Edwards v. South Carolina Appellants' Brief

    State of South Carolina
IN THE SUPREME COURT

APPEAL FROM RICHLAND COUNTY 
H onorable L egare Rates, J udge

THE STATE, Respondent, 
against

JAMES EDWARDS, JR., ALVESTER PATE, JR., PINCKNEY MOSLEY, MEL­
VIN BROWN, JR., HAROLD EUGENE NIMMONS, WILLIE BOYKIN 
JONES, WILLIAM PERKINS and BILL ALVIN SULLIVAN, Appellants.

THE STATE, Respondent, 
against

GEORGE C. FOSTER, JAMES JEROME KIRTON, ISAAC J. CAMPBELL, ISAAC 
WASHINGTON, RONALD J. RHAMES, JOSEPH B. BAILEY. DAVIE 
GREEN and CHARLES F. BARR, Appellants.

THE STATE, Respondent, 
against

JAMES C. WEST, SINCLAIR SALTERS, HEZIKAH JOHNSON, JAMES CLY- 
BURN, WILLIAM E. MOULTRIE, DAVID CARTER, BENJAMIN J. 
GLOVER, SAMUEL S. WILLIAMS, ARTHUR W. STANLEY, JR., WEN­
DELL DAILEY, LENNIE W. GLOVER, DAVID L. PERRETT, JAMES A. 
CARTER, CLIFFORD J. RICE, DELBERT L. WOODS, ALFRED 0. LEMON, 
WILBUR H. WALKER, SAMUEL EDWARDS, JAMES W. CANTY, ISAAC 
W. WILLIAMS, CLIFFORD B. BELL, WILLIAM H. COOLEY, ROBERT H. 
LaPRINCE, FRANK E. GORE, EARL PETERS, JR., HENRY H. HARRIS, 
CHARLES R. MILLER, CHARLES McDEW, MAXINE EPPS, HENRY 
WILLIAMS, LEROY HOGANS, JIMMIE L. SMITH, JAMES REEDER, JR., 
GEORGE A. ANDERSON, and ANTHONY McFADDEN, Appellants.

THE STATE, Respondent, 
against

CARRIE MAE KELLY, QUEEN E. RUSH, HAZEL Y. NEWBERRY, BETTY J. 
LINDSEY, SARAH E. McKENZIE, MATTIE THOMAS, BETTY J. CAPERS. 
MINNIE DeWITT, FLOYD ALVIN GILMORE, MacARTHUR J. BISHOP, 
CHARLES FLEMMING, JOE LEWIS ROBINSON, JOHN J. CAMPBELL,
I. D. NEWMAN, HAROLD FOSTER, JIMMIE NORSE MOORE, HORACE 
NASH, JOHN WESLEY MILLER, MARK A. WILLIAMS, CLARENCE MIS­
SOURI, CARL EDWARD BOOK, CLASSIE R. WALKER, BOBBIE JEAN 
YOUNG, WILLIE PAUL WORTHY, ROBERT FERGUSON, ALBERT 
ORAGE, JOHN SAWYER, GLENN MANNING, KENNEDY CLAFFLIN, 
JOHN FEDER1CK, BOBBY DOCTOR, ALBERTINE M. CONEY, YVONNE
J. CODLOE. BRENDA J. BURTON, BARBARA ANN MACK, JUDITH D. 
SMITH, EMMA J. JONES, EVELYN L. ROBINSON, WILLIAM THEODORE 
BOGGS, HENRY EARL THOMAS, JAMES EDWARD COLEMAN, BER­
NARD NATHANIEL RIGGINS, JESSIE ALFREDIA LOCKHART, BAR­
BARA ANN CURR1NGT0N, SARAH ANN WHARTON, DIANE GWENDO­
LYN BLASSINGAME, SOPHIA PEARL LESTER, BETTY JEAN WIDER- 
MAN, WILLIAM T. ROBINSON, ROBERT HICKMAN, HERBERT LAW ­
RENCE WILSON, BERNARD HAIRE, LEONARD BRANT, DONALD JE­
ROME SALTERS, FREDERICK P. PAGET, ROBERT LEE McBETH, LEWIE 
EIGHTY, BOOKER T. McLEOD, CLAUDE E. MOORE, JOHN I. WITHER­
SPOON, MATTHEW WILLIAMS, HAROLD BARDONVILLE, TRAVIS SIM­
MONS, SHIRLEY STROMON, FLORENCE SMALLS, RAN L. JONES, JEAN- 
NIE LUE DAVIS, MYRTLE L. WALKER, JULIUS B. MOSES, BETTY JEAN 
WILSON, LENNARD L. McCANTS, MARIO DAVIS, SAMMIE PRINGLE, 
CLINTON W. HAZZARD, ROBERT McTEER, JAMES A. ALFORD, GWEN­
DOLYN WATSON, FRANCIS MCDANIELS, JOHN LAND, YVONNE REDD, 
DORIS D. WRIGHT, DEE ANN ANDERSON, MARY NORRIS, RHUNETT 
LINDSEY, JUANITA HALL, GERTRUDE EVANS, SHIRLEY A. GREEN, 
ANNIE MAE RAY, LEOLA CLEMENTS, GERTRUDE SMITH, CATHE­
RINE DUNCAN, JUNIUS L. REED, JAMES K. DAVIS, ALETH1A BROWN, 
REBECCA WILLIAMS, DOROTHY H. ROBINSON, MARY L. ENGLISH, 
WILLIE 0. JAMISON, .JUSTINE SIMONS, LOVENIE GRIGGS, JEANNETTE 
BLACK, JUANITA WADDELL. LUCY SULLIVAN, PATRICIA GREEN, 
AMANDA TOWNSEND, MARGARET McCRAY, BETTYE MARSHALL, AN­
NETTE EDWARDS, MATTIE GILES, NOVEL NOWLIN, BARBARA EAR- 
LEY, LUCY DAVIS, EDITH JENKINS, BETTYE J. KING, BINZER INABI- 
NET, KATIE DONALDSON, MARION J. JOHNSON, JEANETTE L. HART­
WELL, MARY E. ELLISON, REGINA S. A. CALDWELL, LaVERNE DU­
RANT, CHANCIE M. DRAYTON, OTTIE R. JARRATT, BOBBIE J. GILES, 
IRENE O'N. GILES, FELICIA Y. YOUNG, FORTIA H. SIZER, KATE 
LEWIS, WILLIE E. GRANT. FRANCES E. JOHNSON, EVELYN BING, 
SHIRLEY A. KING, LORETTA G. BUSH. BETTIE J. BROWN, GLORIA 
J. JEFFERSON, and ROSALIE HINES, Appellants.

