Lee v. Commonwealth of Virginia Petition for Writ of Error

    Record No. 3558
In the

Supreme Court of Appeals of Virginia 
at Richmond

NORVELL LEE
v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY

BULB 14.
*5. N umber  of Copies to be F iled and D elivered to Oppos­
ing Counsel. Twenty copies of each brief shall be filed with 
the clerk of the court, and at least two copies mailed or de­
livered to opposing counsel on or before the day on which the 
brief is filed.
ffi. S ize  and T y pe . Briefs shall be nine inches in length and 
six inches in width, so as to conform in dimensions to the 
printed record, and shall be printed in type not less in size, 
as to height and width, than the type in which the record is 
printed. The record number of the case and names of coun­
sel shall be printed on the front cover of all briefs.

M. B. WATTS, Clerk.
Court opens at 9:30 a m.; Adjourns at 1:00 p. m.



NOTICE TO COUNSEL
This case probably will be called at the session of 

court to be held
You will be advised later more definitely as to the 

date.
Print names o f counsel on front cover of briefs.

M. B. W ATTS, Clerk.



IN DEX TO  PETITION 

R ecord  N o. 3558

Page
Petition for Writ of E rror:

Statement of the Facts ...............................................  1*
Assignments of E r r o r .................................................  3*
Questions Presented.........................   4*

Argument:
Point I— The Statute, As Applied, Is An Uncon­

stitutional Regulation of Interstate
Commerce .................................................

Point II— The Statute, As Applied, Is An Uncon­
stitutional Delegation of Legislative
P ow er.........................................................

Point III— The Evidence Is Insufficient to Sustain 
the Judgm ent...........................................

Conclusion ..................
Certificate of Attorney

Table of Cases

Bob-Lo Excursion Company v. Michigan, 333 U. S. 28.. 4*
Browning v. Hooper, 269 U. S. 396, 46 Sup. Ct. 141. . . .  7*
Carter v. Carter Coal Company, 298 U. S. 238, 56 Sup.

Ct. 855 ............................................................................  8*
Chiles v. Chesapeake & Ohio Raihvay Company, 218 U. S.

71 ....................................................................................  4*
Day v. Atlantic Greyhound, Corporation, C. C. A. 4th, de­

cided December 7, 1948 .............   4*
Eubank v. Richmond, 226 U. S. 173, 33 Sup.. Ct. 76. . .. 7*
Hall v. Be Guir, 95 U. S. 485, 24 L. Ed. 547...................... 4*
Jannin v. State, 42 Tex. Crim. Rep. 631, 62 S. W. 419,

53 L, R. A. 349 ............................................................... 8*
Knickerbocker Ice Company v. Stewart, 253 U. S. 149,

40 Sup. Ct. 438 ............‘.................... ............................. 7*
Lewis v. Commonwealth, 184 Va. 69, 34 S. E. (2d) 389. . 9*
Matthew v. Southern Railway System, 157 Fed. (2d) 609 6*
Morgan v. Commonwealth, 184 Va. 24 (1945) .................. 4*

10*

11*

4 *

7*

9*



Index to Petition

P q,O’0

Morgan v. Virginia, 328 U. S. 373, 89 S. Ct. 1050.......... 4*
Roive v. Ray, 120 Neb. 118, 231 N. W. 689, 70 A. L. R.

1056 .......................... . ..................................................  . 8*
Smith v. United States, 83 F. (2d) 631, C. C. A. 8tli

(1936)........................ ................................................... .. 10*
Smithberger v. Banning, 129 Neb. 651, 262 N. W. 492,

100 A. L. R. 686 ............................................................. 7*
State of Washington v. Roberge, 278 U. S. 116, 49 S. Ct.

5 0 ...................................................................    7*
Taylor v. Commonwealth, 187 iVa. 214 (1948 )............... 5*
Young v. Commonwealth, 155 Va. 1152,156 S. E. 5 6 5 .... 9*

Statutes

Section 4533a of the Virginia C od e ........................................ 5*
Virginia Code Section 3983 .................................................... 9*



IN THE

Supreme Court o f Appeals o f Virginia
AT RICHMOND.

Record No. 3558

NORVELL LEE, Plaintiff in Error,

versus

COMMONWEALTH OF VIRGINIA, Defendant in Error.

PETITION FOR W RIT OF ERROR.

To the Honorable Judges of the Supreme Court of Appeals of
Virginia:

Your petitioner, Norvell Lee, respectfully represents that 
he is aggrieved by a final judgment of the Circuit Court of 
Alleghany County, Virginia, entered on the 4th day of Janu­
ary, 1949, whereby he was convicted of violating the Segre­
gation Law of the State of Virginia and fined Twenty-five 
($25.00) Dollars and costs. A transcript of the record is here­
with presented.

Your petitioner is advised and believes that numerous errors 
of law were made and committed during his trial in the Court 
below and prays that a writ of error may be issued in his 
behalf to the judgment of the Circuit Court of Alleghany 
County, and a supersedeas thereto awarded, and that the same 
may be reviewed and reversed.



STATEMENT OF THE FACTS.

Petitioner is a young Negro man, a student at Howard 
University in Washington, D. C., and resides at Eagle Rock, 
Virginia, about ten miles from Clifton Forge, Virginia (Tr., 
p. 48). On September 14, 1948, he was in Covington, Virginia. 
He purchased a railroad ticket from the Chesapeake Ohio 
Railway Company in Covington, Virginia, entitling him to 
transportation to Clifton Forge, Virginia. He intended, how­
ever, to later continue to Howard University in Washington, 

D. C. He boarded train No. 310, which is a passenger 
2* *train of the C. & O. Railway Company, operating from 

Hot Springs, Virginia, to Clifton Forge, Virginia. This 
train has only one coach for the traveling public. This coach 
is divided into three parts. The rear one-third of the coach 
is set aside for baggage; the middle third is set aside for 
Negro passengers, and a front third is set aside for the ex­
clusive use of white passengers (Tr., p. 21)._ All passengers, 
however, must board the train at the section set aside for 
white passengers. When the train reaches Clifton Forge it 
does not turn around, but the engine is transferred to the 
'other end of the train and carries it back to Hot Springs. 
Therefore, on the trip from Hot Springs through Covington 
to Clifton Forge, Negro passengers are required to sit in the 
middle section'to the rear of the white passengers, and on the 
trip back from Clifton Forge through Covington to Hot 
Springs, the Negro passengers are required to sit in the middle 
section in front of the white passengers.

On September 13, 1948, the petitioner boarded the same 
train in Clifton Forge to go to Covington and was requested 
to move to the section in front of the white passengers. He 
refused to do so and rode in the section set aside for white 
persons from Clifton Forge to Covington. At that time there 
was a sign in that portion of the coach which stated that it 
was set aside for “ W H ITE ”  persons. That sign was so con­
structed that it could be turned to show that the section was 
for “ COLORED”  persons.

On September 14,1948, the next day, petitioner boarded the 
C. & O. train No. 310 in Covington, and noted that the sign 
was turned so that the words “ W H ITE ”  and “ COLORED”  
could both be seen. Other colored persons were sitting in the 
front section of the coach just under the sign. Petitioner 
also sat in the front portion of the coach. There were some 
white persons also seated in that section.

S. L. Lockhart, the conductor of the train, recognized pe­
titioner when he boarded the train, and ordered his assistant,

2 Supreme Court of Appeals of Virginia



R. H. Brisendine, who was a brakeman on the train, to go in­
side and see where petitioner was seated, and whether he had a 
ticket. Brisendine went in the train, saw that petitioner had 

a ticket entitling him to transportation from Covington 
3* to *Clifton Forge, and requested that he move to the 

“ COLORED”  section of the train. Petitioner refused 
to move. Brisendine then reported the incident to the con­
ductor, Lockhart, who called the Sheriff of the County (Tr., 
pp. 23, 24). The Sheriff came on the train and requested pe­
titioner to move to the colored section. Petitioner refused. 
The Sheriff then told him that he would either have to move 
to the colored section of the train or get off. Petitioner 
got off the train, went back into the ticket office, cancelled his 
ticket of transporttion to Clifton Forge, and purchased a 
ticket entitling him to transportation from Covington, Vir­
ginia, through Clifton Forge, to Washington, D. C. He re­
boarded the train and again occupied the same seat. The 
Sheriff took him off the train and placed him under arrest.

At no time did the conductor request the petitioner to move 
to the other section of the train (Tr., p. 17). Under the 
schedule of the C. & 0. Railway Company at the time, the 
ticket which petitioner had in his possession when he was 
arrested, entitled him to ride C. & 0. trains and connecting 
carriers from Covington, Virginia, to Washington, D. C. Pe­
titioner was requested to move and was arrested, and con­
victed for his failure to do so, solely because of his race and 
color a-nd solely because he was a Negro.

Norvell Lee v. Commonwealth of Virginia. 3

ASSIGNMENTS OF ERROR,

1. The Court erred in convicting the petitioner of violating 
Section 3983 of the Virginia Code for failing to change his 
seat because of his race and color, when the uncontradicted 
evidence is ithat the petitioner, at that time, was a passenger 
traveling in interstate commerce.

2. The statute, as applied, violates the Constitution of the 
United States.

3. The Court erred in convicting the petitioner of violating 
Section 3983 of the Virginia Code when the uncontradicted evi­
dence is that the conductor, ‘ ‘ the person in charge of the 
train” , never requested petitioner to change his seat.

4. The evidence is insufficient to support the verdict.



4* ’ QUESTIONS PRESENTED.

The questions presented by this petition are:

1. Whether the statute, as applied, violates the Constitution 
of the United States.

2. Whether the evidence is sufficient to sustain the judg­
ment of conviction.

ARGUMENT.

POINT I.

The Statute, As Applied, Is An Unconstitutional Regulation 
of Interstate-Commerce.

Since 1877, at the time of the decision of the Supreme Court 
of the United States, in the case of Hall v. DeCuir, 95 U. S. 
485, 24 L. Ed. 547, it has been assumed by most people and 
decided by various courts that common carriers could legally, 
by their own rule or regulation, segregate passengers on ac­
count of their race and color, whether such passengers were 
traveling in interstate commerce or not, provided such segre­
gation did not violate local State laws.

Morgan v. Virginia, 328 U. S. 373, 89 Sup. Ct. 1050.
Day v. Atlantic Greyhound Corporation, C. C. A., 4th, de­

cided December 7, 1948.
Chiles v. Chesapeake & Ohio Railway Company, 218 U. S. 

71.
Boh-Lo Excursion Co. v. Michigan, 333 U. S. 28.

The above reasoning was based upon the fact that Congress 
had never enacted any law prohibiting segregation of the 
races upon common carriers operating in interstate commerce. 
See Morgan v. Commonwealth, 184 Va. 24 (1945).

It was equally assumed by every appellate court before 
which the proposition had come, except two, that state segre­
gation laws did not apply to persons traveling in interstate 
commerce. Morgan v. Commonwealth, supra. Validity was 
given to the correctness of the latter reasoning in that case 
on appeal to the Supreme Court of the United States. Morgan 

v. Virginia, supra.
5* *Since the decision of the Supreme Court of the United 

States in the latter case, most courts have held that while 
common carriers may themselves, by rule or regulation, segre­

4 Supreme Court of Appeals of Virginia



gate passengers on account of race, where the accommodations 
for each race are equal and non-discriminatory, States may 
not require common carriers to segregate such passengers 
and may not constitutionally convict an interstate passenger 
for his refusal to be so segregated.

