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COURT [If APPEALS [If KENTUCKY
CARL BRADEN, - - - - - - Appellant,
versus
COMMONWEALTH OF KENTUCKY, - - Appellee.
APPEAL FROM JEFFERSON CIRCUIT COURT.
CRIMINAL BRANCH, SECOND DIVISION.
BRIEF OF APfi‘ELLANT.
LOUIS LUSKY,
ROBERT W. ZOLLINGER,
‘ Attorneys for Appellant. I
e. WWWW.
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Notice
The cost of printing this brief has been underwritten
by labor, religious, social, and civic organizations as well
as many individuals concerned about civil liberties. This copy
is therefore sent to you without charge because of the interest you
have shown in this case. If you wish to make a contribution
toward printing more copies; if you wish to help pay
the many expenses that must still be met in the Louis-
ville cases, or if you would like to have addi-
tional copies of this brief, please write to:
Anne Braden
P. 0. Box 1302
Louisville ], Ky.
Dec. 9, 1955 \
COURT OF APPEALS OF KENTUCKY
CARL BRADEN, ~ - - - - Appellant,
4).
COMMONWEALTH OF KENTUCKY, — — Appellee.
POINTS AND AUTHORITIES.
PAGE
STATEMENT ................................... 1
THE FACTS . . . ................................ 3
(1) Purchase of the Wade house ................ 3
(2) Events following the house purchase ......... 8
(3) Alleged Communist Party membership ....... 11
(4) Connection of defendant with organizations
other than the Communist Party ............. 14
(5) The defendant’s library and personal papers. . 15
SUMMARY OF ARGUMENT .................... 20
ARGUMENT .................................... 28
I. The Defendant Was Constitutionally Entitled
to a Directed Acquittal .................... 28
A. The Constitutions of the United States and
and Kentucky forbid imputation of crimi-
nal guilt by association ................. 28
1. The charge of unlawful assembly ...... 29
De J onge V. Oregon, 299 U. S. 353
(1937) . . ......................... 29, 41
u..- _
ii
PAGE
State V. De Jonge, 152 Ore. 315, 51 P.
2d 674 (1935) . ................... 29
Kotteakos V. United States, 328 U. S.
750 (1946) . ...................... 34
Schneiderman V. United States, 320 U.
S. 118 (1943) . ................. 34, 41,42
Wieman V. Updeg‘raf‘f, 344 U. S. 183
(1952) . . ......................... 34, 36
Bridges V. VJixon, 326 U. S. 135 (1945). 37
Joint Anti-Fascist Refugee Committee V.
McGrath, 341 U. S. 123 (1951) ...... 37—38
Nazi Conspiracy and Aggression: Opin—
ion and Judgment (l‘. S. Govt. Print-
inc,r Office, 1947) . ................ 39
Dennis V. United States, 341 U. S. 494
(1951) . . ......................... 42
. The charge of circulation of literature. . 44
Thomas V. Collins, 323 U. S. 516 (1945). 48
West Virginia State Board of Educa—
tion V. Barnette, 319 U. S. 624 (1943) 48
Thornhill V. Alabama, 310 U. S. 88
(1940) . . . ....................... 49,53
Jones V. Opelika, 316 U. S. 584 (1942). . 49
Terminiello V. Chicago, 337 U. S. 1
(1949) . .......................... 50, 63
Stromberg V. California, 283 U. S. 359
(1931) . .......................... 51, 64
Lovell V. Grifi‘in, 303 U. S. 444 (1938). . . 51
Schneider V. State, 308 U. S. 147 (1939) . 52
Abrams V. United States, 250 U. S. 616
(1919) . . ......................... 60
Eisenhower, address to Land Grant Col-
lege Association, November 17, 1954 61
Butash V. State, 212 Ind. 492, 9 N. E. 2d
88 (1937) . . ...................... 63
, ”a “1‘ __
‘83:; A-.. _ -.__. ._.._.<_‘._"V .
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. . “a...”
w, ”‘a.
