Peterson v. City of Greenville, South Carolina Transcript of Record

    TRANSCRIPT OF RECORD

Supreme Court of the United States
OCTOBER TERM, 1962

No. 71

JAMES RICHARD PETERSON, ET AL., 
PETITIONERS,

vs.

CITY OF GREENVILLE

OU W R IT  OF CERTIORARI TO T H E  SUPREM E COURT 
OF TH E  STATE OF SOUTH CAROLINA

PETITION FOR CERTIORARI FILED FEBRUARY 26, 1962 
CERTIORARI GRANTED JUNE 25, 1962



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1962

No. 71

JAMES RICHARD PETERSON, ET AL., 
PETITIONERS,

vs.
CITY OF GREENVILLE

ON W RIT OF CERTIORARI TO T H E  SUPREM E COURT 
OF T H E  STATE OF SOU TH  CAROLINA

I N D E X
Original Print

Proceedings in the Supreme Court of the State of 
South Carolina
Transcript of record consisting of proceedings 

before the Recorder of Greenville City, South
Carolina and the Greenville County Court ___ A 1

Statement ___________________________________  1 1
Proceedings before the City Recorder _________  2 2

Motion to quash information and dismiss war­
rant and denial thereof __________________ 2 3

Plea ______________________________________  3 4
Trial warrant_____________________________  3A 5
Transcript of evidence _____________________ 4 6

Testimony of Captain G. 0. Bramlette—
direct ______________  4 6
cross _______________  8 10

G. W. W est-
direct ______________  19 18
cross _______________  20 20

Motions to dismiss warrants and denial
thereof _______________________________  28 26

R e c o r d  P r e s s , P r in t e r s , N e w  Y o r k , N. Y . ,  A u g u s t  1, 1962



11 INDEX

Original Print
Proceedings in the Supreme Court of the State of 

South Carolina—Continued 
Proceedings before the City Recorder— Continued 

Transcript of evidence—Continued 
Testimony of Raymond H. Carter—

direct ______________  31 28
cross _______________  35 31

Doris Wright—
direct ______________  40 36
cross _______________  44 38
redirect ____________  47 41

0. R. Hillyer—
direct ______________  49 43
cross _______________  51 44

Renewal of motions and denial thereof____ 52 45
Sentence ________________________________  54 47
Testimony of M. B. Tolbert—

direct ______________  56 48
Section 31-8, Code of Greenville, 1953, as

amended _____________________    56 49
Proceedings in the Greenville County Court ___ 57 50

Order, Price, J. ___________________________  57 50
Notice of intention to appeal _______________  61 53
Exceptions ________________________________  61 53
Agreement as to record _____________________ 63 55

Opinion, Taylor, C.J. __________________________  64 55
Petition for rehearing _____    68 59
Order denying petition for rehearing ___________  72 62
Petition for stay of remittitur ___________________ 73 62
Order staying remittitur________________________  75 64
Clerk’s certificate (omitted in printing) _________  77 65
Order allowing certiorari _______________________  78 65



1

[fol. A]
IN THE SUPREME COURT OF THE 

STATE OF SOUTH CAROLINA

C ity  of G reenville, Respondent, 
against

J ames R ichard P eterson, Y vonne J oan E ddy, H elen 
A ngela E vans, D avid R alph  S trawder, H arold J ames 
F owler, F ran k  G. S m it h , R obert Crockett, J ames 
Carter, D oris D elores W right and R ose M arie Collins, 
Appellants.

A ppeal F rom Greenville County 

H onorable J ames H. P rice, S pecial C ounty  J udge

Transcript of Record

[fol. 1]
I n  the  S upreme Court of S outh  Carolina 

S tatement

The ten (10) appellants, all of whom are Negro high 
school students, were arrested on August 9, 1960, and 
charged with violating Act No. 743 (R896, H2135) Acts 
and Joint Resolutions of the General Assembly of South 
Carolina for 1960, Trespass after Notice.

Appellants were tried before Greenville City Recorder 
John Y. Jester of Greenville, South Carolina, without a 
jury on August 11, 1960. Evidence presented was that the 
appellants seated themselves at the lunch counter of S. H. 
Kress and Company in Greenville and were thereafter 
requested to leave by the Manager. S. H. Kress and Com­
pany does not serve Negroes at the lunch counter of its 
Greenville store although Negroes are welcome to do busi­
ness in all other departments thereof. Also, there is an



2

ordinance which prohibits Negroes and white persons from 
being served in the same restaurant at the same time. The 
management requested appellants to leave, it having been 
announced that the lunch counter was closed. The closing 
of the lunch counter was because of the presence of appel­
lants. Upon their refusal to leave, appellants were there­
upon arrested and charged with the offense of trespass 
after notice. At the conclusion of all of the evidence, Judge 
Jester found each of the appellants “guilty” and sentenced 
each of them to pay fines of One Hundred ($100.00) Dol­
lars or serve thirty (30) days in prison.

Notice of Intention to Appeal was duly served upon the 
City Recorder.

Thereafter, the matter was argued before Honorable 
James H. Price, Special Judge, Greenville County Court.

On March 17, 1961, Judge Price issued an Order, af­
firming the judgment of the City Recorder.
[fol. 2] Notice of Intention to Appeal was thereupon duly 
served upon the City Attorney.

Proceedings Before City Recorder

Judge Jester: Mr. Arnold, is the city ready?
Mr. Arnold: Tes.
Judge Jester: Mr. Perry, defendants ready?
Mr. Smith: I would like to make a motion.
Judge Jester: Mr. Arnold, before we get into this I 

would like this man to move off the front row. I want 
to bring the defendants and put them on the front row. 
Are the defendants we have here? James Richard Peterson, 
is he here? Come around, James, and have a seat, James 
Carter, David Ralph Strawder, Prank G. Smith, Robert 
Crockett, Joan Yvonne Eddy, Helen Angela Evans, Harold 
James Fowler, Doris Wright and Rose Marie Collins. All 
of these defendants, Mr. Smith and Mr. Perry, are charged 
with trespassing after warning in violation of Act of 1960, 
number R896 H2135 of the state code of South Carolina. 
Do they plead guilty or not guilty?



3

Mr. Smith.: Before we take the plea, Your Honor, we 
would like to make a motion to precede that, please?

Judge Jester: We will be glad to hear you on the motion.

M otion to Q uash I nformation and D ismiss W arrant 
and D enial T hereof

Mr. Smith: At this time, on behalf of all these defen­
dants, Your Honor, we make a motion to quash the in­
formation and dismiss the warrant on the grounds that as 
stated, the charge is too indefinite and uncertain as to 
apprise these defendants of what they are actually being 
charged with. We feel that under the court merely to state 
the act charged under, and for trespassing is not enough, 
there should be some .more under, these defendants are 
[fol. 3] not properly apprised of what they are actually be­
ing charged with under this warrant as drawn here.

Judge Jester: Anything further, Mr. Smith?
Mr. Smith: No, sir, it’s just too indefinite and uncer­

tain.
Judge Jester: Anything, Mr. Perry?
Mr. Perry: May I just add one sentence to the motion 

and that is, that the defendants are entitled under the Con­
stitution of the State of South Carolina to be fully in­
formed of the nature of the charge against them and to 
require them to got to trial on a warrant which is so 
vaguely and indefinitely phrased is to deprive them of 
liberty without due process of law, as protected under the 
14th Amendment to the United States Constitution, and 
under the South Carolina Constitution.

Judge Jester: Anything further?
Mr. Perry: No, sir.
Judge Jester : Any reply, Mr. Arnold?
Mr. Arnold: No, sir, Your Honor, I think the warrant 

is sufficiently definite, it refers to the number of the Act. 
The Act hasn’t come out in bound volumes yet, as opposing 
counsel knows, but it’s referred to the number and the 
date and I think it states trespass after notice and that’s 
substance of the act.



4

Judge Jester: I overrule your motion, Mr. Smith and 
Mr. Perry. Now then, we have these defendants charged 
as I so stated and my next question. Do they plead guilty 
or not guilty?

P lea

Mr. Smith: All of the defendants plead not guilty.
_ Judge Jester: And I understand that by agreement the 

city and counsel for the defendants have agreed to try all 
of these cases at one time?

Mr. Smith: That is correct.



VERDICT

Recorder Foreman

JUDGMENT
or days

Cell No__3 - 4 -

Driver’s License No..

B .O .D . 10 - 8 -4 3

_____________  State___

On-View Arrest Q  Reported Q  Other P] ------------------------------------

Capt.Bramlette, Ast.Lt. Voufthn,_____
Johnson,
Date of Arrest 8*. 9 *.60 _____________ 19------  TimeJLl : 4 3

Where_ Side- Door Kress
Date of Release- 

Witnesses_____

Time.

this. 19.

Attest:
Recorder

Clerk

Other Information.

1 )esk Officer__

Station Lieutenant
O ■ '< M P  D  - 2 S arfie 'ti fh-.u



State of South lina 
COUNTY OF GRi- /ILLE

TRIAL X ?  
W A R R AN T

M U N I C I P A L  C O U R T
CITY OF GREENVILLE

STATE OF SOUTH CAROLINA 1 MUNICIPAL COURT 
COUNTY OF GREENVILLE f CITY OF GREENVILLE g

THE CITY
V 8 .

PERSONALLY comes before me deponent who makes oath that upon J? 
information and belief in this State and County and within the Limits of the

P eterson . James Richard
LAST F I R S T  MIDDLS

Defendant

City of Greenville on the— 9 th----- day of----------- Allg--------------- , 19 6.Q—,

the James Richard ,_P et e r $ on C/M -------------------------

A r r e s t  a n d / o r  T r i a l  W a r r a n t  

■ $ ^ 3 3 0

N ?  a s s

did commit the offense ofT1* e s_pas s ing A fte r ..Warning A c t ,-----
of 1960  No R896  r H2135  o f the State  o f South 
C a ro lin a , approved bv the Governor May 1 4 *_JL960

Offend-Jrespassing A fte r _____

Warning, A c t . - o f L96Q-No.  
R 8 9 6 , H2 1 3 5 , o f  the State

o f  South C arolina Ail of which is against forms of the ordinances made and provided for,

Bond Required $ 10Q..QQ-----
and against the peace and dignity of the City of Greenville; and that-------------

Bond Posted $-... —  _  -p ...
\

Recognizance H] Cash □

are witnesses for the City ; and that defendant did commit said offense in the 
view of deponent, whereupon deponent, a police officer, did arrest defendant.

i I

By - _  --------
s /G .G . Bramlette

DATE SET FOR TRIAL 

8  . AM Aug 10  ̂ 19—60.

Sworn to before me this------- _9jth,---------------------day

AUg .  A D.. 19 62  .. (See
an On-\ lew Arrest)

Attorney for defendant

s /  J - E. Med d ia le r  _ fL.S.i 
Notary Public for South Carolina 

Recorder, Municipal Court

MOTIONS
l a s t  1  .Tames f , R S t  m i d d l e

Alias----------------------------------- --------------------------------------------------- —-----

Color__G. . Age__16__ Sex M _ . Nationality------Negro-------------

--------------------------------- ----------------------- Address------------------------------------------- :--------------- -------------------------------
VERDICT Cell No. 3 - 4  B .O .D . 10 - 8 -4 3

Driver’s License No. State --------------------------------

Recorder Foreman On-View Arrest □  Reported □  Other jH ....... .................................. :—

JUDGMENT
$ or days

nff.^re C apt.B ram lette , A s t . L t .  Voughn,
Johnson,
Date of Arrest___8 - 9-.60_________  . 19 Time 1 1 :4 3 -----M.

— Where . -Side. Door Kress

— Date of Release _ . ----- ------- ----  - ...  lim e -----  — M.

--------------- -------------- -— -------------------- Witnesses ... ........  -..... - - —  ----- -----------  ---------

this _ . . . .  19 

Recorder
Attest:

Other Information .... . .... ....................................................  - ------------ -----------------------

Clerk
Desk Officer---  ------------

! Station Lieutenmu —  - -
'M P D - 2



ARREST
WARRANT

STATE OF SOUTH CAROL!XA ( MUNICIPAL COURT
COUNTY OF GREENVILLE I (TTY OF GREENVILLE

To the Chief of Police of ihe City of Greenville or any Police Officer thereof or

Arrest and bring before me, or the Presiding Recorder, the defendant 

charged with _________________ ___________________________________________

as shown on the reverse side hereof, and the witnesses for the City herein 
named.

Given under my hand and seal this________________________________ day
f  i \

Recorder, Municipal Court

I appoint any Police Officer of the Citv of Greenville or__ __________

. -----------------------------  ---------  .................. ..... ......._to execute this warrant.

--------------------------------------------------------  ----------------(SEAL)
Recorder, Municipal Court

STATE OF SOUTH CAROLINA |
COUNTY OF GREENVILLE (

Personally comes the undersigned deponent and makes oath that he 

arrested the defendant- ________________ __  ________  ___ __________________

on the.......... .... ........... day of________ _____________ _______ *____>___, 19_____

in the City' of Greenville. State and County aforesaid.

Sworn to before me this ___ ___ _ . .. .

