Correspondence from Pamela Karlan to John P. Relman, Esq. Re Hicks v. Kemp

    I n  t h e

S u p r e m e  (& m x t  n f  i h t  H m tp ft S t a t e s
October Term, 1964 

No................

Ashton B ryan J ones,
Petitioner,

■— v.—

State of Georgia.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

J ack Greenberg 
J ames M. Nabrit, III 

10 Columbus Circle 
New York, New York 10019

Donald L. H ollowell 
H oward Moore, J r.

859% Hunter Street, N.W. 
Atlanta, Georgia 30314

Attorneys for Petitioner

Michael Meltsner 
Of Counsel



I N D E X

Citation to Opinion Below ............................ .......... . 1

Jurisdiction ..............  1

Constitutional and Statutory Provisions Involved .... 2

Questions Presented ........ ............ ..................... ...........  3

Statement .......................     3

How the Federal Questions Were Raised and Decided 
Below........................... .......... .......... .....................  8

Reasons for Granting the Writ ...... .............................  10
I. Petitioner’s Conviction Under a Vague and Over­

broad Statute Violates Due Process of Law as 
Secured by the Fourteenth Amendment .....   10

II. Petitioner’s Conviction Was Affirmed Also on 
the Ground That Personal Bias and Prejudice of 
the Trial Judge Against Him Was Not a Basis 
for Disqualification of the Judge in Violation of 
His Right to Due Process of Law Under the 
Fourteenth Amendment ............................   14
A. The Supreme Court of Georgia Applied an

Improper Standard in Holding Bias and 
Prejudice Was Not a Ground for Disquali­
fication of the Trial Judge.......................... . 14

B. Petitioner Was Entitled to a Hearing on the 
Motion to Disqualify or a Trial of the 
Charges Against Him Before Another Judge 19

PAGE

Conclusion 21



11

A ppendix :

Opinion of the Supreme Court of Georgia ......  la
Judgment of the Supreme Court of Georgia ......  12a
Denial of Rehearing by the Supreme Court of 

Georgia ........ ......................................... .............. 13a

Table op Cases

Baggett v. Gullit. 377 U. S. 360 ...................................  10
Berger v. United States, 255 U. S. 22 ........................  19
Cline v. Frink Dairy Co., 274 U. S. 445 ..................... 10
Commercial Pictures Corp. v. Regents of University 

of N. Y., reported with Superior Films, Inc. v. De­
partment of Education, 346 U. S. 587 ..................... 10

Cooke v. United States, 267 U. S. 517 ........................  20
Daniel v. State, 4 Ga. 844, 62 S. E. 567 (1908) ....    13
Edwards v. South Carolina, 372 U. S. 229 ____ 10,12,13
Folds v. State, 123 Ga. 167, 51 S. E. 305 (1905) ___  13
Hague v. C. I. O., 307 U. S. 496 ...............................  13
Herndon v. Lowry, 301 U. S. 242 ...................... ..10,11,13
Irvin v. Dowd, 366 U. S. 717 .................................... . 18
Joseph Burstyn, Inc. v. Wilson, 303 U. S. 444 ....... . 10
Lanzetta v. New Jersey, 306 U. S. 451......... ..............  11
Minter v. State, 104 Ga. 743, 30 S. E. 989 (1898) ......... 13
N. A. A. C. P. v. Button, 371 U. S. 415........................  12
Nichols v. State, 103 Ga. 61, 29 S. E. 431 (1897) ..........  12
Re Murchison, 349 U. S. 133 ................................... 18, 20
Rideau v. Louisiana, 373 U. S. 723 .................. .........  18
Rogers v. Richmond, 365 U. S. 534 ........................  19

PAGE



I l l

Sacher v. United States, 343 U. S. 1 ........... ........... .....  20
Smith v. California, 361 U. S. 147 ...................... .....  11
Terminiello v. Chicago, 337 U. S. 1 ......... ............ ...... 13
Thornhill v. Alabama, 310 U. S. 88 ............................11,12
Turney v. Ohio, 273 U. S. 510 ....... ...........................  18
United States v. L. Cohen Grocery Co., 255 U. S. 81 .. 10 
United States v. Wood, 299 U. S. 123 ....... ... .............  19
Winters v. New York, 333 U. S. 507 ...................... .....10,11

T able of Statutes

United States Code, Title 28, Section 1257(3)  .......  1
United States Code, Title 28, Section 144.................  19
Georgia Code Annotated, Section 26-6901  ........2, 3, 7,10
Georgia Code Annotated, Section 24-102 ............2, 8, 9,17,

18,19

Other A uthority

Amsterdam, “The Void for Vagueness Doctrine in the 
Supreme Court,” 109 U. Pa. L. Rev. 67 (1960) .... 11

PAGE



In t h e

tour! of tty  ImtTft
October Term, 1964 

No.............. .

Ashton Bryan J ones,
Petitioner,

State of Georgia.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Georgia entered in 
the above entitled case April 9, 1964, infra, p. 12a, rehear­
ing of which was denied on April 21, 1964, infra, p. 13a.*

Citation to Opinion Below
The opinion of the Supreme Court of Georgia is re­

ported a t ----- - Ga. ----- , 136 S. E. 2d 358 (1964), and is
set forth in the Appendix hereto, infra, pp. la-lla.

Jurisdiction
The judgment of the Supreme Court of Georgia was 

entered April 9, 1964, infra, p. 12a. Motion for rehearing 
was denied by the Supreme Court of Georgia on April 21, 
1964, infra, p. 13a.

The jurisdiction of this Court is invoked pursuant to 
28 U. S. C. §1257(3), petitioner having asserted below and

* On July 8, 1964, Mr. Justice Goldberg signed an order extend­
ing petitioner’s time for filing petition for writ of certiorari to and 
including September 18, 1964.



2

asserting here deprivation of rights secured by the Con­
stitution of the United States.

Constitutional and Statutory 
Provisions Involved

1. This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

2. This case also involves the following statutes of the 
State of Georgia:

GA. CODE ANN. §26-6901. Interfering with, reli­
gious worship.—Any person who shall, by cursing or 
using profane or obscene language, or by being intoxi­
cated, or otherwise indecently acting, interrupt, or in 
any manner disturb a congregation of persons law­
fully assembled for divine service, and until they are 
dispersed from such place of worship, shall be guilty 
of a misdemeanor.
GA. CODE ANN. §24-102. When judicial officer dis­
qualified.—No judge or justice of any court, no or­
dinary, justice of the peace, nor presiding officer of 
any inferior judicature or commission shall sit in any 
cause or proceeding in which he is pecuniarily inter­
ested, nor preside, act, or serve, in any case or matter, 
when such judge is related by consanguinity or affinity 
to any party interested in the result of the case or 
matter, within the sixth degree, as computed according 
to the civil law, and relationship more remote shall not 
be a disqualification; nor in which he has been of coun­
sel, nor in which he has presided in any inferior judica­
ture, when his ruling or decision is the subject of re­
view, without the consent of all parties in interest: 
Provided, that in all cases in which the presiding 
judge of the superior court may have been employed



3

as counsel before Ms appointment as judge, he shall 
preside in such cases if the opposite party or counsel 
agree in writing that he may preside, unless the judge 
declines so to do: and Provided further that no judge 
or justice of any court, no ordinary, justice of the 
peace, nor presiding officer of any inferior judicature 
or commission shall be disqualified from sitting in any 
cause or proceeding because of the fact that he is a 
policyholder or is related to a policyholder of any 
mutual insurance company which has no capital stock. 
But nothing in the last proviso shall be construed as 
applying to the qualifications of trial jurors.

