McLaurin v. City of Greenville, Mississippi Petition for Writ of Certiorari

    I n  the

(Enurt of tip lotted #tat?js
October Teem, 1966 

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

Charles McLahrin,
Petitioner,

— v.—

City op Greenville, Mississippi, 

(Two Cases)

Charles E arl Cobb,

Respondent.

Petitioner,

City op Greenville, Mississippi, 

(Two Cases)
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF MISSISSIPPI

Jack Greenberg
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

R. Jess B rown
125% North Parish Street 
Jackson, Mississippi 39201

Attorneys for Petitioners



I N D E X

PAGE

Opinions Below ..................................................................  2

Jurisdiction ..........................................................................  2

Questions Presented............................................................  2

Constitutional and Statutory Provisions Involved.......  4

Statement ......................    5

Summary of the Evidence ........................................  7

How the Federal Questions Were Raised and De­
cided Below ..............................................................  14

R easons foe Granting the W rit

I. Certiorari Should Be Granted to Review and 
Reverse Petitioners’ State Criminal Convic­
tions, Which Punish Them for the Exercise 
of Their Federal Constitutional Rights of 
Free Speech, Assembly and Petition and Con­
flict With Decisions of This Court .............-  15

II. Certiorari Should Be Granted to Review and 
Reverse Petitioners’ State Criminal Convic­
tions, Which Deprive Them of Their Liberty 
Without Due Process of Law Because 
Founded Upon No Evidence of Guilt ...........  20

III. Certiorari Should Be Granted to Review and 
Reverse Petitioners’ State Criminal Convic­
tions Under a Statute Indistinguishable From 
That Declared Facially Unconstitutional by 
This Court in Cox v. Louisiana....................... 21



11

IV. Certiorari Should Be Granted to Review and 
Reverse Petitioner Cobb’s Conviction for 
Resisting Arrest Because His Right to Equal 
Protection of the Laws Was Violated by the 
Trial Court’s Refusal to Permit Him to Show 
Systematic Exclusion of Negroes Prom the 
Petit Jury Through Prosecutorial Abuse of 
Peremptory Challenges.....................-..............  24

Conclusion..................................................................................  26

A ppendix

Opinion of Supreme Court of Mississippi in
McLaurin Breach of Peace Case ......................... la

Judgment of Supreme Court of Mississippi in 
McLaurin Breach of Peace Case........................... 14a

Opinion of Supreme Court of Mississippi in
McLaurin Resisting Arrest Case ......................... 15a

Judgment of Supreme Court of Mississippi in 
McLaurin Resisting Arrest Case ..........................  16a

Opinion of Supreme Court of Mississippi in
Cobb Breach of Peace C ase.................................... 17a

Judgment of Supreme Court of Mississippi in 
Cobb Breach of Peace Case .................................. 18a

Opinion of Supreme Court of Mississippi in
Cobb Resisting Arrest C ase.................................... 19a

Judgment of Supreme Court of Mississippi in 
Cobb Resisting Arrest Case.................................... 20a

PAGE



Ashton v. Kentucky, 384 U. S. 195 (1966) ..... ......... 20,23

Bolton v. City of Greenville, 253 Miss. 656, 178 So. 2d
667 (1965) .....................................................................-  8

Bynum v. City of Greenville, 253 Miss. 667, 178 So. 2d 
672 (1965) ........................................................................ 8

Cantwell v. Connecticut, 310 U. S. 296 (1940) ...........  22
Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) .... 18
Cox v. Louisiana, 379 U. S. 536 (1965) ....4,16,17,18,19, 22

Dombrowski v. Pfister, 380 U. S. 479 (1965) .... ..........  23

Edwards v. South Carolina, 372 U. S. 229 (1963) ....16,17,
18,19, 22

Feiner v. New York, 340 U. S. 315 (1951) ................... 18

Garner v. Louisiana, 368 U. S. 157 (1961) ................... 20

Henry v. City of Bock Hill, 376 U. S. 776 (1964) ....22,24

NAACP v. Button, 371 U. S. 415 (1963) ....................... 23

Shuttlesworth v. Birmingham, 382 U. S. 87 (1965) ..21, 22
Stromberg v. California, 283 U. S. 359 (1931) ........— 22
Swain v. Alabama, 380 U. S. 202 (1965) ....................... 25

Taylor v. Louisiana, 370 U. S. 154 (1962) ................— 20
Terminiello v. Chicago, 337 U. S. 1 (1949) ...............16, 22
Thomas v. Collins, 332 U. S. 516 (1945) ........... ...........  22
Thompson v. Louisville, 362 TJ. S. 199 (1959) ...... ........  20
Thornhill v. Alabama, 310 U. S. 88 (1940) ------- --------  22

I l l

PAGE



Williams v. North Carolina, 317 U. S. 287 (1942) .......  22
Wright v. Georgia, 373 U. S. 284 (1963) .......................3, 21

