Wiggins v. State of North Carolina Petition for Writ of Certiorari
Public Court Documents
October 2, 1967

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Brief Collection, LDF Court Filings. Wiggins v. State of North Carolina Petition for Writ of Certiorari, 1967. d8460c17-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0e2ae8c9-f69f-4ec4-8ef9-e0eaa5636289/wiggins-v-state-of-north-carolina-petition-for-writ-of-certiorari. Accessed July 01, 2025.
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I n t h e Uttpr^fttF (Emtrt ni tip October T erm, 1967 No.......... Georgia W iggins, D onald Martin Cooper, L ewis Cherry, E rvin Cherry, Golden F rinks, J ames Speller, J. A l fred Cherry, Clifton J ordan, David B ond, H arvey R andolph Speller, J r., George L. R ountree, T im H ayes J ordan, and Nathaniel L ee, J r., Petitioners, State of North Carolina. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA Conrad 0 . P earson 203% East Chapel Hill Street Durham, North Carolina R omalltts O. Murphy 126% East Hargett Street Raleigh, North Carolina T heoaseus T. Clayton 109 West Market Street Warrenton, North Carolina J. L eV onne Chambers 405% East Trade Street Charlotte, North Carolina Attorneys for Petitioners I N D E X PAGE Opinion Below ................................ 1 Jurisdiction ....................................................................... 1 Question Presented .......................................................... 2 Statement .................................................. 2 How the Federal Question Was Raised and Decided Below................................................. 4 R easons for Granting the AVrit— The Decision of the North Carolina Supreme Court in Holding That It AVas Not a Denial of Due Process for the Petitioners to Be Convicted by a Jury When the Sheriff AVho Selected It Appeared as a Witness Conflicts With the Opinion of This Court in Turner v. Louisiana .................. 5 Conclusion .............................................................................. 8 A ppendix— Decision of the Supreme Court of North Carolina .. la Table oe Cases Irvin v. Dowd, 366 U.S. 717 — ..............— ................ 6 Mitchel v. Johnson, 250 F.Supp. 117 (M.D. Ala. 1966) 6 Turner v. Louisiana, 379 U.S. 466 — ............................ 7 Statutes: General Statutes of North Carolina, §14-273 .............. 3 In th e tour! at tty MnlUb BUUb October Teem, 1967 No.......... Georgia W iggins, D onald Martin Cooper, L ewis Cherry, E rvin Cherry, Golden F rinks, J ames Speller, J. Al fred Cherry, Clifton J ordan, David B ond, Harvey R andolph Speller, Jr., George L. R ountree, T im Hayes J ordan, and Nathaniel L ee, J r., Petitioners, — v .— State of North Carolina. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA Petitioners pray that a writ of certiorari issue to review the judgment of the Supreme Court of North Carolina entered in this case on December 13, 1967. Opinion Below The opinion of the Supreme Court of North Carolina is reported at 158 S.E.2d 37 and is set forth in the appen dix, infra, pp. la-18a. Jurisdiction The judgment of the Supreme Court of North Carolina was entered on December 13, 1967. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1257(3), peti tioners having asserted below and asserting here depriva 2 tion of rights secured by the Constitution and statutes of the United States. Question Presented Were petitioners denied their rights under the due process clause of the Fourteenth Amendment when testi mony was given at their trial against them by the sheriff of the county who had handpicked the panel from which the jury that tried and convicted them was chosen? Statement On September 13, 1966, petitioner Golden Frinks drove to the site of Southwestern High School with approxi mately 20 other persons, most of whom were students (E. 92). Southwestern High School is a Negro high school located in Bertie County, North Carolina (R. 91). The petitioners wished to demonstrate in protest of certain restrictive policies adopted by the school preventing their wearing of “freedom buttons.” Upon their arrival at the high school at about 8:30 a.m., they took up signs and began peacefully picketing at the side of the road in front of the high school. The evidence did not indicate that at any time were they on school property, but rather were in a ditch that divided the highway from the school. The picketers were orderly and nonviolent at all times and did not say anything during the course of their picketing (E. 93). The sheriff of Bertie County saw the cars with the dem onstrators heading towards the high school and he fol lowed them there. After speaking to the demonstrators, the sheriff spoke to the principal and called two deputies to come to the high school. When the deputies arrived 3 all 20 of the demonstrators demonstrating at that time were arrested (R. 103). Twelve of the demonstrators were charged with violating General Statutes of North Carolina, §14-273, which makes it a misdemeanor to “wilfully interrupt or disturb any pub lic or private school . . . either within or without the place where such . . . school is held.” Petitioner, Golden Frinks, was charged with aiding and abetting the others with violating the statute (R. 10). All 13 petitioners were tried together and their convictions wrere affirmed in a single opinion of the North Carolina Supreme Court (158 S.E.2d 37, App. la ).1 Prior to trial the petitioners challenged the composition of the jury panels in Bertie County on the grounds that Negroes had been systematically excluded therefrom. A f ter a hearing on that issue, the trial judge agreed that such systematic exclusion had taken place (R. 31-33). How