APPELLANTS’ BRIEF
J e n k in s  and  P erry ,

Columbia, South Carolina, 
D onald J ames Sa m pso n , 

Greenville, South Carolina, 
Attorneys for Appellants.



INDEX
P age

Questions Involved.....................................................  1

Statement....................................................................  2

Argument:

Question I ........................................................... 5

Question II .......................................    15

Question III ....................................................... 17
Question III-A ..................   17
Question III-B ............................................ 20

Conclusion ..................................................................  22



QUESTIONS INVOLVED
1. Did the Court err in refusing to hold that the 

State failed to prove a prima facie case and failed to 
establish the corpus delicti? (Exceptions 1, 2.)

2. Did the Court err in refusing to hold that the ar­
rests and convictions of appellants deprived them of 
the right of freedom of speech, and the right peaceably 
to assemble and to petition the Government for a re­
dress of grievances, in violation of Article I, Section 4 
of the Constitution of South Carolina? (Exception 3.)

3. Did the Court err in refusing to hold that the 
arrests and convictions of appellants deprive them of 
rights guaranteed to them by the First and Fourteenth 
Amendments to the United States Constitution? (Ex­
ception 4.)

A. Appellants’ activities are protected to them by 
Article I of the First Amendment to the United 
States Constitution.2

B. The arrests and convictions deny to appellants 
due process of law, in violation of their rights 
under the Fourteenth Amendment to the United 
States Constitution.3



2 SUPREME COURT 
The State v. James Edwards, Jr., et al.

STATEMENT
This is an appeal from an Order of Honorable Le- 

gare Bates, Senior Judge, Richland County Court, 
dated July 10, 1961, affirming convictions of appellants 
in the City Magistrate’s Court of the City of Colum­
bia.

On the morning of March 2, 1961, a group of Ne­
groes, including appellants, held a meeting at Zion 
Baptist Church, a Negro church located in the City of 
Columbia, South Carolina. Witnesses for appellants 
described the purpose of the meeting as follows (Tr. p. 
136, f. 542):

“Q. Will you state the purpose of the meeting?
A. The purpose of the meeting was to reaffirm 

our beliefs concerning segregation and the gen­
eral principle of discrimination in order that we 
may proceed from there and go to the State House 
grounds.”

And, again, at Tr. p. 202, f. 807:
“A. I came to Columbia accompanied by sev­

eral students from my area to a student meeting 
and, in that meeting, the students discussed, in 
part, racial discrimination as existed in South Car­
olina and particularly in Columbia. They also dis­
cussed the fact that the Legislators were in ses­
sion, at that time, and decided to point out their 
feelings, as it relates to segregation, by a proces­
sion to the State Capitol * *

Upon learning of the meeting, the City Manager and 
the Chief of Police of the City of Columbia went to the 
church and inquired of the purpose of the meeting. 
Pursuant to information acquired, these said officials 
ordered members of the various law enforcement



SUPREME COURT_____
Appeal from Richland County

3

agencies of the City of Columbia and of Richland Coun­
ty to take up positions on the State Capitol grounds 
and, further, the City Manager and the Chief of Police 
went to the same area. In addition to the foregoing, 
various officials and officers of the South Carolina Law 
Enforcement Division and the legal aide of the Gov­
ernor of South Carolina were present.