B. The Constitutions of the United States and
WV. .. _
.w _
a
ATM. “Er-"$7
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a
.3 7-. a.” 1
iii
Kentucky forbid punishment for speech,
writing and assembly not creating a clear
and present danger of harmful overt acts. 64
Palko V. Connecticut, 302 U. S. 319
(1937) . . ......................... 65
Sehenck V. United States, 249 U. S. 47
(1919) . . ......................... 67
Gitlow V. New York, 268 U. S. 652
(1925) . . . ....................... 67,68
Whitney V. California, 274 U. S. 357
(1,927) . . . ....................... 67,69
Danskin V. San Diego Unified School
District, 28 Cal. 2d 536, 171 1’. 2d 885
(1946) . . ........................ 73
Dennis V. United States, 341 U. S. 494
(1951) . . ................... 73, 8f), 81, 82
Herndon V. Lowry, 301 U. S. “242 (1937) . 74,
Bridges V. California, 314 U. S. 252
(1941) . . ........................ 80
\Vest Virginia Board of l‘vlducation V.
Barnette, 319 U. S. 624 (1943) ...... 80
Thomas V. Collins, 323 U. S. 516 (1,945). 80
Terminiello V. Chicago, 337 U. S. 1 (1949 80
. The Defendant Was Entitled to a Directed
.‘hé‘
1r
Acquittal Because the Kentucky Sedition
Statute Does Not Forbid Controversial Action
in the Field of Desegregation ..............
Message of Governor Morrow, Louisville
Courier—Journal, March 26, 1920. . . . 85
Gregory V. Commonwealth, 226 Ky. 617,
11 S. \V. 2d 432 (1928) ............. 89
Terminiello V. Chicago, 337 U. S. 1
(1949) . . ....... ’ .................. 90
Cantwell V. Connecticut, 310 U. S. 296
(1940) . . .........................
iv
PAGE
Thomas V. Collins, 323 U. S. 516 (1945) . 93
Shelley v. Kraemer, 334 U. S. 1 (1948). 94
Brown v. Board of Education, 347 U. S.
483 (1954) . . ..................... 94,99
Baltimore V. Dawson, 24 U. S. L. Week
3128 (1955) . . .................... 94
Holmes V. Atlanta, 24 U. S. L. Week
3128 (1955) . . .................... 94
T0 Secure These Rights (U. S. Govt.
Printing Office, 1947) . ............ 95
Freedom to Serve (U. S. Govt. Printing
Office, 1950) . . .................... 99
Groner and Helfeld, “Race Discrimina-
tion in Housing,” 57 Yale L. J. 426
(1948) . . ......................... 99
The gravamen of the charge is that the de-
fendant purchased the \Vade house for the
purpose of arousing ill feeling between the
races, in order to further an alleged revo-
lutionary purpose . . ................... 100
(1) Evidence before the grand jury ...... 101
(2) The prosecutor’s opening statement
to the jury ........................ 104
(3) The evidence received at the trial. . .. 105
(4) The prosecution’s closing argument. . 108
Abrams v. United States, 250 U. S. 616
(1919) . . ........................ 113
III. The Indictment Is Fatally Defective and
Should Be Dismissed ...................... 114
Analysis of the statutes ................. 114
State v. Berquist, 109 Kan. 368, 199 P.
101 (1921) . ...................... 117
State V. Laundy, 103 Ore. 443, 204 P. 958
(1922) . . ......................... 117
I...»
V
PAGE
People V. Thurman, 61 Cal. App. 147,
216 P. 394 (1923) . ................ 117
State V. Diamond, 27 N. M. 477, 202 P.
988 (1921) . ...................... 118
Analysis of the indictment .............. 120
United States V. Lattimore, 215 F. 2d 847
(App. D. C. 1954) ................. 122
A. The demurrer to the indictment should
have been sustained . .................. 127
Roberson’s New Kentucky Criminal Law
and Procedure (2d ed.) :
§1697 . . ........................... 127
§1702 . . ........................... 128
§1702 et seq ........................ 141
Commonwealth V. Tobin, 140 Ky. 261,
130 S. W. 1116 (1910) ............. 129
Commonwealth V. Tupman, 17 K. L. R.
217, 39 S. W. 661 (1895) ............ 129
Berg V. State, 29 Okla. Cr. 11.2, 233 P.