Notary Public for South Carolina 
Recorder. Municipal Court

(THIS SIDE TO BE USED ONLY IN REPORTED CASES—IT IS NOT 
TO BE USED WHERE ARREST HAS BEEN MADE BY OFFICER 
FOR OFFENSE COMMITTED IN HIS PRESENCE)



5

[fol. 3A]



6

[fol. 4]
B efore the C ity  R ecorder

T ranscript of E vidence 

Captain  G. 0. B ramlette

Judge Jester: And the facts and finding of one case 
would be the facts and finding of all as far as the record 
is concerned?

Mr. Smith: That is correct.
Mr. Perry: May I make one addition, Your Honor, that 

in the event that the testimony should indicate that one 
or more of the defendants is to be treated differently, from 
the rest of them in terms of any judgment of Your Honor, 
that at such time as the evidence does develop, that state 
of facts, that a motion for dismissal will be proper as to 
the person or any other motion which might be applicable 
to the situation.

Judge Jester: Well, I agree with you at this time until 
I have heard such a motion.

Mr. Perry: Yes, sir.
Judge Jester: Now who is the first witness, Mr. Arnold?
Mr. Arnold: Captain Bramlette.

Captain  Gf. 0. B ramlette, being duly sworn, testified as 
follows:

Direct examination.

By Mr. Arnold:
Q. Captain Bramlette, I believe you are a member of the 

police force of the City of Greenville?
A. That is correct.
Q. Your rank is Captain?
A. Yes, sir.
Q. How long have you been captain with the depart­

ment?



7

A. Approximately five years.
Q. On August 9 of this year, did you receive a call from 

Kress Five and Ten Cent Variety Store?
[fol. 5] A. I had a call, I do not know where it come from 
Kress or not.

Q. You had a call?
A. Yes, sir.
Q. As a result of that call where did you go?
A. To Kress’ Five and Ten Cent Store on South Main 

St.
Q. Where were you when you received the call?
A. In Police Headquarters.
Q. Did anyone accompany you?
A. Yes, sir.
Q. Who?
A. I went in patrol car 9 with Officers Berry and Wall.
Q. About what time was it you received the call?
A. 11:18 a. m.
Q. All right, when you got to Kress’ on South Main 

St., did you find any of the defendants ?
Mr. Perry: Your Honor, may I interpose a slight ob­

jection to Mr. Arnold’s methods. I believe that his ques­
tions tend to be leading and if he would kindly rephrase 
it so as to let the witness testify as to what he found, I 
don’t believe it would be objectionable.

Q. When you arrived at Kress’ Store, did you go into 
the store?

A. I did.
Q. What did you find in the store, and I direct your 

attention to the lunch counter ?
A. I met Officer Vaughn at the side door on McBee 

Avenue, he and I and several other officers entered the 
store. On arriving inside the store at the lunch counter 
which is located right rear of Kress, Officers, State Agents 
Hillyer and Morris were there and at the lunch counter 
we noticed these defendants along with four;tnore. There 
[fol. 6] were fourteen sitting af'tEe lunch counter, the other 
four are juveniles.

Q. You saw these ten defendants, did you or not?
A. I did.



8

Q. And they were doing what ?
A. They were sitting at the lunch counter.
Q. Sitting at the lunch counter? Now you mentioned 

two SLED Agents, Mr. Hillyer and Mr. Morris. Were 
they in the store when you arrived?

A. They were.
Q. All right. Do you know Mr. Gr. W. West?
A. Ido.
Q. What position, if any, does he hold with the Kress 

Store?
A. He’s manager of the Kress Store.
Q. Was Mr. West, or not, in the store when you ar­

rived ?
A. He was.
Q. Approximately where was he ?
A. He was at the rear, at the lunch counter.
Q. Did he make any statement to these ten defendants?
A. He did.
Q. What did he say?
A. He announced that the lunch counter was being closed 

and would everyone leave the stope^
Q. Would everyone leave the store?
A. Yes.
Q. Did these ten defendants, or any one of them, leave 

the store?
A. They did not.
Q. Did they, were they standing or sitting when this re­

quest was made ?
A. They were sitting.

[fol. 7] Q. Did they or not continue to sit?
A. They continued to sit.
Q. All right. What, if anything, did you do?
A. After a reasonable length of time we announced that 

they were all under arrest.
Q. Did you transport them to headquarters?
A. We had a patrol car outside and we carried them 

out the side door of Kress, we carried the girls first and 
put them in the patrol car and brought them to police 
headquarters.

Q. All right, sir, when they were brought to headquarters



9

is it, or not, customary to remove any personal effects, 
such as money, or knife or watch from a prisoner!

A. It is customary.
Q. All right, was that done in this case with respect 

to these ten defendants!
A. It was.
Q. All right, what amount of money, if any, was found 

on the person of Doris Wright!
A. Twenty-four cents.
Q. On Helen Evans !
A. Thirty-one cents.
Q. James Carter!
A. No money.
Q. Robert Crockett!
A. No money.
Q. Rose Marie Collins!
A. No money.
Q. Yvonne Eddy!
A. One dollar.
Q. James Richard Peterson!
A. One dollar and ninety-one cents.

[fol. 8] Q. David Ralph Strawder!
A. One dollar and eleven cents.
Q. Harold James Fowler!
A. None.
Q. Frank G. Smith, Jr.!
A. Five dollars and fifty-five cents.
Q. I believe that bond was posted for these defendants!
A. It was.
Q. When they were discharged under the bond, under 

their bonds, was the money and any other personal effects 
returned to the defendants!

A. State that again.
Q. When they were discharged under the appearance 

bond, this money that had been taken from the defendants, 
was it returned to the defendants!

A. It was.
Mr. Arnold: Witness with you.



10

Cross examination.

By Mr. Matthew J. Perry:
Q. Captain Bramlette, as I understand, you are a captain 

on the Greenville Police Force for five years?
A. Approximately five years, yes, sir.
Q. I see, and of course, were you also employed on the 

Greenville City Police Force prior to that time ?
A. That’s correct.
Q. I see. As captain are you chief of the police, or not?
A. No, my position is in charge of one platoon.
Q. I see. Now, sir, I believe that you indicated that on 

the 9th of August you were at headquarters and received 
a call to go to Kress’ 5 and 10  ̂Store?

A. That is correct.
[f'ol. 9] Q. Do you know who made the call?

A. I do not know who called police headquarters but 
my radio and telephone man informed me.

Q. I see. And I believe you said that you and Officer 
Vaughn went into the store together, you having met 
him?

A. Along with two or three others.
Q. What did you expect to find when you went to Kress?
A. I was told by Officer Mann who is my communications 

officer, there were a number of colored young boys and girls 
sitting at the lunch counter at Kress’.

Q. I see. Does Greenville have an ordinance against 
conduct of this sort ?

A. We do.
Q. What is the ordinance, please ?
Mr. Arnold: I don’t see that’s relevant, ^they’re not 

charged under any segregation ordinance of the city; “
Judge Jester: On the state law, am I right, Mr. Perry?
Mr. Perry: Judge Jester, if I may, sir, whatever it 

was that prompted Captain Bramlette to go to Kress’ 
upon being informed that Negroes were sitting at the 
lunch counter, I think is relevant. In other words, he must 
have been conscious of some law because after all, he’s 
a law enforcement officer and I respectfully submit that



11

I ’m entitled to ask him on cross examination what law he 
was purporting to proceed upon.

Judge Jester: Your question was, does the City of 
Greenville have a law pertaining to this particular of­
fense? All right, I ’ll let him answer it.

Mr. Perry: Thank you. Does the City of Greenville 
have such a law, Captain Bramlette ?

A. They do.
| fol. 10 | Q. What is that law, please, sir ?

A. It forbids colored and white eating at the same lunch 
counter. — — —

Q. I see.
Mr. Perry: Your Honor, would you indulge me a moment, 

please, sir, I would like to look at that ordinance. I won’t 
take but a moment. I did not know that the City of Green­
ville had such an ordinance.

(Discussion off the record.)

By Mr. Perry:
Q. Now, Captain Bramlette, as you answered this call 

to go to Kress’, then you had the City Ordinance in mind 
which required separation of races in restaurants and eat­
ing places in the City of Greenville?

A. I did not.
Q. Yet you knew of the existence of such law?
A. I did.
Q. And as a Captain of the Greenville City Police Force, 

you did not have this ordinance in mind when you went to 
investigate?

A. I had the recently passed State law in mind.
Q. I see. Did the caller identify the race of the persons 

who were sitting at the lunch counter ?
Mr. Arnold: That would be hearsay.
Judge Jester: What was the question?
Mr. Arnold: He asked the caller identify the race.
Mr. Perry: I agree it would be hearsay.



12

By Mr. Perry:
Q. All right, sir, now, when you went—as you answered 

the call then, did you receive information that there was 
any violation of the public order taking place?
[fol. 11] A. I was informed by my communications officer 
that there was a number of colored boys and girls sitting 
at the lunch counter in Kress’.

Q. But there is nothing wrong with that, is there, sir?
Mr. Arnold: I don’t think he has to pass on that, it’s 

a matter of conclusion.
Judge Jester: I don’t think that’s in his discretion, 

Mr. Perry. He has the right to make the arrest and dis­
close later whether he’s right in doing so, am I right?

Mr. Perry: If Your Honor will bear with me, I be­
lieve that as an Officer of the Law, Captain Bramlette 
and his associates would, of course, naturally under their 
interpretation of the existing law be bound to enforce law 
and if there was nothing wrong with their sitting there 
perhaps he would not have had occasion to go to make 
the arrest.

Mr. Arnold: May it please the Court, it’s the procedure 
of the City that when an officer gets a call to come to a 
certain place it is not necessary for the caller or the in­
former to state what is taking place and it’s not necessary 
that the Officer take time to find out. If he’s called to come 
to a certain place and he’s on duty he should go there and 
investigate whatever may be transpiring or taking place.

Judge Jester: I think that is in substance, Mr. Perry, 
the attitude of the officer when they are on call because 
they could explain it had been a man killed or a man beating 
his wife and forty other things there before you went to 
see what was happening. I think possibly the main thing 
to do is get there and find out what’s going on.

Mr. Perry: Thank you.

[fol. 12] By Mr. Perry:
Q. Then, Captain Bramlette, when you arrived at Kress’ 

and saw these young people sitting at the lunch counter, 
were they orderly?



13

A. They were.
Q. Were they talking among each other!
A. Some of them were talking.
Q. Could you hear them talking!
A. I could not repeat a thing that was said, I may have 

heard their voices.
Q. Did any of them use any profanity!
A. I did not hear any.
Q. Were they well dressed!
A. All were neat in appearance.
Q. Neat in appearance, did you ascertain that they were 

clean?
Mr. Arnold: I don’t see that’s relevant. We’re not 

raising any question on that. He said they were neat in 
appearance and they were orderly. The specific charge 
is under the State Law and whether a person’s hands 
are clean or a little dirty is not relevant in a case like this.

Mr. Perry: I think if the Captain knows he certainly 
may testify to it on Cross Examination.

Judge Jester: I ’ll let him answer, Mr. Arnold.
The Witness: State the question again.

By Mr. Perry:
Q. Would you say in your opinion that they were clean 

or dirty?
A. They were clean.
Q. So there was nothing about their persons of an un­

offensive character, was it, in terms of neatness and clean­
liness?

A. That’s correct.
[fol. 13] Q. Now, Captain Bramlette, you’ve been a citizen 
of Greenville for quite some time?

A. That’s correct.
Q. Have you had occasion to go in and out of Kress’ Five 

and Ten Cent Store before?
A. Very few occasions.
Q. Have you been in and out of the place of business 

enough to know anything about its policy of serving the 
public ?



14

A. I ’ve been there numerous occasions but not, I would 
say, I would.

Q. Does Kress’ Five and Ten Cent Store generally serve 
members of the public in its various departments without 
regard to race?

Mr. Arnold: I don’t see that that’s relevant.
Judge Jester: Well, in this particular case it isn’t, Mr. 

Arnold. I think what he is getting at and getting in the 
record is whether or not the store that’s open is selling 
merchandise of any and all kinds and items to the public. 
That’s the purpose for the question, am I right?

Mr. Perry: All right.
Judge Jester: I ’ll let him answer yes or no.
The Witness: Yes.

By Mr. Perry:
Q. Kress’ Five and Ten Cent Store, I believe, is a rather 

large variety store, is it not?
A. Yes.
Q. Then it has many departments, hasn’t it?
A. Yes.
Q. I believe it sells some aspects, clothing and various 

trinkets and all of the items that are usually sold in the 
stores such as Kress’, that is a variety store.

A. That is correct.
[fol. 14] Q. Now, let’s go for a moment, please to the lunch 
counter in Kress’. I believe Kress’ in Greenville does have 
a lunch counter, does it not?

A. That’s correct.
Q. And at that lunch counter members of the public are 

served, aren’t they?
A. That’s correct.
Q. Except that, I believe, withdraw that question—what 

is the policy of Kress’, if you know, sir, with regards to 
serving members of the Negro public at its lunch counter?

A. The policy of Kress’, I ’d rather for the manager of 
Kress’ to answer that.

Q. That’s quite all right, I have no intention to tax you 
with an unpleasant answer. Then as you saw these young, 
neat, clean and unoffensive colored people, what was it then



15

that made you, as a law enforcement officer of the City of 
Greenville, go into operation?

A. Under the State Law just passed by the Governor 
relative to sit-down lunch counters in Greenville, I enforced 
this order.