Questions Presented

Whether petitioner’s Fourteenth Amendment right to 
due process of law is violated:

1) by a Georgia statute which effectively prohibits ad­
vocacy of church desegregation under a broad and 
indefinite proscription of “interfering with religious 
worship”?

2) by a decision of the Georgia Supreme Court that 
under Georgia law personal bias and prejudice of the 
trial judge toward the accused are never grounds for 
disqualification ?

Statement

Petitioner, Reverend Ashton Bryan Jones, a 67-year-old 
ordained white minister, attempted to attend the First 
Baptist Church in Atlanta, Georgia with Negro companions. 
He was arrested and convicted of violating Ga. Code Ann. 
§26-6901, “interfering with religious worship.”



4

Events of Sunday M orning, June 30, 1963

At about 10:00 A.M. on June 30, 1963 (R. 365) petitioner 
(R. 210, 211), together with a white girl and a Negro boy, 
arrived at the Fourth Street entrance of the First Baptist 
Church (R. 364) to attend the morning service (R. 233). 
Petitioner and his companions were in ordinary dress 
(R. 119, 181) but Reverend Jones was informed by an 
usher that the main auditorium was open only to him, and 
not to his Negro companion (R. 365), the church’s policy 
being to seat “other than white people” in a lower, over­
flow auditorium (R. 258, 365).

Reverend Jones refused to enter the church without the 
Negro youth (R. 368-369) and remained in the vestibule 
while people entered, asking them not to worship on a 
segregated basis (R. 369):

I smilingly said to them, were you coming in to 
worship in a segregated church, you see people out 
there wanting to come in, certainly you must be trying 
to worship a segregated God.

There is a conflict in the testimony concerning petitioner’s 
conduct while in the vestibule. Mr. H. E. Watts, Chairman 
of the Hospitality Committee for the First Baptist Church 
(R. 223) testified that he addressed the entering congrega­
tion in a “coarse and raucous voice” (R. 223). Reverend 
Jones, however, testified that his tone was conversational:

It was about the same as I am testifying now, I don’t 
think it was any louder, I didn’t even raise my voice 
any louder as I made the comment to the people, some 
of them, that I  felt would accept the comment in the 
manner and spirit in which I was making it—that this 
is a segregated church, don’t you know this is not 
right.. . .  (R. 373).



5

After attempting and failing to gain admission at the 
Peachtree entrance (R. 371), petitioner and his compan­
ions sat down on the church steps to protest the exclusion, 
and to pray (R. 315, 372). They remained on the church 
steps until the congregation had left (R. 379). Once again 
there is a discrepancy in the testimony concerning the cause 
and the nature of the disturbance which ensued. Taylor 
Washington, the Negro companion of petitioner, testified 
that petitioner was accosted by an usher who said: “ You’re 
the minister that has been in jail about these sit-in demon­
strations” (R. 306), and who then proceeded to drag peti­
tioner, an elderly man (R. 364), by the leg, down the stairs 
(R. 307), tearing his trousers1 (R. 309) and causing peti­
tioner to cry out “help police” (R. 308). Police had been 
observing the activity from across the street (R. 375, 376).

The same incident is described by Mr. Watts:
“ . . .  one of the ushers just touched him on the elbow, 

just very deftly as you might touch an old lady help­
ing her across the street, something like that, just 
touched him on the elbow with his hand and he imme­
diately dropped right down on the steps and sprawled 
out there and yelled, help, help” (R. 224).

Petitioner testified to a second attack by an usher as 
he was stepping onto church property (R. 377-378) after 
having chatted with the policemen observing from across 
the street (R. 376, 377). Petitioner sat down on the ground 
and eventually the usher ceased dragging him (R. 377, 
378). Watts, however, testified that he left the church after 
hearing a noise outside and discovered petitioner lying 
alone on the sidewalk, crying for help (R. 224-225).

1 A photograph of the torn trousers was introduced into evidence 
at pp. 429, 450, of the Record.



6

Events of Sunday Evening

Around 6:00 P.M. that evening (R. 379), petitioner and 
his companions, dressed appropriately (R. 291) and joined 
by a young Negro girl (R. 312), returned to the church to 
attend the evening service (R. 313, 380). They were pre­
vented from entering by ushers who blocked the entrances 
(R. 313, 380). Petitioner and his three companions then 
moved to the sidewalk where they began to pray (R. 283, 
318, 382-383). While thus engaged in prayer, a church 
deacon unsuccessfully attempted to kick petitioner (R. 
319).

After the prayer petitioner and his companions went 
to the vestibule of the church (R. 286, 384), where they 
encountered ushers who pushed them back out. A dis­
interested witness, Jack D. Worth of Emory University, 
who was filming the incident for WSB-TV (R. 278, 292) 
described the occurrence:

Q. Did anything happen that you wouldn’t normally 
expect to happen on church property? (R. 284)

A. Well, the only thing that you might classify as that, 
after Reverend Jones and his three companions 
had entered the building . . .  (R. 285).

*  # #  #  *

A. The door opened and the young Negro woman, com­
panion of Reverend Jones, came tumbling out of 
the door and fell on the steps (R. 286).

The young Negro woman, Miss Smith, testified that she 
had been pushed by an usher (R. 348, 384). She subse­
quently returned to the vestibule where Reverend McClain, 
Pastor of the Church (R. 190), was criticizing the group 
for its presence at the church and threatening to call the 
police (R. 386). Reverend McClain then pushed Miss



7

Smith, in the direction of the door (R. 349-350). The 
group then sat down on the porch of the church (R. 387), 
read a portion of the scripture (R. 389), and was walking 
away from the church when two plainclothesmen came and 
arrested petitioner (R. 390).

The testimony of Mr. Worth concerning petitioner’s 
conduct upon being arrested corresponds with that of the 
defense. Worth testified that the policemen held peti­
tioner’s arms and pulled him away with his heels dragging 
on the ground (R. 288). At no time did Worth hear peti­
tioner address the policemen loudly (R. 288-289) or begin 
to walk and then drop to the ground or act violently (R. 
295-296). The state’s witness, Mr. Bailey, testified that upon 
being arrested, petitioner began to holler and flail (R. 272). 
Mr. Worth testified that while observing the incident, 
he had been threatened by members of the congregation 
(R. 297-298), and that he had been restrained from taking 
some pictures (R. 299).