Taylor v. Commonwealth, 187 Va. 214 (1948).

In the Taylor Case the passenger was traveling from Wash­
ington, D. C., to Madison County, Virginia. She sat on a 
bus of the Virginia Stage Lines, in a portion thereof reserved 
for occupancy by white persons. She was a Negro. She was 
requested to move to another section reserved for Negroes, 
but refused. When the bus arrived in Fairfax County, Vir­
ginia, she was arrested and charged with violating section 
4533a of the Virginia Code, which makes it a crime for any 
person to “ cause any unnecessary disturbance in arty street 
car—or other public conveyance—by failing to move to an­
other section when lawfully requested to so move by the oper­
ator, * # * ” . She was convicted in the Trial Justice Court 
and in the Circuit Court of Fairfax County, Virginia. _ On 
writ of error to the Supreme Court of Appeals of Virginia, 
the unanimous opinion of the Court held that while common 
carriers may adopt reasonable rules and regulations, inde­
pendent of states’ authority, for the conduct and management 
of their business, they are wholly without power to provide 
that a violation thereof shall constitute an offense punishable 
by fine or imprisonment.

In reversing this case and entering final judgment in favor 
of petitioner, Mr. Justice Spratley had this to say:

“ It is very clear from the evidence that Mrs. Taylor, an 
interstate passenger, was requested to move her seat because 
of her race and color, and that her refusal to so move consti­
tuted the real basis of the charge against her. She was sit­
ting peaceably in a seat when she was approached by the 
operator of the bus. She had not disturbed any person or 
persons, or caused any commotion affecting, in any degree, the 

peace or good order of the bus. Neither her words nor 
6* *her acts had a vicious or injurious tendency, offensive to 

good morals or public decency. She merely insisted upon 
what she deemed to be her rights. She was guilty of no defi­
nite misbehavior or misconduct in the sense that she was dis­
orderly or turbulent.”

The facts and reasoning in that case are apposite to the case

Norvell Lee v. Commonwealth of Virginia. 5



6

at bar. In the instant case, petitioner was a passenger on a 
railroad train of the Chesapeake & Ohio Railway Company, 
and was traveling in interstate commerce. He is a Negro and 
was seated in a portion of the train set aside for the exclusive 
use of white persons. He was sitting peaceably in a seat 
when he was approached by a brakesman and a sheriff, and 
requested to move to another seat. He was never requested 
to move by the conductor, or other person in charge of the 
train. He— “ had not disturbed any person or persons, or 
caused any commotion affecting in any degree, the peace or 
good order”  of the train. He “ was guilty of no definite misbe­
havior or conduct in the sense that he was disorderly or tur­
bulent” .

The facts are uncontradicted that petitioner was traveling 
in interstate commerce on a vehicle operated by a common 
carrier operating in interstate commerce. No request was 
made of'him  to determine whether he could legally be re­
quired to move because, of his race. No determination was 
made or attempted as to his interstate status. He was ejected 
and arrested solely because he was a Negro seated in a place 
contrary to the rules of the common carrier. _ He was con­
victed contrary to the holding of this Court in the Taylor 
Case.

The only distinction between this case and the Taylor Case 
is that in this case a railroad train is involved and in the 
Taylor Case a bus was involved. However, it can clearly be 
seen that that is a distinction without a difference. As was 
stated by the United States Court of Appeals for the District 
of Columbia, in confirming the fact that states’ segregation 
laws do not apply to persons traveling in interstate commerce, 
whether on a bus or railroad train: “ We see no valid dis­
tinction between segregation in busses and railroad coaches.

Matthews v. Southern Railway System, 157 Fed. (2d) 609.

7* *The law relative to the constitutional limits of states 
enacting statutes requiring segregation of passengers on 

interstate vehicles is so clear and, we believe, undisputed 
as to require no extended argument.

If enforced as contended by the Commonwealth, this statute 
would be unconstitutional as an unwarranted delegation of 
legislative powers to the common carrier. The statute, as 
applied, permits the common carrier to adopt a course of con­
duct for the traveling public and provides penalties for its 
violation. Such delegation of legislative power is clearly un­

Supreme Court of Appeals of Virginia



Nor veil Lee v. Commonwealth of Virginia. 7

constitutional and is a violation of the due process clause of 
the Fourteenth Amendment to the Federal Constitution.

“ Legislatures may not, under the guise of the police power, 
impose restrictions that are unnecessary and unreasonable 
upon the use of private property or the pursuit of useful 
activities (citing cases).

“ The delegation of power so attempted is repugnant to the 
Due Process Clause of the Fourteenth Amendment. Eubank 
v. Richmond, 226 U. S. 173, 33 S. Ct. 76; Browning v. Hooper, 
269 U. S. 396, 46 S. Ct. 141.”

State of Washington v. Roberge, 278 TJ. S. 116, 49 S.up. 
Ct. 50.

POINT II.

The Statute, As Applied, Is An Unconstitutional Delegation 
of Legislative Power.

Since the earliest cases involving the question it has been 
uniformly held that in view of our separation of Federal and 
State governmental functions, Congress cannot delegate or 
transfer its legislative power to the States. Knickerbocker Ice 
Company v. Stewart, 253 TJ. S. 149, 40: Sup. Ct. 438. It is 
equally well settled that a State Legislature has no power 
to delegate any of its legislative powers to any outside agency 
such as the Congress of the United States. Smithberger v. 
Banning, 129 Neb. 651, 262 N. W. 492, 100 A. L. R. 686.

From a variety of circumstances involving the same basic 
principle the rule has become fixed that the legislature may 

not delegate legislative functions to private persons. See 
8* Rowe v. Ray, 120 Neb. 118, 231 N. W. 689, 70 A. L. R. 1056.

Moreover, the legislature cannot delegate to private per­
sons or private associations of persons the power to makh 
obligatory rules concerning the management and care of prop­
erty, or provide that the breach of such rules shall be a penal 
offense. A statute which sets up a compulsory code of regu­
lation in' an industry upon the adoption by a majority of those 
engaged therein, thrusting the terms thereof upon an un­
willing minority, is an invalid delegation of legislative au­
thority to private individuals. Carter v. Carter Coal Com­
pany, 298 U. S. 238, 56 Sup. Ct. 855. In that case Mr. Justice 
Sutherland, in speaking on the point, said,



“ The power conferred upon the majority is in effect, the 
power to regulate the affairs of an unwilling minority. This 
is legislative delegation in its most obnoxious form; for it is 
not even delegation to an official or an official body, presump­
tively disinterested, but to private persons whose interest 
may be adverse to the interest of others * * *

That case involved a delegation of power to a majority of 
persons in the same business for the regulation of the busi­
ness as a whole. The statute, as applied in the instant case, is 
a delegation of power to an individual corporation for the 
control of all persons traveling on its vehicles, interstate as 
well as intrastate, under pain and penalty of fine and im­
prisonment for violation of its private rules and regulations. 
The violation of one’s individual rights under the Due Pro­
cess Clause of the Fourteenth Amendment to the Federal Con­
stitution by this statute, as applied in the instant case, is clear.

It has been held that statutes requiring obedience to rules 
established by private corporations under a criminal penalty 
are. unconstitutional as constituting an unlawful delegation 
of legislative authority for the reason that it is said to give 
to a private corporation the option to create an offense or 
not. See JMinin v. State, 42 Tex. Crim. Rep. 631, 62 S. W. 
419, 53 L. R. A. 349.

That is the exact situation at bar. In the instant case no 
person would be guilty of a crime by failing to move to 
another seat unless, first, he was requested to do so by the 

conductor and, second, unless said request was *lawful. 
9* The statute, therefore, presupposes that the carrier has a 

rule or regulation permitting or requiring segregation of 
races. Therefore, unless the carrier had a valid rule or regu­
lation, the request would not be lawful, and, a fortiori, the 
passenger would be guilty of no crime. It is, therefore, patent 
that whether or not the refusal of the passenger to move 
constitutes a crime depends entirely upon whether or not the 
carrier has adopted and promulgated a valid rule or regu­
lation requiring such, and not upon the statute.

As was stated in the Taylor case, “ the General Assembly 
alone has power to define crimes against this Commonwealth. 
This power cannot be delegated to the Courts, or individuals, 
or corporations” .

8 Supreme Court of Appeals of Virginia



POINT III.

The Evidence Is Insufficient to Sustain the Judgment.

The statute under which this petitioner was convicted pro­
vided that,

“ All persons who fail, while on any coach or car used for 
the carriage of passengers for hire by any company or cor­
poration— on any railway line—to take and occupy the seat 
or seats or other space assigned to them by the conductor, 
manager, or other person in charge of such car or coach, or 
whose duty it is to take up tickets or collect fares from pas­
sengers therein, or who failed to obey the dire'ctions of any 
such conductor, manager, or other person, as aforesaid, to 
change their seats from time to time, as occasions require, 
pursuant to any lawful rule, regulation or custom in force 
on such lines as to assigning separate seats or compartments, 
or other space, to white and colored passengers, respectively, 
being first advised of the fact of such regulations and re­
quested to conform thereto, shall be deemed guilty of a mis­
demeanor * * * Virginia Code Section 3983. (Italics ours.)

This section is a counter-part of Section 4533a of the Code 
which applies to busses. Naturally the interpretation of the 
statutes should be similar.

As this Court has stated in numerous cases penal statutes 
must be construed strictly in favor of the defendant.

Young v. Commonwealth, 155 Va. 1152, 156 S. E. 565.
Lewis v. Commonwealth, 184 Va. 69, 34 S. E. (2d) 389.

Nor veil Lee v. Commonwealth of Virginia. 9

10* *The uncontradicted evidence in this case is that the 
petitioner was peacefully sitting on the seat in the rail­

way coach with a ticket entitling him to transportation in 
interstate commerce on a train operated by a carrier trans­
porting passengers in interstate commerce at the time of his 
arrest. He was never requested to move by the conductor 
or other person in charge of the train. He was requested to 
move by the Sheriff and the Brakeman. They had no more 
right to request or require petitioner to change his seat than 
any other stranger. To so construe the statute that any 
stranger, whether Sheriff, Brakeman, Porter, or by-stander 
could require a passenger to change his seat upon payment 
of a fine and imprisonment would be to legislate rather than



10 Supreme Court of Appeals of Virginia

to interpret. All of the Commonwealth’s witnesses admitted 
that the conductor never requested petitioner to move.

“ No criminal statute should be so distorted hv the con­
struction put upon it by prosecuting attorneys as to be made 
to apply to acts not within its plain terms. This, as to a 
criminal statute, has been said so often by the courts as to 
render reiteration trite. No citizen will be protected against 
trouble and dishonor, if it shall become the law here, as it is 
now in at least one dictator-ridden country, that in cases not 
punishable under the Code, punishment, if deemed deserved, 
shall be inflicted 4 according to the underlying idea of a Penal 
Code or according to healthy public sentiment.’ ’ ’

Faris, J., concurring in Smith v. United States, 83 F. (2d) 
631, C. C. A. 8th (1936).

CONCLUSION.

For the foregoing reasons your petitioner respectfully rep­
resents that the judgment complained of is erroneous and 
should be set aside.

Wherefore, your petitioner prays that a writ of error may 
be granted to the judgment complained of and a supersedeas 
thereto awarded; and that the same be reviewed and reversed. 
Counsel for your petitioner request that they may be per­
mitted to present this petition orally to one of the judges of 
this Court.