Q. But the State Law that just passed and signed by the 
Governor in May doesn’t mention anything about Negroes 
sitting at lunch counters, does it?

A. It mentions sit-ins.
Q. Perhaps you would like to refresh your mind for a 

moment ?
A. I was wrong, it doesn’t mention sit in.
Q. Thank you, sir. So that that particular statute didn’t 

indicate any course of action on your part at that time, did 
it, sir ?

A. Not until after I arrived.
Q. And after you arrived there, what did the statute 

indicate that you should do ?
[fol. 15] A. We arrested them and made a case, trespass­
ing after warning.

Q. Who were they warned about?
A. Mr. West, the manager of Kress’.
Q. What was the substance of this warning?
A. State that again.
Q. I would just like to know what was the warning 

that you said was made.
A. He announced that the lunch counter was being 

closed and would everyone leave.
Q. I see. Did I understand on your Direct Examination 

that he said “ everyone leave the place” ?
A. This lunch counter, I do not know. I think he said 

the lunch counter was closed.
Q. I see. Now this was, I believe, 11:18 in the morning 

or shortly thereafter?
A. That’s when I received the call.
Q. I see. August 9, I believe, was on a Tuesday, wasn’t 

it?
A. That’s correct.
Q, Now, could you, sir, tell me what time business 

places in Greenville normally close?
A. Between five and six o’clock in the evening.



16

Q. I see, those hours of opening and closing are more 
or less regulated not by law but by mutual consent, regu­
lated by the Chamber of Commerce, aren’t they?

A. I would imagine individual stores decide when they 
will open and close.

Q. But isn’t it a fact that most stores open and close 
about the same time in Greenville ?

A. That’s correct.
Q. So that there is some uniformity, either by agreement 

or somehow, among the store owners that they open, they 
[fol. 16] close the stores at a certain time, and close at a 
certain time ?

A. I couldn’t answer that.
Q. Well, now, sir, as a member of the public and also a 

member of the Greenville City Police Force don’t you have 
knowledge that the places of business in Greenville are 
closed at a certain time?

A. I ’m sure they have a certain time to close.
Q. And you have just now stated that Kress’ ordinarily 

closes around five or six o’clock?
A. That’s correct. Most of the time, I think, Friday night 

they stay open later.
Q. All right, sir. Now, why do you suppose they closed 

at that time ?
Mr. Arnold: I don’t think it’s up to him to answer that 

question.
Judge Jester: I think this was a call to the police de­

partment, Mr. Perry, for an officer and I believe that the 
manager of the store will be in better position to answer 
that question, than the officer as to why he closed, am I 
right ?

Mr. Perry: Thank you, sir. May I ask, is the manager of 
the store in the Courtroom?

Mr. Arnold: He’s in the Courtroom and will be put on 
the stand.

By Mr. Perry:
Q. Did the manager of Kress’, did he ask you to place 

these defendants under arrest, Captain Bramlette?
A. He did not.



17

Q. He did not?
A. No.
Q. Then why did you place them under arrest?
A. Because we have an ordinance against it.

[fol. 17] Q. An ordinance?
A. That’s right.
Q. But you just now testified that you did not have the 

ordinance in mind when you went over there ?
A. State law in mind when I went up there.
Q. And that isn’t the ordinance of the City of Greenville, 

is it ?
A. This supersedes the order for the City of Greenville.
Q. In other words, you believe you referred to an or­

dinance, but I believe you have the State Statute in mind?
A. You asked me have I, did I have knowledge of the 

City ordinance in mind when I went up there and I an­
swered I did not have it particularly in my mind, I said 
I had the State ordinance in my mind.

Q. I see and so far this City ordinance which requires 
separation of the races in restaurants, you at no time had 
it in mind, as you went about answering the call to Kress’ 
and placing these people under arrest?

A. In my opinion the State law was passed recently 
supersedes our City ordinance.

Q. I think, sir, that you may be somewhat off on that but 
we won’t belabor the issue, because His Honor, I believe, 
can make a proper ruling on that. But my question, I don’t 
want to seem repetitious but I don’t believe I got a direct 
answer to it. So once more, sir, you did not have the 
Greenville ordinance which requires separation of the races 
in mind when you placed these defendants under arrest?

Mr. Arnold: Now, he’s answered that three times.
Judge Jester: I think that one more firm answer, Cap­

tain, would suffice the record.
[fol. 18] The Witness: I had the State ordinance in mind.

By Mr. Perry:
Q. Now, Captain, I still don’t want to belabor but Your 

Honor, I respectfully submit the answer was not respon­
sive. I believe he is capable of a yes or no answer.

A. I had the act that was passed May of this year in my



18

mind an act which “ provides for the offense of trespassing 
after warning with penalty thereafter—”

Mr. Arnold: No need to read it.
Mr. Perry: All right, sir. And do I understand that you 

did not have the Greenville City ordinance in mind, sir!
A. We have all ordinances in mind when we answer the 

call to go anywhere.
”’Q. But you just now admitted you didn’t have this one in 

mind, Captain!
A. I didn’t have it in mind!
Q. I seem to recall that you said it.
A . . I have, all ordinances, in mind.
Q. So now, as I understand, you change your testimony 

to say that you now have this ordinance in mind!
A. I am not saying I had it in mind, I said this super­

sedes our City ordinance. This is the one I was acting 
under.

Q. And the manager of Kress’ did not at any time ask 
you to place these defendants under arrest, did he!

A. He did not.
Q. Yet you used the power of your office to place them 

under arrest without being requested by the manager of 
Kress to do so!

A. I did.
[fol. 19] Mr. Perry: Thank you, Captain Bramlette.
That’s all, Your Honor.

Mr. Arnold: That’s all.
(Witness excused.)

Mb . G. W. W est, being duly sworn, testified as follows:
Judge Jester: You are the manager of the Kress’ Store!
The Witness: Yes, sir.

Direct examination.

By Mr. Arnold:
Q. Mr. West, you are the manager of the Kress Variety 

Store located on the east side of South Main Street, here 
in the City of Greenville!



19

A. Yes, sir.
Q. On August 9, 1960, Tuesday of this week, did Officers 

Bramlette and Vaughn come into your store around 11 
o’clock?

A. Yes, sir.
Q. Were any people at that time seated at the lunch 

counter?
A. Yes, sir.
Q. Was it of both races or just one race ?
A. Both races.
Q. Both races? Did you make any statement or request 

to the people sitting at the lunch counter?
A. Yes, sir.
Q. What?
A. We turned out the lights at the lunch counter and 

requested everybody to leave, that the lunch counter was 
closed.
[fol. 20] Q. Everybody to leave, all right, I believe you 
said there were some white people sitting there, also?

A. Yes, sir, I did.
Q. Did they or not, leave immediately?
A. Yes, sir, they left.
Q. All right, these ten defendants, of the Negro race, 

were they sitting at the lunch counter ?
A. Yes, sir, they were.
Q. When you made that request?
A. Yes, sir, they were.
Q. Did they leave?
A. No, sir, they did not.
Q. How long did they stay there before being placed 

under arrest, would you say?
A. I would say about five minutes, I guess.
Q. About five minutes. Were you in the process or not 

of roping off the lunch counter?
A. Yes, sir, we had started to, we turned out the lights.
Q. I believe you testified, did you or not, that Captain 

Bramlette and the other officers placed these ten defen­
dants under arrest?

A. Yes, sir. Those ten and four others.
Q. And they were escorted from the store?
A. Yes, sir, that’s right,
Mr. Arnold: Witness with you.



20

Cross examination.

By Mr. Perry:
Q. Mr. West, how long have you been manager of Kress’ 

in Greenville f
A. Since February 3.
Q. I see. Have you also worked for the Kress chains 

in other cities?
A. Yes, sir, fifteen years.

[fob 21] Q. Fifteen years, how long have you lived in 
Greenville ?

A. Since February 3rd.
Q. I see, and when you came into Greenville did you 

learn anything about the policies of the Kress Store with 
regard to serving members of the public?

A. Well, I knew that before I came into Greenville.
Q. I see. I believe Kress is a very large variety store, 

isn’t it, sir?
A. Yes, sir.
Q. I believe I learned in another city that it was called a 

junior department store now, is that correct?
A. That is the name it’s been given to it.
Q. And Kress operates in cities practically all over the 

United States, doesn’t it?
A. Yes, sir.
Q. I believe it is one of the largest businesses of its kind 

in the country?
A. Well, I wouldn’t say it was one of the largest ones, 

no.
Q. But it is certainly not one of the smaller?
A. That’s right, yes, sir.
Q. Sir, what is the policy of Kress’ with regard to serv­

ing members of the public in all of its numerous depart­
ments ?

Mr. Arnold: I don’t see the relevancy of that, Your 
Honor.

Judge Jester: I don’t think it deals directly with tres­
passing after notice but I ’m going to let him put it in the 
record, Mr. Arnold.



21

By Mr. Perry:
Q. Let me put it this way, sir, approximately how many 

departments does Kress’ have?
A. ^Fifteen or twenty.

[fol. 22] Q. Those fifteen or twenty departments sell about 
how many different commodities ?

A. It’s hard to estimate, probably over ten thousand 
items.

Q. Probably over ten thousand items?
A. Yes, sir.
Q. Are all members of the public invited into the business 

of KressT?
A. Yes, sir.
Q. And all members of the public, include Negro, and 

white, Indians and Chinese and every other nationality, do 
they not?

A. Yes, sir.
Q. So that Negroes are invited in Kress’ to do business ?
A. That’s correct.
Q. And when they come in to do business of these various 

items, I believe, you said over ten thousand items, is it not 
the policy of Kress’ to serve them courteously?

A. Yes, sir.
Q. Now, I believe, Kress’ also has a lunch counter area?
A. That’s correct.
Q. And it likewise is operated by the Kress chain?
A. Yes, sir.
Q. What is the policy of Kress’ Greenville, South Caro­

lina, store with regard to serving Negroes and whites at its 
lunch counter ?

A . We follow local customs.
Q. Now,"sir,’?rwe follow local customs” , is that orders from 

your headquarters?
A. Yes, sir.
Q. It is?

[fol. 23] A. Absolutely.
Q. And you understand as the manager of Kress’ as­

signed to Greenville and possibly in other areas that it is 
one of the mandates of your national organization business 
chain to follow local custom with reference to serving mem­
bers of the public ?



22

A. That’s correct.
Q. Now, what is the local custom with regard to serving 

Negroes and whites at your lunch counter?
A. The local custom, that we serve whites only.
Q. I see, so that members of the Negro public who may 

come in by invitation of your company to buy some ten 
thousand other articles may not purchase a cup of coffee or 
any other item from your lunch counter?

A. Yes, sir.
Q. That is your policy, isn’t it?
A. Yes, sir.
Q. Now, on August 9 when these young people were 

seated at your lunch counter, what did you do first?
A. The first thing I had one of my employees call the 

Police Department and turn the lights off and state the 
lunch counter was closed.

Q. Was this a prearranged matter, so far as your office 
was concerned?

Mr. Arnold: Your Honor, I don’t think that’s competent. 
He can go so far but there’s one question and one ques­
tion only in this case, was the State Law violated? All that 
leads up to it, and all is nothing it’s irrelevant, is to be 
placed in the record, as I interpret it, purely for a preju­
dicial standpoint when we could stay here ’til next week.

Mr. Perry: I don’t believe it’s our intention to stay ’til 
next week.
[fol. 24] Judge Jester: Your question, Mr. Perry, was 
this prearranged?

Mr. Perry: Yes, sir.
Judge Jester: I don’t know what your next question 

would be.
Mr. Perry: Your Honor, if I may, it is my purpose 

through this line of questioning to bring out from this wit­
ness any arrangements or agreements which the manager 
of Kress’ and/or, the managers of other like businesses 
might have had with the Police Department or the City of 
Greenville, the South Carolina Law Enforcement Division, 
the Sheriff of Greenville County and any other law enforce­
ment agency. And my question, which is designed to deter­
mine from this witness as to whether or not this course of



23

action which he followed was prearranged,! is designed to 
lead me into that particular area.

Judge Jester: Well, I will have to rule it out, Mr. Perry. 
I think that the facts that appear in any particular instance 
would be a minor method on which he would have to make 
his decision. I ’d have to rule that out. I think the facts in 
each case would be the controlling factor in what he did. 
I have to rule it out.

Mr. Perry: Your Honor, may I respectfully request that 
you reconsider that ruling in the light of the fact that here 
we are raising constitutional questions and there will ul­
timately he presented to the Court a motion based upon 
the unconstitutional application of the statute involved in 
this case, in this line of interrogation, is relevant. And in 
the light of that we respectfully request then a reconsider­
ation of your ruling.

Judge Jester: I have ruled out, I will have to rule that 
his acts were taken on what happened at that particular 
[fol. 25] time, this act that presented itself at that partic­
ular instance.

Mr. Perry: All right, sir.

By Mr. Perry:
Q. Mr. West, why did you order your lunch counter 

closed?
A. It’s contrary to local customs and its also the ordi­

nance that has been discussed.
Q. Do I understand then further, that you are saying that 

the presence of Negroes at your lunch counter was contrary 
to customs ?