There was no testimony that religious worship had 
been “interrupted” by petitioner, and the only evidence 
of “disturbance” was the testimony of Watts and Bailey 
as to loud noises (R. 224, 256).

Petitioner was indicted by the Grand Jury of Fulton 
County for the misdemeanor of interrupting and disturbing 
religious worship in violation of Ga. Code Ann. §26-6901 
“by loud talking, shouting, and by sitting on the floor of 
said Church and by otherwise indecently acting” (R. 1).

In the Superior Court of Fulton County, Georgia, Judge 
Durwood T. Pye, presiding, petitioner was convicted and 
sentenced to the maximum misdemeanor sentence: twelve 
months upon the public works, six months in jail, and a 
fine of one thousand dollars ($1,000.00) (R. 3, 4). After 
conviction, bail was set at $20,000.00 (R. 20). TJnable to



8

make bail, petitioner remained in jail for approximately 
six months (Bill of Exceptions, 1).

On appeal, the Supreme Court of Georgia affirmed peti­
tioner’s conviction and sentence in the Superior Court, 
infra, pp. la-12a.

How the Federal Questions Were 
Raised and Decided Below

Before pleading to the indictment, petitioner, relying, 
inter alia, on the Fourteenth Amendment to the Constitu­
tion of the United States, filed a “motion to disqualify or 
recuse” the Superior Court Judge, the Honorable Durwood 
T. Pye, on the grounds of bias and prejudice (R. 5-6, 43- 
45). Judge Pye overruled the motion (R. 76). Petitioner 
assigned this ruling as error in the Supreme Court of 
Georgia (Bill of Exceptions, 6, 7) but his Fourteenth 
Amendment claim was rejected by that court, infra, pp. 
la-2a:

Ga. Code Ann. §24-102 provides the circumstances un­
der which a judge of the Superior Court may be dis­
qualified. This Code section does not provide that bias 
or prejudice is a ground to disqualify him from pre­
siding in the case. The statutory grounds of disquali­
fication contained in this section are exhaustive.

Before trial, petitioner demurred generally (R. 89-90) 
challenging both the statute under which he was indicted 
and the indictment as “so vague, indefinite and ambiguous” 
(R. 8) that they failed to give him reasonable notice of the 
charges against him and the acts or conduct constituting 
the crime in violation of the Fourteenth Amendment to 
the Constitution of the United States (R. 8-9). The gen­
eral demurrer was overruled (R. 90). After trial, peti­



9

tioner again challenged the statute as violating the due 
process clause a s:

. . .  so vague, incomplete and indefinite as to be in­
sufficient to place the defendant upon notice of the of­
fense for which he was charged . . .  and said statute 
is so broad and inclusive and devoid of any reasonable 
standards that it punishes innocent conduct as well as 
guilty conduct. . .  (R. 38).

On appeal to the Supreme Court of Georgia, petitioner 
asked reversal of his conviction on the basis of vagueness 
and indefiniteness of the statute and also alleged violation 
of rights of free speech, expression and association as 
guaranteed by the Fourteenth Amendment (Rill of Ex­
ceptions, 3, 4). The Supreme Court held Ga. Code Ann. 
§24-102 “satisfies due process requirements,” infra, p. 4a:

. . . “Indecently acting” must be taken in the compre­
hensive sense and include all improper conduct which 
interrupts or disturbs a congregation of persons law­
fully assembled for divine worship. Any person of 
common intelligence . . . may determine whether the 
particular acts and conduct charged him with improper 
conduct, i.e., indecent acting.



10

REASONS FOR GRANTING THE WRIT

I.

Petitioner’s Conviction Under a Vague and Overbroad 
Statute Violates Due Process of Law as Secured by the 
Fourteenth Amendment.

Petitioner was convicted for violating Ga. Code §26-6901:
Interfering with religious worship.—Any person who 
shall, by cursing or using profane or obscene language, 
or by being intoxicated, or otherwise indecently acting, 
interrupt, or in any manner disturb, a congregation of 
persons lawfully assembled for divine service, and un­
til they are dispersed from such place of worship, 
shall be guilty of a misdemeanor.

Petitioner was not charged with violating the specific 
prohibitions of the statute, but convicted under the catch­
all phrase: “otherwise indecently acting” (R. 459). Such 
language, unconstitutionally vague and indefinite on its 
face,2 is particularly offensive to the requirements of due 
process when used, as here, to regulate the delicate balance 
between freedom of speech and protection of the right to 
worship.

2 Compare “unreasonable charges” of United States v. L. Cohen 
Grocery Co., 255 U. S. 81; “unreasonable” profits of Cline v. Frink 
Dairy Co., 274 U. S. 445; “reasonable time” of Herndon v. Lowry, 
301 U. S. 242; “sacrilegious” in Joseph Burstyn, Inc. v. Wilson, 303 
U. S. 44; “so massed as to become vehicles for excitement” (a 
limiting interpretation of “indecent or obscene”) of Winters v. 
New York, 333 U. S. 507; “immoral” of Commercial Pictures 
Corp. v. Regents of University of N. Y ., reported with Superior 
Films, Inc. v. Department of Education, 346 U. S. 587; “an act 
likely to produce violence” in Edwards v. South Carolina, 372 U. S. 
229; “subversive person” in Baggett v. Bullit, 377 U. S. 360.



11

It is clear that petitioner’s purpose was to advocate 
ideas; namely, the evils of segregation and the immorality 
of Christians who exclude Negroes from worship (R. 369, 
426). When free expression is involved, the vice of a 
vague statute is not only that one cannot predict the con­
duct which is criminal, cf. Lametta v. New Jersey, 306 U. S. 
451, but that the vagueness and breadth of the statute will 
unduly burden protected speech.3 The case at bar exempli­
fies the danger of permitting an indefinite statute to regu­
late speech.

Examination of the record shows that petitioner quietly 
addressed members of the church as they entered (R. 369, 
373), that any loud noises were cries for assistance when 
he was under assault (R. 308, 364, 377, 378), and that his 
lying on the floor was in protest of his being kicked, 
grabbed, beaten, and dragged down the steps (R. 283, 318, 
382-83, 387-89). The evidence most favorable to the state in­
dicates that petitioner threw himself on the floor and 
shouted without provocation (R. 224, 225). This sweeping 
statute permits prejudiced and discriminatory state en­
forcement to hide under such a contested factual dispute.

Regardless of the view one takes of the actual events, 
conviction under the catch-all phrase ‘‘otherwise indecently 
acting” cannot be sustained, for such language necessarily 
inhibits exercise of free speech and renders the statute 
unconstitutionally vague on its face.4 In appraising the

3 See Thornhill v. Alabama, 310 U. S. 88, 97, 98; Herndon v. 
Lowry, 301 U. S. 242; Winters v. New York, 333 U. S. 507; Smith v. 
California, 361 U. S. 147; Amsterdam, “The Void for Vagueness 
Doctrine in the Supreme Court,” 109 U. Pa. L. Rev. 67, 80-82 
(1960).