Your petitioner hereby adopts this petition as his opening 
brief and avers that on the 24th day of March, 1949, a 

11* copy hereof was forwarded by *United States Mail, 
postage prepaid, to the Honorable T. Moore Butler, Cov­

ington, Virginia, Commonwealth’s Attorney of Alleghany 
County, Virginia, when this case was tried and who prosecuted 
the same on behalf of the Commonwealth. The original is 
filed with the Clerk of this Court in Richmond, Virginia.

NORVELL LEE,
Petitioner,

By MARTIN A. MARTIN
Of Counsel.

IIILL, MARTIN & ROBINSON, 
623 North Third Street, 
Richmond 19, Virginia,

Attorneys for Petitioner.



Norvell Lee v. Commonwealth of Virginia. 11

State of Virginia,
City of Richmond, to-wit:

I, Martin A. Martin, a practicing attorney in the Supreme 
Court of Appeals of Virginia, do hereby certify that in my 
opinion there is error in the judgment complained of for 
which error the said judgment and action of the said Court 
should be reviewed.

MARTIN A. MARTIN,
623 North Third Street, 
Richmond 19, Virginia.

Received March 24, 1949.

M. B. W ATTS, Clerk.

April 6, 1949. Writ of error and supersedeas awarded. 
Bond $100.

W ILLIS D. MILLER.

Rec’d. April 6. 1949.

M. B. W.

RECORD

VIRG IN IA:

In the Circuit Court of the County of Alleghany;

Commonwealth of Virginia 
v.

Norvell Lee

Covington, Virginia;
January 4, 1949: 10:30 A. M.

Before Honorable Earl L. Abbott, Judge, without a jury.

Appearances: T. Moore Butler, Esq., Commonwealth’s
Attorney for the Commonwealth of Virginia.

Martin A. Martin, Esq., attorney for the Defendant.



12 Supreme Court of Appeals of Virginia

page 2 J* Virginia,

Pleas before the Circuit Court of Alleghany County at 
the Courthouse thereof on Tuesday the 4th day of January, 
1949.

Commonwealth
v.

Norvell Lee

APPEAL #1792.

Be it remembered, that heretofore, to-wit:

At a Circuit Court held for the County of Alleghany at the 
Courthouse thereof on Friday the 15th day of October in the 
year of our Lord, nineteen hundred and forty-nine.

DOCKETING APPEAL.

Commonwealth
v.

Norvell Lee

APPEAL #1792.

On motion of the Attorney for the Commonwealth it is or­
dered that this Appeal be docketed.

The Appeal referred to in the foregoing order is in the 
words and figures following, to-wit:

CRIMINAL WARRANT.

The Commonwealth of Virginia: '

To the Sheriff or Any Constable of Alleghany, County,
Greeting:

Whereas W. P. Henderson, Sheriff has this day made com­
plaint on information, on oath, before me, Trial Justice for 
the County of Alleghany, that Norville Lee heretofore, to- 

wit : on the 14tli day of September, 1948, within the 
page 3 1 said County of Alleghany, did unlawfully fail to 

take seat assigned to him, pursuant to the segre­
gation law of the State of Virginia, on Chesapeake & Ohio 
Train No. 310 against the peace and dignity of the Common­
wealth of Virginia.



Norvell Lee v. Commonwealth of Virginia. 13

THESE ARE THEREFORE, IN THE NAME of the Com­
monwealth, to command you forthwith to apprehend and bring 
before the Trial Justice of the said County of Alleghany, the 
said Norville Lee to answer the said complaint and to be 
further dealt with according to law.

And you are further required to summon J. E. Kirtz,
.......... Lockhart,................  Brisendine to appear at the same
time and place and give evidence on the trial or examination 
of this Warrant.

Given under mv hand and seal this 14th day of September, 
1948.

R. E. DYCHE, 
Trial Justice.

RECOGNIZANCE.
State of Virginia,

County of Alleghany, to-wit:
I, R. E. Dyohe, Trial Justice in and for the County of Alle­

ghany, Virginia, do hereby certify that Norville Lee and John 
Beal & McClaudie Beal as surety have each this day acknowl­
edged themselves indebted to the Commonwealth of Virginia 
in the sum of Two Hundred Fifty Dollars ($250.00) to be 
made and levied on their respective goods, chattels, lands and 
tenements for the use of the Commonwealth waiving the 
Homestead Exemption as to this obligation. THE CONDI­
TION OF THE ABOVE RECOGNIZANCE is such, That if 

the above bound Norville Lee, shall personally ap- 
page 4 J- pear before the Trial Justice Court of the County 

of Alleghany, Virginia, on the 7th day of October, 
1948, at 10 O ’clock A. M., and at any time or times.to which 
the proceedings may be continued or further heard, and be­
fore any court, judge or justice thereafter having or holding 
any proceedings in connection with the said charge, then and 
there to answer the Commonwealth, and shall not depart 
thence without the leave of the said Court, and shall in the 
meantime keep the peace and be of good behavior, then this 
recognizance to be void, when said charge is finally disposed 
of or when this recognizance to be void, when said charge is 
finally disposed of or when this recognizance is declared void 
by order of a competent Court; else to remain in full force 
and virtue.

Given under my hand, this 14 day of September, 1948.

R. E. DYCHE, 
Trial Justice.



14 Supreme Court of Appeals of Virginia 

JUDGMENT OF THE TRIAL JUSTICE.

The above named defendant, Norvitte Lee was this day 
brought before me in Covington, Alleghany County, Virginia, 
and the above warrant was tried by me in the presence of the 
said accused, and any judgment that there is sufficient cause 
for charging the said accused with the offense charged in the 
above warrant and order that he pay a fine of $5.00 and pay 
cost of this warrant.

And thereupon the said accused w a s ..............
Given under my hand and seal this 7 day of October, 1948.

Appeal noted.

R. E. DYCHE, 
Trial Justice.

page 5 j- All of the foregoing is hereby certified to the 
Clerk of the Circuit Court of the County of Alle­

ghany, this 7 day of October, 1948.

R. E. DYCHE, 
Trial Justice.

And now at this day to-wit:

At a Circuit Court continued and held for the County of 
Alleghany, at the courthouse thereof, on Tuesday the 4th day 
of January, 1949.

Commonwealth
v.

Norvell Lee

APPEAL #1792.

This day came the Attorney for the Commonwealth, and 
the defendant appeared pursuant to the condition of his recog­
nizance, and by his Attorney Martin A. Martin, and the de­
fendant being duly arraigned entered a plea of not guilty to 
the charges contained against him in the Warrant. And 
thereupon the defendant, in open Court, being duly advised by 
his counsel, waived a tidal by jury, and with the consent of 
the Attorney for the Commonwealth and the approval of the 
Court, the Court proceeded to hear all matters of law and 
fact, without the intervention of a jury, and having heard the 
evidence and argument of counsel, doth find the defendant



S. L. Lockhart.

guilty as charged in the Warrant and fixes his punishment 
at a fine of $25.00. Therefore it is considered by the Court 
that the Commonwealth recover of and from the defendant 

the fine of $25.00, and the costs of this prosecution, 
page 6 }■ And the defendant desiring to apply to the Supreme 

Court of Appeals for a supersedeas and writ of 
error, execution of the above judgment is suspended for sixty 
days.

page 7 J- By the Court: In the case, is it a plea of not 
guilty and a waiver of a jury trial?

By Mr. Martin: Yes, sir.

(The witnesses were called and separated.)

Mr. Butler: Call Mr. S. L. Lockhart.

S. L. LOCKHART,
a witness of lawful age, sworn for the Commonwealth. 

DIRECT EXAMINATION.

Norvell Lee v. Commonwealth of Virginia. 15

By Mr. Butler:
Q. Your name is S. L. Lockhart, is it not?
A. Yes, sir.
Q. What is your occupation?
A. C. & 0. Conductor.

Q. You have been a conductor on the C. & O. for 
page 8 a number of years, I believe?

A. Something close to fifty years.
Q. Close to fifty years? Mr. Lockhart, on September 14, 

1948, were you serving in your capacity as a conductor on 
the C. & O. railroad?

A. Yes, sir.
Q. What train were you working on?
A. 310.  ̂ '
Q. Is that commonly known as the “ Hot Springs”  train?
A. 303 is a passenger train from Clifton Forge to Hot 

Springs, and 310 is a return train back to Clifton Forge.
Q. In other words, this train that you were on, on Septem­

ber 14th, was going from Hot Springs to Clifton Forge, Vir­
ginia ; is that correct ?

A. Yes, sir.
Q. Is that as far as it went?
A. Yes, sir.



S. L. Lockhart.

Q. Did the train stop in Clifton Forge, Virginia?
A. Yes, sir.
Q. Now, when the train stopped in Covington, Virginia, 

I ask you whether or hot the defendant, Norvell Lee, got on 
the train while it was at the station?

A. Yes, sir.
Q. About what time of day was that?
A. Well, some few minutes after ten o ’clock. I don’t know 

exactly.
Q. Where were you when he got on the train? 

page 9 }- A. I was registering.
Q. What?

A. Registering. You see, wTe have to register there. We 
have to register ourselves in so any other train that goes 
up the Hot Springs Branch don’t have to get orders against 
310.

Q. You were registering at the C. & 0. Depot in Coving­
ton?

A. Yes, sir, we register on the platform. We get permis­
sion to leave there and get on the front end of the passenger 
car and take up the tickets.

Q. Now, while you were at the C. & 0. Station during this 
trip, who was your deputy?

A. That was R. Ii. Brisendine. He was there and helped 
the passengers off. We have passengers to get off there and 
passengers to get on.

Q. What was his capacity?
A. He was brakeman.
Q. And he was at the train that morning?
A. Yes. Several passengers got on and several got off.
Q. Is R. H. Brisendine subject to your supervision on the 

train ?
A. Yes, sir.
Q. He is an assistant of yours in the management of the 

train, as brakeman?
A. He is an assistant of mine and has got just as much 

authority as I have.
page 10 }- Q. Now what did you instruct Mr. Brisendine to 

do in regard to Norvell Lee?

Mr. Martin: I f Your Honor please, I object to that; un­
less it was in the presence of Norvell Lee, it is hearsay.

By the Court: Let’s see where Norvell Lee was.
By Mr. Butler: He had gotten on the train. I want to

16 Supreme Court of Appeals of Virginia



S. L. Lockhart.

show, Your Honor please, the particular set-up at that time. 
Mr. Lockhart was the conductor and Mr. Brisendine was the 
brakeman and under his supervision and he had the right to 
delegate certain duties to him,, and did delegate a certain 
duty in regard to Norvell Lee.

By Mr. Martin: I don’t see—if a conductor takes one of 
his employees or subordinates and gives him instructions, I 
don’t see where it would be binding upon the defendant. It 
is hearsay.

By Mr. Butler: A conductor has a right to give that au­
thority and the burden is on me to show it, and it is material 
in this case, very material.

By Mr. Butler:
Q. Where was Norvell Lee at that time?
A. He had gotten on the train.
Q. I will ask you again.

A. After I registered, I got Brisendine to see 
page 11 what he was doing and I went in the ticket office.

Q. You don’t have to go into that. After Nor­
vell Lee, the defendant, had gotten on the train, what did you 
tell your subordinate Brisendine to do?

By Mr. Martin: I object.
By the Court: I think you will have to show what part of 

the train he got on first.