497 (1925) . . ..................... 130
Caudill V. Commonwealth, 202 Ky. 730,
261 S. W. 253 (1924) ............... 130
Lovelace V. Commonwealth, 193 Ky. 425,
236 S. W. 567 (1922) ............... 130
Carroll v. Commonwealth, 164 Ky. 599,
175 S. W. 1043 (1915) .............. 132
Kimbler V. Commonwealth, Ky., 269 S.
W. 2d 273 (1954) .................. 133
Commonwealth V. Fain, 248 Ky. 383, 58
S. W. 2d 642 (1933) ............... 134
Foster V. Commonwealth, 75 Ky. 373
(1876) . . ........................ 136
Commonwealth V. Owens, 1,98 Ky. 655,
249 S. XV. 792 (1.923) ............ 136,144
Commonwealth V. Barney, 115 Ky. 475,
74 S. XV. 181 (1903) ............... 137
viii
PAGE
The afi‘idavit for the first warrant ....... 168
Bentley V. Commonwealth, 239 Ky. 122,
38 S. W. 2d 963 (1931) ............. 1.71
Coleman V. Commonwealth, 219 Ky. 139,
292 S. W. 771 (1927) ............... 171
Baker v. Commonwealth, 311 Ky. 93, 223
S. W. 2d 590 (1949) ............... 172
Osborne V. Commonwealth, 214 Ky. 84,
282 S. W. 762 (1926) .............. 172
Wolford V. Commonwealth, 215 Ky. 523,
284 S. W. 1116 (1926) ............. 172
Goode V. Commonwealth, 199 Ky. 755,
252 S. W. 105 (1923) .............. 172
Thompson V. Thompson, Ky., 264 S. W.
2d667(1954)........... ......... 173
The affidavit for the second warrant ...... 173
White V. Commonwealth, 221 Ky. 535,
299 S. W. 168 (1927) .............. 174
Thomas V. Commonwealth, 226 Ky. 101,
10 S. W. 2d 606 (1928) ............. 174
Adams V. Commonwealth, 313 Ky. 298,
231 S. W. 2d 55 (1950) ............. 174
C. The search warrants failed to describe the
things to be seized . .................... 175
Cornelius, Search and Seizure, §3 ..... 175
Marron v. United States, 275 U. S. 192
(1927) . . ........................ 175
Lipschutz v. Davis, 288 Fed. 974 (E. D.
Pa, 1922) . . ..................... 175
Hale V. Henkel, 201 U. S. 43 (1906).... 176
Johnson V. United States, 333 U. S. 10
(1948) . .......................... 180
United States V. Smith, 23 F. 2d 929 (D.
R. 1., 1928) . ...................... 180
Annotation, 74 A. L. R. 1513 .......... 181
/‘
ix
PAGE
D. The law forbids search for private books
and papers not shown to be the instrumen-
talities or fruits of crime ............... 181
Youman v. Commonwealth, 1.89 Ky. 152,
224 S. W. 860 (1920) .............. 181
Brent v. Commonwealth, 194 Ky. 504,
240 S. W. 45 (1922) ............... 182
Boyd v. United States, 116 U. S. 616
(1886) . . ......................... 182
Gouled v. United States, 255 U. S. 298
(1921) . . ......................... 191
United States V. Lefkowitz, 285 U. S.
452 (1932) . . ..................... 193
Annotation, 129 A. L R. 1296 .......... 194
Boles v. Commonwealth, 304 Ky. 216,
200 S. W. 2d 467 (1947) ........... 194
E. The prosecutor, by causing the warrants
and affidavits to be kept secret, prevented
the defendant from obtaining a fair hear-
ing on their sufficiency .................. 195
Terrell V. Commonwealth, 196 Ky. 288,
244 S. W. 703 (1922 ............... 195
Miller v. Commonwealth, 201 Ky. 423,
257 S. W. 3 (1923) ................. 195
KRS §25.660 . . ...................... 196
Morgan County V. Governor of Ken-
tucky, 288 Ky. 532, 156 S. W. 2d 498
(1941) . . ........................ 197
V. The Seized Documents Should Have Been
Excluded From Evidence, Both Because the
Searches Were Illegal and Because the In-
tegrity of the Seized Documents Was Com-
promised Before the Trial ................. 198
Weaver v. Ficke, 174 Ky. 432, 192 S. W.