Statutes and Ordinances

28 U. S. C. §1257(3) ........................................................  2
Miss. Code Ann. §2089.5 (Supp. 1964) ...................3,4,5,21

Other A uthorities

Chafee, Free Speech in the United States (1954) .......  20

i v

PAGE



Isr th e

Supreme (tort ni tljr llmtrft States
October T erm, 1966 

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

Charles McL aurin,
Petitioner,

—v.—

City of Greenville, Mississippi,

Respondent.
(Two Cases)

C harles E arl Cobb,
Petitioner,

— v .—

City of Greenville, Mississippi,

Respondent.
(Two Cases)

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF MISSISSIPPI

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of Mississippi entered 
in the above-entitled cases on June 13, 1966. Rehearing 
was denied on July 8, 1966.



b. Petitioners were convicted upon no evidence of guilt?

c. Petitioners were convicted under a statute indis­
tinguishable from that declared facially unconstitutional in 
Cox v. Louisiana, 379 U. S. 536, 551-52 (1965)?

2. Does petitioner Cobb’s conviction for resisting ar­
rest offend the Equal Protection Clause of the Fourteenth 
Amendment because the trial court refused to permit him 
to show a pattern or practice of systematic prosecutorial 
exercise of peremptory challenges to strike Negroes from 
the petit jury?

Constitutional and Statutory Provisions Involved

This case involves the First Amendment and Section 1 
of the Fourteenth Amendment to the Constitution of the 
United States.

This case also involves the following statute of the State 
of Mississippi:

Miss. Code Ann. §2089.5 (Supp. 1964)—Disturbance of 
the public peace, or the peace of others.

1. Any person who disturbs the public peace, or the peace 
of others, by violent, or loud, or insulting, or profane, 
or indecent, or offensive, or boisterous conduct or 
language, or by intimidation, or seeking to intimidate 
any other person or persons, or by conduct either 
calculated to provoke a breach of the peace, or by 
conduct which may lead to a breach of the peace, or by 
any other act, shall be guilty of a misdemeanor, and 
upon conviction thereof, shall be punished by a fine of 
not more than five hundred dollars ($500.00), or by 
imprisonment in the county jail not more than six 
(6) months, or both.

,4



5

Code of Ordinances of the City of Greenville, Section 
252—Resisting Arrest.

Any person who knowingly and wilfully opposes or re­
sists any officer of the city in executing, or attempting 
to make any lawful arrest, or in the discharge of any 
legal duty, or who in any way interferes with, hinders 
or prevents, or offers or endeavors to interfere with, 
hinder or prevent, such officer from discharging his 
duty, shall be guilty of a misdemeanor.

Statement

Petitioners Charles McLaurin and Charles Earl Cobb, 
Negro civil rights workers, were arrested on July 1, 1963 
in the City of Greenville, Mississippi and charged with 
breach of the peace, in violation of Miss. Code Ann. §2089.5 
(Supp. 1964), set forth p. 4, supra, and with resisting 
arrest, in violation of a Greenville City ordinance, set forth 
p. 5, supra (RA 3; RB 8; RC 5; RI) 6).

On July 3, 1963, petitioners were tried and convicted on 
these charges in the Municipal Court of the City of Green­
ville (187 So. 2d at 855; RA 206).

Petitioners appealed to the County Court of Washington 
County for trials de novo on their four charges. There, in 
four separate jury trials,3 petitioners were again convicted

3 Petitioner McLaurin was tried and convicted of breach of the 
peace on September 16, 1963 (RA 13) ; he was tried and convicted 
of resisting arrest on September 20, 1963 (RB 16). Petitioner Cobb 
was tried and convicted of breach of the peace on September 17, 
1963 (RC 13-14); he was tried and convicted of resisting arrest 
on September 20, 1963 (RD 16).

This case also involves the following ordinance of the
City of Greenville, Mississippi:



6

Petitioners appealed their convictions to the Circuit 
Court of Washington County, which affirmed.4 Appeals 
were allowed to the Supreme Court of Mississippi, where 
the four cases were consolidated for argument.5

On June 13, 1966, the Supreme Court of Mississippi af­
firmed petitioners’ convictions in four separate orders, with 
an extensive opinion in the McLaurin breach of the peace 
case (187 So. 2d at 855-60; EA 206-19; EB 161-62; EC 
173; ED 168). Petitioners’ suggestions of error were over­
ruled on July 8, 1966 (EA 222; EB 165; EC 176; ED 171).