A. Yes, sir.
Q. And that is why you closed your lunch counter ?
A. Yes, sir, that’s right.
Q. I see, and after $l£ police had come and taken the de­

fendants away, did you reopen your lunch counter?
A. Yes, sir.
Q. And did you reopen it by reason of the fact that the 

presence of the Negroes was no longer a threat to your 
business?

A. Yes, sir.



24

Q. Do you agree with the observations of Captain Bram- 
lette that these young people were clean and unoffensive!

A. Yes, sir. I agree with him.
Q. Do you further agree that they were not profane, 

and not boisterous!
A. To the best of my knowledge they were not, I didn’t 

hear any profanity.
Q. Yet you went in their presence and stated that the 

place was closed!
A. Yes, sir.

[fol. 26] Q. So that when you say, “not in your presence,” 
you are taking into account the fact that they were directly 
in your presence!

A. Well, there were fourteen, sir, and they were spread 
out down the counter, and of course, I went to a group at 
a time. That’s why I say I don’t know what the others were 
saying at the other end when I was speaking to the ones at 
the opposite end.

Q. But you don’t make any statement that they were only 
anything but orderly, do you!

A. That’s correct, yes, sir.
Q. Now, I understand that they were seated, they mean­

ing these defendants, were seated at your lunch counter 
approximately five minutes before they were arrested!

A. Yes, sir.
Q. And you at no time requested Captain Bramlette and 

the other officers to place these defendants under arrest, 
did you!

A. No, I did not.
Q. That was a matter, I believe, entirely up to the' law 

enforcement officers!
A. Yes, sir.
Q. Mr. West, had you at any time conversed with Cap­

tain Bramlette or any officer of the South Carolina Law 
Enforcement Division concerning the anticipated presence 
of Negroes to your lunch counter!

Judge Jester: Don’t think that’s admissible, Mr. Perry.
Mr. Perry: Of course, Your Honor, has made your ruling 

and I do not quarrel with the Court.
Judge Jester: Thank you.



25

Mr. Perry: I sincerely request, Your Honor, to recon­
sider ruling because under my theory there is no question 
[fol. 27] that the line of inquiry is quite relevant to the 
issue.

Judge Jester: I have to rule it out, Mr. Perry.
Mr. Perry: All right, sir. Thank you, Mr. West. One 

other question, may I?
Mr. Arnold: Yes, sir.

By Mr. Perry:
Q. Of course, you only came to Greenville in February?
A. Yes, sir.
Q. During that period of time I would imagine you spent 

a great deal of time learning your own Kress’ Five and Ten 
Cent Store ?

A. Yes, sir, that’s right.
Q. But have you not also had the occasion to learn some­

thing about the City in which you recently moved to ?
A. Yes, sir.
Q. Do you know the policies that are followed by other 

businesses such as yours with regard to this same question, 
that is, the serving of Negroes at lunch counters?

A. You want my opinion?
Q. Not your opinion, just your knowledge of the custom?
A. My knowledge of the custom is exactly as ours.
Q. That’s what I was after, sir. Let me ask you this, sir. 

Approximately how many people can you seat at your lunch 
counter?

A. About fifty-nine.
Q. Fifty-nine?
A. Yes.
Q. And do members of the public generally, those working 

uptown and those perhaps in town on business come into 
[fol. 28] your store regularly for meals around the lunch 
hour ?

A. Yes, sir.
Q. So that your business, you do a pretty good business 

in serving members of the public at lunch time ?
A. Fairly good, yes, sir.
Q. The service of food is a vital service being rendered 

by your company, isn’t it?



26

A. Well, it’s one of the services that we perform.
Q. Your company and the other companies which are per­

forming the same services are, as a rule, you are just about 
feeding the public, aren’t you!

A. Yes, sir.
Mr. Perry: Thank you, sir.
Mr. Arnold: That’s all, thank you. That’s the City’s case, 

Your Honor.
(Witness excused.)
Mr. Perry: Your Honor, would you see fit to grant us a 

two- or three-minute recess!
Judge Jester: Be glad to.
(Short recess taken.)

M otion to D ismiss W akkants and D enial T hebeoe

Mr. Perry: May it please the Court at this time the de­
fendants move to dismiss the warrants against them, all of 
which warrants charged a violation of Act Number R896, 
House Bill Number 2135 of the State of South Carolina, 
which Act was approved by the Governor on May 16, 1960. 
The evidence presented on the charge shows conclusively 
that by arresting the defendants the officers were aiding and 
assisting the owners and managers of Kress’ Five and Ten 
Cent Store, in maintaining their policies of segregating or 
excluding service to Negroes at its lunch counter.

Mr. Arnold: Excuse me a minute, do you want this re­
porter to take the argument down!
[fob 29] Mr. Perry: Yes, sir.

Judge Jester: This is a motion she’s taking!
Mr. Perry: Yes, sir, that’s right.
Mr. Arnold: When you start your argument if you don’t 

want her to take it, tell her not to.
Mr. Perry: I might say that I have no argument to make 

on the matter, just the substance of the motion.
Mr. Arnold: All right. Thank you.
Mr. Perry: —
Judge Jester: Your last statement was aiding and as­

sisting the owners of the store as I recall!



27

Mr. Perry: Yes, sir. In maintaining their policies of seg­
regating and excluding services to Negroes at the lunch 
counter on the ground of racial color, in violation of the 
defendants’ rights to due process of law, and equal pro­
tection of the laws, under the 14th Amendment to the United 
States Constitution. That is the motion, there will be no 
argument on the motion.

Judge Jester: Motion denied, Mr. Perry.
Mr. Perry: Also, may it please the Court, at this time, 

the defendants move to dismiss the warrant on the ground 
that the warrant which charges them with trespass after 
warning, the designation of the act being set forth in the 
warrant is invalid, in that the evidence establishes merely 
that the defendants were peacefully upon the premises of 
S. H. Kress & Co. Which establishment is performing an 
economic function invested with the public interest as 
customers, visitors, business guests, or invitees, and there 
is no basis for the charge recited by the warrant other than 
an effort to exclude these defendants from the lunch coun­
ters of Kress’ Five and Ten Cent Store, because of their 
race and color. The defendants at the same time are ex­
cluded from equal service at the preponderant number of 
other eating establishments in the City of Sumter, I beg 
[fol. 30] your pardon, I ’m reading from another motion so 
if the Court will permit me to insert the City of Greenville.

Judge Jester: I would have done the same thing myself.
Mr. Perry: Yes, sir. In the City of Greenville, South 

Carolina, thereby depriving them of liberty without due 
process of law, and equal protection of the laws secured to 
them by the 14th Amendment to the United States Con­
stitution. That is the motion, there will be no argument.

Judge Jester: Motion denied, Mr. Perry.
Mr. Perry: I have a further motion, Your Honor, with 

reference to the constitutionality of the statute. At this 
time may it please the Court, the defendants move that the 
warrants against them be dismissed, which warrants charge 
the crime of trespassing after warning. The designation of 
the act being set forth in the warrant under which all of 
these defendants, who are Negroes, were arrested and 
charged is on the evidence unconstitutional as applied to



28

the defendants, in that, it makes it a crime to he on property 
open to the public after being asked to leave because of race 
or color, in violation of the defendants’ rights under the 
due process and equal protection clauses of the 14th Amend­
ment to the United States Constitution. That is the motion.

Judge Jester: Motion denied, Mr. Perry.
Mr. Perry: At this time, may it please the Court, the 

defendants move for a dismissal on the ground that under 
the evidence presented the City has not established by com­
petent evidence a prim a fa c ie  case.

Judge Jester : Motion denied, Mr. Perry.
Mr. Perry: Very good, sir.

[fol. 31] Judge Jester: That gets all the motions in the 
record?

Mr. Perry: Yes, sir, it does.
Mr. Smith: The defense calls as its first witness Mr. 

Raymond H. Carter.
Judge Jester: I didn’t catch the name, Mr. Smith.
Mr. Smith: Raymond H. Carter. C-a-r-t-e-r.

M e . R aymond H. Cakteb, being duly sworn, testified as 
follows:

Direct examination.

By Mr. Smith:
Q. Mr. Carter, where do you live?
A. I l l  Luke St., Washington Heights.
Q. In Greenville?
A. Yes, sir.
Q. How long have you lived in Greenville ?
A. All my life.
Q. A re  you  em ployed  here?
A. No, sir.
Q. You aren’t employed?
A. No.
Q. On August 9, on or about eleven o’clock in the morn­

ing, did you have occasion to be in Kress’ Five and Ten 
Cent Variety Store?



29

A. I did.
Q. On that morning were you anywhere near the lunch 

counter of Kress’ ?
A. Yes—
Q. Were you also there when the acts testified to hereto­

fore this morning took place? You heard what has been 
said here already this morning?

A. No, not everything.
[fol. 32] Q. Were you there when some arrests were made 
of colored people sitting at the lunch counter?

A. I was.
Q. Were you there when the store was closed since you 

heard Mr. West testify, you heard him testify the store was 
closed?

A. Yes.
Q. Were you there at that time?
A. I was right there.
Q. Would you please just tell us in your own words what 

were your observations, what did you see and hear, during 
the time of the closing of that lunch counter, just give it 
to us in your own words?

A. Well, actually I didn’t hear the manager say the lunch 
counter was closed, I only heard the officers and he could 
have said lunch counter closed but I didn’t hear him. About 
the only thing I heard was the lunch counter was closed and 
you’re under arrest. They didn’t give the kids a chance to 
get up.

Q. Which officer are you referring to now, could you iden­
tify him, is he in the Court room?

A. He was the one I saw, this one, this guy right here with 
the paper in his hand going out the door.

Mr. Smith: May we have him identified, please.
Mr. Arnold: Mr. Hillyer.
Mr. Smith: Mr. Hillyer ?
Mr. Partee: Mr. H-i-l-l-y-a-r.
Mr. Smith: I believe he is an officer of the South Carolina 

Law Enforcement Division, is that right?
Mr. Arnold: That is correct.
Mr. Smith: We would like the record to show your 

Honor that this witness pointed out Mr. Hillyer, who has



30

been recognized as an officer of the South Carolina Law 
Enforcement Division.
[fol. 33] Judge Jester: Glad to do that.

By Mr. Smith:
Q. Was that the only request that you heard for these 

children to leave ?
A. He said lunch counter closed and the officer imme­

diately began arrest, stand-up and line-up, you’re under 
arrest and began searching the young men.

Q. Well, did the officer make a request that they leave?
A. No.
Q. Did yon hear the request ?
A. No, I didn’t hear a request.
Q. Did you hear the manager, Mr. West, make a request 

that they leave?
A. I didn’t hear Mr. West say anything, like I said before.
Q. As I understand, if such a request had been made, 

would they have had time to leave?
A. No.
Q. Immediately upon the statement, they were imme­

diately placed under arrest?
A. Immediately.
Mr. Arnold: I think, Mr. Smith, yon are leading the wit­

ness a little.
Mr. Smith: I ’m sorry.
Judge Jester: I usually wait ’til you all object because 

that’s not my business.

By Mr. Smith:
Q. Mr. Carter, did everyone leave the lunch counter?
A. No.
Q. Some people remained seated?
A. The white citizens.
Q. Can you identify them?
A. Well—

[fol. 34] Q. I mean as to race?
A. Yes, sir.
Q. They did not leave?



31

A. They didn’t leave.
Q. Even after you heard the statement the lunch counter 

was closed!
A. Well, yes, they didn’t leave.
Q. Did you observe any attempt made to arrest those 

white persons who refused to leave!
A. No.
Q. They were allowed to remain, that was your observa­

tion!
A. They did.
Q. Did you hear any other officer make a request!
A. Well, that one, was the only one I heard and the others 

I think went to his command. They all began right after 
he said that, searching the young men and lining them up. 
And I also stayed in the store and watched while they was 
arresting and walking out the door, the lights came back on 
and the whites didn’t leave.

Q. They remained seated!
A. They remained seated.
Q. And is your testimony that no one made any attempt 

to arrest them!
A. No, sir, and I didn’t see a rope to rope off the counter.
Q. You did not see a rope!
A. I did not see a rope.
Q. Did you hear anyone say “you are trespassing” !
A. I didn’t hear anything about trespassing ’til they were 

locked up.
[fol. 35] Q. All you heard were the counter’s closed and 
the immediately arrest even before they had, could make 
an attempt to get up from the stools and leave!

A. Yes, sir.
Mr. Smith: That’s all.

Cross examination.

By Mr. Arnold:
Q. What is your age, please!
A. Twenty.
Q. Twenty. And you say that you are unemployed!
A. Well, at the present, yes.



32

Q. Are you married ?
A. No.
Q. You live with your mother and father here ?
A. I do.
Q. What is the last employment you had?
A. I worked for the Southern Railway, Railroad.
Q. What?
A. Mail handler for the Southern Railroad.
Q. I didn’t catch the answer ?
A. Mail handler.
Q. When did you leave the Southern Railroad?
A. It was the day of the accident, the wreck at Seneca, 

I don’t recall the date.
Q. All right, did you go with these ten defendants up to 

Kress’ Store?
A. No, I didn’t. I didn’t go with them, I was by myself, 

they was in front of me.
Q. But then you followed them?
A. Sure I followed them, that’s a free street.
Q. You knew that they were going into the store?
A. Sure I knew it.

[fol. 36] Q. As a matter of fact, Mr. Carter, weren’t you 
the leader of this group ?