515 (1917) . ...................... 198
X
PAGE
Youman V. Commonwealth, 189 Ky. 152,
224 S. 1N. 860 (1920) . ............. 198
I. , I Analysis of the evidence as to particular
. I documents :
I II (1) The souvenir Russian Constitution
I ‘ (Ex. 33) . . ........................ 200
Q (2) Strategy and Tactics (EX. 91) ....... 204.
I (3) The Peace Crusade Minutes (EX. 54). 205
I" (4) The “dues letter” (EX. 82) ......... 206
Analysis of the evidence as to the seized
documents as a whole . ................. 209
Federal Rules of Criminal Procedure,
Rule 41 . . ........................ 212
East Kentucky Beverage Co. v. Stumbo,
313 Ky. 66, 230 S. W. 2d 106 (1950) . . 213
.- . . Ashland Coca-Cola Bottling Co. v.
I Byrne, Ky., 258 S. W. 2d 475 (1953). 213
VI. The Trial Court Committed Prejudicial
Errors in the Admission and Exclusion of
Evidence ............................... 214
A. Errors in the admission of evidence ..... 214
Admission of the seized documents in bulk 214
Exploration of defendant’s political opin—
I ions . . ................................ 219
? John Foster Dulles, “War or Peace”
II (1950), pp. 190-191 . ............... 232
People v. Malkin, 250 N. Y. 185, 164 N.
II E. 900 (1928) . .................... 240 I
II Commonwealth v. Peay,_369 Pa. 72, 85
II A. 2d 425 (1951) .................. 240
III. Viereck V. United States, 318 U. S. 236
(1943) . . ......................... 240
' 3 1 ‘Nigmore, Evidence, s57, p. 456 ....... 24o
Hensley V. Commonwealth, 31 K. L. R.
386, 102 S. W. 268 (1907) ........... 241
xi
PAGE
Maiden V. Commonwealth, 225 Ky. 671,
9 S. W. 2d 1018 (1928) ............. 241
Coomer V. Commonwealth, 288 Ky. 598,
157 S. W. 2d 97 (1941) ............. 241
Acres V. Commonwealth, Ky., 259 S. W.
2d 38 (1953) . .................... 241
State V. Sentner, 230 Iowa 590, 298 N.
W. 813 (1941) . ................... 241
People V. Immonen, 271 Mich. 384, 261
N. W. 59 (1935) .................. 241
People V. Maertz, 375 Ill. 478, 32 N. E.
2d 169 (1941) . ................... 241
Annotation, “Prejudicial effect of evi-
dence as to Communist or other sub-
versive affiliation or association of
accused,” 30 A. L. R. 2d 589 (1951) . . 241
Hague V. C. I. 0., 307 U. S. 496 (1939). 242
Evidence as to “front” organizations. . .. 243
The House Committee “Guide” ......... 244
United States V. Remington, 191 F. 2d
246 (C. A. 2, 1951) ................ 244
Joint Anti-Fascist Refugee Committee
V. McG-rath, 341 U. S. 123 (1951). . . . 244
The W’ade house evidence ............... 251
Proof that defendant had claimed privi—
lege before the grand jury .............. 254
Johnson V. United States, 318 U. S. 189
(1943) . . ............. . ........... 255
Southbridg‘c Finishing Co. V. Golding, 24
U. S. L. XVeek 2012 (N. Y. Sup. Ct.,
1955) . . ......................... 255
Quinn V. United States, 349 U. S. 155
(1955) . . ......................... 256
Helton V. United States, 221 F. 2d 338
(C. A. 5, 1955) . ................... 256
xiv
PAGE
Dennis V. United States, 341 U. S. 494
(1951) . . ........................ 288
VVieman V. Updegrat'f, 344 U. S. 183
(1952) . . ........................ 288
Internal Security Act of 1950, 50 U. S.
C. §783(f) . ................ 289,316,317
Adams V. Maryland, 347 U. S. 179 (1954) 289
United States V. Schneiderman, 106 F.
Supp. 906 (S. D. Calif. 1952).. .. 289—290
Wood V. State, 77 Okla. Or. 305, 141 1?.
2d 309 (Ct. Crim. App. 1943) .......
Stromberg V. California, 283 U. S. 359
(1931) . . ........................
Federalist Papers, No. 10 (James Mad—
ison) . ...........................