Q. First, let’s describe the train. What did this Hot 
Springs train Number 310 consist of, how many cars, etc.?

A. It consisted of several local cars.
Q. Start at the engine and come on back and tell ns what 

the train consisted of?
A. When I got ready to leave there?
Q. I want you to tell the court how the train was made 

up, the engine, caboose and cars, etc.
A. There was no caboose on it. He was on there and there 

was nothing but a coach.
Q. Tell the court how the train was made up?
A. It was made up behind the engine.
Q. What were the cars?
A. One car.
Q. One car, and how was that car divided.
A. Three-time combination car.
Q. What were the three sections?

Norvell Lee v. Commonwealth of Virginia. 17



18 Supreme Court of Appeals of Virginia

S. L. Lockhart.

A. We have in there first, the white section; 
page 12 }- the second section was the colored section; and the 

third section was the baggage car, baggage sec­
tion,

Q. That put the white section next to the engine, headed 
towards Covington!

A. Yes, sir.
Q. The next section was the colored section and the next 

was the baggage section?
A. Yes, sir.
Q. And that was the only car you had for people to get 

on?
A. Yes, sir.
Q. When Norvell Lee got on, did he get on in the white 

section?
A. Yes, sir.
Q. What did you tell Mr. Brisendine to do?

By Mr. Martin: I object.
By the Court: Overruled.
By Mr. Martin: Exception.

A. I told him to go in there and see where he was sitting 
and see if he had a ticket, and if he was in the white part, to 
move him back in the colored part.

Q. Did you get on the train before Lee got off or not?
A. Yes, sir, I got on before Lee got off.
Q. Where was he seated?
A. I had the ticket agent call the Sheriff and I waited 

about eight minutes for him to come up there and 
page 13 }- told him what I wanted. All three—me and the 

Sheriff and Deputy—got on the train and went in 
and he was sitting in the second seat in the white car.

Q. In other words, after he wouldn’t get off, you got on 
the train in the white section?

A. He stayed in there. He didn’t get off.
Q. When you arrived at the station, you were at the sta­

tion registering when you called the Sheriff?
A. Yes, sir, I was at the station in front of the depot.
Q. When the Sheriff got there, what did you do?
A. I told him I had a man in there that refused to go back 

in the colored part.
Q. What did you and the Sheriff do?
A. We got on the train, the front end- of it.
Q, Where was Norvell Lee? ,



S. L. Lockhart.

A. He was sitting in the second seat.
Q. White section, or colored section?
A. White section, on the side next to the depot.
Q. Was he then asked to move back in the colored section ?
A. The Sheriff asked him to move back in the colored 

section.
Q. Did he make any disturbance, or state he wouldn’t do 

it?
A. He refused to do it.
Q. I believe, later, he got off of the train?

A. Yes, sir, the Sheriff asked him if he would 
page 14 go back and he got off, and when he got off, I 

walked to the east end of the coach with him and 
started away, and when I started,, they all three come run­
ning to get on again and 1 had to pull the engine six times 
to get. him to stop. I knew he was going to get on.

Q. After he got off and the train started, he hopped on 
again ?

A. Yes, sir.
Q. And then the Sheriff took him off again?
A. Yes, sir.

Norvell Lee v. Commonwealth of Virginia. 19

CROSS EXAMINATION.

By Mr. Martin:
Q. Mr. Lockhart, when you asked Mr. Brisendine to get 

on the train and see where Norvell Lee was, you were on the 
platform then, were you hot? I mean you were outside of 
the train ?

A. Yes, sir, I was going in the door, in the waiting room, 
in the depot, to make a remittance.

Q. Just what did you tell Mr. Brisendine to do? You un­
derstand?

A. I told Mr. Brisendine to go in there and see. where he 
was sitting and to see if he had a ticket, and if he had a ticket, 
to ask him to move back in the colored part.

Q. Did you see where he was sitting at that time?
A. No.
Q. You didn’t know at that time whether he was in the 

white section or colored section, did you? 
page 15 }• A. Of' course, I didn’t know when I stepped out.

I seen him getting on the train. That is the rea­
son I sent Brisendine in there, to see where he was at.

Q. You say he got on the front end of the train nearest the 
white section?



20 Supreme Opart of Appeals pf Virginia

8. L. Lackhart.

A. H§ got on the front end of the three-time combination 
car. He had to get on the front end tq get on the. train.

Q. The rear end, was that ppgn?
A. The west end is the baggage end.
Q. You never did yourself, personally, ask Norvell Lee to 

move on that occasion?
A. No.
Q. When the Sheriff came on, you stated the Sheriff first 

asked him if he would move and he .said “ No”  and then the 
Sheriff asked him if he would g:pt off and he said “ Yes”  and 
did get get off?

A. Yes, sir.
Q. The next thing you saw, the Sheriff didn’t arrest him 

at that time, did he ?
A. No, I don’t think so.
Q. After the train had gotten started, all three of. them 

came running back and the Sheriff asked him and then he got 
off?

A. He said: “ Is that all you want?”  and I said “ That is 
all I want, but he will try the same thing in the next train.”  

Q. After the train got started, all three of them 
page 16 came running back?

A: Yes, sir, he come right where I was. That 
was on the east end of the car, next to the engine.

Q. Did he get on the train at that time and sit down?
A. He got on the train and sat down in the same seat.
Q. That is when the Sheriff arrested him?
A. Yes, sir.
Q. Do you have any sigms in that coach showing what por­

tion is designated for white people and what portion is desig­
nated for colored people?

A. Yes, sir.
Q. Did you notice that sign in the coach, how it was lo­

cated ?
Q. It wouldn’t make no difference. That sign showed that 

day and I showed him the sign the day before.

By Mr. Martin: Your Honor, I move to strike that portion 
of the answer that says he showed it to him on the day be­
fore.

By the Court: All right.

Q. On that occasion you noticed that sign, on September 
14 th ?

A. Yes, sir, I noticed that sign always.



S. L. Lockhart.

Q. How was that sign situated that day!
A. It was situated with the “ White”  when I got on the 

train.
page 17 j* Q. When you got on the train, how was it?

Wasn’t the sign tilted up about half-way, show­
ing white people on one side and colored people on the other?

A. I don’t know that I looked at it when the Sheriff came 
in there.

Q. Hid you at that time know where Norvell Lee was go­
ing, where his ticket entitled him to ride?

A. The ticket agent told me he had sold him a ticket from 
Covington to Clifton Forge.

Q. Did the ticket agent also tell you he had sold him a 
ticket from Covington to Washington, D. C.?

A. No, sir.
Q. Did you hear that ticket agent testify here at the last 

hearing?
A. I don’t remember whether I heard him testify or not.
Q. Did you ask Norvell Lee where he was going, or what 

type of ticket he had before you had him arrested?
A. No, sir, I never said nothing to him. He told Brisen- 

dine he wouldn’t go back and that is all I wanted. He was 
sitting up in the white people’s car and he knew that be­
longed to the white people.

Q. Do the C. & 0. railroad people, for whom you work, 
have connections going from Covington and Clifton Forge to 
Washington? Can people buy a ticket from here to Washing­
ton and ride the C. & O. all the way to Washington?

A. My train only goes to Clifton Forge. The next train 
leaves for Washington at 10:50.

Q. A person can buy a ticket here and ride the C. & 0. 
train from her to Washington? 

page 18 A. If you buy a ticket from the C. & 0., it is 
good for thirty days and a year. You don’t have 

to ride it the same day you get it.

BE-DIBECT EXAMINATION.

By Mr. Butler:
Q. The next train out of Covington was Number Six?
A. The next train out of Covington was Number Six.
Q. What time—what time does that leave Clifton Forge?
A. 10:50, I believe it is.
Q. 10:50 at night?
A. Yes, sir.

Norvell Lee v. Commonwealth of Virginia. 21



22 Supreme Court of Appeals of Virginia 

8. L. Lockhart.

Q. And this was ten o ’clock in the morning?
A. Yes.
Q. So, in going to Washington, he had a twelve-hour lay­

over in Clifton Forge, if he had gotten on the train?
A. Yes, sir.
Q. Mr. Lockhart, the way this car is sub-divided or di­

vided, are there equal facilities for white and colored people 
in their respective sections!

A. Both ends of it are situated the same way.
Q. Made-the same way, the same accommodations?
A. Yes, sir, no difference, according to the condition of the 

seats.
Q. In other words, there are equal facilities for white and 

colored?
A. Yes, sir.

page 19 } Q. And equal treatment, if they sit in the right 
section?

A. Yes, sir.
Q. All right, that is all. One more question. This par­

ticular train that we are talking about on September 14tli, 
did you ride that same car the day before, on September 13th, 
from Hot Springs?

A. Yes, sir.
Q. Was Norvell Lee on the train on September 13th?

By Mr. Martin: I object to that. Certainly not part of the 
res gestae and has nothing to do with this case, whether Nor­
vell Lee had ridden that train for a year.

By Mr. Butler: Your Honor please, I want to show Nor­
vell Lee had been on the same train on the day before, and 
he was shown the signs and knew the place he should take.

By the Court: Objection overruled.
By Mr. Martin: Exception.

Q. On September 13th did this same defendant get on this 
same car in Covington, Virginia?

A. Yes, sir.
Q. And where did, he ride to?

A. He rode to Clifton Forge.
page 20 [> Q. Now, on the 13th did you explain to this de­

fendant about this same car and the same sign, in 
regard to the seating of white and colored?

A. Yes, sir.
Q. And on that day he rode to Clifton Forge?
A. Yes, sir.



R. II. Brisendine.

EE-CROSS EXAMINATION.

By Mr. Martin::
Q. Mr. Lockhart, did I understand that on this particular 

train the white people sit in the front and the colored people 
sit in the rear of the white people?

A. Yes, sir, there is a partition between them and a toilet.
Q. You have ridden on trains— C. & 0. trains and trains 

operated by other railroads, haven’t you?
A. How many? I have been all over the United States and 

part of Canada.
Q. In most of those train, do they have separate sections 

for colored people to ride in front and white people in the 
rear?

A. They have different combination cars for the main line 
at different places. This is a special car made for Hot 
Springs.

Q. Ho most of the trains have a separate car for colored 
people in front and white people in the rear? 

page 21 [- A. They switch them according to the way they 
want it. I don’t switch this ear. The colored peo­

ple are ahead of the white people, going west, and when you 
come back east, the white people are in the front end of it, 
coming east.

Q. Going one way, the colored people are in the front and 
the white people back in the other end?

A. The white people are in the white car and the baggage 
end is in the rear.

Q. In coming from Clifton Forge to Covington, the colored 
people are seated in front of the' white people?

A. Yes,, sir, the colored people are seated in front of the 
white people. The colored people, regardless of how they 
are going, are seated in the middle of the car.

Q. And the same applies, no matter which way you are 
going?

A. Yes, sir.
(Witness stands aside.)

page 22 \ E. H. BRISENDINE,
a witness of lawful age, being first duly sworn, 

testified as follows:
By Mr. Butler:

Q. Is your name E. H. Brisendine?
A. Yes, sir.

Norvell Lee v. Commonwealth of Virginia. 23



24 Supreme Court of Appeals of Virginia

R. II. Brisendine,

Q. You spell that “ d ” ?
A. Yes, sir.
Q. What is your occupation, Mr. Brisendine?
A. I am brakeman and Assistant Conductor.
Q. On September 13th and September 14th, were you work­

ing for the C. & 0. Railroad Company?
A. Yes, sir.
Q. In what capacity were you working on September 14th?
A. I was brakeman.
Q. Were you in train Number 310 that came from Hot 

Springs to Covington, and then went on to Clifton Forge on 
that day?