4 Petitioner, moreover, need not prove that his conduct could not 
be proscribed by a different statute:

An accused, after arrest and conviction under such a statute, 
does not have to sustain the burden of demonstrating that the



12

inhibitory effect of such a statute, “this Court has not hesi­
tated to take into account possible applications of the 
statute in other factual contexts besides that at bar.” 
NAACP v. Button, 371 U. S. 415, 432.

What are such different factual contexts? Had petitioner 
limited his protest to a peaceful demonstration outside the 
church, his activity clearly would be constitutionally pro­
tected. See Edwards v. South Carolina, 372 U. S. 229, but 
the statute, by its terms and as construed by the courts of 
Georgia, applies to such protected activity. Moreover, as 
consistently construed by the Supreme Court of Georgia, 
“otherwise indecently acting” covers any “improper con­
duct” which in any manner disturbs religious worship, 
infra, p. 4a:

[T]he words “indecently acting” must be taken in 
the comprehensive sense and include all improper 
conduct which interrupts or disturbs a congregation 
of persons lawfully assembled for divine worship.

“Improper conduct” seems to be determined solely by the 
effect of the activity on the congregation:

“ [I]ndecently acting [can] signify any conduct which, 
being contrary to the usages of the particular class or 
worshippers interferes with their service, or is annoy­
ing to the congregation in whole or in part . . . ” 
Nichols v. State, 103 Ga. 61, 29 S. E. 431 (1897).

In Nichols v. State, supra, the defendant was speaking 
“between a talk and a whisper” but his conduct was in­
cluded within the term “indecently acting.” In another

state could not constitutionally have written a different and 
specific statute covering his activities. . . . Thornhill v. Ala­
bama, 310 U. S. 88, 96, 98.



13

case, one who discharged a gun near a church was guilty, 
apparently, without proof that he intended to disturb 
worship. Folds v. State, 123 Ga. 167, 51 S. E. 305 (1905). 
The statute applies even if only one person is disturbed, 
Daniel v. State, 4 Ga. 844, 62 S. E. 567 (1908), and after 
the congregation has dispersed from the church. Folds v. 
State, supra; Minter v. State, 104 Ga. 743, 30 S. E. 989 
(1898).

Any peaceful protest against segregation outside a seg­
regated church easily falls within these standards. Fur­
ther confusion is introduced by the Georgia Supreme 
Court’s finding that:

Any person of common intelligence (and particularly 
one who claims to be an ordained minister) may deter­
mine whether the particular acts and conduct charged 
him with improper conduct, i.e., indecent acting (infra, 
p. 4a).

What to many may be a decent and honorable exercise of 
free speech may be considered by others the basest of con­
duct ; what may be indecent and improper to many may fall 
well within the protections of the Federal Constitution.5 
It is the task of the state, not that of “any person of com­
mon intelligence” to draw statutes which strike the balance 
between individual freedom and needs of the state.

The following facts stare anyone in the face who would 
seek to protest segregation of churches: Petitioner, a 
67-year-old minister, was arrested during such a protest 
and convicted on highly conflicting evidence of “otherwise 
indecently acting.” He was sentenced to one year at hard 
labor, six months in jail, and a $1,000.00 fine, the maximum

5 Compare conduct in Herndon v. Lowry, 301 U. S. 242; Hague v. 
C. I. O., 307 U. S. 496; Terminiello v. Chicago, 337 U. S. 1; Edwards 
v. South Carolina, 372 U. S. 229.



14

for misdemeanor offenses (R. 3, 4). After conviction he 
was subjected to enormously high bail provisions and was 
forced to serve six months while his constitutional argu­
ments were being heard in state courts.

In light of this vaguely written and broadly applied 
Georgia Statute, one exercising the right to free speech 
must determine at the peril of harsh criminal prosecution 
and costly appeal the reach of that right. Who now, in 
Georgia, or any other state which has a similar law, would 
dare to engage in any public protest of segregation of 
religious institutions? To permit such an indefinite statute 
to stand is to nullify, in Georgia, freedom of speech which 
strikes at so pernicious a social evil.

II.
Petitioner’s Conviction Was Affirmed Also on the 

Ground That Personal Bias and Prejudice of the Trial 
Judge Against Him Was Not a Basis for Disqualification 
of the Judge in Violation of His Right to Due Process 
of Law Under the Fourteenth Amendment.

A. The Suprem e Court o f Georgia Applied an Im proper  
Standard in  H olding Bias and Prejudice W as Not a 
Ground for D isqualification o f the Trial Judge.

Before pleading to the merits, petitioner moved to dis­
qualify Judge Durwood T. Pye of the Superior Court of 
Fulton County, Georgia, on the ground that, by reason of 
“repeated denunciation of the Negro race in general and 
the defendant in particular” and “an extraordinary and 
prejudicial interest against the defendant,” the judge could 
not give petitioner a fair and impartial trial.6

6 The motion to disqualify or recuse reads as follows:
1. Defendant shows that because of a repeated denuncia­

tion of the Negro race in general and the defendant in particu-



15

The motion to disqualify was submitted at the opening 
of petitioner’s trial (R. 43-45). After counsel presented

lar by the Honorable Durwood T. Pye, Judge in this ease, he, 
the said Judge Pye, cannot impartially try said case on its 
merits.

2. That the said Judge Pye has manifested an extraordinary 
and prejudicial interest against the defendant generally and 
specifically in the manner that he has brought this and other 
defendants to trial before him, in th a t:

a. That the said Judge Pye took it upon himself, contrary 
to the normal and accepted practice, to solicit from the Chief 
of Police and/or others the names of this and other defen­
dants who had been charged with misdemeanor offenses re­
lating to peaceful protest against discriminatory practices, 
policies, customs and acts by private persons, public officials 
and others as relates to the rights, privileges and immunities 
of Negro citizens in the City of Atlanta, Pulton County, 
Georgia.

b.  ̂That this defendant was duly bound over from the 
Municipal Court of Atlanta to the Criminal Court of Pulton 
County as is customarily done for alleged misdemeanants; 
that defendant’s ease was being processed according to stand­
ard practice in said court; that according to standard prac­
tice in said court, defendant would have been scheduled for 
trial as the dockets and calendars of said court would permit.

c. That there are at least one hundred prisoners in the 
Pulton County Jail presently awaiting trial.

d. That ordinarily the Grand Jury  is empaneled and 
charged by the presiding judge of the term.

e. That contrary to practice and custom the said Judge 
Pye caused the misdemeanor charges against the defendant 
to be presented by the Solicitor General of Pulton County to 
the said grand jury which was empaneled at his instance.