VIII. Other Pre judicial Errors Added to the Unfair-
ness of the Trial ..........................
The complete disregard of the normal or-
derof proof . ..........................
People V. Castree, 311 111. 392, 143 N. E.
112 (1924) . ......................
53 Am. Jun, tit. Trial, §128 ...........
The prejudicial nature of the prosecu-
tion’s closing argument to the jury .......
Goff V. Connnonwealth, 241 Ky. 428, 44
S. 1‘]. 2d 306 (1931) ...............
Meland V. Commonwealth, Ky., 280 S.
“7. 2d 145 (1955) ..................
Viereck V. United States, 318 U. S. 236
(1943) . . ........................
Dennis V. United States, 341 U. S. 494
(1951) . . .........................
293
317
318
319
320
320
321
321
321
322
1 ‘M V‘—
}
- ~A— -va‘mrm_—— -..< {.7
XV
PAGE
IX. Federal Legislation on the Subject of Sedition
Has Pre-empted the Field, Superseding the
Kentucky Statutes on that Subject ......... 323
Smith Act, 18 U. S. C. §§2384—2385. . .. 323
Commonwealth V. Nelson, 377 Pa. 58,
104 A. 2d 133 (1954) ............... 323
Internal Security Act of 1954'), 50 U. S.
C. §§781-798 . . ................... 325
Commul‘ist Control Act of 1954, 50 U. S.
C. $841844: . . ................... 325
Note, Federal Anti-Subversive Legisla-
tion of 1954, 55 Columbia Law Rev.
631 (1.955) . ...................... 325
CONCLUSION . . . ............................... 326
APPENDIX A—Indictment ...................... 327
APPENDIX B—Instructions Given to the Jury ..... 329
COURT OF APPEALS OF KENTUCKY
CARL BRADEN, - - — - - - Appellant,
1).
COMMONWEALTH OF KENTUCKY, — — Appellee.
BRIEF OF APPELLANT.
STATEMENT.
M (13/ it please [7/20 Court:
This is an appeal from a judgment of the Jefferson
)ircuit Court, Criminal Branch, Second Division, en—
tered January 17, 1955, sentencing the defendant to a
term of fifteen years at hard labor in the State Peniten—
tiary at LaGrange, Kentucky, and a fine of $5,000, upon
his conviction under KRS 0132.040 (R. 84).*
*In this brief the following system of notation will be used for record
references: Pages in the Clerk’s transcript will be referred to by the
prefix “R.” Pages in the transcript of evidence will be referred to by
the prefix “Tn”, preceded by the name of the witness if any— e. g.,
“Braden, Tr. __”. Pages in the formal bill of exceptions will be desig—
ated “Bill of Exceptions, p. _____". Pages in the grand jury transcript
will be referred to by the prefix “G. J. Tr.”, followed by the hearing date
appearing on the relevant volume—e. g., “G. J. Tr. 9/15/54, p. _”.
Pages in the transcript of the hearing of November 20, 1954, on the mo—
tion to suppress seized documents, will be referred to by the prefix
“Tr. 11/20/54.” Prosecution exhibits will be referred to simply by the pre-
fix “Ex.” Defense exhibits will be referred to by the prefix “Deft. Ex.”
,)
The defendant was indicted October 1, 1954, on a
charge that he had advocated criminal syndicalism or
sedition, or circulated documents so advocating, or ad—
hered to an organization so advocating (R. 2-3). A
demurrer t0 the indictment and a motion to dismiss
(R. 4~6) were overruled (B. 6—9).
A motion to suppress certain evidence which had
been seized at the defendant’s home after his indict-
ment was filed November'lfi, 1954 (B. 28-30). Argu—
ment was heard November 20, 1954, and the motion was
overruled November 23, 1954 (R. 32-34).
The trial began November 29, 1954, and continued
from day to day thereafter, eventuating in a verdict of
guilty on December 13, 1954 (R. 65; Bill of Exceptions,
pp. 4-16).
The defendant on December 22, 1954, filed his mo—
tion and grounds for a new trial and on the following
day filed a motion in arrest of judgment (R. 68-83).
The motions were argued January 10, 1955, and were
orerruled the next day (B. 83—84). The case then pro—
ceeded to judgment as noted above.