A. Yes, sir.
Q. When the train stopped in the town of Covington, Vir­

ginia at the C. & 0. Station, did you, or did you not, see the 
defendant, Norvell Lee?

A. I did.
Q. Where were you when you saw the defendant?

A. I had just finished loading the passengers 
page 23 } that was going to Clifton Forge and was over on 

the platform.
Q. You were over on the platform? State to the court 

whether or not Norvell Lee boarded train Number 310 on that 
day?

A. Yes, sir.
Q. Did he get on the east end?
A. Yes, sir, that was the only place to get on, east end 

or the white side,, and and set down.
Q. After he had gotten on there, I wish you would state 

to the court whether or not you were asked by the conductor 
to get on the train and determine whether Lee had a ticket 
and also to advise him where he should sit on this particular 
train?

A. I was, and I told him.

By Mr. Martin: Same objection.
By the Court: Overruled. .
By Mr. Martin: Exception.

A. He told me to find out where he was sitting, and to see 
if he had a ticket, and I did, and he did.

Q. What did you do after you received that instruction 
from the Conductor?

A. I went in that end of the coach and asked him if he had 
a ticket.



R. II. Brisendine.

Q. Went in there? Who did you ask?
A. I asked Norvell Lee.

page 24 }- Q. You asked Norvell Lee if he had a ticket?
A. Yes, sir.

Q. What did he say?
A. He did.
Q. Where did he have the ticket to?
A. From Covington to Clifton Forge.
Q. After you saw he had a ticket from Covington to Clif­

ton Forge, what did you say to him?
A. I asked him to go back in the colored side.
Q. What was his answer?
A. He said he wouldn’t go.
Q. Then what did you do?
A. I said “ You are in the white side and you know you 

are supposed to go back in the colored end. I didn’t come in 
here for an argument”  and he said he wasn’t.

Q. After he refused to move from the white section to the 
colored section, what did you do ?

A. I went and told Mr. Lockhart.
Q. And the Sheriff was called?
A. Yes, sir.
Q. Hid you get back on the train?
A. I went in behind him.
Q. Did you hear the conversation?
A. I heard part of it.
Q. What part did you hear?
A. I heard the Sheriff ask him if he would get off and he 

said he would.
Q. When the train pulled into Covington that morning, 

will you state whether or not the sign in the see­
page 25 }- tion that Norvell Lee was sitting in showed 

“ White”  or “ Colored?”
A. It showed “ White.”
Q. At the time that you got on and looked at Norvell Lee’s 

ticket to Clifton Forge, did it show “ White”  there?
A. Yes, sir, leaning just about like that (indicating).
Q. At the point where Norvell Lee boarded Train Number 

310, and where he was seated on 310 on this particular occa­
sion, was that in Alleghany County?

A. Yes, sir.
Q. On September 13, 1948, were you also serving as brake- 

man that morning on that identical coach?
A. Same day; yes, sir.

Norvell Lee v. Commonwealth of Virginia. 25



26 Supreme Court of Appeals of Virginia

R. H. Brisendine.

Q. Did you see Norvell Lee on the same coach on Septem­
ber 13th I

By Mr. Martin: Objection.
By the Court: Overruled.
By Mr. Martin: Exception.

Q. Will you state to the court whether or not, on Septem­
ber 13th, Norvell Lee was advised by S. L. Lockhart, the con­
ductor, and by you, and by A. N. Garrett, J r., Assistant Train 
Master, as to where he was to sit in that particular coach?

A. We sure did.
Q. Where was he told he could sit?
A. In the colored side, right behind the white side.

Take the witness.

page 26 }- By Mr. Martin:
Q. Mr. Brisendine, I understand, going one way, 

the colored people sit in front of the white people, and coming 
the other way, .they sit in the rear of the white people ?

A. But they are not in the rear all the time, rear of the 
combination.

Q. Did anybody tell Norman Lee that, coming from Cov­
ington to Clifton Forge, they sit in front, the colored people, 
and coming from Clifton Forge to Covington, they sit in the 
rear?

A. No, sir, there was a sign.
Q. Didn’t you just testify that when he got on the train 

here in Covington, that sign was leaning so you could see 
both “ White”  and “ Colored?”

A. You could just see the “ White.”
Q. Couldn’t you see both “ White”  and “ Colored?”
A. You could see more of the “ White,”  than you could of 

the “ Colored.”
Q. After you had asked him to move, I understood the 

only reason you were in there was because Mr. Lockhart 
asked you to go in there and see where he was sitting and 
see where his ticket called for and look at that, and after you 
asked him to move, then you went back there and he refused 
to do so, and you went back and told Mr. Lockhart and he 
told the Sheriff?

A. Yes, sir.



27

John Kurts.

Mr. Martin: That is all.

RE-DIRECT EXAMINATION.
page 27 } By Mr. Butler:

Q. Let’s get this train location straight. Mr. 
Brisendine, isn’t it a fact that the white section is in one 
end of the train!

A. Yes, sir.
Q. The colored section is in the middle!
A. That is right.
Q. The baggage is in the rear!
A. That is right.
Q. So, if the baggage end of the car happened to be in 

front, the colored section would be in front of the white sec­
tion, the front end of the car?

A. That is right.
Q. As to that, in either event, the only section for the 

colored people is in the middle of the car?
A. We don’t turn the car at Hot Springs.

_ Q. But there is a colored section between the white sec­
tion and the baggage section?

A. Yes, sir,
Q. The only place for the colored people to get on is in 

the front end of the ear, in the white section?
A. Yes, sir.
Q. And to get to the colored section, they walk through the 

white section?
A. That is right.
(Witness stands aside.)

page 28 JOHN KURTZ,
another -witness of lawful age, being first duly 

sworn, testified as follows:

DIRECT EXAMINATION.

By Mr. Butler:
Q. Is your name John Kurtz?
A. Yes, sir.
Q. What is your occupation, Mr. Kurtz?
A. I am Clerk of the C. & 0. Railway.
Q. In that capacity, do you sell tickets in the town of Cov­

ington, Virginia for the people who travel on the C. & 0. 
railroad?

Norvell Lee v. Commonwealth of Virginia.



28

John Kurtz.

Supreme Court of Appeals of Virginia

A. Yes, sir.
Q. Were you working as ticket agent in the town of Cov­

ington, Virginia on September 14, 1948?
A. I was.
Q. Were you in the station prior to the arrival of train 

310 and after the departure of 310?
A. Yes, sir, I was.
Q. Prior to the arrival of Train Number4310, did you sell 

a ticket to Norvell Lee, the defendant?
A. Yes, sir, I did.
Q. To what destination did he buy the ticket?
A. To Clifton Forge.
Q. From Covington, Virginia to Clifton Forge?

A. That is right.
page 29 }- Q. Now, when train 310 came into the C. & 0.

station in Alleghany County, here in Covington; 
Virginia, did you see Norvell Lee get on the train or not?

A. Yes, sir, I did.
Q. At that time, when he boarded the train at Covington,, 

the ticket he had bought from you was one from Covington, 
Virginia to Clifton Forge, Virginia?

A. That is right.
Q. Now, later, several minutes later, when Captain Lock­

hart was there registering .at the station and when the Sheriff 
arrived, were you still there?

A. Yes, I was.
Q. Did you see Captain Lockhart and the Sheriff and liis 

deputy get on the train?
A. Yes, I did.
Q. Of course, you did not know what conversation took 

place between them and the defendant, do you?
A. No, I was in the office.
Q. But after they had gotten on the train, did you later see 

the defendant?
A. Yes, I did.
Q. Where did he come from?
A. I seen him come off of the train with the Sheriff and his 

deputy.
Q. Came off of the train with the Sheriff and his deputy?
A. Came off in front of them.

Q. After he came off of the train, what did he 
page 30 [- then do?

A. Well, he came into the office and asked me 
for a refund on his ticket.



John Kurts.

Q. Did you. give him a refund?
A. I gladly give it to him. I give him a refund and he 

said he was in a very highly nervous state and he said: “ Will 
you sell me a ticket to D. C,?”  and I said: “ Yes, I will sell 
you a ticket to D. C.”  and I sold him a ticket to Washington. 
All I had to do was to give him a car ticket, and after I sold 
him the ticket,, the Hot Springs train was leaving,

Q. In which direction was the train pulling off when he 
went out of the station?

A. Going east.
Q. Going east towards Clifton Forge?
A. Yes, and he grabbed the ticket and jumped on the train. 

I seen him jump on the train. That is all I saw of him.

CROSS EXAMINATION.

Norveil Lee v. Commonwealth, of Virginia. 29

By Mr. Martin:
Q. Mr. Kurtz, you say you sold him a ticket to Washing­

ton? You say, when he came back to you and turned in this 
ticket to Clifton Forge, he was in a higlily nervous state?

A. He was in a very highly nervous state. In other words, 
he tried to get money out of his pocket and couldn’t hardly 
do it.

Q. You gave him a refund on the ticket to Clifton Forge 
and sold him a ticket to Washington, D. C.? 

page 31 j- A. I sold him a ticket to Washington.
Q. I will show you what purports to be a one- 

coach passage, from Covington, Virginia, to Washington, 
D. C., issued by the Chesapeake and Ohio Railway Company 
on September 14th.

A. That is the ticket I sold him.
Q. And he had this ticket in his possession at the time he 

got on the train the second time, when the Sheriff pulled him 
off?

A. He had that when he ran and jumped on the train.
Q. And this ticket here entitled him to passenger car from 

Covington, Virginia to Washington, D. CJ
A. Yes, sir, and he jumped on the train.
Q. I will show you a statement issued in the Chesapeake 

and Ohio Railway Station.
A. That is the' receipt I gave him. He is entitled to that, 

Anybody is entitled to one.
Q. Did you write this memorandum:



A. N. Garrett.

“ On Sept. 14, 1948—Novel Lee purchased one-way ticket 
Covington Va. to Washington I). C. App. 10 25 A M.”  

Signed “ J. 0. Hobson”  with initial “ K ,”
Stamped “ C. & 0. EY. C.— COVINGTON, VA. Sep 14 

19481”

■ A. Yes, sir.

By Mr. Martin: Your Honor please, I would
page 32 j- like to offer this ticket as “ Defendant’s Exhibit 

A ”  and the statement as “ Exhibit B .”

Q. He rode that ticket on Number 4 and the 'conductor 
didn’t punch this ticket and that ticket isn’t punched.

Isn’t this the same ticket he had when he got on the train 
and the Sheriff was at his heels ?

A. Yes, sir.

30 Supreme Court o f A ppeals o f V irginia

RE-DIRECT EXAMINATION.

By Mr. Butler :
Q. Mr. Kurtz, when he bought the ticket to Clifton Forge, 

he didn’t ask you for a receipt for that one, did he?
A. No, sir, he did not.

(Witness stands aside.)

page 33 j- A. N. GARRETT,
another witness of lawful age, being first duly 

sworn, testified as follows:

By Mr. Butler:
Q. Your name is A. N. Garrett, is it not!
A. Yes, sir.
Q. Where do you live, Mr. Garrett I 
A. Clifton Forge.
Q. What is your occupation?
A. Assistant Train-Master.
Q. Is that Assistant Train-Master of the C. & 0. Railroad? 
A. Yes, sir, of the C. & 0. Railroad.
Q. C. So 0. Railroad? Mr. Garrett, I wish you would state 

to the court, if you will, the duties of a brakeman of the 
Chesapeake and Ohio Railway Company?