f. That in charging said grand jury the said Judge did 
further manifest that his basic dislike and prejudice to 
Negroes by alluding to some of them as “savages.” Further, 
m his charge to said grand jury he made extended remarks 
concerning the crime rate among Negroes without making 
any constructive suggestions, or asking for any from the 
grand jurymen; he only suggested punishment “far more 
severe than at present.”

g. Said Judge Pye further expounded at great length in 
his charge about “property rights,” and further sought to 
construe the Act approved February 18, 1960, and set forth 
in Georgia Laws I960, page 142, drawing his own conclu-



16

the motion, Judge Pye proceeded immediately,* 7 without 
taking testimony, to read it into the record by paragraphs, 
state his reasons for denying the truth of the allegations8 
(R. 45-84), and deny the motion (R. 76).9 After overruling 
the motion, the court cited petitioner’s counsel for con­
tempt, charging presentation of the motion was “an insult 
done to the court” (R. 84) and ordered them to show cause 
why they “should not be dealt with from the standpoint of 
contempt and otherwise as lawyers” (R. 84, 85). Counsel 
would have to “convince the court that they believe the

sion, when said Act has not yet been construed by the highest 
court of this state.

h. Said Judge Pye further charged that said Act has been 
“flouted, defied and violated, that these violations have been 
frequent and repeated, and the results of combinations and 
conspiracies.” That said language to the grand jury was 
prejudicial in the manifestation of the prejudice of the said 
trial judge when made to a grand jury prior to the present­
ment of the facts relating to defendant’s case and those of 
others similarly charged.
3. Defendant shows that the acts of said trial judge as 

alleged in paragraph 2 above, are in derogation of the due 
process and equal protection clauses of Article I, Section I, 
Paragraph 3 of the Georgia Constitution and Section I of the 
Fourteenth Amendment to the United States Constitution.

W herefore, defendant prays that the Honorable Durwood 
T. Pye disqualify himself in this case and refer it back to 
the presiding judge of this Court.

7 Shortly after the court addressed itself to the allegations of the 
motion to disqualify, petitioner’s counsel sought to have the jury 
leave the room but Judge Pye refused on the ground that he had 
already begun to consider the motion to disqualify (R. 48).

8 The judge conceded, however, after checking court records at 
the request of petitioner’s counsel, that when ruling on a motion to 
disqualify brought some years earlier by other counsel in another 
case that he had stated that he had “strong personal views against 
mongrelization of the races” (R. 81, 77-80).

9 Judge Pye placed into the record a letter to the Chief of Police 
and the reply of the Chief, as well as the charge to the grand jury 
which indicted petitioner, reference to which was made in the mo­
tion to disqualify.



17

court has any prejudice against them, against any Negro, 
that they honestly believe that the court cannot afford a 
fair trial for any man. . . . ” (R. 85). At this point, counsel 
asked for a continuance until after the hearing on the 
contempt citation, because under threat of contempt they 
could not “appropriately and properly” represent their 
clients (R. 85-86), but the motion was overruled (R. 86).

On appeal, despite petitioner’s express reliance on Ms 
Fourteenth Amendment right to an impartial tribunal, 
the Supreme Court of Georgia held that Ga. Code Ann. 
§24-10210 provides the only circumstances under which a 
Judge of the Superior Court may be disqualified. Peti­
tioner’s motion to disqualify was held properly overruled 
because: “prejudice or bias of the judge which is not based 
on an interest either pecuniary or relationship to a party 
affords no legal ground of disqualification,” infra, pp, la- 
2a.

10 §24-102. When judicial officer disqualified.—No judge or jus­
tice of any court, no ordinary, justice of the peace, nor pre­
siding officer of any inferior judicature or commission shall sit in 
any cause or proceeding in which he is pecuniarily interested, nor 
preside, act, or serve, in any case or matter, when such judge is 
related by consanguinity or affinity to any party interested in the 
result of the case or matter, within the sixth degree, as computed 
according to the civil law, and relationship more remote shall not 
be a disqualification; nor in which he has been of counsel, nor in 
which he has presided in any inferior judicature, when his ruling or 
decision is the subject of review, without the consent of all parties 
in interest: Provided, that in all cases in which the presiding judge 
of the superior court may have been employed as counsel before his 
appointment as judge, he shall preside in such cases if the opposite 
party or counsel agree in writing that he may preside, unless the 
judge declines so to do: and Provided further that no judge or 
justice of any court, no ordinary, justice of the peace, nor presiding 
officer of any inferior judicature or commission shall be disqualified 
from sitting in any cause or proceeding because of the fact that he 
is a policyholder or is related to a policyholder of any mutual 
insurance company which has no capital stock. But nothing in the 
last proviso shall be construed as applying to the qualifications of 
trial jurors.



18

This holding that personal or racial bias against an ac­
cused is in no circumstances sufficient to disqualify a trial 
judge is a clear violation of the due process clause of the 
Fourteenth Amendment. “No matter what the evidence 
was against him” petitioner “had the right to have an im­
partial judge.” Tumey v. Ohio, 273 U. S. 510, 535.

The occasions which give rise to bias in a trial judge 
cannot be arbitrarily limited to “interest either pecuniary 
or relationship to a party” as provided by Ga. Code Ann. 
§24-102, infra, pp. la-2a. In Tumey, supra, the Fourteenth 
Amendment required disqualification of a mayor who also 
served as trial judge “because of direct pecuniary interest 
in the outcome and because of his official motive to convict 
and to graduate the fine to help the financial needs of the 
village.” (Emphasis supplied.) But in Be Murchison, 
349 U. S. 133, the court found an “interest in the outcome” 
sufficient to disqualify when the same official served as 
“one-man grand jury,” out of which contempt charges 
arose, and as the trial judge of those charges. The Court 
found that the Fourteenth Amendment requires disqualifi­
cation whenever a judge’s “interest in the outcome” would 
work “actual bias in the trial of cases.” Re Murchison, 349 
U. S. at 136. The “interest” which disqualifies “cannot be 
defined with precision,” ibid. “ [Circumstances and rela­
tionships must be considered,” ibid.11

Petitioner’s Fourteenth Amendment right to an impartial 
trial, therefore, cannot be restricted arbitrarily to the “in­
terests” set forth in Ga. Code Ann. §24-102. Tumey v. 
Ohio, supra, and Re Murchison, supra, demonstrate with 
respect to a trial judge (Irvin v. Doivd, 366 U. S. 717, and 
Rideau v. Louisiana, 373 U. S. 723, with respect to the trial

11 “Every procedure which would offer a possible temptation to 
the average man as a judge not to hold the balance nice, clear and 
true between the state and the accused, denies the latter due process 
of law.” Tumey v. Ohio, 273 U. S. 510, 532.



19

jury) that “impartiality is not a technical conception. It 
is a state of mind. For the ascertainment of this mental 
attitude of appropriate indifference, the Constitution lays 
down no particular tests and procedure is not chained to 
any ancient and artificial formula,” United States v. Wood, 
299 U. S. 123,145.