In each of the four cases covered by this petition and 
others tried in the same court during the same week, coun­
sel for petitioners attempted to show a pattern or practice 
of systematic prosecutorial exercise of peremptory chal­
lenges to strike Negroes from the petit juries. In the cases 
first tried—petitioners’ breach of the peace prosecutions— 
counsel was permitted to state for the record the number 
of Negroes peremptorily excused by the prosecutor. In the 
Cobb resisting-arrest case, counsel tried to introduce the 
figures on Negro peremptory challenges which he had 
compiled “ in these cases all during the week” (ED 24).

and sentenced to pay a fine of $100.00 and serve a term of
90 days in the city jail on each charge.

4 Petitioners’ breach of the peace convictions were affirmed on 
February 27, 1964 (RA 106-07; RC 82-83) ; petitioners’ resisting 
arrest convictions were affirmed on July 24, 1964 (RB 80; RD 87).

5 After submission of the eases to the Supreme Court of Mis­
sissippi, it was discovered that the affidavits upon which the charges 
were based were not included in the records, although they had 
been designated by petitioners in their notice of designation of the 
record. Respondent City of Greeenville suggested a diminution 
of the record, which was sustained by the court, thereby correcting
the omission. (------ Miss. —— , 180 So. 2d 927 (1965); 187 So. 2d
at 855.)



7

The trial court disallowed this proffer on the stated ground 
that “ This is a separate ease altogether” (Ibid.). Counsel 
explained that “ only [to] show what happened in one case 
would not be enough to prove systematic exclusion, but if 
we can show a pattern of what happened in enough cases, 
then we are in a better position to argue [the] contention” 
(KD 25). The court adhered to its ruling, stating:

. . . Your motion is well in the record and your mo­
tion specifically states what you are seeking to do and 
the Court understands that and the record shows that, 
and if this Court is in error by not permitting you to 
show that pattern, then you don’t have to show that 
pattern to the Supreme Court at all, the Supreme 
Court will reverse it because it didn’t let you do it. 
Your record is all right for that purpose (RD 25-26).

Summary of the Evidence

The arrest of petitioners was precipitated by the trial 
of two Negro girls in the Municipal Court of the City of 
Greenville on July 1, 1963, on charges of disorderly con­
duct (App. p. 3a; 187 So. 2d at 856; RA 208). Petitioners 
attended the trial, along with about 150 other Negroes and 
an approximately equal number of whites. During the 
trial petitioner McLaurin attempted to sit on the side of 
the courtroom customarily reserved for whites, but he was 
ordered out of that section (RA 24, 30-33, 64, 75-76; RB 
55-56, 65-66). Petitioner McLaurin left the courtroom and 
protested the segregated seating pattern to police chief 
W. C. Burnley (RA 208). His protest was futile, and he 
was then denied readmission to the courtroom (RA 208). 
Petitioners then left the Municipal Building, which housed 
the Municipal Court and the police station, and stood out­



8

side on the sidewalk waiting for the trial to end and for 
the spectators to emerge (RA 75-76). About 50 Negroes 
were standing outside the building, having been denied ad­
mission to the courtroom because the Negro side was com­
pletely filled (although there was some space on the white 
side) (RA 76).

The girls were convicted by the Municipal Court.6 As 
the spectators left the municipal building, petitioner Mc- 
Laurin began to address them in a loud voice, protesting 
the conviction of the girls and the evils of segregation and 
calling for mass Negro voter registration to achieve 
equality (RA 78-79, 90, 92). Police officer Carson then 
arrested petitioner McLaurin (RA 209). Next, petitioner 
Cobb began to address the crowd in much the same vein 
as petitioner McLaurin, and he was arrested by police 
officer Martin (RC 30, 59-60).

Because the nature and content of petitioners’ speeches 
and the context in which they were delivered are of crucial 
importance to decision of this case, the evidence adduced 
in these four cases will be summarized separately, as fol­
lows :

McLaurin Breach of the Peace Case

Arresting officer Carson testified that petitioner Mc­
Laurin loudly protested the Court’s decision, saying that

6 At their trial police officers testified that they were arrested 
and charged with disorderly conduct because they refused to leave 
a public park when the police ordered them to do so because police 
feared that, if they stayed, the white crowd that was gathering 
around them would become violent. Their convictions were sub­
sequently reversed by the Mississippi Supreme Court in Bolton v. 
City of Greenville, 253 Miss. 656, 178 So. 2d 667 (1965) and 
Bynum v. City of Greenville, 253 Miss. 667, 178 So. 2d 672 (1965).



9

it was wrong, that segregation was wrong and that some­
thing should be done to right these wrongs (RA 25, 28, 
36, 209). Apprehending that the crowd was becoming 
“ tense” (RA 27, 209), Carson told McLaurin that he could 
not continue speaking without a permit (RA 28) and, when 
McLaurin continued, arrested him (RA 28). Police captain 
Harvey Tackett and police chief W. C. Burnley also testi­
fied for the City of Greenville. Captain Tackett was un­
clear as to the exact content of petitioner McLaurin’s 
speech, but he recognized it as a speech of protest against 
segregation and a general query to the crowd as to what 
they were going to do about it (RA 45, 210). Chief Burnley 
was also near the scene and testified that McLaurin’s 
speech included queries to the crowd: “What are you 
going to do? Are you going to let this happen! Statements 
of that type” (RA 54, 211).