At approximately 12:00 o’clock noon, groups of 
Negroes were observed approaching the State Capitol 
grounds, proceeding from the direction of Zion Bap­
tist Church in an easterly direction along the southern 
sidewalk of Gervais Street. Each group, numbering ap­
proximately twenty, was composed of approximately 
fifteen to twenty persons. The persons walked two 
abreast; there being a distance of approximately one- 
fourth to one-third of a block between each group. 
Various persons in the groups carried placards upon 
which were written words expressing some protest 
against racial discrimination, which placards were 
voluntarily removed prior to the carriers entering the 
Capitol grounds.

As each group of these persons approached the 
horseshoe area in front of the State Capitol grounds, 
it was halted by the Governor’s legal assistant who, 
after inquiring into the purpose of the presence of 
these persons in the area and advising as to what they 
would be allowed to do (Tr. p. 162, ft. 645-647), per­
mitted them to proceed onto the grounds of the State 
Capitol. During the course of later events, the number 
of persons in and around this area, in addition to the 
police officers and the participants in the group activi­
ties, increased to approximately two hundred.

Approximately forty-five minutes after the first of 
the groups entered the Capitol grounds, the City Mana-



4 SUPEEME COUET
The State v. James Edwards, Jr., et al.

ger ordered the leader of the groups that all persons 
1S participating in the group movement must vacate the 

grounds within fifteen minutes or suffer arrest (Tr. p. 
15, f. 58). Upon their refusal to leave as ordered, ap­
pellants, numbering some one hundred eighty-seven 
persons, were arrested.

Appellants were charged with Breach of the Peace. 
Trial by jury was waived, and appellants were tried, 
in four separate trials, on March 7th, 13th, 16th and 
27th, 1961, by the Columbia City Magistrate of Eieh- 
land County. It was stipulated that all testimony pre- 

4 sented in the first two trials would be substantially the 
same in subsequent trials, and all such testimony was 
ordered incorporated in the records of the subsequent 
trials. The same stipulation and order were made re­
garding testimony presented in the third trial.

Appellants were found guilty as charged, and sen­
tences ranging from fines of ten ($10.00) dollars or 
service of five days, to one hundred ($100.00) dollars 
or thirty days were imposed. Thereafter, by stipula­
tion, the appeals from the four trials were consolidated 
and argued as one before Honorable Legare Bates, 

15 Senior Judge, Eichland County Court. In the Order 
from which appeal is taken, the judgments of the Mag­
istrate’s Court were affirmed. Due and timely notice of 
appeal from this Order was given.

16



5SUPREME COURT_____
Appeal from Richland County

ARGUMENT 
Question I

Did the Court err in refusing to hold that the State 
failed to prove a prima facie case and failed to estab­
lish the corpus delictif (Exceptions 1 and 2.)

In general, the term “breach of the peace” is generic 
and includes all manner of violations of public peace 
and order. In this State, the definition of the crime 
known as breach of the peace follows the general rule. 
In Lyda v. Cooper, 169 S. C. 451, 169 S. E. 236, a lead­
ing case, this Court defines the term as “ a violation of 
public order, a disturbance of public tranquility, by any 
act or conduct inciting to violence.” The Court con­
tinued: “ By ‘peace’ as used in the law in this connec­
tion is meant the tranquility which is enjoyed by the 
citizens of a community7, where good order reigns 
among its members, * * *. It is not necessary that the 
peace be actually broken to lay the foundation of a 
prosecution for this offense. If what is done is unjusti­
fiable, tending with sufficient directness to break the 
peace, no more is required.”

A careful analysis of the Court’s definition shows the 
nature of the offense to be two-fold. First, it may con­
sist of violent acts which actually break the peace. 
Second, it may consist of unlawful or unjustifiable acts 
which themselves tend with sufficient directness to 
break the peace.

The American cases (see annotation in 40 A. L. R. 
959) subscribe to the rule of the early English case, 
Beatty v. GiUbanks (1882), L. R. 9 Q. B. Div. 308, 
holding that there is no authority for the proposition 
“ that a man may be convicted for doing a lawful act 
if he knows that his doing it may cause another to do



6 SUPREME COURT 
The State v. James Edwards, Jr., et al.

an unlawful act.” In this case, certain religious fol­
lowers paraded in the streets peaceably and were at­
tacked by mobs who did not hold similar views. The 
paraders were convicted in the trial court of a breach 
of the peace, on the ground that they could reasonably 
foresee that their parading would provoke others to 
commit violence. The convictions were overthrown, 
upon the rule above mentioned.