A. If I was the leader, I would have been arrested.
Q. I didn’t ask you that.
A. Was I the leader?
Q. Yes.
A. No, I wasn’t the leader.
Q. Before Officer Bramlette and Vaughn and some of the 

others arrived on the scene, weren’t you going up and down 
the line where these ten defendants were sitting, talking 
with them ?

A. Sure, I know ’em.
Q. But you didn’t sit down?
A. No, I didn’t.
Q. I want to ask you when you saw Captain Bramlette 

and some of the other officers come into the store, you kind 
of made yourself scarce, so to speak?

A. I was right there, they didn’t see me, but I saw them.
Q. But you moved away from the vicinity of the lunch 

counter?



33

A. No, I didn’t.
Q. But yon didn’t sit down?
A. I didn’t sit down.
Q. Where were you standing when the officers were there?
A. Bight next to another counter observing.
Q. Well, why couldn’t the officers see you, you said they 

didn’t see you?
A. Well, at that time, they marched the kids out.
Q. The time they marched the kids out?
A. At the time, they marched them out, I left.
Q. Did you leave by the side door or the front door?
A. The front door.

[fol. 37] Q. I want to ask you, Mr. Carter, isn’t it a fact 
that you went into that store with the purpose of being- 
able to come and testify in case any arrests were made?

A. No, that wasn’t my purpose.
Q. What was your purpose in going in there?
A. That’s a chain store and I had money in my pocket to 

buy something I saw.
Q. Did you buy anything ?
A. No, I didn’t.
Q. Did you attempt to buy anything?
A. Yes, I did.
Q. What?
A. I needed a new tip for this walking stick.
Q. Did you get it?
A. No, I didn’t.
Q. Did they have it?
A. I think so, but after I saw the kids sit down that took 

my mind off this walking stick. That was more interesting 
than my walking stick, at the present.

Q. So you didn’t go to attend to your own business, but 
you attempted to mind somebody else’s?

A. I didn’t help ’em.
Q. What?
A. I didn’t help ’em mind their business, I merely spoke 

to ’em and talked to ’em.
Q. You talked with them?
A. Yes. Anything wrong with me talking with them?
Q. I ’m not being questioned. Is James Carter, one of the 

defendants, your brother?



34

A. Yes, sir.
Q. Where did you first meet up with this group, on this 

particular morning!
A. Where did I first meet up with them !

[fol. 38] Q. Yes.
A. Well, I didn’t meet up with them, when I saw them 

they were going in Kress’.
Q. And you intended to go in Kress’, also!
A. Sure.
Q. You followed them inf
A. Sure I did, I had a purpose for going in there, too.
Q. But you never did sit down!
A. No.
Q. Now, you say that Mr. Hillyar here, with SLED gave 

an order to close the lunch counter!
A. I didn’t say he give the order, I said he give the order 

under arrest.
Q. Under arrest!
A. Yes.
Q. I understood if my recollection is correct, that you 

stated that he made the statement that the lunch counter 
is being closed!

A. I also said that I heard someone else say lunch counter 
closed and he said you’re under arrest.

Q. Now, I believe, on Direct Examination you stated that 
you could not be positive whether or not, Mr. West, the 
store manager, made the statement, that the lunch counter 
—asked them to leave, request it!

A. No, I couldn’t say that Mr. West said that, I didn’t 
hear him.

Q. In other words, I understand your testimony, you don’t 
say that he did or he didn’t !

A. No.
Q. I believe you testified that James Carter, one of the 

defendants, is your brother !
A. Yes, sir.

[fol. 39] Q. Do you own an automobile!
A. Me!
Q. Yes!
A. No, sir.
Q. Does James own an automobile!



35

A. No, sir.
Q. Did you come down to headquarters to get a set of 

car keys from James?
A. I did.
Q. Whose car was that?
A. My mother’s car.
Q. Where is it that you live?
A. Out at Washington Heights, 111 Luke St.
Q. Approximately how far is that from Kress’ Store?
A. Well, I ’d say, good two and a half miles.
Q. Does your brother James live with you?
A. Yes, we all live together.
Q. Did you all come to town that particular morning 

together in your mother’s car?
A. Yes, we did.
Q. Who else was in the car with you?
A. At the time, Mrs. Jones, she’s not here.
Q. Were any of these other nine defendants in the car 

with you that morning ?
A. Yes, sir, I said Mrs. Jones.
Q. Mrs. Jones?
A. Yes.
Q. Is she a defendant here?
A. No, sir, she’s not in here. She’s at the Juvenile Home, 

or some place.
Q. She’s one that’s under sixteen years of age?
A. Yes.

[fol. 40] Q. And that puts three in the car, were there any 
more in the car?

A. That’s all.
Q. At any time that morning, before the arrest, did any 

of these other nine defendants ride with you or your 
brother, James, in the car?

A. No.
Q. Where did you leave your car parked?
A. Up on Laurens Street that runs behind Woolworth 

and Green’s, I think that’s the name of the street.
Mr. Arnold: Thank you.
(Witness excused.)



36

Mr. Smith: Next witness, Doris Wright, one of the 
defendants.

D okis W eigh t , being duly sworn, testified as follows: 

Direct examination.

By Mr. Smith:
Q. Where do you live, Miss Wright?
A. 13 Nichols Street. That’s in Nicholtown.
Q. In Greenville?
A. Yes.
Q. At the present are you employed, are you a student, 

or what is your present—
A. I am a graduate student, I ’m not employed.
Q. You’re not employed at present?
A. No.
Q. I believe on the morning of August 9, at around eleven 

o ’clock, you went into Kress’ Five and Ten Cent Store?
A. That’s correct.

[fol. 41] Q. Miss Wright, would you tell us what your 
purpose was in going up to Kress that morning, please?

A. I went in Kress, my main purpose was to be served.
Q. Served where?
A. At the lunch counter.
Q. At the lunch counter? You then went into Kress’ with 

the intention of getting some lunch, or coffee or something 
like that ?

A. Yes.
Q. Did you make a request to be served?
A. I did.
Q. After sitting at the lunch counter ?
A. I did.
Q. What was the reply to your request?
A. “ I ’m sorry, we don’t serve Negroes.”
Q. Sorry, we don’t serve Negroes ?
A. Yes.
Q. Were there other people sitting at the counter at that 

time, Miss Wright?
A. They were.



37

Q. Were they being served!
A. They were.
Q. Did they continue to serve them?
A. Well, they continued to serve the orders that had been 

placed, but they didn’t, no new orders were made.
Q. No new orders were made!
A. No, no more.
Q. The request or order that the store is closed, was it 

made at the time that you were there ?
A. Yes, it was.
Q. How long had you been seated at the lunch counter 

before the order, that the lunch counter is closed, was made! 
[fol. 42] A. We had been sitting at the counter approxi­
mately three minutes.

Q. Do you remember what person told you or relayed 
the order to you that the lunch counter was closed?

A. Well, no, I heard a voice say that “ the lunch counter 
was closed, you’re under arrest,” and I forgot his name over 
there, he made the order that the counter was closed and 
that we were under arrest. Mr. West, did not make the re­
quest because he was coming from the back at the time, 
at the time the arrests were being made.

Q. You pointed over there, who were you pointing at?
A. In the brown suit there, whatever color it is, I can’t 

see from here.
Mr. Smith: Your Honor, I believe that’s Mr. Hillyar, 

would you let the record also show that this witness pointed 
out Mr. Hillyar of the South Carolina Law Enforcement 
Division as the person who gave that order?

By Mr. Smith:
Q. Now, the way you just testified, as if the order and 

the arrest were all in one sentence?
A. It was, in one breath.
Q. No pause?
A. No pause.
Q. As I understand the order was, the lunch counter is 

closed, you’re under arrest?
A. That’s right.
Q. And were you immediately placed under arrest?



38

A. We were.
Q. Were you given any opportunity to leave if you’d 

wanted to, Miss Wright?
A. No.

[fol. 43] Q. Did you observe the lunch counter at all after 
your arrest, as to whether or not, everybody left the lunch 
counter?

A. Well, I couldn’t say because Officer Wall and the po­
licemen in the back there, they got four girls and put us in 
a car and immediately carried us down to headquarters. 
We left the boys and two other girls in the store, they were 
searching the boys, they were searching the boys in the car.

Q. So you were not able to observe as to whether or not 
the other people at the counter left or not?

A. No.
Q. Miss Wright, I want to ask you this question, did you 

expect to be served at Kress on that morning?
A. Well, I had talked with the manager earlier, during 

some other demonstrations and he had stated that the pres­
sure that was being put on him by our demonstrations. 
And I also asked him a question, if he would press charges 
against us, if we would continue coming and he said, no, 
and also, I went back to the counter since so much pressure 
is on him, maybe he will break as he is done, as they were 
serving us in other parts of the store. Maybe he will be 
willing to serve us at the lunch counter, too.

Q. Then did you expect to be served ?'
A. Yes, I did.
Q. Did you feel that you had a right to be served?,
A. Yes, I did.
Q. That was your purpose for being there that day?
A. That’s right.
Mr. Smith: Your witness.

[fol. 44] Cross examination.

By Mr. Arnold:
Q. You referred to other demonstrations, how many times 

previous to this, had you been to the store and sat down at 
the lunch counter ?



39

A. I don’t recall, it has been several times.
Q. Some three or four?
A. I wouldn’t some three or four, I would say it has been 

several times.
Q. Several times!
A. Yes.
Q. Now several, you mean two!
A. One or more, yes.
Q. One couldn’t be several, could it!
A. No, so it would be one or more, could be two, I 

couldn’t vouch for three.
Q. How many in this group of ten defendants were with 

you on prior occasions going to Kress’ Stores, if you can 
recall, approximately!

A. I would say two to three.
Q. Two to three !
A. Yes.
Q. Where did you ten meet that morning!
A. We didn’t.
Q. You mean all ten of you just happened to gather up 

at Kress’ !
A. I didn’t say we happened there, I said we didn’t meet.
Q. If you didn’t happen there, then what did you do, just 

explain to the Court!
A. Well, I mean, since the curfew and everything, we 

thought the managers thought we were afraid of our fight 
for freedom, and our privileges, so we telephoned, when I 
[fol. 45] say we, I telephoned and other defendants tele­
phoned and we decided we would go get us some coffee. I 
don’t know whether Jim was coming up town, I guess he 
wanted some coffee, too. I mean, ’cause my pocketbook, I 
couldn’t buy anything else but coffee or soda.

Q. Where is it you live !
A. Nicholtown, 13 Nichol Street.
Q. How did you get to town that morning, in a car or on 

a bus!
A. I rode the City bus.
Q. Rode the City bus! Did any of these other ten defen­

dants accompany you on the bus that morning!
A. No, they didn’t.
Q. But you all did meet there in front of Kress’ !



40

A. No, we didn’t.
Q. Where !
A. We didn’t meet.
Q. Well, let me ask you this, didn’t the ten of you go in 

the store, more or less, as a group!
A. No, we didn’t.
Q. You went in singular!
A. No, we didn’t. I don’t know how they come, I went in 

Kress.
Q. Was—
A. I was accompanied by one.
Q, Let me ask you, were any of these other nine defen­

dants already sitting down at the counter when you got 
into the store!

A. No, they weren’t.
Q. You were the first one!
A. Yes, I was.
Q. Now, who was with you!
A. Helen Rose, Helen Evans.

[fol. 46] Q. She’s a defendant here!
A. Yes.
Q. Was anyone else with you!
A. No.
Q. How long would you say it was after you all sat 

down before the eight other defendants came and sat down!
A. It may have been a minute or so.
Q. A minute or so! Well, then, they must have been in 

the vicinity of Kress’ Store!
A. I couldn’t say.
Q. All right, you say you all went in there to get some 

coffee, or to served at the lunch counter!
A. Uhhuh.
Q. Can you explain to the Court how these four that had 

no money could be expected to be served, had no money on 
their person!

A. Beg your pardon, sir.
Q. These four that Officer Bramlette testified had no 

money on their person when they were arrested, could you 
give the Court an explanation as to how they could expect 
to be served any food or coffee!



41

A. I imagine they could expect to be served by the 
waitress, by the waitresses.

Q. But you know it’s a matter of common knowledge you 
don’t go into a store and order coffee or food when you don’t 
have any money on your person?

A. I didn’t say that they ordered, I said that I ordered.
Q. My question to you, can you offer any explanation to 

the Court, as how these four that had no money on their 
persons could have expected to be served food or coffee?

A. No, I don’t.
[fol. 47] Q. And you deny that Mr. West made any re­
quest to you,to leave?

A. I do.
Q. Did you hear Mr. West say anything?
A. No.
Q. Of course, you are not in position to say whether 

or not Mr. West may have made a request to some of the 
other nine?

A. Yes, I am, Mr. West, come from the back of the store, 
at the time we were being arrested and were told that the 
lunch counter was closed.

Mr. Arnold: Thank you.
Mr. Smith: Just one minute, one or two questions on Re­

direct, Your Honor.

Redirect examination.

By Mr. Smith:
Q. First, Miss Wright, I would like to ask you, if you 

and all your co-defendants, all of you that were arrested 
that morning, are all of you Negroes?