ever, instead of ordering a recomposition of the entire jury list and panels, he simply ordered the sheriff to pick 50 citizens known to him as persons of good character to form a new panel for the purpose of trying petitioners’ case (R. 32-33). The sheriff testified that he used the tele phone directory and his own memory to select names that “I knew- were good, outstanding citizens of Bertie County” (R. 90). From the 50 persons, a jury of six whites and six Negroes were picked (R. 33). At trial the sheriff was one of the three witnesses who testified for the prosecution. The other two witnesses were the principal of the high school and one of the teachers there, who, of course, were involved in the dispute with petitioners over conditions and practices at the school. Thus, the sheriff was the only wholly disinterested wit 1 The eases o f the rest o f the demonstrators were evidently handled by the local juvenile court and are not involved in the present petition. 4 ness that testified before the jury. His testimony was particularly important with regard to the conviction of petitioner Frinks for aiding and abetting the other defen dants. The sheriff testified that, before the picketing be gan, he had informed Frinks that there was a statute that prohibited disturbing a public school, and that Frinks had respondent to the effect that he didn’t care (R. 102, 105). The jury returned a verdict of guilty and the defen dants were fined from $10.00 to $50.00 and ordered to pay costs. Petitioner Golden Frinks was sentenced to 60 days in the county jail (R. 119-20). The convictions were appealed to the Supreme Court of North Carolina, which affirmed them on December 13, 1967. A stay of execution of the judgment was granted pending the filing and dis position of this petition. How the Federal Question Was Raised and Decided Below Petitioners challenged the composition of the jury, the process of its selection and the sheriff’s testifying to a jury which he had selected himself. Petitioners objected to the composition of the jury by a motion to challenge the jury array (R. 31). After the court had ordered the dismissal of the original panel and ordered the sheriff to select 50 jurors himself, a further objection to this pro cedure was made and overruled by the trial court (R. 33, 87-90). The issue of the denial of due process under the federal Constitution because the sheriff was a key prose cution witness before a jury which he himself had selected was raised by an assignment of error on appeal (R. 135- 37),2 was argued to the Supreme Court of North Carolina, and was rejected by it (App. 13a; 158 S.E.2d at 45). 2 The text of the assignment of error is as follows: This A ssignment of E rror is addressed, (1) to the total denial by the Trial Court o f defendants’ rights to be tried by a jury sys 5 REASONS FOR GRANTING THE WRIT The Decision o f the North Carolina Supreme Court in Holding That It Was Not a Denial o f Due Process for the Petitioners to Be Convicted by a Jury When the Sheriff Who Selected It Appeared as a Witness Con flicts With the Opinion o f This Court in Turner v, Louisiana. In the trial court below petitioners challenged the jury array on the ground that Negroes had been systematically excluded from it, in violation of the Fourteenth Amend ment to the Constitution. The trial court dismissed the challenged array and rather than selecting a new panel through the jury commissioners and court clerks, ordered the sheriff to personally select 50 persons that in his opin ion were of good character to be jurors. tem and by a jury selection process which is completely free of racial discrimination; (2) to the obviously discriminatory “ cure” applied by the Trial Court to the adjudged racial discrimination in the Bertie County jury system, under which “ cure” defendants are penalized in the jury selection process, solely because of their race, by being given an abbreviated, improvised and dubious jury panel o f all talesmen jurors; (3) to the obviously discriminatory “ cure” applied by the Trial Court to the adjudged racial discrimination by the Bertie County Commissioner in jury selection, under which “ cure” defendants are further penalized solely because of their race, by the Court’s leaving the selection o f their panel to the subjective and uncontrolled will and discretion of an adversely interested major witness in their case, to wit, the Sheriff of Bertie County; (4) to the unconstitutional application of North Carolina General Statutes 9-11 by the Trial Court, under which application, North Carolina General Statutes 9-11 is applied as a “ cure” to the adjudged unconstitutional application and administration of North Carolina General Statutes 9-1, et seq., to which the former is an inseverable adjunct. The rights above-mentioned are all protected by Article I, Sections 13, 17 and 38, o f the Constitution o f North Carolina and by the Due Process and Equal Protection Clauses o f the Fourteenth Amendment to the Federal Constitution. The errors above referred to are pointed up by E xceptions Nos. 8, 9, 10, 11, 12, 42 (R. pp. 87, 88, 89, 90, 120). 