Petitioner sought to disqualify the trial judge because 
of a racial and personal bias sufficient to deny him a fair 
and impartial trial. The courts of Georgia refused to con­
sider these allegations, because Ga. Code Ann. §24-102 
“does not provide that bias or prejudice is a ground to 
disqualify” a trial judge, infra, pp. la-2a. Applying a 
standard of disqualification impermissible under the Four­
teenth Amendment, the Supreme Court of Georgia has af­
firmed petitioner’s conviction, in violation of his right to 
due process of law. Rogers v. Richmond, 365 U. S. 534.

B. Petitioner W as Entitled to a H earing on tlie M otion  
to D isqualify or a Trial o f the Charges Against Him  
B efore Another Judge.

Had petitioner alleged bias and prejudice sufficient to 
deny him an impartial trial in a federal court, another 
judge would have been designated immediately to try his 
case. 28 IT. S. C. §144; Berger v. United States, 255 U. S. 
22, 36:12

To commit to the judge a decision upon the truth of the 
facts gives chance for the evil against which the section

12 Berger v. United States, 255 U. S. 22, illustrates the gap be­
tween the Georgia rule applied to foreclose any consideration of 
petitioner’s claim of bias and standards of fairness which prevail in 
federal courts. In Berger, the Court held that under Section 21 of 
the Judicial Code of 1911 (substantially carried forth in 28 U. S. C. 
§144) the mere filing of an affidavit in the manner provided show­
ing “objectionable inclination or disposition of the Judge,” 255 
U. S. at 35, sufficiently “withdraws from the presiding judge a deci­
sion upon the truth of the matters alleged,” 255 U. S. at 36, and 
acts to transfer the litigation to another judge.



20

is directed. The remedy by appeal is inadequate. It 
comes after the trial and if prejudice exists, it has 
worked its evil and the judgment of it in a reviewing 
tribunal is precarious. It goes there by presumptions 
and nothing can be more elusive of estimate or decision 
than a disposition of a mind in which there is a per­
sonal ingredient.

Federal law withdraws from the presiding judge a deci­
sion upon the truth of the matters alleged in a motion to 
disqualify. No less a standard should apply under the 
Fourteenth Amendment. No judge should be permitted 
to try his own case, cf. Re Murchison, 349 U. S. 133. “The 
risk to impartial justice is too great,” 8ocher v. U. 8., 343 
IT. S. 1, 17 (Mr. Justice Black dissenting).13

Long ago, this Court recognized that where “the issue 
between the judge and the parties had come to involve 
marked personal feeling that would not make for an im­
partial and calm judicial consideration,” the presiding 
judge should properly withdraw. Cooke v. United States, 
267 U. S. 517, 539. See also Mr. Justice Frankfurter dis­
senting in Sacher v. United States, 343 IT. S. at 30-33. In 
this case the record demonstrates the intensity of feeling 
generated by the motion to disqualify (R. 84-85, 87-88). 
Judge Pye took personal affront at the motion and immedi­
ately after overruling it cited counsel for contempt because 
they had asked him to recuse himself. Under the Fourteenth 
Amendment, the right to a fair and impartial judge is of 
such consequence that trial of the charges against an ac­
cused alleging bias or, at least, determination of the mo­
tion to disqualify should be withdrawn from the presiding 
judge.

13 This case does not involve, as did Sacher, the well-established 
power of courts to punish disruptive conduct occurring in open 
court.



21

CONCLUSION

W herefore, for the foregoing reasons, petitioner prays 
tha t the petition for w rit of certiorari be granted.

Respectfully submitted,

Michael Meltsner 
Of Counsel

J ack Greenberg 
J ames M. Nabr.it, III 

10 Columbus Circle 
New York, New York 10019

Donald L. H ollowell 
H oward Moore, J r.

859x/2 Hunter Street, N.W. 
Atlanta, Georgia 30314

Attorneys for Petitioner



A P P E N D I X



APPENDIX

Opinion
(Decided: April 9, 1964)

I n the

SUPREME COURT OF GEORGIA

Ashton Bryan J ones, 

—'v.—

State.

Almand, Justice. Ashton B. Jones upon his conviction 
of violating Code Ann. §26-6901 (interfering with religious 
worship) was sentenced by the court. His motion for a new 
trial was overruled. Error is assigned on the order denying 
him a new trial. Error is also assigned on (a) the refusal 
of the trial judge to disqualify himself from presiding in 
the case; (b) the order dismissing on motion of the State 
the defendant’s plea in abatement; (c) the orders overruling 
the general and special demurrers to the indictment; and 
(d) the order overruling the defendant’s motion in arrest 
of judgment.

1. Motion to disqualify. The defendant before pleading 
to the merits moved to disqualify the trial judge on the 
ground that he, by reason of bias and prejudice, could not 
give him a fair and impartial trial. Code Ann. §24-102 pro­
vides the circumstances under which a judge of the superior 
court may be disqualified. This Code section does not pro­
vide that bias or prejudice is a ground to disqualify him 
from presiding in the case. The statutory grounds of dis­



2a

qualification contained in this section are exhaustive. Blake- 
man v. Harwell, 198 Ga. 165 (31 SE 2d 50). “Alleged prej­
udice or bias of a judge, which is not based on an interest 
either pecuniary or relationship to a party within a pro­
hibited degree, affords no legal ground of disqualification.” 
Elder v. Camp, 193 Ga. 320 (18 SE 2d 622). See also Moore 
v. Dugas, 166 Ga. 493 (143 SE 591).

2. The plea in abatement. The plea alleged that the in­
dictment under Code §26-6901 was being applied so as to 
deny the defendant due process of law and equal protection 
of the law under the Constitution of Georgia (Code Ann. 
§2-103) and the Fourteenth Amendment to the Federal Con­
stitution in that “the said statute is being applied so as to 
perpetuate a scheme of racial discrimination in places of 
public worship within the City of Atlanta, Fulton County, 
Georgia, which has long existed under State sanction 
through legislative enactments, recognized customs and 
usages, and which has been aided and abetted by the dis­
criminatory enforcement and application of the said 
statute.” The State moved to dismiss the plea on the 
grounds that all the allegations contained in the plea go 
to the merits of the case and are not the proper subject 
matter for a plea in abatement. This motion to dismiss was 
sustained.

Pleas in abatement are dilatory pleas. They must be 
strictly construed, certain in intent and leave nothing to 
be suggested by intendment. Every inference must be 
against the pleader. Meriwether v. State, 63 Ga. App. 667- 
(1) (11 SE 2d 816). The indictment charges the defendant 
with disturbing divine worship by the doing of certain acts. 
There is no allegation of the absence of such acts before 
the grand jury or that the indictment was returned solely 
by the grand jury “to perpetuate a scheme of racial dis­

Opinion



3a

crimination in places of public worship.” “It has never been 
the practice in this State to go into an investigation to test 
the sufficiency of the evidence before the grand jury.” 
Powers v. State, 172 Ga. l-(3) (157 SE 195).