-- By order of the trial Court and this Court, the de—
fendant’s time to file the bill of exceptions in the trial
Court was extended to and including September 22,
1.9.55. rl‘he bill of exceptions was timely filed, and the
record was filed in this Court on November 15, 1955,
within sixty days thereafter. as provided by COP
§3:;(i‘(4).
THE FACTS.
This statement of facts will summarize the material
evidence in the case—«that is, the evidence relating to
the actions of the defendant. Most of the huge record,
to be sure, is devoted to other matters~—the 0 pinions of
the defendant on a variety of questions. and the opin-
ions and actions of other people not alleged or shown
to be under his control. But the material facts can be
simply stated.
(1) Purchase of the ll’ade house. In the spring of
1954 the defendant was visited at his home in Louisville
by a young Negro veteran named Andrew E. Wade IV,
who told the defendant that he wanted to buy a ranch—
type house; that he had looked all over for such a house
in the “Negro” sections and couldn’t find what he
wanted; that he had found a house he wanted in New
Albany, Indiana (just across the river from Louis—
ville) ; and that he wanted the defendant to buy it for
him (Braden, Tr. 1825).
Young Wade had previously attempted to buy this
house himself; but on the day that he was to make a
$100 deposit on it, the real estate agent called the deal
off because he could not obtain the owners’ consent
(\Vade IV, Tr. 160—161). Wade believed that this was
done because of his color (Wade IV, Tr. 161, 17],
172, 173). He still wanted the house, and asked the
defendant—who for some years had been an acquaint—
ance of his and a fairly close friend of his father and
business partner, Andrew E. “'ade, Jr.~to help him
4
get it (Wade IV, Tr. 162—163; Braden, Tr. 1877 ;
Wade Jr., Tr. 1300-1301).
The defendant said he was inclined to comply with
the request but wanted to consult his wife, and told
young Wade to come back the next day, which he did.
The Bradens then suggested that instead of buying the
New Albany house he move into their own neighbor—
hood, a “mixed” neighborhood where both whites and
Negroes lived. Young Wade declined, saying that he
and his wife both liked the New Albany house and
wanted to buy it. Accordingly the defendant went
there as requested, but found that the house had just
been sold (Braden, Tr. 1825-1826; Wade IV, Tr. 163).
About ten days later, after making another unsuc-
cessful attempt on his own and being turned down
because of his color, young Wade again sought the de—
fendant’s help. He had found a house he liked on
Lynnview Drive, in Jefferson County, and at his re—
quest the defendant made a $100 down payment, using
Wade’s money. This purchase was not consummated
because Wade decided the monthly payments were too
high, and the $100 was returned to him (Wade IV,
Tr. 165, 170, 172—173; Braden, Tr. 1826—1827).
About a week or ten days later, young Wade again
came to the defendant’s home and said he had found
a ranch-type house he liked on Rone Court, which is
located in a very sparsely built—up neighborhood near
Shively, in Jefferson County. He asked the defendant
to buy the house for him. The defendant renewed his
suggestion that Wade move into the defendant’s own
"mixed” neighborhood. but Wade said he wanted the
5
Bone Court house. On May 10, 1954, the defendant
and his wife purchased it with Wade’s money and
on May 13 they conveyed it to Wade and his wife
(Wade IV, Tr. 171, 174, 176, 335, 376; Braden, Tr.
1827).
This was the end of defendant’s connection with the
Bone Court house as such, except that in early June, at
young Wade’s request, the defendant or his wife typed
letters of transmittal enclosing monthly payments to
the two mortgagees. Wade had drafted the letters in
longhand but wanted them put in neat and business-
like form. He used his money for the payments, and
mailed the letters himself (Wade IV, T1". 372-376;
Braden, Tr. 1877—1878).
It may be noted that although the defendant recog—
nized a moral duty to give young Wade the help he had
requested in avoiding the effects of racial discrimina—
tion, the entire initiative in these transactions came
from Wade and not the defendant. As Wade testified
(Wade IV, Tr. 326—327):
“781Q. Now, Mr. “Iade, did Mr. Braden in the
incipiency of the transactions leading up to the
purchase of the real property—and I want you to
keep that in mind—in seeking to get possession
of the property and a home, were you importuned
by Mr. Braden at that time or did you importune
Mr. Braden to assist you in that desideratum.