None of the prosecution witnesses heard any profane 
language on the part of petitioner McLaurin (RA 36-37, 
51-52), nor any call for violence (RA 37-38), nor was there 
any testimony that McLaurin’s speech disturbed a court 
in session.

Petitioner McLaurin testified on his own behalf. He de­
scribed the content of his speech as follows:

I was saying different things like, this wouldn’t have 
happened if Negroes were registered to vote, that in 
Washington County Negroes are in the majority of 
the population—50% of the population is Negro and 
that they could have used the park or any other thing 
had they been registered voters (RA 77, 213).

. . . [T]he words that I was using wouldn’t have caused 
them to jump—to go in there and try to beat up the



10

Judge. Negroes know they can’t go beat up the Judge 
and be justified, and tear down the building and be 
justified, or jump on a policeman in the State of Mis­
sissippi and be justified (RA 79, 213-14).

Petitioner McLaurin also testified as to what he intended 
by his speech:

I meant that if they were registered—if the people 
would register to vote, were to get in line and exer­
cise their duties and responsibilities as citizens, as 
Negro citizens, and as citizens of the United States, 
they could change some of these things. They could 
change the policy of being arrested in a park that they 
paid for as well [sic] any other people and that there 
wouldn’t be such parks that was designated for whites 
and for Negroes. . . . And, the only thing that I had 
in mind was to get [the crowd] to register to vote and 
to realize what was happening, and I felt that I had 
a right to do this under the 1st Amendment (RA 78- 
79).

*  # # # *

I was going to tell them what had taken place with 
respect to the park and with my being asked to leave 
the courtroom. That’s what I was speaking of, I was 
speaking of the fact that the kids had been arrested 
because they used the public park that had been set 
aside for whites and the fact that I was thrown out 
of the courtroom because I had used the side that had 
been set aside for the whites on the right side of the 
building, you know (RA 92).

All three prosecution witnesses agreed that the predomi­
nantly Negro crowd of ajjproximately 200 was “mumbling”



11

(EA 27, 42, 45-46, 57) and appeared upset, but no threat 
of violence, either directed at the speaker or at city authori­
ties, was heard nor did anyone in the crowd appear to be 
armed (EA 42, 68). After the arrest of petitioners, the 
crowd was easily dispersed (EA 48; ED 47).

McLaurin Resisting Arrest Case

Officer Carson testified that, after he told petitioner Mc­
Laurin that he was under arrest, McLaurin kept address­
ing the crowd. Carson testified that he took McLaurin by 
the arm and then pushed him from behind into the police 
station (EB 33-34). McLaurin tried to brace his feet and 
“began to pull back” (EB 33), but offered no greater re­
sistance to Carson, who outweighed him by 60 pounds (EB 
38, 59). Once inside the police station, McLaurin fell to 
the floor and lay motionless there (EB 34). He was then 
picked up and carried to the sergeant’s desk for booking, 
after which he voluntarily got up (EB 35).

McLaurin testified that after he had begun to speak, 
Carson came up to him and told him that he could not 
speak without a permit (EB 60). McLaurin continued to 
speak, and Carson took him by the arm and told him that 
he was under arrest (EB 60). Carson then pushed him 
from behind into the police station. While McLaurin did 
not struggle, he concededly made Carson supply the energy 
needed to propel him into the police station (EB 60-61). 
McLaurin admitted that, once inside the police station, he 
went limp (EB 61). His action, he testified, was equivalent 
to saying: “ [H]ere’s my body, it is you that wants me in 
jail, then, carry me to jail” (EB 68).



12

Cobb Breach of the Peace Case

Arresting officer James Martin testified that petitioner 
Cobb asked the crowd: “ [A ]re we going to stand for this, 
and watch my partner go to jail, what are you going to do 
about it !” (EC 30). Captain Tackett also testified as to 
what Cobb said:

He said, you see what they are doing to him, are you 
going to stand here and let them do it? He said this 
is everybody’s fight and so on (EC 43).

And police chief Burnley testified that Cobb said:

Are you going to take this, they are taking him away 
to jail, let’s all go to jail (EC 51).

But Martin and Burnley both admitted that Cobb did not 
encourage the crowd to commit any act of violence (EC 
37, 55).

Petitioner Cobb testified that, after McLaurin had been 
arrested, he stood on the steps of the Municipal Building, 
“and I was telling them that the two girls had been arrested 
for using a public park paid for with your tax money. I 
said McLaurin has been taken to jail for trying to tell you 
about it, and that I think we all ought to be in jail with 
McLaurin” (EC 59). Cobb was told by Martin that he was 
under arrest for speaking without a permit (EC 59).