6 The trial court thus gave limited relief to petitioners’ claims under the equal protection clause of the Fourteenth Amendment3 while leaving their related due process rights to “a fair trial by a panel of impartial, ‘indifferent’ jurors,” Irvin v. Dowd, 366 U.S. 717, 722, in the hands of the chief prosecution witness. The sheriff testified that he selected 50 persons based on his acquaintance with them and by going through the telephone directory. Out of this handpicked group of 50 persons, 12 were selected to sit on the jury that tried and convicted petitioners. At trial the sheriff was one of three witnesses for the State. Indeed, he was the only ap parently disinterested witness since the other two, the principal and a teacher at the high school, were involved in the dispute with the petitioners. Moreover, the sheriff’s testimony was of particular im portance in showing intent on the part of petitioner Frinks to aid and abet in violating the statute herein involved. The sheriff stated that he had informed Frinks of the statute and Frinks had responded that he did not care that such a prohibition existed (R. 102). It must be as sumed that the testimony of the sheriff had great weight in the jurors arriving at a verdict of guilty. 3 It is important to note that in a rural county where the population is 60% Negro (R. 32), and where the trial court found that Negroes had been systematically excluded from the jury array, that no reform of the selection system resulted. While petitioners, as defendants in a criminal action, might not have standing, as such, to seek structural re form, ef., Mitchel v. Johnson, 250 F. Supp. 117 (M.D. Ala. 1966), we contend that the resulting process of selection should be given careful scrutiny by this Court. The reasonable inference o f discrimination re sulting from the finding of Negro exclusion is not rectified by the kind o f procedure complained of herein. For this Court to require that the procedure be reformed where it has been determined that Negroes have been systematically excluded from the juries would not only ensure a fair jury for the defendants here, but would also give some assurance that Negroes will no longer be so excluded in that jurisdiction. 7 However, the fact that the sheriff had picked the jurors from his personal acquaintance with them could only serve to increase his influence over them beyond that enjoyed by an ordinary witness. Thus, this ease is closely analogous to Turner v. Louisiana, 379 U.S. 466. In that case the two principal witnesses for the prosecution were deputy sher iffs. The jurors were sequestered in accordance with Lou isiana law during the trial and were placed in charge of the sheriff. As this Court said, “in practice, this meant that the jurors were continuously in the company of [the] deputy sheriffs,” 379 U.S. at 468. This Court reversed the convictions on the ground that the right to a jury trial guarantees to the criminally accused “ a fair trial by a panel of impartial, ‘indifferent’ jurors,” 379 U.S. at 471. An impartial jury could not be assured where witnesses for the prosecution have acquired an influence over them through their official capacity. Similarly here the jurors could not but have been influ enced inordinately by the testimony of the very man who had selected them to serve as jurors. Due process demands no less than that defendants in a criminal trial, if the state chooses to try them before a jury, be put on an equal basis with the prosecution and that the jirry be free of any possible bias towards the prosecution because of a close relationship between them and witnesses of the prosecution who are acting in their official capacity. Petitioners urge that certiorari should be granted to re solve the important question of whether a procedure such as adopted here can stand consistent with the rule in Turner. 8 CONCLUSION For the above reasons, the petition for writ of certiorari should be granted. Respectfully submitted, Conrad O. P earson 203% East Chapel Hill Street Durham, North Carolina R omallus 0 . Murphy 126% East Hargett Street Raleigh, North Carolina T heoaseus T. Clayton 109 West Market Street Warrenton, North Carolina J. L eV onne Chambers 405% East Trade Street Charlotte, North Carolina Attorneys for Petitioners APPENDIX APPENDIX NORTH CAROLINA SUPREME COURT P all T eem 1967 No. 174—Bertie Decision of the Supreme Court o f North Carolina State of North Carolina v. Georgia W iggins, D onald Martin Cooper, L ewis Cherry, E rvin Cherry, Golden F rinks, James Speller, J. A l fred Cherry, Clifton J ordan, David B ond, H arvey R andolph Speller, J r., George L. R ountree, T im H ayes J ordan, Nathaniel L ee, J r. Appeal by defendants from Fountain, J., at the 6 Febru ary 1967 Session of Bertie. The defendants were tried on separate warrants, which were consolidated for trial. The warrants, as to all of the defendants except Frinks, charged that on or about 13 September 1966 the defendant named therein “did know ingly, wilfully and unlawfully interrupt and disturb the Southwestern High School, a public school in Bertie County, N. C., by picketing in front of the Southwestern High School,” which picketing interfered with classes at the school in violation of G.S. 14-273. The warrant against Frinks charged him with aiding and abetting in such inter ruption and disturbance of the school. Prior to pleading to the warrants, the defendants moved to quash each warrant on the ground that it shows upon its 2a face that the defendant named therein was “in the peaceful and orderly exercise of First Amendment rights of picket ing and * * * of freedom of speech and protest,” and on the further ground that G.S. 14-273 is unconstitutional, as ap plied to the alleged conduct of the defendants, “by reason of the obvious collision between the statute and the rights of peacefully picketing.” The motion to quash was over ruled as to each defendant. Prior to pleading to the warrants, the defendants chal lenged the array of jurors summoned for that session of the superior court, the ground of the challenge being that Negroes had been systematically excluded from the jury list, and so from the jury box, from which the panel in question was drawn. All of the defendants are Negroes. The court conducted a hearing upon this motion, at which numerous