e

Pawe 417: -

fed

~~ Q. Did you see‘any of the demonstrators attempting

to go in their, sir? ae

* A. No, sir. |

Q. Was there any physical property of , the bank

damaged by any of these demonstratoi ? ,

A. None that I know of. I haveh * had a report

of it.

Q. No report was made to you by any officers of the’

bank to the effect, is that right, sir?

. That is correct. ee

Did you hear any of them curse in the’ bank?

. The demonstrators ?,

| Ree ee

, No, sir.

. Did you see any violence ‘at- all i in the. bank, sir?

. None whatsoever.

* *

%

be

.

pererer|

ae

"Page 421:

Q. In your opinion, as,a major.in the ‘police. depart-

____-.— ment of’ thirty-two years experience, would you say

'. that there was sufficient police manpower out there to

have controlled any situation that arose?

A. I would say definitely we could have. handled

anything that came up.