A. We are.
Q. No white people among them, in that arrest?
A. No.
Q. You have testified here this morning as to the amount 

of money that each of you, you and your co-defendants, had 
upon their person and their pockets. Wouldn’t it be cus­
tomary for some of the—

Mr. Partee: That’s leading.



42

Judge Jester: I don’t believe I can go along if I ’m in­
terpreting your question, Mr. Smith.

Mr. Smith: I believe, I may have started it as being lead­
ing, Your Honor, but what I ’m after, I believe is admissible, 
[fol. 48] Judge Jester: Now, if it isn’t, I ’m going to strike 
it out. Go ahead, if it isn’t, I ’m going to strike it out.

Mr. Arnold: Tell the witness not to answer until the 
Court has ruled.

Judge Jester: Go ahead and ask her but tell her not to 
answer, I ’ll ask Doris not to answer until I have ruled.

By Mr. Smith:
Q. I will ask you whether or not it is customary in a group 

of friends like that for one to pay for whatever another may 
order, or what two or three may order?

Judge Jester: I ’ll have to rule that out on account of her 
previous statement there.

Mr. Smith: All right, that’s all.
Mr. Perry: One other witness, please, sir. Your Honor, 

we would like to call Officer Hillyer of the South Carolina 
Law Enforcement Division and we presume that by reason 
of the fact that he is an officer of the South Carolina Law 
Enforcement Division, that he is hostile and we ask per­
mission to treat him as a hostile witness.

Mr. Partee: Your Honor, I would think that would neces­
sarily be true. He’s merely enforcing the law which is any 
law enforcement officers are—

Judge Jester: I couldn’t consider him as a hostile wit­
ness, Mr. Perry.

Mr. Perry: I know him quite well, I think he’s a very 
tine gentleman but in this matter—

Judge Jester: He is a law enforcement officer, but I ’m 
a Judge and I ’m not a hostile Judge.

Mr. Perry: Not at all.
Judge Jester: ^think every darky that’s ever been in 

and sat before me said I done them as fair as anybody else 
[fol. 49] but I can’t say that because I ’m working for the 
City that I ’m hostile, so I couldn’t go along with you. I ’ll 
allow you to call him but I will not put into the record that 
he is a hostile witness.



43

Mr. Perry: Well, if at any point in his testimony it de­
velops that he is hostile perhaps Your Honor will recon­
sider. We ask that Officer Hillyer come to the stand.

Mb. 0. R. H illyeb , being duly sworn, testified as follows: 

Direct examination.

By Mr. Perry:
Q. Mr. Hillyer, I believe you are an officer of the South 

Carolina Law Enforcement Division!
A. That’s right.
Q. How long have you been working for the agency, sir!
A. Four years and two months.
Q. Do you hold any official position in the office, or are 

you what is known as patrolman!
A. I ’m an agent.
Q. You are an agent!
A. We don’t have patrolmen.
Q. I see. What are the general duties of an agent, may 

I ask!
A. An agent of the South Carolina Law Enforcement 

Division is set up as an assistant agency to help any police 
or sheriff’s office that needs any assistance that we can ren­
der, and we render any assistance we can render.

Q. I see, and who do you receive your orders from!
A. Chief J. P. Strom.

[fol. 50] Q. I see, and Chief J. P. Strom is the head of the 
South Carolina Law Enforcement Division!

A. That is correct.
Q. May I ask you, sir, who does Chief Strom take his 

orders from!
A. Governor Hollings.
Q. I see, so when Chief Strom’s men go into action, why 

generally speaking the Governor of the State is more or 
less, his attitude is reflected by what he would do. On the 
occasion in question, namely August 9, at which time it 
has been testified that these defendants were arrested, were 
you present at Kress’ Five and Ten Cent Store!



44

A. I was present at Kress’.
Q. I see. Were other agents of the South Carolina Law 

Enforcement Division present?
A. Yes, they were.
Q. Did you render any assistance to the Chief of Police 

or the other local law enforcement officers on this occasion?
A. I checked a few of the boys, a few of the defendants, 

I shook them down.
Q. Did you confer with Captain Bramlette concerning the 

charge which would be placed against them ?
A. No, sir, I did not.
Q. Did you any way assist in effecting the arrest ?
A. You’ll have to ask that another way. I was there to 

assist Captain Bramlette or any other policeman.
Q. I see, and my question was, did you assist?
A. Yes.
Q. I see. Thank you, sir.
Mr. Perry: You may examine.

[fol. 51] Cross examination.

By Mr. Partee:
Q. Mr. Hillyer, I believe, you were in the store before 

Captain Bramlette and Officer Vaughn, perhaps some other 
officers arrived?

A. I was.
Q. Who gave the order or made the request for the de­

fendants to leave the store?
A. Mr. West. Mr. West, told them the store was closed, 

the lunch counter was closed.
Q. Was he in a position and was his voice loud enough 

for these ten defendants to have heard him?
A. Yes, sir.
Q. After he made that request, what happened?
A. After Mr. West said the lunch counter was closed, 

the defendants just remained seated, and a few minutes 
after he had made the request Captain Bramlette said 
“ you are under arrest.”



45

Q. Captain Bramlette is the one who put them under 
arrest?

A. That’s correct, sir.
Q. Did you put any of them under arrest?
A. No, sir, Captain Bramlette, ordered placed them 

under arrest.
Q. Did you at any time say “ the lunch counter is closed, 

you’re under arrest” ?
A. I did not.
Q. Now, there’s been testimony that the request order to 

leave and the arrest was simultaneous, is that true or not?
A. That is not true.

[fol. 52] Q. Now, after Mr. West said the lunch counter is 
closed, did he also say, “ you are requested to leave or every­
body leave the counter” or anything like that?

A. He said “ the lunch counter is closed, everybody leave” 
but the defendants didn’t move.

Q. There’s no doubt in your mind they all heard it?
A. No doubt in my mind they all heard it.
Mr. Partee: Thank you, sir.
Mr. Perry: Just one more question. Now, as I under­

stand it, in response to these questions you stated that 
Captain Bramlette made the arrest, that as I understood 
your earlier testimony, you did render assistance to Cap­
tain Bramlette?

The Witness: That’s correct.
Mr. Perry: Very good, sir. I think that’s all.
(Witness excused.)
Mr. Perry: Your Honor, that’s the defendant’s case.
Mr. Arnold: We have nothing in reply.

R enew al of M otions and D enial T hereof

Mr. Perry: At this time, may it please the Court, the 
defendants would like to renew all motions for dismissal 
which were made at the conclusion of the City’s case and 
we would like to renew them in this manner as if repeated 
again in their entirety. My purpose being to expedite these 
proceedings.



46

Mr. Arnold: We are willing to agree to that, we ask that 
they be reproduced in the record as if so done.

Judge Jester: Motion so denied.
Mr. Perry: I would like, at this time, to make this addi­

tional motion which is to he appended to the motions which 
were made at the conclusion of the City’s case. At this 
time, the defendants move for a dismissal of these cases 
which charged these defendants, all of whom are Negroes, 
with the violation of the statute which is set forth in the 
warrant, on the ground that the Negroes, the Negro de- 
[fol. 53] fendants, were arrested and charged under a stat­
ute which is itself unconstitutional on its face, by making 
it a crime to be on public property after being asked to 
leave by an individual, at such individual’s whim. In that, 
such statute does not require that the person making the 
demand to leave, present documents or other evidence of 
possessing a right sufficient to apprise the defendants of 
the validity of the demand to leave. All of which renders 
the statute so vague and uncertain, as applied to the de­
fendants, as to violate their rights under the due process 
clause of the 14th Amendment to the United States Consti­
tution, that is the motion, no argument on that, sir.

Judge Jester: Motion denied, Mr. Perry.
Mr. Perry: All right, sir. May it please the Court for 

whatever it’s worth, we should like to have placed in evi­
dence the ordinances of the City of Greenville, Section 31-B 
as amended. We should like very much to have, Your 
Honor, consider that as a part of the evidence in this case, 
and we make this observation that although the warrant 
does not cite that particular ordinance, Captain Bramlette 
stated in his testimony that he had this and all the ordi­
nances of the City of Greenville and the statutes of the 
State of South Carolina affecting this situation in his mind. 
We would, therefore, like to have this ordinance included 
in the evidence.

Mr. Arnold: Your Honor, to identify, Mr. Perry, Section 
31-B of the 1953 Greenville City Code as amended.

Mr. Perry: Thank you.
Mr. Arnold: We can’t see the relevancy of it, it’s 

just encumbering the record, there’s no charge on it.



47

[fol. 54] Judge Jester: I ’d have to deny it because I ’m try­
ing this case purely on those facts and the substance there­
of, of the act as set forth in the warrant on the arrest.

Mr. Perry: All right, sir. The defendants will agree to 
waive any final argument before judgment, if that is ac­
ceptable to the City.

Mr. Arnold: We agree to that, Your Honor.
Judge Jester: Let the record so show that both the De­

fendants and the City waive the arguments and places the 
case in the hands of the Recorder, is my understanding.

Mr. Perry: Beg your pardon?
Judge Jester: That’s my understanding, no argument.
Mr. Perry: I might say depending on whatever ruling we 

may have one or two observations that we would like to 
make.

S entence

Judge Jester: Sentence of the Court that James Richard 
Peterson, James Carter, David Ralph Strawder, Prank G. 
Smith, Robert Crockett, Joan Yvonne Eddy, Helen Angela 
Evans, Harold James Fowler, Doris Wright, Rose Marie 
Collins, pay a fine of $100.00, or serve a sentence of thirty 
days.

Mr. Perry: May it please the Court, at this time, the de­
fendants each move for arrest of judgment or in the al­
ternative for a new trial.

(Off the record.)
Mr. Perry: The defendants based upon all motions and 

all grounds used in said motions both at the beginning of 
this proceeding, at the end of the presentation of the City’s 
case, and at the end of the defendant’s case, we move for 
arrest of judgment or in the alternative a new trial based 
upon all those grounds and we ask that they be stated in 
[fol. 55] the record, in the new form, that is motion for 
arrest of judgment or alternative for new trial.

Mr. Arnold: We have no objection to that form. In 
other words, there’s no need to encumber the record by 
repeating it.

Mr. Perry: Very good, sir.



48

Judge Jester: All right.
Mr. Perry: At this time, may it please the Court, the de­

fendants each give verbal notice of appeal and we state to 
the Court that within the period required by statute we 
would tender the formal written notice incorporating our 
exceptions and we ask that the Court set an appeal binder 
in this matter.

Judge Jester: Two hundred-dollar bond in each case, Mr. 
Perry, same they have up now, an appeal bond, and if 
necessary, do you need a little time? I think Mr. Arnold 
will be glad to give you additional time in which to get up 
the appeal and file all the papers. I think the appeal is 
ordinarily gotten up in twenty-four hours and if he needs 
a little extra time, there’s no objection to that.

Mr. Arnold: Counsel of the parties have just agreed, 
subject to Your Honor’s approval, that the appearance 
bonds signed on August 9, 1960, by Mr. M. B. Tolbert for 
each of the ten defendants in the amount of $200.00 be con­
sidered and continued as an appeal bond without the neces­
sity of formally re-executing the bonds, is that agreeable 
with opposing Counsel?

Mr. Smith: That’s agreeable.
Mr. Perry: That’s agreeable.
Mr. Arnold: I think that the Bondsman might have to be 

sworn.

[fol. 56] M. B. Tolbebt, being duly sworn, testified as fol­
lows:

Direct examination.

By Mr. Arnold:
Q. Do you agree to continue the ten appearance bonds 

each in the amount of $200.00 that you have signed for each 
of these ten defendants on August 9, 1960, to be continued 
and considered as an appeal bond and that your liability 
will remain $200.00 each on said bond.

A. Yes, I do.
Mr. Arnold: You think that’s sufficient ?



49

Mr. Smith: That’s fine.
Mr. Perry: Thank you very much.
(Witness excused.)
Judge Jester: Thank you, gentlemen, Court adjourned.
(Court adjourned at 10:50 a. m.)

S ec. 31-8, Code of Greenville, 1953, A s A mended

Sec. 31-8, C ode o f G reenville, 1953, as am ended by 1958 
Cum ulative S upplen ien t.

It shall be unlawful for any person owning, managing or 
controlling any hotel, restaurant, cafe, eating house, board­
ing house or similar establishment to furnish meals to white 
persons and colored persons in the same room, or at the 
same table, or at the same counter; provided, however, that 
meals may be served to white persons and colored persons 
in the same room where separate facilities are furnished. 
Separate facilities shall be interpreted to mean:

(a) Separate eating utensils and separate dishes for the 
serving of food, all of which shall be distinctly marked by 
some appropriate color scheme or otherwise ;
[fol. 57] (b) Separate tables, counters or booths;

(c) A distance of at least thirty-five feet shall be main­
tained between the area where white and colored persons 
are served;

(d) The area referred to in subsection (c) above shall not 
be vacant but shall be occupied by the usual display coun­
ters and merchandise found in a business concern of a 
similar nature;

(e) A separate facility shall be maintained and used for 
the cleaning of eating utensils and dishes furnished the two 
races. (Code 1953, Sec. 31-8, Ord. No. 9, Sec. 1.)