witnesses, including county officials and others, were called by the defendants and examined. The presiding judge thereupon found as a fact that “there has been a dis proportionate number of white persons to that of Negro persons whose names have been put in the jury box for the drawing of jurors” as compared with the proportion of Negro residents of the county to the total population, and as compared with the proportion of Negroes listing prop erty for taxes with the total number of persons so doing, which disproportion he found to have been without any intention to discriminate on account of race in the selection of names to be placed in the jury box. The trial judge then ordered that “ to assure each defendant that he and she will be tried by jurors who are selected without regard to race,” no juror will be called into the box for the trial of these cases from the regular panel, but the sheriff would summon “ fifty persons who are qualified to serve as jurors * * * without regard to race.” Decision of the Supreme Court of North Carolina 3a The sheriff so summoned a special venire and from it the trial jury was selected, six of its members being Negroes and six being white persons. Thereupon, prior to entering their pleas to the warrants, the defendants objected to the special venire on the ground that they were entitled to be tried by jurors “ selected by the Constitutional system that is provided by the State.” The sheriff was called as a witness and examined by the defend ants concerning the method used by him in selecting those comprising the special venire. The objection of the defend ants to the special venire was overruled. Thereupon, the defendants entered pleas of not guilty. The jury returned a verdict of guilty as to each defendant. The defendants, other than Frinks, were fined in varying amounts. Frinks was sentenced to confinement in the county jail for a term of 60 days. Each defendant appealed. The State called as witnesses the principal of Southwest ern High School, the teacher of the class in bricklaying at the school, and the sheriff of the county. The defendants offered no evidence. The school principal testified that on the date named in the several warrants the school was in session. It is located on Highway 308, some five miles from the Town of Wind sor. Only two residences are in the vicinity of the school, the nearest being 100 yards away. The school building sits back from the highway approximately 500 feet. At the time of the alleged offense, the class in brick masonry was in progress, under the direction of its teacher, on the school grounds approximately 10 to 25 feet from the highway, the students in the class being engaged in the erection of cer tain brick structures as part of their class work. Other pupils were inside the building where classes were in prog ress. Frinks drove up to a point on the highway in front of the school, “unloaded some children and took out some Decision of the Supreme Court of North Carolina 4a signs with various wording * * # and gave each one a sign and they began to picket” ; i.e., to walk up and down the ditch separating the highway from the school campus. The school principal thereupon asked the sheriff, who was pres ent, “ if he could get those people away.” Each of the de fendants, other than Frinks, participated in the marching. (The principal did not name Lewis Cherry among the marchers, hut he was so named by the sheriff.) This conduct by the defendants resulted in the pupils within the school building “looking and carrying on” to such an extent that the principal had “to get them back to their classes and walk up and down the hall * * * trying to keep them in class.” When the principal went back into the building, he found pupils in the classes in progress in rooms facing the high way “looking out of the windows at what was going on,” and pupils from classes in progress on the other side of the building corridor “ running to the side that looked out on the marchers to see what was happening.” These stu dents “were talking among themselves * * * saying what they had seen.” The brick masonry class, consisting of 15 or 16 students, was taken from its work on the school grounds back to the “ shop” before the completion of its fully allotted class period. There was no problem in keep ing order in the school except during the time “when these defendants were out in front” of the school. The teacher of the class in bricklaying testified that he was conducting his class on the school grounds, the project in hand being the construction of some brick columns, some ten feet from the ditch in or along which the defendants, other than Frinks, marched. There were 15 students in the class. The marchers appeared some ten minutes after the class started. They arrived in an automobile, got out of it in front of the school grounds, passed out some signs and Decision of the Supreme Court of North Carolina 5a then marched along the ditch. The teacher tried to keep his students busy but the marchers took their attention, and some of the students stopped what they were doing and watched the marchers. The teacher talked to his students but could not maintain control of the class, so he gathered up the tools and took the class back into the building two hours before they were scheduled to complete their assign ment on the grounds. The marchers were not singing, clapping their hands, or doing anything except marching. The sheriff testified that he had been at the school when it opened for the day’s work, but after the school opened, he left in his automobile. Approximately four miles away he met Frinks with four or five other people in his car. The sheriff at once returned to the school. Upon