A. Well, his duties— that is, in handling passengers!
Q. Yes, sir.



A. N. Garrett.

A. His duties are to stand at the steps of a passenger 
train and assist passengers on and off of the train and ask 
for tickets, and if the passengers do not have tickets, to 
direct them to the ticket office, and, at times, to assist the 
Conductor. If the Conductor requests, he will assist him.

Q. In other words, the brakemen are under the Conductor 
and assist him in the performance of his duties, as Conduc­

tor ; is that right f 
page 34 A. Yes, sir.

Q. On September 13th, 1948, were you on train 
Number 310 that traveled from Hot Springs to Clifton Forge?

A. Yes.
Q. I wish you would state to the court whether or not, on 

that occasion, you saw the defendant, Norvell Lee, sitting in 
the coach?

A. I did.
Q. What section of the coach was he sitting in?

By the Court: I understand vou are asking him about the 
13th?

By Mr. Butler, Yes, sir.
By the Court: I don’t think you can show what took place 

on the 13th, except for one reason, to show that he knew 
where the White and Colored Sections were.

By Mr. Butler: That is the reason I am introducing it.
By Mr. Martin: I make a motion to strike.
By the Court: Overruled.
By Mr. Martin: Exception.

page 35,}- By Mr. Butler:
Q. On what portion of the train was Norvell Lee 

sitting on September 13, 1948?
A. In the rear side of the white section.
Q. Now will you state whether or not there was a card up 

there designating that as the white section?
A. There was.
Q. On September 13, 1948, did you hear S. L. Lockhart 

and brakeman R. H. Brisendine advise the defendant that 
he should remove from the white section back to the colored 
section?

A. I did.
Q. As Assistant Train Master of the C. & 0. Railway Com­

pany, on September 13, 1948, did you go to Norvell Lee and 
explain to him that the portion of the coach in which he was 
sitting—

Norvell Lee v. Commonwealth of Virginia. 31



3 2  Supreme Court o f A ppeals o f V irginia

A. N. Garrett.

By Mr. Martin: Just a minute. I object to the leading- 
question.

A. I did.
Q. On September 13, 1948, what did you say to Norvell 

Lee!
A. The Conductor came to me and said—-

By the Court: Don’t tell what he said.

Q. Just what you said to Lee? 
page 36 [> A. I told Lee that the section that he was sit­

ting in was designated for the whites and he would 
have to move back' to the rear section, in the other section 
for coloreds, and pointed out the sign to him, that was 
“ White,”  right above his head, and he refused to move and 
remained in the seat.

Q. And on September 13th, he refused to move, after you 
had requested him, and the brakeman had requested him, and 
S. L. Lockhart had requested him, and went on into Clifton 
Forge?

A. Yes, sir.

By Mr. Butler: Your Honor please, I would like to show 
now, if it is proper, in order that we won’t confuse the issue 
here, that the defendant has been tried for violation of that 
particular law on that particular day.

By the Court: No, I wouldn’t think so.

CROSS EXAMINATION.

By Mr. Martin:
Q. Mr. Garrett, on September 13th, when you said that you 

asked Norvell Lee to move, you saw that sign. What did 
that sign show?

A. “ White.”
page 37 Q. Did you see that sign on September 14th, while 

Lee was on the train ?
A. I wasn’t on the train.
Q. You never saw what happened on the train on Septem­

ber 14th?
A. I did not.
Q. You stated that some of the duties  ̂of the brakeman is 

to assist passengers on and off of the train and help the Con-



Norvell Lee v. Commonwealth of Virginia. 

A. N. Garrett.

33

ductor. What other duties does a hrakeman have on the 
C. & 0. trains?

A. He has a number of duties, directing of the train, flag­
ging, switching cars, cutting air hose, seeing that passengers 
are comfortable, to see that the cars are properly heated. 
He has a lot of other things to do.
' Q. You wouldn’t say that of a brakeman on a train that 
his Conductor has charge of that train, would you?

A. The Conductor has charge of the train.

RE-DIRECT EXAMINATION.

By Mr. Butler:
’O. Train Number 104, do you know whether or not it car­

ries passengers East of Charlottesville?
A. No, sir.
Q. It does not?
A. No, sir, it terminates at Charlottesville, as a passenger 

train, but it continues on to Washington as an express.
Q. If anybody would have a ticket from Coving- 

page 38  ̂ ton, Virginia to Washington, D. C., and get on 
train 310, the Hot Springs train, he could only go 

from Coving;ton to the Clifton Forge station; is that right?
A. That is right.
Q. On the other hand, if he had the same ticket and would 

get on the train proceeding east to Charlottesville, he can 
only go as far as Charlottesville?

A. He could make connection with that train, provided it 
was on time.

RE-CROSS EXAMINATION.

By Mr. Martin: .
Q. A person can get on train 310, this Hot Springs tram 

310, with this tvpe of ticket, marked “ Covington, Virginia to 
Washington, I). C.”  and,, by making connection with your 
railroad, ride the C. & O. train all the way from Covington to 
Washington, D. C., can’t he?

A. He can, but the next connection he had on that date was 
train Number 6, leaving Covington at 10' :50, which is an 11 
hour, 30 minute lay-over at Clifton Forge.

Q. What is wrong with that?
A. He can get the same train at Covington.
Q. People do buy tickets with lay-overs?
A. Yes, sir.



34 Suprem e Court of A ppeals of V irginia

A. N. Garrett.

Q. There is nothing unusual, is there, about rid- 
page 39 }- ing down from Covington to Clifton Forge and 

laying over and riding the train to Charlottesville 
and making another change and going to Washington?

A. That is right.

Questions by the Court:
What time does the train leave Covington?
A. At that time, 11:40 A. M.
Q. And goes to Charlottesville?
A. Yes, sir.
Q. For passenger service?
A. That is right.
Q. From Charlottesville 'to Washington, it only carries 

freight and does not carry a coach?
A. It has a combination. That is for the crew to ride in.

By Mr. Martin:
Q. You say C. & 0. Trains don’t run from Charlottesville 

to Washington, D. C.
A. I said this particular train 104 runs from Charlottes­

ville to Washington, but does not carry any passengers.
Q. Biding the C. & 0. Bailroad, by changing tickets, you 

can ride the C. & 0. train all the way from Covington to 
Washington?

A. That is right.

BE-BE-DIRECT EXAMINATION.

page 40.\ By Mr. Butler:
Q. If a man was going to ride from Covington 

to Washington and bought a ticket at ten o ’clock in the morn­
ing, to go to Washington he would have to ride the ticket to 
Clifton Forge and lay over eleven and a half hours?

A. And catch 104.
Q. You could catch 104 at Clifton Forge?
A. That is right.
Q. What time does that leave Clifton Forge?
A. I think it left there at 12:05 at that time.
Q. And goes to Charlottesville and lays over there?
A. Yes, sir. You could make connection, provided the 

train was on time in Charlottesville.



N o r v e ll  L ee  v. C om m on w ea lth  o f  V ir g in ia . 35

IF. P. Henderson.

EE-RE-CROSS EXAMINATION.

By Air. Martin:
Q. Did I understand you to say that you can catch this 

Hot Springs train here in the morning and could change 
trains in Clifton Forge within a couple of hours and go to 
Charlottesville and.,, if that train was on time, make imme­
diate connection and go to D. C.?

A. Ves, sir.
Q. Your ticket makes that provision?
A. Yes, sir.

Q. Was there any necessity for making a lay- 
page 41 \ over of eleven and a half hours?

A. He could make immediate connection and go 
into Washington.

(Witness stands aside.)

page 42 f- W. P. HENDERSON,
another witness of lawful age, being first duly 

sworn, testified as follows:

By Mr. Butler:
Q. Mr. Henderson, your name is W. P. Henderson, is it 

not?
A. Yes, sir.
Q. You are Sheriff of Alleghany County?
A. Yes, sir.

. Q. In your capacity as Sheriff of Alleghany County, were 
you called to the C. & 0. Station, in the towm of Covington, 
Virginia on September 14, 1948?

A. Yes. I don’t personally know it was the 14th but I was 
called.

Q. Was that the day Norvell Lee was arrested?
A. The day he was arrested, I was there.
Q. Just state, when you got there, what you did?
A. Someone called me to come around and Mr. Lockhart 

told me the trouble and said he had a colored man in the white 
section and he wouldn’t move back in the colored section, 
and I went on the train with Mr. Lockhart and Brisendine 
and Norvell Lee was sitting in the white section, on the side 
next to the depot. He showed me his ticket to Clifton Forge 
and I said I didn’t want to have any trouble and I said: 
“ Why don’t you go on back?”  I told him he would have to 
go back in the colored section or get off of the train and he



W. P. Henderson.

said: “ I won’t go back, there, but I will get off,”  
page 43 }- and he got off and I got off and I got off, and I 

looked around and he was running and got back, 
on the train and was seated in identically the same seat in 
the same section that he was in before, and I placed him un­
der arrest. He didn’t exhibit any ticket to me at that time, 
or any other time. I asked him could he get anybody to bond 
him, and he said “ Yes”  and I called them,

Q. The only thing you know is, he was sitting in the car 
in the white section ?

A. Yes, sir.
Q. And at that time, in the presence of the Conductor, lie 

was requested to move back in the colored section?
A. Yes, sir.
Q. And refused to do so?
A. Yes, sir.

CROSS EXAMINATION.
By Mr. Martin:

Q, I believe you said you asked, him to move back or get 
off'?

A. I told him he would have to get back in the colored sec­
tion or get off and he got off.

Q. When he got off, did you see him get back in the white 
section?

A. I didn’t pay any attention to him. He complied with 
my request, and, as far as I was concerned, it was over.

Q. And he ran and got back on the train and 
page 44 sat back in the same seat?

A. He ran and got back on the front end of the 
car and sat in the same seat.

Q. Did you know at that time he had a ticket to Wash­
ington ?

A. No, sir.
Q. What did you arrest him for?
A. For riding in the white section. He didn’t show me 

the ticket and I didn’t ask him for it.
Q. The Conductor hadn’t asked him to move?
A. The second time?
Q. Yes, sir.
A. I don’t know what he did.
(Witness stands aside.)

By Mr. Butler: That is the case, I guess.