The instances in which a parade or demonstration 
has been held to be a breach of the peace are cases in 
which the conduct of the paraders was itself riotous or 
criminal. In Mackall v. Ratchford, 27 C. C. A. 50, 48 
U. S. App. 411, 82 Fed. 41, the paraders stationed 
themselves at intervals of three to five feet along both 
sides of the only road leading from the mine opening 
to the non-striking miners’ homes with the evident in­
tent to intimidate the non-strikers. In Cook v. Dolan., 
19 Pa. Co. Ct. 401, the action of the paraders amounted 
to a trespass and was accompanied by intimidating 
language and gestures. In People v. Sinclair, 149 N. Y. 
S. 54, 151 N. Y. S. 1138, the parade was accompanied 
by threatening and abusive language in violation of 
a state statute prohibiting threatening, abusive, or in­
sulting behavior on a public street. In each of these 
cases, convictions for breach of the peace were sus­
tained because the actions of the paraders had lost the 
characteristics of a legitimate parade and, while them­
selves not violent, their actions were unlawful and 
tended with sufficient directness to cause others to 
breach the peace.

It is submitted that each conviction for the breach of 
the peace must rest upon the particular facts in each 
case. For example, in the Lyda Case, supra, the de­
fendant not only trespassed upon private property, but 
broke into another’s closet in order to repossess per-



Appeal from Richland County
SUPREME COURT 7

sonal property. In that case, the offending conduct was 
both unlawful and unjustifiable and tended with suf­
ficient directness to break the peace.

Appellants activities did not constitute “a violation 
of public order, a disturbance of public tranquility, by 
any act or conduct inciting to violence” ; their behavior 
was not unlawful or “unjustifiable, tending with suf­
ficient directness to break the peace.”

Appellants walked along the public streets in single 
and double file, in groups of from fifteen to thirty (Tr. 
p. 23, ff. 91-92; p. 48, ff. 189-190); they were well be­
haved and orderly (Tr. p. 29, f. 114; p. 48, f. 191; p. 110, 
f. 437; p. 183, f. 731); they obeyed traffic regulations 
(Tr. p. I l l ,  f. 442). The Chief of Police testified that 
the public sidewalks were not blocked bv appellants 
(Tr. p. 52, f. 206), that no complaint was made to him 
by anyone wishing to use the walkways that such per­
son was prevented from passing (Tr. p. 52, f. 208), and 
that, to his knowledge no vehicular traffic was blocked 
in the horseshoe area (Tr. p. 53, ff. 209-211). Further­
more, testimony throughout the record is to the effect 
that the main use of the horseshoe area is to provide 
parking space for State House personnel.

Testimony from all witnesses for both the State and 
appellants is that the appellants were not loud or 
boisterous at any time prior to having been given an 
ultimatum by the City Manager to leave the State 
Capitol grounds within fifteen minutes or face arrest 
(Tr. p. 16, ff. 61-62; p. 51, f. 202; p. 59, f. 234; p. 139, 
f. 556; pp. 173-174, ff. 691-695). The lone exception to 
the foregoing is the testimony of the State’s witness, 
Shorter. His testimony is in direct conflict with all 
other testimony and the surrounding circumstances so 
much so that it is unworthy of consideration.



8 SUPREME COURT
The State v. James Edwards, Jr., et al.

There is no place in this record any showing of vio­
lence or threat of violence, either by or against any of 
these appellants. It would appear that the strongest 
support of any contention of violence would be the 
summation of the City Manager’s testimony by counsel 
for the State (Tr. p. 17, f. 66):

“ * * * He hasn’t said anything was going to 
happen.
He said it appeared to him that in those circum­
stances that something could happen.” (Italics 
added.)

The public did not appear unduly disturbed. At one 
point the State’s witness testified that “ the crowd 
could be best described as curious as to what was going 
on.” (Tr. p. 31, f. 123.) There is no evidence in the rec­
ord of a contrary attitude. With reference to the be­
havior of appellants, this same witness testified (Tr. p. 
185, IT. 737-739):

“ Q. Of your own knowledge, do you know of any 
of these Negro defendants in this group or other 
groups who you would call trouble makers?

A. Not in the sense that I was using the word 
previously, no.

Q. You don’t know, of your own knowledge, of 
any instance when they have participated in any 
act of violence !

A- No.
Q. Do you know of any instance where they have 

urged any act of violence?
A. No, I do not.
Q. I believe you are generally familiar with the 

overall movement, as expressed by these defend­
ants, throughout the City of Columbia for the past 
year?



SUPREME COURT 
Appeal from Richland County

9

A. I am quite familiar with it.
Q. Do you know, of your own knowledge, of any 

violence on the part of any of those Negro par­
ticipants in those activities?

A. No, I do not.
Q. And would you say that these defendants are 

typical of the other persons involved in the same 
group, in your experience throughout the past 
year ?

A. Yes, I would.”
Other witnesses testified as follows (Tr. pp. 140-141, 

ft. 557-561):
“Did you personally interfere with anybody in 

the use of the sidewalks and the streets on that 
day?

A. By no means.
Q. Did you personally interrupt any vehicular 

traffic on the streets that day?
A. I did not.
Q. Are you aware of any of your comrades who 

were with you on that date who interfered with 
the use of the streets by other citizens?