Cobb explained what he meant when he said, “ I think 
we all ought to be in jail with McLaurin” :

[T]he point that I was trying to bring out to the 
people was that the two girls had not only been ar­
rested illegally, but unjustly and that McLaurin had 
been arrested not only illegally but unjustly, and that



13

if this was the kind of society and the kind of system 
that arrested people unjustly and illegally and called 
it legal and just, then I felt all the legal and just people 
should be in jail because I feel that in an illegal and 
unjust system and society, the real just people will 
wind up in jail simply because the unjust and illegal 
people will not tolerate any kind of honest or just 
thinking or actions (EC 60).

Petitioner Cobb did not intend his listeners to go to 
jail by committing violence, but intended that the crowd 
“ just go on in voluntarily into the cells” (EC 62).

The prosecution witnesses testified that the crowd of 
about 200 was “angry” (EC 30) and “ muttering” (EC 43, 
52), but that no threat of violence emanated from the crowd 
(EC 52-53). There was no evidence that Cobb’s speech dis­
turbed a court in session. The crowd did nothing to hinder 
the arrest of petitioners, nor did the arresting officers 
fear such hindrance (ED 36).

Cobb Resisting Arrest Case

After Officer Martin told petitioner Cobb that he was 
under arrest for speaking without a permit (ED 32), he 
grabbed Cobb by the arm and dragged him into the police 
station (ED 33, 68). Officer Martin, outweighing peti­
tioner Cobb by 100 pounds (ED 37), testified that Cobb 
“ just put all his weight on me” (ED 33). Captain Tackett 
also testified as to what Cobb had done: “ He was trying 
to back up, pushing back, and looking back over his 
shoulder, hollering, still shouting” (ED 46). After Cobb 
was pushed into the police station he went limp and was 
carried to the sergeant’s desk for booking (ED 33). After



14

booking, Cobb voluntarily got up and walked to his cell 
(ED 34).

How the Federal Questions Were Raised 
and Decided Below

In the County Court of Washington County, petitioners 
preserved each of the issues presented here by a motion 
for directed verdict (RA 62-63; RB 52-53; RC 56-57; RD 
64-65) and by a motion for new trial (RA 96-97; RB 16a- 
16b; RC 15-16; RD 17-18); these motions were denied 
(RA 63, 97; RB 53, 16b; RC 57, 16; RD 66, 18).

In the Circuit Court of Washington County, petitioners 
preserved each of the issues presented here in their assign­
ments of errors (RA 104; RC 80).7

In the Supreme Court of Mississippi, petitioners pre­
served each of the issues presented here (RB 93; RC 101; 
RD 100).8 The Supreme Court of Mississippi considered 
and determined on the merits each of the issues raised in 
this petition (App. pp. 2a-3a; 187 So. 2d at 855, 860-61; 
RA 207).

7 The assignments of errors in petitioners’ resisting arrest cases 
were omitted from these records.

8 The assignment of errors in MeLaurin’s breach of the peace 
case was mistakenly omitted from that record.



15

REASONS FOR GRANTING THE WRIT

I.

Certiorari Should Be Granted to Review and Reverse 
Petitioners’ State Criminal Convictions, Which Punish 
Them for the Exercise of Their Federal Constitutional 
Rights of Free Speech, Assembly and Petition and Con­
flict With Decisions of This Court.

Petitioners were charged with “ disturb [ing] the public 
peace by loud or offensive language, or by conduct either 
calculated to provoke a breach of the peace, or by conduct 
which might reasonably have led to a breach of the peace” 
(RA 3; RC 5). Petitioners submit that Mississippi may 
not constitutionally punish them pursuant to these charges 
for engaging in the type of conduct which this record 
reveals.

This record reveals that petitioners’ conduct consisted 
solely of speech—speech, to be sure, of a vigorous and stir­
ring nature—but constitutionally protected speech nonethe­
less. The speeches which petitioners gave were to a crowd 
of about 200 Negroes on the public sidewalk, most of whom 
had just left a segregated courtroom after witnessing the 
trial and conviction of two Negro girls for having sought to 
enjoy a white-only municipal park. They were speeches of 
protest designed to draw public attention to the evils of 
racial discrimination and segregation as practiced in the 
community. Petitioners intended to stir persons in the 
crowd to action, viz., assertion of their federal rights. 
The fact that petitioners were arrested before they could 
fully make their point about the necessity of Negroes regis­
tering to vote and exercising other federal rights does not



16

deprive them of federal protection. What petitioners did 
succeed in saying merely amounted to a call to action; 
but nowhere in the record is there any indication that it 
was a call to unlawful action. What petitioners said may 
have “brought about a condition of unrest” , but it has 
long since been settled by this Court that a conviction 
resting on that ground may not stand. Termmiello v. 
Chicago, 337 U. S. 1, 5 (1949).