his arrival there, he found Frinks’ car parked on the shoulder of the highway, with several people standing around it, and Frinks handing out signs “to the students.” (Apparently the marchers were students enrolled in the school but not in attendance upon classes that day.) The sheriff asked Frinks if he was aware of the statute of North Carolina forbidding the interruption of a public school. Frinks replied, “I don’t care anything about what is in the Statute Books.” (The court instructed the jury that the testimony of the sheriff concerning the remarks of Frinks was evidence as to Frinks only and not as to any other defendant.) The de fendants, other than Frinks, together with some eight others who were “juveniles,” then lined up and started marching. They were arrested after they had marched up and down two or three times. The sheriff observed several students standing and watching the demonstration and the marching. He also observed the teacher of the bricklaying class carry his class back into the “ shop.” After passing out the signs to the marchers and lining up the marchers, Decision of the Supreme Court of North Carolina 6a “Frinks got in Ms car and drove off, headed toward Wind sor.” Approximately 20 minutes elapsed from the arrival of the defendants at the site of the marching to the arrest of the marchers. Frinks was arrested two days later. The various signs carried by the marchers read as follows: “ God set us free why should we be here as slaves.” “A change is going to come.” “Freedom, Yeah, Yeah, Yeah.” “We want to talk but you make us talk and we’ll talk and you will walk.” “We want to be taught a free education.” “Let us be free and taught free.” “Searching, searching for a free Southwestern.” “Southwestern will overcome some day.” “What about our buttons, Mr. Singleton ? Freedom!” “Freedom in ’67.” “We want to grow up free!” A ttorney General B ruton and Deputy A ttorney General M oody for the State. Clayton & B allance, J . L eV onne Chambers and M itchell & Murphy for defendant appellants. L a k e , J. The pertinent provisions of G.S. 14-273 are: “If any person shall wilfully interrupt or disturb any public or private school * * # either within or with out the place where such * * * school is held * * * he shall be guilty of a misdemeanor, and shall, upon con Decision of the Supreme Court of North Carolina 7a viction, be fined or imprisoned or both in the discretion of the court.” The defendants argue in their brief that this statute is void because its prohibitions are uncertain, vague or in definite, under the rule applied by this Court in State v. Furio, 267 NC 353, 148 SE 2d 275. They argue in their brief that the statute contains no definition of “ interrupt” or of “ disturb” and, consequently, men of common intelli gence must necessarily guess at its meaning and thus be left in doubt as to what conduct is prohibited. It is difficult to believe that the defendants are as mystified as to the meaning of these ordinary English words as to they profess to be in their brief. Clearly, they have grossly underesti mated the powers of comprehension possessed by “men of common intelligence.” Nevertheless, we treat this conten tion as having been seriously made. It is elementary that in the construction of a statute words are to be given their plain and ordinary meaning unless the context, or the history of the statute, requires otherwise. Cab Co. v. Charlotte, 234 NC 572, 68 SE 2d 433; In re Nissen’s Estate, 345 F 2d 230. While the meaning of “interrupt” and of “disturb” is perhaps more easily under stood than defined with precision, resort to Webster’s Dic tionary reveals that “interrupt” means “to break the uni formity or continuitj ̂ o f ; to break in upon an action,” and “disturb” means “to throw into disorder.” For those who are unhappy without citation to authorities of the type customarily cited in judicial opinions, we refer to Black’s Law Dictionary and to Watkins v. Manufacturing Co., 131 NC 536, 42 SE 983, where this Court said that an allega tion in a complaint for personal injury that the plaintiff had been “disturbed in body” must be understood to mean Decision of the Supreme Court of North Carolina 8a that “her body was thrown into a state of disorder, and thereby injured.” In Kovacs v. Cooper, 336 US 77, 69 S. Ct. 448, 93 L. Ed. 513, the Supreme Court of the United States, speaking through Mr. Justice Reed, in sustaining a conviction in the courts of the State of New Jersey for violation of an ordi nance forbidding the use of sound trucks emitting “loud and raucous” sound, said: “ The contention that the section is so vague, obscure and indefinite as to be unenforceable merits only a pass ing reference. This objection centers around the use of the words ‘loud and raucous.’ While these are ab stract words, they have through daily use acquired a content that conveys to any interested person a suf ficiently accurate concept of what is forbidden.” When the words “interrupt” and “disturb” are used in conjunction with the word “ school,” they mean to a person of ordinary intelligence a substantial interference with, dis ruption of and confusion of the operation of the school in its program of instruction and training of students there enrolled. We found no difficulty in applying this statute, in accordance with this construction, to the activities of a group of white defendants in State v. Guthrie, 265 NC 659, 144 SE 2d 891. Obviously, the statute applies in the same manner regardless of the race of the defendant. In State v. Ramsay, 78 NC 448, in affirming a conviction for the similar offense of disturbing public worship, this Court speaking through Smith, C.J., said: “It is not open to dispute whether