A. I asked the favor of Mr. Braden.
782Q. What did you ask him to do, sir?
A. I explained the situation to him that
I had made attempts and looked into the matter of
purchasing homes, and I found that the abundance
of new homes that are for sale and at a cheaper
(5
price are open, supposedly, to white only in sub—
divisions designated that same way by the unwrit-
ten law, I will say, and that if he would purchase
a house for me that myself and my wife select
I would highly appreciate it.
783Q. And was that the only reason that you
sought his assistance in the matter?
A. That’s the only reason. I hadn’t seen
him for a long time.”
The defendant’s reaction to this request is best stated
in his own words (Braden, ’I‘r. 1824, 1827-1828) :
“388Q. Now, Carl, did you buy the house on
Rone Court for the VVades?
A. I did.
389Q. And why did you buy that for them “’3
A. Well, in the first place, Mr. Wade asked
me to do it for him as a favor. And in the second
place, I felt that he had a right to live in the house
of his choice, where he wanted to live. And I felt
that if I was going to preach democracy, which
I’d done all my life, and still do, I should practice
it. I could do nothing else. When the man asked
me such a vital thing as that, I could do nothing
else but say that I would help him.
'(- * 9.‘ 9(- -)r *‘é ‘+
396Q. * * Now, Mr. Braden, I’d like. to
break in there and ask you, between the time of the
New Albany affair and the time that you attempted
to buy the house on Rone Court, did you contact
Mr. Wade at all ‘2
A. I did not. He came back to see me and
asked me about the house on Lynnview Drive, and
I went and made the down—payment on it. * * *
then, about a week or ten days later he came to our
house again, and he said that he had found this
house on Rone Court. * ‘ * He liked this house
“W -A-‘ -4 A.-.___4_._._.__ ,__‘..4
, I .I_‘ -1 4__1.___1"_..1._.1
and he wanted to live the1e. So I felt that I had
a moral duty to help him, and so I went to the
1eal estate man and made a down— payment on
the house—
397Q. (Interrupting) Moral duty—what do
you mean by that, Carl “.3 Explainthat to the jury.
A. Well if a man believes in certain
things, like freedom of choice and democratic right
to live Where you want to and to have—to have the
right to work where youw want to, you can’t do any—
thing but follow your beliefs. Or, you haVe—you
have a duty t0——to yourself, a moral duty. If
you—if you didn’t do what you- believed in, you
would not be doing right, and therefore you would
be immoral, not in thbe sense of being immoral as
commonly understood, but—but .that you just
won’t be doing right by yourself and according to
your conscience. I believe that if—that ,you act
according to your conscience. Whatever—if you
believe in—in helping to improve conditions "of the
working people, the trade union people, and the
Negro people, well, then you have an obligation to
do what you can, and not to Shirk. That~that 1s
the best way I can explain it.
398Q. NO\\,1Mi. Braden, did you ever en-
courage a Negro to move into a white neighbor-
hood? -
A. I did not.
399Q. Will you explain to the jury what your
feeling on that encouragement of something like
that is? '
A. Well, I—I don’t believe that I have a
right to encourage anyone to do anything like that.
I mean—if you believe in freedom of choice, you
don’t—-
By the Court (Interrupting): Well, that an—
swers the question. Just . .
A. Yes, sir.”
8
Despite this interruption, the foregoing testimony
makes clear the defendant’s motivation in purchasing
the house. Nothing in the whole record gives any basis
for believing that he bought it for any provocative or
other ulterior purpose. Both Wade and the defendant
'knew, of course, that some adverse feeling might de-
velop; but they also knew that Louisville had been a
tolerant and law-abiding community where in at least
one similar situation, involving a Filipino family,
initial ill feeling had been dissipated without violence
(Wade IV, Tr. 174, 1361-1362).
(2) Events following the house pmchavse. The rec—
ord discloses nothing which even remotely suggests
that the defendant was in any way responsible for the
sad events which took place at Rene Court after the
Wades took possession of their new house, culminating
with- its bombing. Therefore, in strict logic, these
events have no place in this summary of material facts.
The prosecution, however, besides burdening the record
with hundreds of pages of immaterial testimony on this
subject, has introduced evidence that defendant pre-
pared certain literature and radio scripts commenting
on these events (Wade IV, Tr. 1341—1345, 1349-1358;
Braden, Tr. 1882). It is therefore appropriate to sum—
marize them briefly.