50

I n the  G reenville County  Court 

Order—March 17,1961
This is an appeal to this Court from the Recorder’s Court 

of the City of Greenville.
The Defendants were tried on August 11, 1960, in the 

Greenville City Recorder’s Court before the Recorder, John 
V. Jester, upon a charge of violating the Act of May 20, 
1960, which in substance makes any person a trespasser 
who refuses to leave the premises of another immediately 
upon being requested to leave.

The Act is very simple and plain in its language.
It appears that on August 9, 1960, the ten Defendants, 

who are making this appeal, with four other young Negro 
youths went to the store of S. H. Kress and Company and 
seated themselves at the lunch counter at that store. At the 
trial there seemed to be some attempt to minimize the evi­
dence of the officers involved as to whether or not the De­
fendants, now Appellants, refused to leave the premises 
immediately upon the request of the store manager that 
they should leave. However, in the argument of the chief 
counsel for the Appellants, all question of doubt in this re­
spect is resolved in favor of the City. According to the 
written Brief of the Defendants, the Defendants now 
[fol. 58] “ seated themselves at the lunch counter where they 
sought to be served. They were not served and, in fact, were 
told by the management that they could not be served and 
would have to leave. The Defendants refused to leave and 
remained seated at the lunch counter.”

The act clearly makes it a criminal offense for any per­
son situated as the Defendants were to refuse or fail to 
“ im m ediately”  depart upon request or demand.

Therefore, the main question before this Court is whether 
or not the Appellants were lawfully tried on a charge of 
violating this Act by refusing to leave the lunch counter 
immediately when requested to do so.

In the oral argument counsel for the Appellants seemed 
to reply in a vague manner upon an “ unconstitutional ap­
plication” of the Statute.

As the Court views the statute it was merely a statutory 
enlargement and re-enactment of the common law in South



51

Carolina which, has been recognized for more than a half 
century to the effect that when a property owner, whether 
it be a dwelling house or place of business, has the right to 
order any person from the premises whether they be an 
invitee or an uninvited person. This principle of law was 
fully and clearly reaffirmed by the Supreme Court of South 
Carolina in the recent case of S ta te  v. S ta rn er et al., 49
S. E. (2d) 209.

For scores of years South Carolina has had a number of 
Statutes with reference to the law of trespass. They are now 
embodied as Article 5, Code of 1952, embracing Sections 
16-381 to 16-394. Section 17-386 particularly refers to tres­
passes after notice.

Therefore, the Act of May 20, 1960, now designated in 
the 1952 Code as Sec. 17-388 is the controlling factor here. 
There can be no doubt that the field into which the Legisla- 
[fol. 59] ture entered by the enactment of this particular 
law was a well recognized portion of the law of the State of 
South Carolina. The Constitutionality of the Act cannot be 
questioned.

Every presumption will be made in favor of the Consti­
tutionality of a statute. There are more than fifty decisions 
by the Supreme Court of South Carolina to this effect. 
The United States Supreme Court in many cases has recog­
nized that there is a presumption in favor of the consti­
tutionality of an Act of Congress or of a State or Municipal 
legislative body. In the case of D avis v. D epartm en t o f  
L abor, 317 U. S. 255, 87 Law Ed. 250, the United States 
Supreme Court held that there is a presumption of consti­
tutionality in favor of State statutes. Time and time again 
the Supreme Court of South Carolina has held “ the law is 
well settled that the burden is on the person claiming the 
Act to be unconstitutional to prove and show that it is un­
constitutional beyond a reasonable doubt” . M cCollum  v. 
S nipes, 49 S. E. 12, 213 S. C. 254.

In 16 C. J. S. 388, we find this language, “ Statutes are 
presumed to be valid and a party attacking a statute as 
unconstitutional has the burden of proof” . Over five hun­
dred decisons from all over the United States are cited to 
support this statement of the law.



52

The argument of counsel for the Appellants failed to 
raise a single serious question as to the constitutionality 
of the statute.

Counsel for Appellants insisted upon the right of the 
Defendants to adduce evidence of some alleged conspiracy 
or plan on the part of the officers of the law and store 
management to bring about this prosecution. We think 
the sole issue in the Recorder’s Court was whether or not 
the Defendants were guilty of violating the Act in question. 
They now boldly admit through counsel that they defied 
[fol. 60] the management of the store and refused to leave 
when requested. Had they departed from the store imme­
diately, as the law requires they should have, there would 
have been no arrest, but apparently in accordance with a 
preconceived plan they all kept their seats and defied the 
management and refused to leave the premises.

Evidence of any other motive on the part of the manage­
ment would have thrown no light on this case.

In my opinion the appeal should be dismissed because 
the prosecution was conducted under a valid constitutional 
statute and in addition the appeal should be dismissed upon 
the ground that S. H. Kress and Company had a right to 
control its own business. We think this position is fully 
sustained under the recent case of W illiam  v. Johnson, Res. 
344, 268 Fed. (2d) 845, and the North Carolina case of 
S ta te  v. N elson , decided January 20, 1961, and reported 
in 118 S. E. (2d) at page 47.

I carefully considered all the exceptions made by the 
Appellants and I am unable to sustain any of them. It is, 
therefore,

O rdered, adjudged and d ecreed  that the Appeal be dis­
missed.

James H. Price, Special Judge, Greenville County 
Court.

March 17, 1961.



53

[fol. 61]
I n the Greenville County  Court

N otice of I ntention  to A ppeal— M arch 21,1961
T o M essrs. W . II. A rn o ld  and II. F . P a rtee , A tto rn ey s  

fo r  the C ity  o f  G reen v ille :

Y ou  will p lea se take notice that the defendants above 
named intend to and do hereby appeal to the Supreme 
Court of South Carolina from the Order of the Green­
ville County Court in the above matter, dated March 17, 
1961, the case and exceptions to be hereafter served upon 
you.

Willie T. Smith, Jr., Lincoln C. Jenkins, Jr., 
Matthew J. Perry, Attorneys for Defendants.

March 21, 1961.

Due and legal service of the foregoing Notice is accepted 
this 22 day of March, 1961.

H. F. Partee, City Attorney.

I n the  Greenville C ounty Court 

E xceptions

1. The Court erred in refusing to hold that the warrant 
is vague, indefinite and uncertain and does not plainly and 
substantially set forth the offense charged, thus failing to 
provide appellants with sufficient information to meet the 
charges against them as is required by the laws of the State 
of South Carolina, in violation of appellants’ rights to due 
process of law, secured by the Fourteenth Amendment to 
the United States Constitution.

2. The Court erred in refusing to hold that the State 
failed to establish the corpus delicti.

3. The Court erred in refusing to hold that the State 
failed to prove a prim a fa cie  case.
[fol. 62] 4. The Court erred in refusing to hold that the
evidence of the State shows conclusively that by arresting



54

appellants the officers were aiding and assisting the owners 
and managers of S. H. Kress and Company in maintaining 
their policies of segregating or excluding service to Negroes 
at their lunch counters on the ground of race or color, in 
violation of appellants’ rights to due process of law and 
equal protection of the laws, secured by the Fourteenth 
Amendment to the United States Constitution.

5. The Court erred in refusing to hold that the evidence 
establishes merely that the appellants were peacefully upon 
the premises of S. H. Kress and Company, an establishment 
performing an economic function invested with the public 
interest as customers, visitors, business guests or invitees, 
and that there is no basis for the charge recited by the 
warrants other than an effort to exclude appellants from 
the lunch counter of said business establishment because of 
their race and color, thereby depriving appellants of liberty 
without due process of law and equal protection of the laws, 
secured by the Fourteenth Amendment to the United States 
Constitution.

6. The Court erred in refusing to hold that the statute 
appellants are alleged to have violated, to wit, Act No. 743 
of the Acts and Joint Resolutions of the General Assembly 
of South Carolina for 1960 (R 896, H 2135), is unconsti­
tutional on its face by making it a crime to be on public 
property after being asked to leave by an individual at such 
individual’s whim and does not require that the person 
making the demand to leave present documents or other 
evidence of possessory right sufficient to apprise appel­
lants of the validity of the demand to leave, all of which 
renders the statute so vague and uncertain as applied to 
[fol. 63] appellants as to violate their rights under the due 
process clause of the Fourteenth Amendment to the United 
States Constitution.

7. The Court erred in refusing to permit defendants’ 
counsel to elicit relevant testimony concerning coopera­
tion of Store Managers and Police in the City of Green­
ville, South Carolina in pursuing the store managers’ poli­
cies, customs and practices of segregating or excluding 
Negroes from their lunch counters.



55

I n the Greenville County Court 

A greement as to R ecord

It is hereby stipulated and agreed by and between counsel 
for the appellants and respondent that the foregoing when 
printed, shall constitute the Transcript of Record herein 
and that printed copies thereof may be filed with the Clerk 
of the Supreme Court and shall constitute the Return 
herein.

W. H. Arnold, Greenville, S. C., H. P. Partee, Green­
ville, S. C., Attorneys for Respondent.

Jenkins & Perry, Columbia, S. C., By Matthew J. 
Perry, Willie T. Smith, Jr., Greenville, S. C., At­
torneys for Appellants.

[fol. 64]
I n the S upreme Court of the  S tate of S outh  C arolina

City  of Greenville, Respondent, 
v.

J ames R ichard P eterson, Y vonne J oan E ddy, H elen 
A ngela E vans, D avid R alph  S trawder, H arold J ames 
F owler, F rank  G. S m it h , R obert Crockett, J ames 
Carter, D oris D elores W right and R ose M arie Collins, 
Appellants.

Appeal From Greenville County 
James H. Price, Special County Judge

Case No. 4761
Opinion  N o. 17845—Filed November 10,1961 

Affirmed
Jenkins & Perry, of Columbia, and Willie T. Smith, Jr., 

of Greenville, for appellants.
W. H. Arnold and H. F. Partee, both of Greenville, for 

respondent.



56

T aylok, C. J .: Defendants were convicted of the charge 
of trespass after notice in violation of Section 16-388, Code 
of Laws of South Carolina, 1952, as amended, and appeal. 
By agreement of counsel, all bail bonds were continued in 
effect pending disposition of this appeal.

On August 9, 1960, in response to a call, law enforcement 
officers were dispatched to the S. H. Kress Store in Green­
ville, South Carolina, a member of a large chain of stores 
operated throughout the United States and described as 
a junior department store. Upon arrival they found the 
ten defendants and four others who were under sixteen 
years of age, all Negroes, seated at the lunch counter. There 
is testimony to the effect that because of the local custom 
to serve white persons only at the lunch counter the man­
ager of the store announced that the lunch counter was 
closed, the lights were extinguished, and all persons were 
requested to leave. The white persons present left, but all 
Negroes refused to leave; and those above the age of six­
teen were thereupon charged with trespass after notice as 
provided in the aforementioned section of the Code, which 
provides:

“Any person:
“ (1) Who without legal cause or good excuse enters 

into the dwelling house, place of business or on the 
premises of another person, after having been warned 
within six months preceding, not to do so or

“ (2) Who, having entered into the dwelling house, 
place of business or on the premises of another person 
without having been warned within six months not to 
do so, and fails and refuses, without good cause or 
excuse, to leave immediately izpon being ordered or 
requested to do so by the person in possession, or his 
agent or representative,

“ Shall, on conviction, be lined not more than one 
hundred dollars, or be imprisoned for not more than 
thirty days.”

Defendants contend, first, error in refusing to dismiss the 
warrant upon the ground that the charge contained therein



57

was too indefinite and uncertain as to apprise the defen­
dants as to what they were actually being charged with, 
[fol. 65] Defendants were arrested in the act of commit­
ting the offense charged, they refused the manager’s request 
to leave after the lunch counter had been closed and the 
lights extinguished, and there could have been no question 
in defendants’ minds as to what they were charged with. 
Further, there was at that time no claim of lack of sufficient 
information, and upon trial there was no motion to require 
the prosecution to make the charge more definite and cer­
tain. Defendants rely upon State v. Randolph, et a l.,------
S. C .------ , 121 S. E. (2d) 349, where this Court held that
it was error to refuse defendants’ motion to make the 
charge more definite and certain in a warrant charging- 
breach of the peace. It was pointed out in that case that 
breach of the peace embraces a variety of conduct and de­
fendants were entitled to be given such information as 
would enable them to understand the nature of the offense. 
This is not true in instant case where the charges were 
definite, clear and unambiguous; further, no motion was 
made to require the prosecution to make the charge more 
definite and certain. There is no merit in this contention.

Defendants next contend that their arrest and conviction 
was in furtherance of a custom of racial segregation in 
violation of the Fourteenth Amendment to the Constitution 
of the United States.

Defendants entered the place of business of the S. H. 
Kress Store and seated themselves at the lunch counter, 
they contend, for the purpose of being served, although four 
of them had no money and there is no testimony that such 
service was to be paid for by others.

The testimony reveals that the lunch counter was closed 
because it was the custom of the S. H. Kress Store in 
Greenville, South Carolina, to serve whites only and after 
all persons had left or been removed the lunch counter 
was reopened for business. The statute with no reference 
to segregation of the races applies to “Any person: * * * 
Who fails and refuses without cause or good excuse * * * 
to leave immediately upon being ordered or requested to 
do so by the person in possession or his agent or repre­
sentative, * * # ” The act makes no reference to race or



58

color and is clearly for the purpose of protecting the rights 
of the owners or those in control of private property. Ir­
respective of the reason for closing the counter, the evidence 
is conclusive that defendants were arrested because they 
chose to remain upon the premises after being requested 
to leave by the manager.