It was not error to dismiss the plea.
3. The demurrers to the indictment. The general de­

murrers. Code §26-6901 provides: “Any person who shall, 
by cursing or using profane or obscene language, or by 
being intoxicated, or otherwise indecently acting, interrupt, 
or in any manner disturb, a congregation of persons law­
fully assembled for divine service, and until they are dis­
persed from such place of worship, shall be guilty of a mis­
demeanor.” The indictment charged the defendant with the 
offense of a “misdemeanor (Sec. 26-6901) for that said ac­
cused, in the County of Fulton and State of Georgia, on the 
30th day of June, 1963 with force and arms, said accused 
being at and on the grounds of the First Baptist Church of 
Atlanta, did interrupt and disturb a congregation of per­
sons then and there lawfully assembled for divine service 
at said church, by loud talking, shouting, and by sitting on 
the floor of said church and by otherwise indecently acting 
contrary to the laws of said State, the good order, peace 
and dignity thereof.”

(a) The defendant challenges the statute under which 
he was indicted (Code Ann. §26-6901) on the ground that 
the statute is so vague, indefinite and ambiguous that it 
wholly fails to give the defendant notice of the act and 
conduct which constitutes a violation of said statute as is 
required by the due process clauses of the State Constitu­
tion and the Fourteenth Amendment to the Federal Con­
stitution.

Opinion



4a

Statutory language in defining a criminal offense which 
conveys a definite meaning as to proscribed conduct when 
measured by common understanding and practice satisfies 
due process requirements. United States v. Petrillo, 332 
U. S. 1. The statute under consideration proscribes the 
interruption or disturbance of a congregation of persons 
assembled for divine service in one of five different ways. 
The defendant under this indictment is put upon notice 
that he at a certain day at a named church did by “loud talk­
ing, shouting and by sitting on the floor of said church and 
by otherwise indecently acting” interrupt and disturb a con­
gregation of persons assembled for divine worship at said 
church. This court in Folds v. State, 123 Ga. 167 (51 SE 
305) held that the words “indecently acting” must be taken 
in the comprehensive sense and include all improper con­
duct which interrupts or disturbs a congregation of persons 
lawfully assembled for divine worship. Any person of com­
mon intelligence (and particularly one who claims to be an 
ordained minister) may determine whether the particular 
acts and conduct charged him with improper conduct, i.e., 
indecent acting. See Watson v. State, 192 Ga. 679 (16 SE 
2d 426); Farrar v. State, 187 Ga. 401-(2) (200 SE 803), and 
Clark v. State, 219 Ga. 680 (135 SE 2d 270).

It was not error to overrule this ground of the general 
demurrer.

(b) The indictment was demurred to on the grounds (1) 
that it did not charge any offense under the law; (2) that 
the allegations in the indictment were insufficient to charge 
the defendant with any offense under any law of the State 
and, (3) that the allegations in the indictment are so vague, 
indefinite and ambiguous that they wholly fail to give the 
defendant reasonable and adequate notice, as required by 
the due process clauses of the State Constitution and the 
Fourteenth Amendment to the Federal Constitution.

Opinion



Opinion

Laying the indictment by the side of the statute (Code 
§26-6901) discloses that the defendant is charged with the 
offense prohibited by the statute and that he is apprised 
with reasonable certainty of the nature of the charge, Glover 
v. State, 126 Ga. 594 (55 SE 592), and that the statute is 
sufficient to withstand a general demurrer, Ruff v. State, 
17 Ga. App. 337 (86 SE 784).

The charge that the allegations in the indictment are so 
vague, indefinite and ambiguous as not to meet the require­
ments of due process is controlled by the ruling in division 
3(a) above.

4. Special demurrers. Ground 1 asserts that the indict­
ment fails to allege that any person or persons were dis­
turbed or give the name of any person who was disturbed. 
Grounds 2 and 3 allege that the words “by loud talking, 
shouting and by sitting on the floor of said church and by 
otherwise indecently acting” are too vague and indefinite, 
and insufficient to enable the defendant to prepare his de­
fense and that there was no allegation that the “loud talk­
ing” was either profane, abusive, unreasonable or willful. 
Ground 4 alleges that the words in the indictment “by other­
wise indecently acting” are vague and insufficient to put 
defendant on notice of the nature and character of his acts. 
Ground 5 asserted that the indictment fails to state the State 
and county of defendant’s residence.

The court overruled all of the special demurrers escept 
ground 4 which it sustained, and the words “and by other­
wise indecently acting” were stricken from the indictment. 
Error is assigned on the overruling of the other demurrers.

This court in considering the sufficiency of an indictment 
under Code §26-6901 in Minter v. State, 104 Ga. 743, 748 
(30 SE 989) said: “The terms of the statute upon which 
this presentment is founded so distinctly individuate the



6a

offense which it defines, that the nse of such terms in charg­
ing the offense in the presentment sufficiently notified the 
accused of what he was called upon to answer. The gist of 
the offense is the disturbance of a congregation lawfully 
assembled for divine service; and the manner and means, 
or the particular acts, by which the disturbance of such con­
gregation may be effected are set out in the statute; and a 
general allegation that the disturbance was caused by such 
acts is all that is necessary, without entering into details.” 
See also Folds v. State, 123 Ga. 167; Brown v. State, 14 Ga. 
App. 21-(4) (80 SE 26).

It was not error to overrule the four special demurrers.
5. Motion in arrest of judgment. The first ground of the 

motion asserted that there was no valid and sufficient in­
dictment. Our ruling in Division 3 of this opinion fore­
closes any further discussion of this ground. The second 
ground alleged that Code 26-6901 was violative of the due 
process clauses of the State Constitution and the Four­
teenth Amendment to the Federal Constitution. Our ruling 
in Division 3(a) of this opinion settles this ground.

The third ground asserts that when the court struck the 
words “and by otherwise indecently acting” from the indict­
ment, it materially amended the indictment in derogation 
of the due process clauses of the State Constitution and 
the Fourteenth Amendment to the Federal Constitution, 
and the indictment as amended failed to charge an offense 
under the laws of Georgia.

As pointed out in our rulings on the special demurrers 
the court sustained the special ground of the defendant’s 
demurrer and on his motion struck the words “by otherwise 
indecently acting” from the indictment. The court struck 
these words from the indictment as “constituting surplus­
age, in order that the jury might not be confused.” This the

Opinion



7a

court had the right to do and such action did not render 
the whole indictment void. Brooks v. State, 178 Ga. 784-(3) 
(175 SE 6); Patton v. State, 59 Ga. App. 871(2) (2 SE 2d 
511). This is especially true where the court’s action was 
at the defendant’s request. Ralston v. Cox, 123 F2d 196, 
cert, denied 315 U. S. 796 (62 SC 488, 86 LE 1197).