36 Supreme Court of Appeals of Virginia



page 45 [ EVIDENCE INTRODUCED ON BEHALF OF 
THE DEFENDANT:

By Mr. Martin: Your Honor, we have some evidence we 
would like to put of, if Your Honor thinks it is necessary, but 
we don’t see where it is necessary for us to put on any evi­
dence. We make a motion to strike the Commonwealth’s evi­
dence for the reason this defendant is charged with violating 
Section 3983, which section reads as follows:

“ All persons who fail, while on any coach or ear used for 
the carriage of passengers for hire by any company or cor­
poration, or person or persons, or any railway line, whether 
the motive power thereof be steam or electricity, or other 
motive power, or whether said coach or car be a street rail­
way or interurban railway or a steam railway, to take and 
occupy the seat or seats or other space assigned to them by 
the conductor, manager or other person in charge of such 
car or coach, or whose duty it is to take up tickets or collect 
fares from passengers therein, or who fail to obey the direc­
tion of any such conductor, manager or other person, as afore­
said, to change their seats from time to time, as occasions 
require, pursuant to any lawful rule, regulation or custom 
in f.orce on such lines as to assigning separate seats or com­

partment, or other space, to white and colored 
page 46 J- passengers, respectively, being first advised of the 

fact of such regulation and requested to conform 
thereto, shall be deemed guilty of a misdemeanor * #

Under that section, it appears to us,, it is clear. In the first 
place, in view of the recent case of Lottie E. Taylor v. Com­
monwealth, decided by the State of Virginia, on this section, 
which is the segregation law, the same as Section 4097 which 
was involved in the Morgan case, and just like 4533, which 
was involved in the Taylor case. In both of these cases it 
was held that those laws were invalid as to persons in inter­
state traffic, and I believe a passenger does not violate any 
law until and unless he has been asked to move by the con­
ductor or person in charge of the train, and only then, if that 
request to move is pursuant to any lawful rule or regulation 
of the carrier, which was brought to the attention of the 
carrier. In this particular case, the conductor himself says 
he never asked him to move. On the previous day he did, but 
on this day the conductor, who had charge of the train, ac­
cording to Mr. Garrett, Assistant Train Master, who said 
this conductor had charge of the train. The conductor said

Norvell Lee v. Commonwealth of Virginia. 37



Norvell Lee.

he didn’t ask him to move. He did go in there and tell the 
brakeman to see where he was sitting. I believe the brake- 
man did ask him to move. The brakeman had no more au­
thority to ask a passenger to move from one seat to the 
other. Any passenger had just as much right to refuse to 
obey the order of a brakeman as he would have to refuse to 
obey an order from me. The conductor never asked him to 

move. The brakeman asked him to move. He 
page 47 J- had a perfect right to ignore this. The Sheriff 

had no right to ask him to move. If he had not 
been traveling intrastate,, I do not believe we would be here 
on this occasion. He had a ticket that entitled him to travel 
in intrastate transportation. He asked him to move or get off 
and he got off. He never was arrested for that. I f  there has 
been a crime, he is not guilty. He got off and got a ticket to 
ride that train to Washington from here.

No one had a right to ask him to move because of his race. 
There is no argument that the Company has, as a rule, white 
and colored sections, with a sign, and the only thing was, 
that sign was turned about half one way and half another. 
I think the man had a perfect right to sit there. In the first 
place, he was traveling interstate and the segregation .law 
wouldn’t apply any way. But assuming he was violating it, 
he wasn’t guilty because the proper person never asked him 
to move. The law is clear that, unless the conductor asks 
him, he does not violate the law. We don’t think it competent 
to rebut the evidence and ask the court to strike the evidence.

By the Court: Motion overruled.
By Mr. Martin: Exception.

page 48 1 _ NORVELL LEE,
a witness of lawful age, being first duly sworn, 

testified as follows:

By Mr. Martin:
Q. Your name is Norvell Leef
A. Yes, sir, it is.
Q. Where do you live, Mr. Lee?
A. I live in Washington, D. C. now.
Q. What are you doing there in Washington?
A. I am a student at Howard University.
Q. Where is your original home?
A. My original home is Eagle Rock, Virginia.
Q. Where is that?
A. It is out from Clifton Forge about ten miles.

38 Supreme Court of Appeals of Virginia



N o r v e ll  L e e  v . C om m on w ea lth  o f  V ir g in ia .

Norvell Lee.

39

Q. About ten miles from Clifton Forge!
A. Yes, sir.
Q. And have you been attending Howard University dur­

ing the recent session?
A. Yes, sir, I have.
Q. How long had you been back in Virginia at the time this 

incident happened, on September 14th?
A. I had been here about fourteen days.
Q. About fourteen days?
A. I came here about the first of September.

Q. Where had you been prior to that time? 
page 49 y A. I had been overseas, in Europe.

Q. What part of Europe?
A. London.

By Mr. Butler: I don’t see the materiality.
By the Court : I know he wants to get in the record what 

he is doing. It is not material. I don’t see where it will hurt 
to go ahead. It won’t help any.

Q. You were in Covington on September 14th?
A. Yes, sir, I was.
Q. Did you buy a ticket from Covington to Clifton Forge? 
A. Yes, I did.
Q. Did you get on the train with that ticket?
A. Yes, I did.
Q. Where did you intend going at that particular time? 
A. Clifton Forge, Virginia.
Q. Were you intending, later, to go anywhere else?
A. Yes, I was going to Washington, D. C.
Q. At that time, you only had a ticket to Clifton Forge!
A. Yes.
Q. Closest place to Covington?
A. Yes, sir.
Q. When you got on the train, where did you sit?

A. I sat in the white section of the car. At that 
page 50 y time, the sign was turned so I couldn’t see but 

about half of the white section and half of the 
colored section.

Q. Were there any other people in there?
A. Yes, sir, four white people and one colored fellow.
Q. What did you say about, the sign?
A. I said the sign was tilted about half-wray between the 

Colored and White.



Norvell Lee.

Q. Then what happened?
A. A  young fellow came on the train and asked me to move 

back in the back section of the train. He first asked me if I 
had a ticket and I said I had and he asked me to move back 
and I said I wouldn’t.

Q. Hid you know who that was ?
A. No, sir, but I have been informed it was Mr. Brisendine.
Q. He was not the conductor ?
A. No, sir.
Q. Did the conductor ever ask you to move?
A. Not on that day; no, sir.
Q. After the brakeman asked you to move,, what happened?
A. I went off of the train.
Q. Then what happened?
A. Later, the Sheriff came on and another deputy and also 

the conductor came in.
Q. What was said and done then? 

page 51 A. I am not sure of the exact words that were 
said, but the Sheriff asked me would I move back. 

He asked me to move back and the Sheriff said I would have 
to move back or get off.

Q. And then what did you do?
A. I went back to the station and got a refund on the 

ticket to Clifton Forge and got a ticket to Washington, D. 0., 
and just as it started out, I stepped on.

Q. Then what happened?
A. I got in the same seat I was sitting* in and sat down 

and the deputy sheriff got on and the Sheriff asked me to 
move back and I didn’t.

Q. And he arrested you at that time?
A. Yes, sir.
Q. At that time you said you went back and bought a ticket 

from Covington, Virginia to Washington. I show you De­
fendant’s Exhibit A  and ask you if that is the ticket you 
bought?

A. That is the ticket I bought.
Q. Is that the ticket you had when you were on the train 

and the Sheriff arrested you?
A. Yes, it is.
Q. I show you Defendant’s Exhibit B, that purports to 

be a statement that Norvell Lee purchased a one-way ticket 
from Covington to Washington, D. C., at approximately 10:25 
A. M., and ask you if you secured that statement from the 
ticket agent?

40 Supreme Court of Appeals of Virginia



Norvell Lee.

A. Yes, sir.
page 52 }■ Q. When did you secure this statement!

A. After I got out of the train, I went over to 
the station and got this receipt from the ticket agent.

Q. When you bought that ticket from Covington, Virginia 
to Washington, D. 0., were you intending using that ticket 
to Washington?

A. Yes, I was.
Q. Were you intending riding that train to Washington, 

that particular train!
A. Yes. That train only went to Clifton Forge, but I 

wanted to transfer there and go to Charlottesville and trans­
fer there and go on to D. C.

Q. Had you ever ridden the C. & 0. trains, or trains on 
that line, going to Washington that way?

A. Yes, sir, I have.
Q. Did you come down from Washington last night?
A. Yes, I did.
Q. Which way did you come?
A. I came from Washington, D. C. through Charlottesville 

and on to Clifton Forge, Virginia.
Q. You got off at Clifton Forge?
A. Yes.
Q. You came from Washington through Charlottesville?
A. Yes, sir.
Q. Is that the same way you intended going on that occa­

sion ?
A. Yes.

page 53 }• CROSS EXAMINATION.

By Mr. Butler:
Q. I understood you to say, when you bought a ticket on 

September 14, 1948, the first ticket, that you intended going 
to Clifton Forge?

A. Yes, that is as far as the ticket was going, I just bought 
a ticket to Clifton Forge.

Q. Because that was the closest place to your home in 
Eagle Rock?

A. Yes.
Q. Then, when you got to Clifton Forge, you were going 

to your home at Eagle Rock?
A. No, sir, I wasn’t going to Eagle Rock.
Q. You said that was the closest place to your home?

Norvell Lee v. Commonwealth of Virginia. 41



Norvell Lee.

A. Yes, sir, it was, but I didn’t say I was going to Eagle 
Rock.

Q. Then you tell the court you were going to Washington 
that morning!

A. Yes.
Q. You were going to Washington on September 14th?
A. Yes.
Q. Why did you only get the ticket to Clifton Forge?
A. I knew that train only went to Clifton Forge.
Q. You were going to lay over eleven hours?

A. No, sir, about two hours.
page 54 Q. And you were going to Charlottesville?

A. Yes, sir.
Q. And you deny that yon were going to your home in 

Eagle Rock?
A. Do I deny I was going to my home in Eagle Rock ?
Q. Yes.
A. No, I didn’t have any intention of going to my home 

that day.
Q. Did you go to your home that day in Eagle Rock?
A. Yes, sir, I went to my home later that day.
Q. So, on September 14th, 1948, you did not go to Wash­

ington, did you?
A. No.
Q. And you didn’t intend to go to Washington when you 

bought your ticket to Clifton Forge?
A. Yes,, I intended to go later that day.
Q. Why didn’t you buy your ticket into Washington?
A. I could buy one at Clifton Forge.
Q. Why did you get off of that train and buy a ticket to 

Washington?
A. I intended to go that day.
Q. After the Sheriff got on there, you decided to go to 

Washington? After he told you you couldn’t ride in the 
white section, you decided to go to Washington?

A. Yes, sir.
Q. Before that, you were only going to Clifton 

page 55 J- Forge?
A. Temporarily.

Q. On the day before that you had been on that same train?
A. Yes, sir.
Q. And you were advised on the day before that by the 

conductor and by Mr. Lockhart and Mr. Garrett and Mr. 
Brisendine on this same coach, that you were not permitted 
to ride in the white section on that day?

42 Supreme Court of Appeals of Virginia



N o r v e ll  L ee  v. C om m on w ea lth  o f  V ir g in ia .

Norvell Lee.

43

A. Yes.
Q. So, on September 14th, 1948, when you got in the white 

section, you did it deliberately, knowing that it was a viola­
tion of the rules of the railroad!

A. I sat in that section.
Q. I say you did it deliberately, knowing it was a violation 

of the rules of the railroad?
A. I sat in the white section.
Q. Didn’t anybody make you sit there? You did that be­

cause you were determined to sit there, regardless of the 
rules ?

A. No.
Q. Why did you do it? Why didn’t you go back in the 

section that was provided for you?
A. Both seats were the same.
Q. You knew you were not supposed to sit there in that 

section?
A. At that time, the sign was turned both ways.
Q. The brakeman got on there and advised you. You knew 

it then, didn’t you? 
page 56 } A. Yes, sir.

Q. Why didn’t you go back in the colored sec­
tion ? Why didn’t you do that ?

By the Court: Go ahead and answer the question.

A. I didn’t think it was necessary.
Q. You didn’t think it was necessary? Why were you 

shaking so when you went over there to get this ticket to 
Washington, when you had one to take you to Clifton Forge, 
where you wanted to go to ? What were you excited about ?