Petitioners could constitutionally be punished only if 
they intended to incite their listeners to riot or used lan­
guage whose natural and foreseeable effect under the cir­
cumstances would provoke their listeners to acts of vio­
lence.9 Thus, the central issue presented here is whether 
the design or content of petitioners’ speech (analyzed in 
the context of the composition and mood of the crowd) 
exceeded the boundaries of protected free speech. Petition­
ers submit it did not.

The constitutional guidelines for decision here are pro­
vided by Edwards v. South Carolina, 372 U. S. 229 (1963) 
and Cox v. Louisiana, 379 U. S. 536 (1965). Analysis of 
these cases reveals that petitioners’ speeches merit no less 
federal protection than that afforded the speeches delivered 
in Edwards and Cox.

In Edwards,

the petitioners engaged in what the City Manager 
described as ‘boisterous’, ‘loud’, and ‘flamboyant’ con­
duct, which, as his later testimony made clear, con­
sisted of listening to a ‘religious harangue’ by one of

9 The record makes clear that no profane language was used by 
the petitioners. Nor is there any evidence in the record that peti­
tioners disturbed a court in session.



17

their leaders, and loudly singing ‘The Star Spangled 
Banner’ and other patriotic and religious songs, while 
stamping their feet and clapping their hands (372 
U. S. at 233).

The speaker in Edwards had “ harangued” approximately 
200 of his followers and at least an equal number of by­
standers on the State House grounds in Columbia, South 
Carolina. His and his followers’ breach of the peace con­
victions were reversed by this Court, holding that their 
constitutionally protected rights of free speech, assembly 
and petition had been exercised “ in their most pristine and 
classic form” (372 U. S. at 235).

Cox had addressed a group of about 2,000 young Negro 
students on the sidewalks between the State Capitol and the 
courthouse in Baton Rouge, Louisiana. His was a speech of 
protest (379 U. S. at 542-43):

[Cox] gave a speech, described by a State’s witness 
as follows:

He said that in effect it was a protest against the 
illegal arrest of some of their members and that other 
people were allowed to picket . . . and he said that 
they were not going to commit any violence, that 
if anyone spit on them, they would not spit back on 
the person that did it.

Cox then said:

All right. It’s lunch time. Let’s go eat. There are 
twelve stores we are protesting. A  number of these 
stores have twenty counters; they accept your money 
from nineteen. They won’t accept it from the twenti­
eth counter. This is an act of racial discrimination.



18

These stores are open to the public. Yon are members 
of the public. We pay taxes to the Federal Govern­
ment and you who live here pay taxes to the State.

The Sheriff testified that, in his opinion, constitutional 
protection for the speech ceased “ when Cox, concluding his 
speech, urged the students to go uptown and sit in at lunch 
counters” (379 U. S. at 546), but this Court disagreed:

The Sheriff testified that the sole aspect of the pro­
gram to which he objected was ‘ [t]he inflammatory 
manner in which he [Cox] addressed that crowd and 
told them to go on uptown, go to four places on the 
protest list, sit down and if they don’t feed you, sit 
there for one hour.’ Yet this part of Cox’s speech obvi­
ously did not deprive the demonstration of its protected 
character under the Constitution as free speech and 
assembly (379 U. S. at 546).

The court below relied upon Feiner v. New York, 340 
U. S. 315 (1951) (App. pp. 12a-13a; 187 So. 2d at 859-60; 
BA 218), but that case is no more applicable to this than it 
was to Edwards and Cox. Both Edwards10 and Cox11 distin­
guished Feiner, involving as it did a case where “ the speaker 
passes the bounds of argument or persuasion and under­
takes incitement to riot” (340 U. S. at 321).12

Analysis of the record reveals that the decision of the 
court below affirming petitioners’ convictions conflicts with

10 372 U. S. at 236.
11 379 U. S. at 551.
12 Both Edwards and Cox also distinguished Chaplinsky v. New 

Hampshire, 315 TJ. S. 568 (1942), which involved “ fighting words” 
on the part of the speaker.



19

Edivards and Cox. Here, petitioners neither intended to 
incite their listeners to riot, nor used language creating, 
under the circumstances, a clear and present danger of 
riot. Like the speakers in Edwards and Cox, petitioners 
intended to encourage their listeners to assert their federal 
rights. They intended to tell the crowd that if they regis­
tered to vote they could eradicate racial discrimination and 
segregation in the community. As in Edwards and Cox, 
the content of the speeches here was stirring and vigorous, 
but not suggestive of violence. Nor were the speeches dis­
guised invitations to riot, subtly concocted to exploit an 
explosive situation.

