Wiggins v. State of North Carolina Petition for Writ of Certiorari

    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.



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