A. If they did, it was not brought to my at­
tention.

Q. Is it true that a large number of onlookers 
gathered while you were there on the State House 

grounds ?
A. Adjacent to the State House, yes.
Q. Did you pay any particular attention to

them ?
A. Well, only generally. I just generally saw 

them.
Q. Did you hear any remarks being made by any 

who may have been in the audience there?



10
The State v. James Edwards, Jr., et al.

SUPREME COURT

A. No, I didn’t.
Mr. Coleman: I didn’t catch that question.
Mr. Jenkins: I asked him if he heard any re­

marks being made by any other persons who were 
in the audience that day. I meant by persons in 
the audience, the onlookers, persons not actually 
engaged in the group with you.

A. If they said something, I didn’t hear it.
Q. Did you observe any overt action on their 

part which would put you in fear that you would 
be in danger of being injured or anything of that 
sort?

A. My composure was not hampered by any one.
Q. You mean by that, nobody frightened you by 

any action ?
A. None whatsoever.
Q. Did you observe any of your comrades or 

persons with you who appeared to be apprehensive 
that they would be attacked by any person?

rA. If they felt it, they didn’t show it.
Q. By the group, I mean any of the onlookers 

who may have been there ?
A. No.”

It is significant that all of the State’s witnesses, with 
two exceptions, are trained, experienced police officers. 
Of the exceptions, one is a trained city manager of 
long years of experience and the other is a newspaper 
reporter of extensive experience. Yet, these witnesses 
can identify, from a total of one hundred eighty-seven 
persons, only four of these appellants as having com­
mitted any specific act which gave rise to the charges 
and convictions. The following is the testimony con­
cerning the acts of breach of the peace by those identi­
fied:



Appeal from Richland County
SUPREME COURT 11

“ Q. Insofar as the defendant Carter is con­
cerned, the misconduct on his part was that he 
harangued, did you say?

A. He was a very active fellow that morning, in 
addition to organizing, keeping them all in line, 
issuing instructions, generally, to them upon my 
instructions to him, to have the group dispersed, 
then he proceeded with his harangue or whatever 
you wish to call it.” (Tr. p. 183, f. 729.)

#  *  #

“Q. Now I ask you this, Mr. Barnett, do you re­
call having seen any of these particular defendants 
blocking the traffic or the sidewalks ?

A. Oh, yes.
Q. Could you identify them?
A. Oh, yes.
Q. Would you care to identify them by pointing 

out and having them stand up?
A. Well, I can identify Carter and Ms lieuten­

ant or captain, Charles McDew, back there, the 
Reverend Glover.”

The witness testified that these appellants on two oc­
casions blocked traffic on the sidewalks. (Tr. pp. 193- 
194, ff. 771-773.)

Appellants Williams and Carter were identified by 
Chief Campbell as having committed some act of 
breach of the peace, but the record is not clear as to 
what the act was. (Tr. p. 196, f. 782.)

This testimony points to the “guilt” of appellant Mc­
Dew (Tr. p. 198, ff. 789-790):

“A. McDew attends school in Orangeburg and 
he’s on the third seat, back on the left. I can identi­
fy him as particularly breaching the peace. He led 
the first group and was very belligerent as he went



12
The State v. James Edwards, Jr., et al.

SUPBEME COUBT

around, wanting to go through the walkways, criss­
cross, in double file, which I asked him not to do. 
He stopped on each walkway and insisted that he 
do so. I told him he could go through in single file, 
in smaller groups, that’s McDew.”

It would appear that this appellant breached the 
peace by insisting that he had the right to walk on the 
sidewalks.

No other appellant is identified as having committed 
any specific act of breach of the peace. In fact, no wit­
ness identifies any of the other appellants as having 
done anything at all, other than be arrested. Other than 
that they were arrested, there is no evidence in the 
record that they were even present in the general area 
of the State Capitol grounds, with the exception of a 
few. More than one hundred eighty appellants were 
convicted on no evidence whatsoever other than that 
they were arrested in the area of the State Capitol 
grounds; simply that and nothing more.

Feiner v. New York , 71 S. Ct. 303, 340 U. S. 315, is 
not contrary to the general rules pertaining to in­
stances of breach of the peace. As in all such cases, 
Feiner is controlled by the facts particular to the cir­
cumstances. The State Court found as a matter of fact 
as follows: The speaker made disparaging remarks 
concerning individuals and a veterans organization; 
the crowd openly took sides and openly expressed its 
partisanship; crowd grew restless, there was pushing, 
shoving and milling around; pedestrians were forced 
to walk in the street to get by the crowd; vehicular 
traffic was almost blocked; the mood of the crowd be­
came openly hostile; one person made threats to the 
policeman that he would do violence if the speaker were 
not stopped and people in the crowd openly expressed



Appeal from Richland County
SUPREME COURT__ 13

doubt that the policemen (two) could control the 
crowed.