The indictment with the words “and by otherwise in­
decently acting” stricken was sufficient to charge an offense 
under Code §26-6901. Folds v. State, 123 Ga. 167, supra.

The motion in arrest was properly overruled.
6. Motion for a new trial. The motion consists of the 

general grounds and 14 amended grounds.
(a) Exceptions to instructions to the jury. The court 

after reading Code §26-6901 to the jury charged that if 
they found beyond a reasonable doubt that loud talking or 
sitting on the floor or shouting be shown, provided it was 
such that disturbed persons assembled for divine service, 
such would constitute indecent acting within the meaning 
of the law.

This charge is not subject to the exception that it con­
veyed an erroneous impression or inference. The charge 
was in harmony with the statute and with this court’s defini­
tion of “indecent acting” in Folds v. State, 123 Ga. 167, 
supra.

(b) The court charged the jury that though the indict­
ment charged that the offense was committed with force 
and arms, it would be sufficient if the State should prove 
the remaining allegations of the indictment. The ground 
of the exception is that it erroneously conveyed to the jury 
the idea that the defendant had used force and violence. It 
was not error for the court to inform the jury that it was

Opinion



8a

not necessary to prove tliis formal phrase of the indictment. 
See Pitts v. State, 219 Ga. 222 (132 SE 2d 649).

(c) The court instructed the jury that if the state proved 
that the accused did interrupt or disturb—either one was 
sufficient to support the allegation in the indictment that 
he did interrupt and disturb.

This charge is not subject to the objection that it was 
erroneous and harmful.

(d) The court instructed the jury that if the defendant 
did the acts alleged in the indictment for the purpose of 
causing the church to change its rules and practice to con­
form to those of the defendant’s liking, this would not con­
stitute any defense.

This instruction, it is alleged, was in derogation of the 
defendant’s right of free speech and association guaranteed 
by the State and Federal Constitutions.

The statute under which the defendant was being pros­
ecuted does not make it an offense for one to speak in a 
church service. The gist of the offense is the interruption 
or disturbance of the congregation while engaged in divine 
service. The statute may be violated not only by the spoken 
word (cursing, profane or obscene language) but by in­
decent acting. One might remain mute, yet by improper 
conduct interrupt or disturb the service.

The constitutional right of one to freedom of speech is 
counterbalanced by the right of the many to their constitu­
tional freedom in the practice of their religion. Neither 
occupies a preferred position in the Constitution.

The instruction was not error.
(e) Grounds 5, 6 and 7 will be considered together. (5) 

The court charged the jury that a church has the right to 
establish its own practice and rules for the admission and

Opinion



9a

seating of persons and if one refused to comply with the 
rules the church authorities had the right to use reasonable 
force to evict him. (6) The court charged the jury that if 
the defendant disagreed with the rules and practices of the 
church and engaged in loud talking, shouting and sitting on 
the floor to induce the church to change its rules, his desire 
to cause the church to change its rules would not constitute 
any defense. (7) The court charged that the jury was not 
concerned with the question of segregation or integration 
or with the correctness or propriety of any rule or practice 
of the church. These charges were objected to as being (5) 
injurious and prejudicial; (6) erroneous and incorrect and 
(7) harmful because the jury should have been allowed to 
consider the question as to whether the church was prac­
ticing racial segregation.

From the testimony of the defendant it clearly appears 
that he went to the church for the purpose of getting the 
church authorities to change its rules and practices as to 
seating persons. The evidence authorized these instruc­
tions.

(f) The defendant alleges error because the court read 
to the jury the indictment without reading the three words, 
“otherwise indecently acting,” which had been stricken by 
the court on motion of the defendant.

There is no merit to this contention. It was proper for 
the court to read the indictment as it stood after the elimina­
tion of these words.

7. Glenn Bailey testified that he was a member of the 
First Baptist Church and was in the church sanctuary for 
the morning service of June 30, 1963 and heard a man 
hollering and that the voice was coming from the front of 
the church. Defendant moved to rule out this testimony be­

Opinion



10a

cause the witness did not identify the defendant as the one 
who hollered. The motion was overruled. There was other 
testimony that the hollering was done by the defendant. 
It was not error to overrule the motion.

8. On cross-examination of the witness the court sus­
tained the objection of the State’s counsel to the question 
“Do you know that as a matter of fact the disorderly con­
duct charge against the defendant was dismissed!” The 
defendant alleges error on the ground that “the movant 
was unable to solicit from the witness relevant facts within 
his own knowledge which would have exculpated the 
movant” and thereby limited the scope of defendant’s cross- 
examination.

What action took place in another court upon a different 
charge was irrelevant and immaterial. The action of the 
court in confining counsel to the issues of the case on trial 
does not abridge counsel’s right to a thorough cross-exami­
nation. Pulliam v. State, 196 Ga. 782 (28 SE 2d 139).

9. Ground 11 alleges error in the court, over objection, 
permitting the State’s counsel on cross-examination of the 
defendant to question the defendant on his acts and con­
duct at other places in Atlanta.

It appears from the testimony of the defendant that he 
first brought into the case incidents of picketing, “sitting 
in” and “lying in” at other places in Atlanta. It was not 
error to permit State’s counsel to cross-examine the de­
fendant as to these other incidents.

10. Grounds 12 and 13 assign error on the court’s over­
ruling defendant’s motion for a directed verdict of acquit­
tal. It is never error to refuse to direct a verdict of ac­
quittal. Baugh v. State, 211 Ga. 863 (89 SE 2d 504).

Opinion



11a

11. The final special grounds complain that the court’s
sentence of 12 months upon the public works, 6 months in 
jail and a $1,000 fine was arbitrary, capricious, unreason­
able and violative of the constitutional provisions for due 
process of law, and fair and impartial trial, and was ex­
cessive. .. .

The sentence imposed was within the limits provided by 
law. Being not greater than the maximum sentence pro­
vided by law it is not excessive. Godwin v. State, 123 Ga. 
569 (51 SE 598).

12. The verdict is fully supported by the evidence and 
the general grounds were properly overruled.

Judgment affirmed. All the Justices concur.

Opinion



12a

Judgment
(Decided April 9,1964)

I n  t h e

SUPREME COURT OF THE STATE OF GEORGIA

Ashton Bryan J ones,

T he State.

The Honorable Supreme Court met pursuant to adjourn­
ment. The following judgment was rendered:

Ashton Bryan Jones v. The State.

This case came before this court upon a writ of error 
from the Superior Court of Fulton County; and, after 
argument had, it is considered and adjudged that the judg­
ment of the court below.be affirmed.

All the Justices concur.



13a

Denial of Rehearing
(Decided April 21,1964)

I n the

SUPREME COURT OF GEORGIA

Ashton Bryan J ones,

T he State.

The Honorable Supreme Court met pursuant to adjourn­
ment. The following order was passed:

Ashton Bryan Jones v. The State.

Upon consideration of the motion for a rehearing filed 
in this case, it is ordered that it hereby be denied.



:

38