The Wades moved into the Bone Court house on
Saturday, May 15, 1954 (Wade IV, Tr. 335). Before
4:30 that afternoon, rocks were thrown through the
windows (Wade IV, Tr. 332—333). At about 10 :30 that
night, five men burned a cross on the adjoining vacant
lot. about fifteen feet off the Wade property, and ran
9
away yelling, “Nigger, get out”.* At about 2 o’clock
the next morning, ten shots were fired at the house,
two going through the door (Wade IV, Tr. 197—198,
203-208).
A few days later a weekly neighborhood news—
paper, the Shively Newsweek, began publication of a
series of inflammatory editorials and other items, im—
pugning the motives of the Wades and the defendant
and calculated to incite violence against them. Two
typical articles are set forth in full in the transcript
(Wade IV, Tr. 349-360).
Thereafter the Wades were subjected to repeated
insults and shouted threats by persons driving by their
house and Wade’s place of business, and by letter and
telephone. Around—the—clock guard was set up by the
County Police shortly after the shooting, and was main-
tained for two or three weeks (after which a night
guard only was maintained). But the police guard was
ineffective in affording protection from these threats.
For example, when the elder Wade was repairing a
window broken the night of the shooting, several
people drove by and shouted that there was no need to
put the window in, “VVe’re going to break it out again
tonight.” Despite the presence of the police guard,
they then drove to the end of the dead-end street,
wrapped up their license plate, drove back by the house
*Three of these men testified to the grand jury that they had partici—
pated in the cross-burning, one of them admitting specifically that the
purpose was to intimidate Wade (G. J. Tr. 9/15/54 and 9/24/54, pp.
107-109; G. J. Tr. 9/17/54, pp. 9—10, 97; G. J. Tr. 9/22/54, p. 258). No
indictment against them was returned. Wade later swore out a warrant
against them under KRS §437.110, which makes it a crime to band to—
gether for purposes of intimidation. The examining court dismissed the
charge on the ground that the grand jury had heard the evidence and had
falled to indict. Louisville Courier-Journal, March 10, 1955, §2, p. 1.
10
‘and got away. On such occasions the police would tell
the VVades, “You people are too intelligent to get
excited over those little things, just let them go”
(Wade IV, Tr. 256—262, 315—316; Wade Jr., Tr. 1321—
1325).
‘ Beginning about May 13 and continuing for about
f0ur‘1nonths, the defendant and his wife were also sub—
jected to a barrage of anonymous abuse (‘Vade IV, Tr.
360; Braden, Tr. 1829). For about a week, a police
guard was maintained at their home (Wade IV, Tr.
1360; Luton, Tr. 2140—2141). At one point the de—
ffendant’s wife; .in defendant’s presence, asked young
Wade to move out of the house because of the troubles
:‘it had brought; but he did not do so (Wade IV, Tr.
1352—1363; Braden, Tr. 1829).
~ “Because‘of the foregoing threats, abuse and acts
'of overt violence, coupled with the ineffectiveness of
police protection, the Wades took defensive measures.
Guns‘and pistols were kept in the house for defense
against attack. Friends of the \Vades served as vol—
unteer guards. A group of whites and Negroes who
were sympathetic to the VVades formed the “‘Vade
Defense Committee” for legal aid, public relations and
related purposes (Wade IV, Tr. 190—195, 228—229, 305,
316-317, 324325, 331—332, 345-346 ; Wade J r., Tr. 1312—
1314, 1341).
At about 12:30 A.M. on Sunday, June 27, 1954, a
dynamite bomb exploded under the house. The VVades
and some friends, who were on the opposite side of the
house from the point of explosion, were uninjured;
but the house was badly damaged and rendered unin—
11
habitable. A great deal of testimony was put in con—
cerning the bombing, but the record is devoid of even
a scintilla of evidence that the defendant had anything
to do with it (Wade IV, Tr. 255-256, 268—297, 307—309,
33. 3—315, 336-338; Blair, Tr. 1206-1210; Johns, Tr.
1245-1259; Davis, Tr. 1260—1268; Blevins, Tr. 1269—
1