But even those things were not controlling of the 
finding of guilty, nor of the upholding of the lower 
court decision by the United States Supreme Court. 
The crux of the ruling was the finding that the speaker 
obviously was endeavoring to arouse Negroes against 
whites, urging that Negroes rise up in arms and fight. 
The United States Supreme Court, divided in this 
opinion five-four, stated: “ A State may not unduly sup­
press free communication of views, religious or other, 
under the guise of conserving desirable conditions. 
Cantwell v. State of Connecticut, supra, 310 U. S. at 
page 309, 60 S. Ct. at page 905, 84 L. Ed. 1213. But we 
are not here faced with such a situation. It is one thing 
to say that the police cannot be used as an instrument 
for the suppression of unpopular views, and another to 
say that, whereas here the speaker passes the hounds of 
argument or persuasion and undertakes to incitement 
to riot, they are powerless to prevent a breach of the 
peace.” (Italics added.)

Contrast, then, the conduct of the defendant in 
Feiner and the surrounding circumstances with the 
conduct of appellants in the instant case and the en­
vironment out of which the charge of breach of the 
peace stems.

Of the 187 appellants, less than six are identified by 
the State as having done any of the specific acts which 
the State alleges is a breach of the peace. One appel­
lant, the recognized leader of the movement, when or­
dered by the City Manager to warn the group that un­
less they left within fifteen minutes they’d suffer ar­
rest, is described as having relayed the information in 
the manner of a religious chant, to have “harangued” 
the group (Tr. pp. 165-166, f. 660). Two are said to



14
The State v. James Edwards, Jr., et al.

SUPREME COURT

have blocked traffic, and another insisted upon his right 
to walk on a sidewalk. Otherwise, appellants are identi­
fied only as having been arrested.

Appellants walked in small groups, one or two 
abreast, a third of a block between each group. They 
spoke to no one; no one spoke to them, except some 
remarks of encouragement. There is no evidence in the 
record that anyone was blocked in passing along the 
walkways. There was no disruption of vehicular traffic. 
The horseshoe is a parking lot for State employees; it 
is no passageway for the general public. True, evidence 
shows that vehicles would have been inconvenienced by 
the crowd in the circle, but there is no evidence that 
any vehicle attempted to move in the horseshoe, that 
the police tried to disperse the crowd there or that they 
would not have moved if requested.

Had not each group of appellants been stopped 
by the police as they reached the entrance to the 
Capitol grounds, there would have been no con­
gregating among the groups of participants. The 
police themselves brought about the situation they then 
used as one of the grounds for the charges against the 
appellants. The crowds of onlookers'were not unruly, 
were not hostile, voiced no threats, moved along when 
told b}r police; there was no shoving, no pushing, no 
milling about. There was no expressed opinion that 
the number of officers present could not handle the 
situation. Indeed, the City Manager, the principal 
character for the State, both on the day of the occur­
rence and as its star witness at the trials, testified as 
follows (Tr. p. 167, f. 666):

“Q. You had ample time, didn’t you, to get 
ample police protection, if you thought such was 
needed on the State House grounds, didn’t you? 

A. Yes, we did.



SUPREME COURT
Appeal from Richland County

15

Q. So if there were not ample police protection 
there, it was the fault of those persons in charge 
of the Police Department, wasn’t it!

A. There was ample police protection there.”
Here there was no violence, nor threat of violence; 
no incitement to riot, nor likelihood of same.

It is submitted that the State, having proved no con­
duct on the part of any appellant, or by the group, of 
a violent nature that actually broke the peace, and hav­
ing proved no unlawful or unjustifiable acts which 
themselves tend with sufficient directness to break the 
peace, has failed to establish th corpus delicti and 
failed to prove a prima facie case.

Question II
Did the Court err in refusing to hold that the arrests 

and convictions of appellants deprived them of the 
right of freedom of speech, and the right peaceably to 
assemble and to petition the government for a redress 
of grievances, in violation of Article I, Section 4 of the 
Constitution of South Carolina? (Exception 3.)

Appellants were arrested upon the State Capitol 
grounds after refusing to heed the ultimatum of the 
Columbia City Manager that they leave the grounds 
within fifteen minutes. Appellants avowed purpose for 
being on the Capitol grounds, which purpose was al­
ready known to the governmental officials (Tr. p. 42, 
f. 166; p. 82, f. 327), was to call to the attention of the 
State Legislature, other State officials and the public 
their dissatisfaction with discriminatory laws, cus­
toms and usages, based on race or color, and to attempt 
to persuade the cessation of such lawrs, policies and 
practices (Tr. p. 136, f. 542; pp. 138-139, ff. 549-554; 
p. 202, ff. 807-808; p. 206, ff. 821-822). In furtherance



16 SUPREME COURT 
The State v. James Edwards, Jr., et al.

of tlieir aim appellants proceeded to walk, in orderly 
fashion, to the State Capitol grounds. Some carried 
placards that displayed the general purpose of the 
group (Tr. p. 142, f. 563). Once upon the Capitol 
grounds, they proceeded in disciplined fashion along 
the paved walkways. They directed no disparaging 
remarks to anyone; they made no overt signs of vio­
lence or incitement to violence; there was no showing 
of fear, violence or apprehension on the part of any 
spectator (Tr. pp. 204-205, ff. 816-817). The uncontra­
dicted testimony of one witness is as follows (Tr. p. 
204, f. 814):

“ Q. Reverend Glover, did you pay any particu­
lar attention to the onlookers, who were around 
the area?