the acts of the defendant were a disturbance in the sense that sub jects him to a criminal prosecution, and that the jury was warranted in so finding, when they had the ad Decision of the Supreme Court of North Carolina 9a mitted effect of breaking up the congregation and frustrating altogether the purposes for which it had convened.” Giving the words of G.S. 14-273 their plain and ordinary meaning, it is apparent that the elements of the offense punishable under this statute are: (1) Some act or course of conduct by the defendant, within or without the school; (2) an actual, material interference with, frustration of or confusion in, part or all of the program of a public or pri vate school for the instruction or training of students en rolled therein and in attendance thereon, resulting from such act or conduct; and (3) the purpose or intent on the part of the defendant that his act or conduct have that ef fect. One, who has reached the age of responsibility for his acts and who is not shown to be under disability of mind, is presumed to intend the natural and normal consequences of his acts and conduct. State v. Ramsay, supra. Nothing else appearing, the defendant’s motive for doing wilfully an act forbidden by statute is no defense to the charge of violation of such statute. Cox v. Louisiana, 379 US 559, 85 S. Ct. 476, 13 L. Ed. 2d 487 ; Commonwealth v. Anderson, 272 Mass. 100, 172 NE 114, 69 ALE 1097; 21 A m Jur 2d, Criminal Law, § 85. Each warrant in the present case charges the defendant named therein in plain and precise language with each ele ment of this statutory offense at the specified time and place by the specified conduct of picketing in front of the school, which picketing interfered with classes at the school. Each warrant is sufficiently specific to protect the defendant named therein from being placed again in jeopardy for the same offense. Consequently, the motion to quash the war rants was properly overruled unless the defendants had, Decision of the Supreme Court of North Carolina 10a as they contend they did have, a lawful right to engage in the specified conduct, notwithstanding the statute. The uncontradicted evidence of the State, if true, as it must be deemed to be in passing upon a motion for judg ment of non-suit, is sufficient to show that the defendants, other than Frinks, intentionally paraded back and forth in front of the specified public school building and grounds in the immediate vicinity of a class then in progress on the school grounds. The evidence likewise shows that Frinks in tentionally aided, abetted, directed and counseled the march ing. The marchers carried placards or signs. These signs were utterly meaningless except on the assumption that they related to some controversy between the defendants and the administration of the school, specifically Principal Singleton. Presumably, they were deemed by the defend ants sufficient to convey some idea to students or teachers in the school. The site was the edge of a rural road run ning in front of the school grounds, with only two residences in the vicinity. There is nothing to indicate that the marchers intended or desired to communicate any idea whatsoever to travelers along the highway, or to any per son other than students and teachers in the Southwestern High School. As a direct result of their activities, the work of the class in bricklaying was terminated because the teacher could not retain the attention of his students, and disorder was created in the classrooms and hallways of the school building itself. Consequently, the motion for non suit was properly overruled unless the defendants had, as they contend, the lawful right so to interrupt and disturb this public school, notwithstanding the provisions of the statute. The contention of the defendants that the court com mitted error in admitting evidence as to the conduct of Decision of the Supreme Court of North Carolina 11a the students in the bricklaying class and in the school building in response to the marching of the defendants must be deemed frivolous. An essential element of the offense charged in the warrants is the actual interruption and disturbance of the program of the school. Obviously, this can be shown only by evidence of the effect of the defendants’ conduct upon the activities of the teachers and students of the school. The witnesses, who testified con cerning this, related their own observations of what hap pened upon the school grounds and within the school build ing while the conduct of the defendants was in progress, as contrasted with the good order which prevailed prior to the commencement of the marching and after the departure of the defendants. Such evidence was clearly material and competent. When the defendants challenged the array of regular jurors summoned for the term, on the ground of unconsti tutional discrimination against members of their race in the selection of names to go into the jury box from which the panel was drawn, the trial judge conducted a hearing and heard all of their evidence upon that matter. Upon this evidence, he found that a disproportionately small number of names of Negroes had been included in the box. He theerupon ordered that no member of the regular jury panel be called as a juror for the trial of these cases and directed the sheriff to summon a special venire of fifty persons “without regard to race.” This was done and from that panel the jury which tried and convicted the defend ants was chosen, six of those jurors being Negroes. The contention of the defendants that it was error to order such special venire is without merit. The procedure so followed by the trial judge is expressly authorized by G.S. 9-11, and the only