Petitioners’ listeners were far fewer in number than in 
Edwards and Cox—about 200 Negroes and a few whites—- 
most of whom had just witnessed, in a segregated court­
room, the trial and conviction of two Negro girls for using 
a white-only, municipal park.13 No one in the crowd was 
armed and no one gave any indication of committing an act 
of violence. More pointedly, following the arrest of peti­
tioners, their listeners quietly went home. It is true that 
the crowd was “ muttering” and appeared tense and upset. 
Such was also the case with a larger number of onlookers 
in Cox (379 U. S. at 543, 550). But here, as in Cox, that fact 
cannot justify suppression of petitioners’ speech. Nor can 
this Court accept at face value the unsupported assertions 
of police witnesses that an imminent danger of breach of 
the peace existed. This Court must go behind that conclu­
sionary testimony and “make an independent examination 
of the whole record” (Edwards, supra, 2>12 IT. S. at 235, 
and cases cited). To fail to do so would increase the danger

13 There is no evidence in the record that an appreciable number 
of persons hostile to petitioners’ cause had been attracted to the 
scene.



20

of police officers suppressing speech according to their 
“ calculations as to the boiling point of a particular per­
son or a particular group, not an appraisal of the nature 
of the comments per se” (Ashton v. Kentucky, 384 U. S. 195, 
200 (1966) ).14

II.

Certiorari Should Be Granted to Review and Reverse 
Petitioners’ State Criminal Convictions, Which Deprive 
Them of Their Liberty Without Due Process of Law 
Because Founded Upon No Evidence of Guilt.

Since in Part I, supra, it was shown that the record re­
veals no conduct of petitioners which the State of Missis­
sippi has a right to prohibit as a breach of the peace, peti­
tioners’ breach of the peace convictions offend the due 
process clause of the Fourteenth Amendment because there 
is a total absence of evidence in the record that petitioners 
“ disturb[ed] the public peace by loud or offensive language, 
or by conduct either calculated to provoke a breach of the 
peace, or by conduct which might reasonably have led to 
a breach of the peace” (RA 3; RC 5). Thompson v. Louis­
ville, 362 U. S. 199 (1959); Garner v. Louisiana, 368 U. S. 
157 (1961); Taylor v. Louisiana, 370 U. S. 154 (1962).

14 Even if the crowd had been disorderly, petitioners would still 
maintain that they could not be punished, since they had neither 
intended to provoke violence nor used language creating, under the 
circumstances, a clear and present danger of violence. At the 
very least, they could not be arrested until the police had first 
attempted to control or disperse the crowd. Cf. petitioners’ re­
fused instructions (RA 12; RC 12). Otherwise, petitioners’ conduct 
could be declared “ criminal simply because [their] neighbors have 
no self-control and cannot refrain from violence” (Chafee, Free 
Speech in the United, States, 151 (1954), quoted in Ashton v. 
Kentucky, 384 U. S. 195, 200 (1966)). The court below appears to 
have taken a contrary view (App. p. 12a; 187 So. 2d at 859; RA 
217-18).



21

Moreover, when petitioners’ breach of the peace convic­
tions fall, for reasons tainting petitioners’ arrests, there is 
similarly no evidence to support the charge that petitioners, 
by attempting to brace their feet and later by going limp, 
resisted a police officer “ in executing or attempting to make 
a lawful arrest” (EB 8; ED 6).15 16

III.

Certiorari Should Be Granted to Review and Reverse 
Petitioners’ State Criminal Convictions Under a Statute 
Indistinguishable From That Declared Facially Uncon­
stitutional by This Court in Cox v. Louisiana.

Petitioners stand convicted of violating Miss. Code Ann. 
§2089.5 (Supp. 1964), which punishes any person who dis­
turbs the public peace or the peace of others by, inter alia, 
“ conduct either calculated to provoke a breach of the peace, 
or by conduct which may lead to a breach of the peace.” 
Other sorts of disturbances of the peace denounced by the 
statute are not implicated by petitioners’ conduct,1'6 and, in

15 The juries which convicted petitioners of resisting- lawful 
arrest were correctly charged by the trial judge that petitioners 
could not be convicted unless they were found to have committed 
a breach of the peace in the arresting officer’s presence (KB 9, 15; 
RD 7,12, 13). See Wright v. Georgia, 373 U. S. 284, 291-92 (1963); 
Shuttlesworth v. Birmingham, 382 U. S. 87 (1965).

16 Section 2089.5 punishes disturbance of the peace by any of the 
following acts: (a.) violent or loud or insulting or profane or 
indecent or offensive or boisterous conduct or language; (b) intimi­
dation; (c) conduct calculated to provoke a breach of the peace or 
which may lead to a breach of the peace, or (d) “any other act.”