A. Most of them, as I observed, some faces were 
smiling, perhaps a gesture of good faith, and on 
one occasion two or three persons approached with 
an intention of shaking hands.”

Only after being issued an ultimatum, and in some 
cases only after arrest, did they break into singing. The 
songs were patriotic or religious; the singing orderly 
and controlled.

The right of the people by organization to co-op­
erate in a common effort and by a public demonstra­
tion or parade to attempt to influence public opinion 
in a peaceable manner and for a lawful purpose is 
regarded as among the fundamental rights of citizens 
(Shields v. State (Wis. 1925), 204 N. W. 486, 40 A. 
L. R. 954; Chicago v. Trotter (1891), 136 111. 430, 26 
N. E. 359). Various courts have spoken of this right 
as existing immemorially (In re Frazee., 63 Mich. 396, 
30 N. W. 72). Certainly it has been given official sanc­
tion and recognition in the English common law (Beat-



SUPREME COURT 
Appeal from Richland County

17

ty v. Gillbwiks, supra), and by a substantial number of 
the Supreme Courts of the several States (State ex 
rel. Garrabad v. Deering, 84 Wis. 585, 54 N. W. 1104; 
Anderson v. Wellington, 40 Kans. 173, 19 Pac. 719 
and State v. Hughes, 72 N. C. 25).

The rights as expressed by the courts are guaran­
teed appellants by the Constitution of South Caro­
lina.1 We view it as significant that counsel has been 
unable to find any reported South Carolina case deal­
ing with a denial to any citizen these constitutional 
freedoftis.

Question III
Did the Court err in refusing to hold that the ar­

rests and convictions of appellants deprive them a 
rights guaranteed to them by the first and Fourteenth 
Amendments to the United States Constitution? (Ex­
ception 4.)

A. Appellants’ activities are protected to them by 
Article I of the First Amendment to the United 
States Constitution.2

The record in this case proves the following: Ap­
pellants, being aggrieved by certain discriminatory 
laws, customs and usages, based solely on race or 
color, formed small groups and proceeded from a cen­
tral meeting point to the State Capitol grounds, where 
the State Legislature was in session, for the purpose 
of seeking redress of their grievances. Appellants,

1 Article 1, Section 4, Constitution o f South Carolina provides: 
The General Assembly shall make no law respecting an establish­
ment of religion or prohibiting the free exercise thereof, or abridg­
ing the freedom of speech or of the press; or the right of the 
people peaceably to assemble and to petition the Government or 
any department thereof for a redress of grievances.

2 Congress shall make no law * * * abridging the freedom of 
speech, or of the press; or the right o f the people peaceably to as­
semble, and to petition the government for a redress of grievances.



18 SUPREME COURT 
The State v. James Edwards, Jr., et al.

some of whom carried placards expressing the dissat­
isfaction of the group, were orderly in every respect; 
they obeyed traffic signals, walked in single or double 
file; there is no evidence that there was any bodily 
contact, or threat thereof, between appellants and 
anyone else. The record does not support the conten­
tion that any person was prevented from using the 
streets or sidewalks by the actions of the appellants, 
nor is there evidence that any vehicular traffic was 
halted. Appellants made no overt act or threat, di­
rected no remarks or abuse towards anyone whomso­
ever ; nor did anyone direct any such activity towards 
appellants. Appellants sang songs, patriotic and re­
ligious, in an orderly and controlled fashion, only after 
having been threatened with arrest if they didn’t 
leave within fifteen minutes, and in some cases, only 
after arrest.

The Supreme Court of the United States has on 
numerous occasions upheld the right of citizens to 
peaceably assemble to give expression to their griev­
ances and to petition for a redress thereof. U. 8. v. 
Cruikshank, 92 U. S. 542, 23 L. Ed. 588; Hague v. CIO, 
307 U. S. 496; 83 L. Ed. 1425; Thornhill v. Alabama, 
310 U. S. 88, 84 L. Ed. 1093.