A. I don’t think I was so excited.
Q. If you were going to Clifton Forge, why didm’t you 

ride the train to Clifton Forge?
A. I said I was going down to Washington.
Q. You couldn’t go to Washington on that train?
A. I could go to Clifton Forge.
Q. The train was pulling out? You had to run to catch it?
A. No. The train was just starting and I had to walk 

briskly.
Q. You tell the court you were going to Clifton Forge and 

you had a ticket to Clifton Forge, and you still didn’t use it?
A. I had a ticket.
Q. I know you did, and the reason you did it was because



Norvell Lee.

you knew you had just violated the law by not moving back 
in the colored section?

page 57 J* A. I knew I had violated the law?
Q. Yes,, by not taking the proper seat on the 

train? You knew that?
A. I was sitting there.
Q. I say you knew that, didn’t you? You understood my 

question. You knew you were violating the law and that is 
the reason you got off and secured a ticket to Washington?

A. No, that wasn’t why.
Q. You were told the day before it was a violation and so 

you knew it was a violation, when you got on the train on 
the 14th, it was a violation of the law to sit in the white sec­
tion, didn’t you?

A. Yes, sir.
Q. And you deliberately went in there and violated the law, 

didn’t you? Didn’t anybody make you do it? You did it 
of your own free will and accord?

(No answer.)

BE-DIBECT EXAMINATION.

44 Supreme Court of Appeals of Virginia

By Mr. Martin:
Q. I understood you to say that on this particular day 

that sign in the white section was about half-way between one 
way and the other ?

A. Yes.
Q. You said another colored fellow sitting in there?

A. Yes, sir.
page.58 }- Q. Where was he sitting?

A. He was sitting right under the sign.
Q. Bight under the sign?
A. Yes, sir, in the rear seat.
Q. Did you see anybody say anything to him?
A. No, sir.
Q. Were there any vacant seats in that section where you 

were sitting?
A. Yes, sir.
Q. Do you know whv thev were running you down?
A. No.
Q. And you say you didn’t see them do anything to these 

other fellows—this other colored fellow?
A. No, sir. This colored fellow didn’t say anything to 

them.



W. P, Henderson.

Q. Did they say anything to him, either the Sheriff or Con­
ductor or brakeman, so that the reason they were after you 
was because you had just come back from overseas on a box­
ing tour with the Olympics?

By Mr. Butler: I object to interposing something in the 
record by coming in the back door with something he can’t 
come in the front door with.

By the Court: It doesn’t make any difference.
By Mr. Butler: It is immaterial.
By the Court: I am going to let him go ahead with the 

case. Go ahead with the question.

page 59 Q. Do you know whether, if the reason the peo­
ple were after you and let that other colored fellow 

sit in that same compartment was the reason you had just 
come back from overseas with the Olympics?

By the Court: I sustain the objection.
By Mr. Martin: Exception.

Q. You are a colored fellow with the Olympics?
A. Yes, sir.

Norvell Lee v. Commonwealth of Virginia. 45

RE-CROSS EXAMINATION.

By Mr. Butler:
Q. When you were asked to move from the white section 

to the colored section, didn’t the other colored fellow get up 
and go back in the colored section?

A. I am not aware what the other colored person did, be­
cause I got off of the train.

(Witness stands aside.)

page 60 \ EVIDENCE INTRODUCED BY THE COMMON­
WEALTH IN REBUTTAL :

W. P. HENDERSON,
being recalled on behalf of the Commonwealth, testified as 
follows:

By Mr. Butler:
Q. Mr. Henderson, I would like to ask you whether, at the



W. P. Henderson.

time Norvell Lee was on the train and was asked to get off, 
if a colored person got up and went back in the colored sec­
tion?

A. As Nor veil Lee says, he was sitting right by this sign 
and he immediately got up and went back in the colored sec­
tion.

46 Supreme Court o f A ppeals o f V irginia

CBOSS EXAMINATION.

By Mr. Martin:
Q. I f Norvell Lee had been a white person, he would not 

have been asked to move, would he?
A. I don’t guess I would ever have been called around 

there, if he was.
Q. In other words, he was asked to move from that com­

partment because he was colored?
A. Yes, sir.

(Witness stands aside.)

page 61 ) By the Court: All right, I find the defendant 
guilty as charged in the warrant, and fix his punish­

ment at a twenty-five dollar fine.
By Mr. Martin: Will Your Honor suspend the sentence 

and let us take an appeal?
By the Court: Yes, continue on the same bond.

page 62 [ JUDGE’S CEETIFICATE.

I, Earl L. Abbott, Judge of the Circuit Court of Alleghany 
County, Virginia, do hereby certify that the foregoing is a 
true and correct stenographic copy and report of all the testi­
mony and evidence on behalf of the Commonwealth and of the 
defendant, respectively, as hereinbefore denoted, objections 
and exceptions to the evidence and exhibits or other writings 
introduced in evidence or presented to the Trial Court, all 
questions raised, rulings thereon, exceptions thereto in the 
above named cause; and that it appears in writing, that the 
Attorney for the Commonwealth has had reasonable notice 
of the time and place when this transcript and certificate



N o r v e ll  L e e  v. C om m on w ea lth  o f  V ir g in ia . 47

would be presented to me for my signature which is certified 
within Sixty (60) days after final judgment.

Given under my hand this 25th day of February, 1949.

EARL L. ABBOTT, 
Judge of the Circuit Court Alleghany 

County, Virginia.

page 63 [- In the Clerk’s Office of the Circuit Court of Alle­
ghany County, Virginia.

I, F. E. Dillard, Clerk of the Circuit Court of Alleghany 
County, Virginia, do hereby certify that the foregoing is a 
true transcript of the record in the case wherein the Common- 
ivealth of Virginia is plaintiff and Norvell Lee is defendant, 
with the exception of the original exhibits filed in evidence 
and that the Attorney for the Commonwealth had due notice 
of the intention of the defendant to apply for this transcript 
of record.

Witness my hand this 26 day of February, 1949.

F. E. DILLARD, Clerk.

page 6 4 , Virginia:

In the Circuit Court of Alleghany County.

Commonwealth of Virginia
v. . \.

Norvell Lee

NOTICE.

To: T. Moore Butler, Esq.
Commonwealth’s Attorney of Alleghany County 
Covington, Virginia

You are herebv notified that I shall on the 25th day of Feb­
ruary, 1949, at 10 o ’clock A. M., or as soon thereafter as may 
be heard, tender and present to the Honorable Earl L. Abbott 
in his chambers in Clifton Forge,, Virginia, the transcript of 
record in the above styled cause for the signature of said



judge and liis certificate of the verity thereof, that it may be 
made a part of the record in this cause; and that, immediately 
thereafter I shall apply to F. E. Dillard, Clerk of the Circuit 
Court of Alleghany County, for a transcript of the record in 
this cause for the purpose of applying to the Supreme Court 
of Appeals of Virginia for a Writ of Error therein.

NOKVELL LEE 
By MARTIN A. MARTIN,

Timely and legal service of the within notice is hereby ac­
cepted.

48 Supreme Court of Appeals of Virginia

T. MOORE BUTLER,
Commonwealth Attorney

A Copy—Teste:

M. B. W ATTS, C. C.



INDEX TO RECORD

Page
Petition for Writ of E r r o r .....................................................  1
R ecord .........................................................................................  11
W arrant......................... * .......................................................... 12
Judgment of Trial Justice Appealed From ...................... 14
Judgment, January 4, 1949, Complained of ...................... 14
Transcript of evidence......................• •................................... 15

S. L. Lockhart ................................................................   15
R. H. Brisendine ............................................................. 23
John Kurtz .......................................   27
A. N. G arrett..................................................................... 30
W. P. Henderson .......................................................35, 45
Norvell L e e ........................................................................  38

Motion To Strike Commonwealth’s E vidence.................. 37
Judge’s Certificate ................................................................... 46
Clerk’s Certificate....................................................................  ^
Notice of Appeal ..................................................................... ^7



RULE 14-BRIEFS
1. Form and contents of appellant’s brief. The opening brief of the appellant (or 

the petition for appeal when adopted as the opening brief) shall contain:
(a) A  subject index and table of citations with cases alphabetically arranged. 

Citations of Virginia cases must refer to the Virginia Reports and, in addition, may 
refer to other reports containing such cases.

(b) A brief statement of the material proceedings in the lower court, the errors 
assigned, and the questions involved in the appeal.

(c) A  clear and concise statement of the facts, with references to the pages of 
the record where there is any possibility that the other side may question the state­
ment. Where the facts are controverted it should be so stated.

(d) Argument in support of the position of appellant.
The brief shall be signed by at least one attorney practicing in this court, giving 

his address.
The appellant may adopt the petition for appeal as his opening brief by so stating 

in the petition, or by giving to opposing counsel written notice of such intention 
within five days of the receipt by appellant of the printed record, and by filing a 
copy of such notice with the clerk of the court. No alleged error not specified in the 
opening brief or petition for appeal shall be admitted as a ground for argument by 
appellant on the hearing of the cause.

2. Form and contents of appellee’s brief. The brief for the appellee shall contain:
(a) A subject index and table of citations with eases alphabetically arranged. 

Citations of Virginia cases must refer to the Virginia Reports and, in addition, may 
refer to other reports containing such cases.

(b) A statement of the case and of the points involved, if the appellee disagrees 
with the statement of appellant.

(c) A  statement of the facts which are necessary to correct or amplify the state­
ment. in appellant’s brief in so far as it is deemed erroneous or inadequate, with ap­
propriate reference to the pages,of the record.

(d) Argument in support of the position of appellee.
The brief shall be signed by at least one attorney practicing in this court, giving

his address.
3. Reply brief. The reply brief (if any) of the appellant shall contain all the au­

thorities relied on by him. not referred to in his petition or opening brief. In other 
respects it shall conform to the requirements for appellee’s brief.

4. Time of filing, (a) Civil cases. The opening brief of the appellant (if there be 
one in addition to the petition for appeal) shall be filed in the clerk’s office within 
fifteen days after the receipt by counsel for appellant of the printed record, but in no 
event less than thirty days before the first day of the session at which the case 
is to be heard. The brief of the appellee shall be filed in the clerk’s office not iater 
than fifteen days, and the reply brief of the appellant not later than one day, before 
the first day of the session at which the case is to be heard.

(b) Criminal Cases. In criminal cases briefs must be filed within the time specified 
in civil cases; provided, however, that in those cases in which the records have not 
been printed and delivered to counsel at least twenty-five days before the beginning 
of the next session of the court, such cases1 shall be placed at the foot of the docket 
for that session of the court, and the Commonwealth’s brief shall be filed at least ten 
days prior to the calling of the case, and the reply brief for the plaintiff in error not 
later than the day before the case is called.

(c) Stipulation of counsel as to filing. Counsel for opposing parties may file with 
the clerk a written stipulation changing the time for filing : briefs in any case; pro­
vided, however, that all briefs must be filed not later than the day before such case 
is to be heard.

5. Number of copies to be filed and delivered to opposing counsel. Twenty copies 
of each brief shall be filed with the clerk of the court, and at least two copies mailed 
or delivered to opposing counsel on or before the day on which the brief is filed.

6. Size and Type. Briefs shall be nine inches in length and six inches in width, so 
as to conform in dimensions to the printed record, and shall be printed in type not less 
in size, as to height and width, than the type in which the record is printed. The 
record number of the case and names of counsel shall be printed on the front cover of 
cill briefs,

7 Non-compliance, effect of. The clerk of this court is directed not to receive or 
file a brief which fails to comply with the requirements of this rule. If neither side 
has filed a proper brief the cause will not be heard. If one of the parties fails to file 
a proper brief he cannot be heard, but the case will be heard ex parte upon the argu­
ment of the party by whom the brief has been filed.