Defendants do not attack the statute as being uncon­
stitutional but contend that their constitutional rights were 
abridged in its application in that they were invitees and 
had been refused service because of their race. The cases 
cited do not support this contention while there are a num­
ber of cases holding to the contrary. See Hall v. Common­
wealth, 188 Ya. 72, 49 S. E. (2d) 369, 335 IT. S. 875, 69 S. Ct. 
240, 93 L. Ed. 418; Henderson v. Trailway Bus Company, 
D. C. Va., 194 F. Supp. 423; State v. Clyburn, 247 N. C. 
455, 101 S. E. (2d) 295; State v. Avent, 253 N. C. 580, 118 
S. E. (2d) 47; Williams v. Howard Johnson Restaurant, 
4 Cir., 268 F. (2d) 845; Slack v. Atlantic White Tower 
System, Inc., D. C. Md., 181 F. Supp. 124, 4 Cir., 284 F. (2d) 
746; Griffin v. Collins, D. C. Md., 187 F. Supp. 149; Wilming­
ton Parking Authority v. Burton, Del., 157 A. (2d) 894;
Randolph v. Commonwealth,------Va. ——, 119 S. E. (2d)
817. The Fourteenth Amendment erects no shield against 
merely private conduct, however discriminatory or wrong­
ful, Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 92 L. Ed. 
1161, 3 A. L. R. (2d) 441; and the operator of a privately 
owned business may accept some customers and reject 
others on purely personal grounds in the absence of a stat­
ute to the contrary, Alpaugh v. Wolverton, 184 Va. 943, 
136 S. E. (2d) 906. In the absence of a statute forbidding 
discrimination based on race or color, the operator of a 
privately owned place of business has the right to select 
the clientele he will serve irrespective of color, State v. 
Avent, 253 N. C. 580, 118 S. E. (2d) 47. Although the gen­
eral public has an implied license to enter any retail store 
the proprietor or his agent is at liberty to revoke this 
license at any time and to eject such individual if he refuses 
to leave when requested to do so, Annotation 9 A. L. R. 
379; Annotation 33 A. L. R. 421; Brookside-Pratt Mining 
Co. v. Booth, 211 Ala. 268, 100 So. 240, 33 A. L. R. 417; 
and may lawfully forbid any and all persons, regardless of



59

reason, race or religion, to enter or remain upon any part 
of Ms premises which are not devoted to public use, Hender­
son v. Trailway Bus Company, 194 F. Supp. 426.
[fol. 66] The lunch counter was closed, the lights extin­
guished, and all persons requested to quit the premises. 
Defendants refused and their constitutional rights were not 
violated when they were arrested for trespass.

Upon cross-examination of Capt. G. 0. Bramlette of the 
Greenville City Police Department, it was brought out that 
the City of Greenville has an ordinance making it unlawful 
for any person owning, managing, or controlling any hotel, 
restaurant, cafe, etc., to furnish meals to white persons and 
colored persons except under certain conditions; and Defen­
dants contend that they were prosecuted under this ordi­
nance; however, the warrant does not so charge and there 
is nothing in the record to substantiate this contention. The 
ordinance was made a part of the record upon request 
of defendants’ counsel but defendants were not charged 
with having violated any of its provisions. The question 
of the validity of this ordinance was not before the trial 
Court and therefore not before this Court on appeal.

Defendants further contention that the prosecution failed 
to establish the corpus delicti is disposed of by what has 
already been said.

We are of opinion that the judgment and sentences ap­
pealed from should be affirmed; and It Is So Ordered. 
Affirmed.

Oxner, Legge, Moss and Lewis, JJ., concur.

[fol. 68]
I n  the  S upreme Court of th e  S tate oe S outh  Carolina 

[Title omitted]
P etition  for R ehearing

To the Honorable Chief Justice and Associate Justices 
of the Supreme Court of South Carolina:

Petitioners, James Richard Peterson, Yvonne Joan Eddy, 
Helen Angela Evans, David Ralph Strawder, Harold James



60

Fowler, Frank G. Smith, Robert Crockett, James Carter, 
Doris Delores Wright and Rose Marie Collins, respectfully 
request a rehearing in the above entitled case. We respect­
fully submit that this Court, in affirming the judgment of 
the Court below, may have overlooked or misapprehended 
certain facts and rules of law, urged by petitioners in their 
appeal.

1. The Court may have overlooked the fact that the 
Manager of Kress’ did not close his store premises on the 
day petitioners were arrested, and testified that he closed 
the lunch counter only because of petitioners’ presence, 
moreover, he reopened the counter as soon as petitioners 
[fol. 69] were removed from the premises. It thus does not 
appear that there was an actual closing of the premises and 
the Manager was apparently only cooperating with the 
police.

2. The Court may have overlooked the testimony of 
Captain Bramlette (Tr. pp. 9-10, ff. 33-37) and of Mr. West, 
the store manager (Tr. p. 25, ff. 97-98) that their acts on 
the day petitioners were arrested were motivated in part 
by Section 31-8, Code of the City of Greenville, which re­
quires segregation of the races in eating establishments. 
Given the consideration urged by petitioners, it becomes 
apparent that though they were prosecuted in the name of 
trespass, their arrests and convictions were based upon 
their attempted use of eating facilities reserved by custom 
for white persons. Further, petitioners were welcomed as 
business invitees in all other departments of the store and 
could have purchased any part or all of more than ten 
thousand items which the store offered for sale.

3. The Court may have misapprehended that Section 
16-388, Code of Laws of South Carolina for 1952, was in­
voked against petitioners in this case solely for the purpose 
of preserving and furthering the custom of excluding 
Negroes from Lunch Counters in Greenville, South Carolina 
or segregating them in same, in violation of petitioners’ 
rights to due process of law and equal protection of the 
laws, protected by the Fourteenth Amendment to the United 
States Constitution.



61

4. The Court may have overlooked petitioners’ assertion 
that they were unwarrantedly penalized for exercising their 
freedom of expression in violation of the Fourteenth 
Amendment. The Court further overlooked the applica­
bility of M arsh  v. Alabam a, 326 U. S. 501, 90 L. Ed. 265, 
66 S. Ct. 276, and M ann  v. Illinois, 94 U. S. 113, 24 L. Ed. 
77, to this argument.
[fol. 70] 5. The Court may have overlooked petitioners’
assertion that in arresting and prosecuting petitioners, the 
State has either enforced or supported racial segregation 
in a place open to the general public, thereby infringing 
their rights under the Fourteenth Amendment to the United 
States Constitution. Petitioners, in their appeal, did not 
challenge the right of the store manager to select his cus­
tomers, but asserted that the State cannot implement and 
enforce segregation by direct action on the part of its 
police nor by statutory scheme. The record demonstrates 
that both forms of State action were present in this matter.

Conclusion
Wherefore, petitioners request they be granted a rehear­

ing in this case.
Columbia, South Carolina 
November 16,1961

Jenkins and Perry, Columbia, South Carolina, By: 
Matthew J. Perry; Willie T. Smith, Jr., Green­
ville, South Carolina, Attorneys for Petitioners.

[fol. 71]
Certificate to P etition- for R ehearing

I, Harold R. Boulware, hereby certify that I am a prac­
ticing attorney of this Court and am in no way con­
nected with the within case. I further certify that I am 
familiar with the record of this case and have read the 
opinion of this Court which was filed November 10, 1961, 
and in my opinion there is merit in the Petition for Re­
hearing.

Harold R. Boulware
Columbia, South Carolina 
November 16,1961.



62

[fol. 72]
I n the S upreme Court of S outh  Carolina

O rder D enying  P etition  for R ehearing 
—November 30,1961

The Court neither overlooked nor misapprehended any 
of the facts set forth herein. Therefore the Petition is 
denied.

C. A. Taylor, C.J., G. Dewey Oxner, A.J., Lionel K. 
Legge, A.J., Joseph R. Moss, A.J., J. Woodrow 
Lewis, A.J.

[fol. 73]
In th e  S upreme Court of the S tate of S outh  Carolina 

[Title omitted]
P etition  for S tay  of R em ittitu r

To the Honorable Claude A. Taylor, Chief Justice of the 
Supreme Court of South Carolina :

The petition of James Richard Peterson, Yvonne Joan 
Eddy, Helen Angela Evans, David Ralph Strawder, Harold 
James Fowler, Frank G. Smith, Robert Crockett, James 
Carter, Doris Delores Wright and Rose Marie Collins, 
respectfully shows:

1.

Petitioners have been convicted of the offense of tres­
pass after notice under Section 16-388, Code of Laws of 
South Carolina for 1952. Their sentences and convictions 
have been affirmed by the Supreme Court of South Carolina 
in an Opinion which was filed on November 10, 1961.

2.
Thereafter, petitioners requested rehearing of said cause 

in a Petition therefor dated November 16, 1961. Rehearing 
was denied on November 30, 1961.



63

Petitioners are aggrieved with said decision and intend 
to petition the Supreme Court of the United States for a 
Writ of Certiorari in order that that Court can pass upon 
petitioners’ contention that their arrests and convictions 
[fol. 74] were in furtherance of a custom of racial segrega­
tion in violation of the Fourteenth Amendment to the United 
States Constitution.

3.

4.

Under the Rules of the United States Supreme Court, 
petitioners have ninety (90) days after the rendering of 
the final judgment of this Court within which to file their 
Petition for Writ of Certiorari. Petitioners are therefore 
desirous of obtaining a stay of the sentences imposed upon 
them and a Stay of the Remittitur herein for a period of 
ninety (90) days after the rendering of the final judgment 
of this Court in order that they may have time within which 
to file said Petition for Writ of Certiorari.

5.
Counsel for the City of Greenville have agreed to a 

proposed Order, Staying the Remittitur for the requested 
period.

Wherefore, petitioners pray that execution of their sen­
tences be stayed and that Remittitur in this matter be 
stayed by order to this Honorable Court for a period of 
ninety (90) days after the final judgment of said Court in 
order that they may file in the United States Supreme Court 
a Petition for Writ of Certiorari.

Jenkins and Perry, Columbia, South Carolina, By: 
Matthew J. Perry; Willie T. Smith, Jr., Greenville, 
South Carolina, Attorneys for Petitioners.

December 1,1961



64

[fol. 75]
I n th e  S upreme C ourt of the S tate of S outpi Carolina 

[Title omitted]
Order S taying  R em ittitu r— December 2, 1961

On the 10th day of November, 1961, we issued an Opinion 
in the above case, affirming the judgment of the Greenville 
County Court which sustained the judgment of the Mu­
nicipal Court of the City of Greenville wherein appellants 
were convicted of violating Section 16-388, Code of Laws 
of South Carolina for 1952, namely, Trespass after Notice.

Thereafter, appellants petitioned this Court for a re­
hearing and, on November 30, 1961, we entered an Order, 
denying same.

Appellants have now indicated that they desire and in­
tend to file in the Supreme Court of the United States a 
Petition for Writ of Certiorari, seeking review of our 
judgment in said cause. Under the rules and decisions of 
the United States Supreme Court, they have ninety (90) 
days after the final judgment of this Court within which 
to file their Petition for Writ of Certiorari. The final 
judgment of this Court is the Order, denying rehearing. 
D epa rtm en t o f  B anking, S ta te o f  N ebraska  v. Pink, 63 
S. Ct. 233, 217 U. S. 264, 87 L. Ed. 254. They desire a 
stay of the Remittitur and Sentences in this matter pending 
the filing of their petition for Writ of Certiorari in the 
United States Supreme Court and thereafter until said 
matter has been disposed of by that Court. It appears 
that the request for stay of remittitur and sentences is 
proper. Now, on motion of counsel for the appellants, by 
[fol. 76] and with the consent of counsel for the respondent,

It Is Ordered that the Remittitur and execution of the 
Sentences herein be stayed for a period of ninety (90) days 
after the day of the final judgment of this Court in order 
that they may file with the United States Supreme Court 
their Petition for Writ of Certiorari.

It Is Further Ordered that if a notice from the Clerk 
of the United States Supreme Court that the Petition for 
Writ of Certiorari has been filed in that Court is filed 
with the Clerk of the Supreme Court of South Carolina



65

within the time aforesaid, the stay of remittitur and execu­
tion of sentences herein shall continue in effect until final 
disposition of the case by the Supreme Court of the United 
States.
December 2d, 1961.

C. A. Taylor, Chief Justice.
We Consent : W. H. Arnold, H. F. Partee, Attorneys 

for Respondent.

[fol. 77] Clerk’s Certificate to foregoing transcript (omit­
ted in printing).

[fol. 78]
S upreme Court or the  U nited S tates 

No. 750, October Term, 1961

J ames R ichard P eterson, et al., Petitioners, 
vs.

City  of Greenville.

Order A llow ing  Certiorari—June 25,1962
The petition herein for a writ of certiorari to the Su­

preme Court of the State of South Carolina is granted, and 
the case is transferred to the summary calendar. The case 
is set for argument to follow No. 721.

And it is further ordered that the duly certified copy of 
the transcript of the proceedings below which accompanied 
the petition shall be treated as though filed in response to 
such writ.

Mr. Justice Frankfurter took no part in the considera­
tion or decision of this petition.



*