In U. S. v. Cruikshank, supra, the Court said: 
“ The right of the people to assemble for the 

purpose of petitioning Congress for a redress of 
grievances, or for anything else connected with 
powers or the duties of the national government, 
is an attribute of national citizenship, and, as 
such, under the protection of, and guaranteed by, 
the United States. The very idea of a government, 
republican in form, implies a right on the part of 
its citizens to meet peaceably for consultation in



Appeal from Richland County

respect to public affairs and to petition for a re­
dress of grievances * *

Quoting this statement with approval, in Hague v. 
CIO, supra, the Court added: “ No expression of a 
contrary view has ever been voiced by this court. ’ ’

In Cantwell v. Connecticut, 310 U. S. 296, 84 L. Ed. 
1213, the Court made an analysis of the relationship 
between First Amendment rights and breach of peace. 
After stating that one may be guilty of the offense if 
he commits acts or makes statements likely to provoke 
violence and disturb good order, even though same be 
not intended, the Court said: “ Decisions to this effect 
are many hut examination discloses that, in practically 
all, the provocative language which was held to he a 
breach consisted of profane, indecent, or abusive re­
marks directed to the person of the h e a r e r (Italics 
added.)

In Terminiello v. Chicago, 337 U. S. 1, 93 L. Ed. 
1131, the Court re-emphasized the rule, clearly stated 
in Cantwell v. Connecticut, supra, that “ freedom of 
speech, though not absolute, is nevertheless protected 
against censorship or punishment, unless shown likely 
to produce a clear and present danger of a serious 
substantive evil that rises far above public inconven­
ience, annoyance or unrest.”  Further, Cantwell holds 
that the danger of substantive evils sufficient to justi­
fy impairment of constitutional rights of freedom of 
speech, assembly and religion and punishment for al­
leged violation thereof must be more clearly shown 
where the punishment is based on common-law con­
cepts (as in the instant case), than where it is specif­
ically sanctioned by a legislative declaration of state 
policy. (See Hague v. CIO, supra,, where the United 
States Supreme Court struck down a city ordinance

SUPREME COURT 19



20 SUPREME COURT 
The State v. James Edwards, Jr., et al.

as patently permitting the absolute denial of the right 
of assembly.)

The Supreme Court, in Bridges v. California, 314 
U. S. 252, 303; 86 L. Ed. 192, 203, laid down this rule: 
“ What finally emerges from the ‘ clear and present 
danger’ cases is a working principle that the sub­
stantive evil must be extremely serious and the degree 
of imminence extremely high before utterances can be 
punished.”  In the instant case, the only “ substantive 
evil”  shown by the record is the possibility of con­
gesting pedestrian and vehicular traffic along a rel­
atively small area. The only “ degree of imminence” 
was, as respondent’s counsel sununed up the testi­
mony of his chief witness, that “ it appeared to him 
that in those circumstances that something could hap­
pen.”  (Italics added.) (Tr., p. 17, f. 66.)

We reiterate, Feiner v. New York., supra, sets forth 
no contrary view to the general rules of the Cantwell, 
Terminiello, Hague and Bridges cases. Feiner turns 
on “ The findings of the state courts as to the existing 
situation and the imminence of greater disorder * *

B. The arrests and convictions deny to appel­
lants due process of law, in violation of their 
rights under the Fourteenth Amendment to 
the United States Constitution,3

It is submitted that this record is devoid of any 
evidence that appellants engaged in any conduct of 
any kind likely in any way to adversely affect the 
good order and tranquility of the State of South Car­
olina. At most, there is some showing of slight incon­
venience and annoyance. Certainly there is no show-

8 * * * nor shall any state deprive any person of life, liberty, or 
property, without due process of law. United States Constitution, 
Fourteenth Amendment, Section 1.



21
________  Appeal from Richland County

ing of a “ danger of substantive evils sufficient to jus­
tify impairment of constitutional rights of freedom 
of speech, and assembly and punishment for alleged 
violation thereof.”

There being no support for these convictions in 
the record, they are void as denials of due process. 
Thompson v. City of Louisville, infra. “ Just as ‘ con­
viction upon a charge not made would be sheer denial 
of due process’, so it is a violation of due process to 
convict and punish * * * without evidence of
# * * guilt.’ ’ Thompson v. City of Louisville., 362
U. S. 199, 80 S. Ct. 629 (1960).

________________ SUPREME COURT

82



22 SUPREME COURT 
The State v. James Edwards, Jr., et al.

CONCLUSION
It is submitted, that the State has failed, first, to 

meet the test of this Court that the necessary elements 
to support a conviction of breach of the peace are acts 
violent in themselves, or unlawful or unjustifiable acts 
which themselves tend with sufficient directness to 
break the peace; and, second, to meet the test as laid 
down by the Supreme Court of the United States that 
the acts complained of must present a substantive 
evil that in itself must be extremely serious and the 
degree of imminence extremely high before First and 
Fourteenth Amendment rights can be abridged by a 
conviction for breach of the peace.

For the reasons herein stated, the judgments of 
the County Court of Richland County affirming the 
judgments of the Columbia City Magistrate of Rich­
land County should be reversed.

Respectfully submitted,
J e n k in s  & P e r k y ,

Columbia, S. C.,
D o n ald  J a m e s  S a m p s o n , 

Greenville, S. C.,
Attorneys for Appellants.