contention of the defendants that tales Decision of the Supreme Court of North Carolina 12a jurors can be called only to supplement an insufficient num ber of regular jurors is refuted by the very case they cite in their own brief, State v. Manship, 174 NC 798, 94 SE 2, in which this Court, speaking through Clark, C.J., said: “It has never been controverted that the judge in his discretion has the power to excuse any juror and to discharge any jury that he thinks proper. It seems that in this case the regular jury had been discharged under the impression that the business of the court was over. This case coming up, the defendant asked for a continuance. But, there being no other ground suggested therefor, the court, in the exercise of its discretion, directed tales jurors to be summoned, un der the above statute [G.S. 9-11], which was passed for this very purpose, that ‘there may not be a defect of jurors.’ There was long a practice, under the for mer statute, that the judge should reserve one juror of the regular panel to ‘build to,’ based upon the tech nical idea that the tales jurors should be other jurors, as if they would not be ‘other’ jurors even if that one juror had also been discharged. It was no prejudice to this defendant that one regular juror was not re tained. Twelve jurors, freeholders, to whom he en tered no exception, sat upon his case, and he was duly convicted.” There is nothing in this record to indicate that any juror who sat upon the case and convicted the defendants was challenged by any of the defendants. The record does show that the defendant Wiggins, having exhausted her per emptory challenges, attempted to challeng peremptorily a seventh juror and her challenge to that juror was disal lowed. However the record shows that the juror so ehal- Decision of the Supreme Court of North Carolina lenged by her was removed from the jury upon the peremptory challenge of another defendant. The record does not indicate that any other case was tried at this term of court or that any regular juror, or any other juror drawn from the jury box, participated in any way whatever in any proceeding before the court at this term or at any other term. The objection of these defendants to trial by jurors drawn from the jury box having* been sustained, and they having been tried by a jury summoned and selected pursuant to the statute, and without discrimination on account of race or otherwise, the defendants may not attack the judgment entered against them because of a defect in the composition of the jury box from which the regular panel was drawn. We have no information as to what action has or has not been taken with reference to the jury box since the trial of these cases, and that question is not now before us. The special venire was not rendered invalid by reason of the fact that the sheriff who summoned it, pursuant to the orders of the court, was a witness for the State in these cases. State v. Yoes, 271 NC 616, 157 SE 2d 386; Noonan v. State, 117 Neb. 520, 221 NW 434, 60 ALR 1118; 31 AM JUR, Jury § 108; Anderson on Sheriffs, § 280. We are, therefore, brought to the principal contention of the defendants, which, in effect, is that they had a lawful right wilfully to interrupt and disturb the operation of this public school for the reason that they wrere carrying signs bearing the above quoted words thereon, and the pur pose of their marching was to convey to someone (obvi ously, students or teachers in the school) some idea. That is, the defendants assert that the Constitution of this State, Article I, § 17, and the Fourteenth Amendment to the Constitution of the United States, permit them, with im Decision of the Supreme Court of North Carolina 14a munity from prosecution, to disrupt the operation of a public school so long as the means used by them for that purpose is marching back and forth in front of the school while carrying banners and placards on which words appear. Freedom of speech and protest against the administra tion of public affairs, including public schools, is a funda mental right which has been cherished in this State since long before the adoption of the Fourteenth Amendment to the United States Constitution. It has, however, never been doubted that this is not an absolute freedom or that the State, in the protection of the freedom of others and of its own paramount interests, such as its interest in the educaion of its children, may impose reasonable restraints of time and place upon the exercise of both speech and movement. Thus, in State v. Ramsay, supra, a former member of a religious congregation, who had been expelled therefrom for reasons or pursuant to a procedure which he deemed insufficient and unjust, was convicted and pun ished for disturbing public worship when he persisted in breaking into a worship service of the church and reargu ing the supposed merits of his case. Neither the enact ment of Gf.S. 14-273 nor its enforcement against these de fendants in this case violated the Law of the Land Clause of Article I, § 17, of the Constitution of North Carolina. The Fourteenth Amendment to the Constitution of the United States grants to the defendants no license wilfully to disturb the operation of a public or private school in this State. G.S. 14-273 is not discriminatory upon its face. It is universal in its application. Anyone who does that which is prohibited by the statute is subject to its penalty. It does not confer upon an administrative official the author Decision of the Supreme Court of North Carolina 15a ity to issue, in his discretion, permits to disturb public schools and, therefore, does not invite or permit that type of administrative discrimination against the disseminators of unpopular ideas which was condemned in. Saia v. New York, 334 US 558, 68 S. Ct. 1148, 92 L. Ed. 1574. Neither the statute nor its application in this case has the slightest relation to State approval or disapproval of the ideas expressed on the signs carried by the defendants, or of the position taken by the defendants in their con troversy, whatever it may have been, with the principal of the school. Like the ordinance involved in Kovaes v. Cooper, supra, this statute does not undertake censorship of speech or protest. As the Court said in the Kovaes case: “ City streets are recognized as a normal place for the exchange of ideas by speech or paper. But this does not mean the freedom is beyond all control.” Again in Schneider v. State, 308 US 147, 60 S. Ct. 146, 84 L. Ed. 155, the Court, recognizing the authority of a municipal ity, as trustee for the public, to keep its streets open and available for the movement of people and property, said, by way of illustration, a person could not exercise his liberty of speech “by taking his stand in the middle of a crowded street, contrary to traffic regulations, and main tain his position to the stoppage of all traffic * * *” G-.S. 14-273 does not have “the objectionable quality of vague ness and overbreadth” thought by the United States Su preme Court to render void the Virginia statute under examination in NAACP v. Button, 371 US 415, 83 S. Ct. 328, 9 L. Ed. 2d 405. G.S. 14-273 is not “susceptible of sweeping and improper application” so as to prevent the advocacy of unpopular ideas and criticisms of public schools or public officials. Unquestionably, “ the hours and place of public discus sion can be controlled” by the State in the protection of Decision of the Supreme Court of North Carolina 16a its legitimate and vital public interest in the efficient oper ation of schools, public or private. See Saia v. New York, supra; Kovacs v. Cooper, supra. The classic statement by Mr. Justice Holmes in Schenck v. United States, 249 US 47, 39 S. Ct. 247, 63 L. Ed. 470, “The most stringent pro tection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic,” is still regarded by the Supreme Court of the United States as a correct interpretation of the First Amendment. The edu cation of children in schools, public or private, is a matter of major importance to the State, at least as significant as the free flow of traffic upon a city street. In Cox v. Louisiana, supra, the Court recognized that picketing and parading are subject to state regulation, even though intertwined with expression and association. There, the Court, quoting from Gtboney v. Empire Stor age & Ice Co., 336 US 490, 69 S. Ct. 684, 93 L. Ed. 834, said, “ [I]t has never been deemed an abridgment of free dom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evi denced, or carried out by means of language, either spoken, written or printed.” Accordingly, the Court there held valid on its face a state statute prohibiting picketing and parading in or near a building housing a state court, with the intent of obstructing or impeding the administration of justice. The Court said, “Placards used as an essential and inseparable part of a grave offense against an impor tant public law cannot immunize that unlawful conduct from State control.” It deemed “irrelevant” the fact that “by their lights,” the marchers in that case were seeking justice. Similarly, it is irrelevant here that the defendants may have been “by their lights” seeking the improvement of the educational processes at Southwestern High School. Decision of the Supreme Court of North Carolina 17a Whatever their motives, the result of their wilful activi ties was the disruption of those processes at that school. That is what the statute forbids and, in so doing, it does not violate limitations imposed upon the State by the First Amendment to the Constitution of the United States, now deemed by the Supreme Court of the United States to be made applicable to the states by the Fourteenth Amend ment. It is also irrelevant that the defendants marched silently, were not on the school grounds, and neither threatened nor provoked violence. Their actions can admit of no in terpretation other than that they were planned and carried out for the sole purpose of attracting and holding the attention of students or teachers in the Southwestern High School at a time when the program of the school required those students and teachers to be engaged in its instruc tional and training activities. There can also be no doubt that they succeeded in this purpose. The uncontradicted evidence as to the defendant Frinks is that, before the marching began, this statute was called to his attention and explained to him in substance, to which he replied, “I don’t care anything about what is in the Statute Books.” In the light of the uncontradicted evidence, the sentences imposed by the presiding judge were lenient. As the Supreme Court of the United States said in Cox v. Louisiana, supra, “There is a proper time and place for even the most peaceful protest and a plain duty and re sponsibility on the part of all citizens to obey all valid laws and regulations.” The defendants wilfully ignored this elementary principle of sound government under the Constitution of our country. We have carefully examined each assignment of error and the authorities cited by the defendants in their brief. Decision of the /Supreme Court of North Carolina 18a Decision of the Supreme Court of North Carolina We find nothing in the statute, or in the proceedings in the court below, which entitles the defendants to a new trial or to the reversal or arrest of the judgments of the court below. No Error. MEIIEN PRESS INC. — N. Y. C .«^^>219