(a) The police testimony below establishes that petitioners’ con­
duct was not violent, insulting, indecent or profane. Their speech 
was loud, but there is no showing that it was louder than necessary 
in order to reach a large outdoor audience. Nor is there any show­
ing that it was offensive or boisterous under any test that could



22

any event, the trial court’s charge permitted their convic­
tion on a finding that they violated the quoted language 
without more.17 For these reasons the convictions must be 
reversed under settled principles if the quoted language 
is unconstitutional.18

In Cox v. Louisiana, 379 U. S. 536, 551 (1965), this Court 
held virtually identical language “ unconstitutionally vague 
in its overly broad scope.” That decision made clear that 
earlier holdings of the Court, Cantwell v. Connecticut, 310 
U. S. 296 (1940); Edwards v. South Carolina, 372 U. S. 229 
(1963); Henry v. City of Rock Hill, 376 U. S. 776 (1964), 
upsetting breach of the peace convictions had rested not 
merely on the ground that the defendants’ conduct in each 
case was within the scope of free expression protected by 
the First and Fourteenth Amendments, but also on the 
independent ground that, where invoked to punish acts of

escape condemnation under this Court’s decision in Terminiello v. 
Chicago, 337 U. S. 1 (1949).

(b) There is not the slightest suggestion of intimidation in the 
record.

(c) The incipient-breach-of-the-peace portions of the statute 
are those discussed in the text. Although the opinion of the Mis­
sissippi Supreme Court is not altogether clear on the point, it 
appears that these were the portions which that court believed 
petitioners had violated. See RA 215-216, 218-219.

(d) The provision relating to “ any other act” is so patently 
vague and overbroad within the principles of Thornhill v. Ala­
bama, 310 U. S. 88 (1940), as not to require further discussion 
here.

17 See RA 6; RB 9; EC 7; ED 7.
18 Stromberg v. California, 283 U. S. 359, 367-368 (1931); Wil­

liams v. North Carolina, 317 U. S. 287, 291-293 (1942); Thomas 
v. Collins, 323 U. S. 516, 529 (1945). Cf. Shuttlesworth v. Bir­
mingham, 382 U. S. 87, 92 (1965).



23

public protest and demonstration, such vague conceptions 
as “ calculated to provoke a breach of the peace” failed to 
meet those “ [strict] standards of permissible statutory 
vagueness” which the Amendments demand when a State 
undertakes to regulate speech activity. NAACP v. Button, 
371 U. S. 415, 432 (1963), and authorities cited; see also 
Dombrowski v. Pfister, 380 U. S. 479, 486-487 (1965). And 
in Ashton v. Kentucky, 384 U. S. 195, 200-201 (1966), the 
Court reaffirmed the principle of Cox that these vague in- 
cipient-breach-of-the-peace regulations are facially imper­
missible.

The court below distinguished Cox on the ground that 
“ The factual situation involved in this case is entirely dif­
ferent . . . ” (App. p. 13a; 187 So. 2d at 860 ; RA 218-219.) 
Petitioners have shown in the preceding sections of this 
petition that the “ factual situation” here is not materially 
different than that in Cox. But even if it were, the ratio 
decidendi below ignores the vital point that Cox did not 
turn solely on the facts there presented but upon the con­
sidered declaration by this Court that the statutory lan­
guage challenged in Cox and substantially identical with 
that challenged here was unconstitutional on its face.19 
Obviously, then, the decision below is inconsistent with an 
applicable decision of this Court within the meaning of 
Rule 19(1) (a) governing the granting of certiorari. It is 
an important and dangerous decision because it frontally 
undercuts the protection of free expression which this Court

19 Perhaps petitioners might be punished even under a facially 
unconstitutional statute if their conduct were the sort of “hard 
core” activity described in Dombrowski v. Pfister, 380 U. S. 479, 
491-492 (1965). But on this record it is impossible to so characterize 
their conduct.



24

has recently and explicitly announced, and for this reason 
alone it imperatively requires review by this 'Court lest 
the reception of Cox by the state courts render this Court’s 
opinion there a futile exercise. Cf. Henry v. City of Rock 
Hill, supra.

IV.

Certiorari Should Be Granted to Review and Reverse 
Petitioner Cobb’s Conviction for Resisting Arrest Be­
cause His Right to Equal Protection of the Laws Was 
Violated by the Trial Court’s Refusal to Permit Him to 
Show Systematic Exclusion of Negroes From the Petit 
Jury Through Prosecutorial Abuse of Peremptory Chal­
lenges.

In McLaurin’s appeal, the Mississippi Supreme Court 
correctly found that counsel had been permitted to present 
such evidence as he had on the prosecutor’s discriminatory 
use of peremptories (App. pp. 9a-10a; 187 So. 2d at 858; BA 
21, 214). And it properly held that the evidence available 
at that time was inadequate to sustain the contention (App. 
pp. 9a-10a; 187 So. 2d at 858; BA 214-15). But in affirm­
ing Cobb’s resisting-arrest conviction on authority of Mc- 
Laurin, that court ignored the circumstance, plainly shown 
by the Cobb record as quoted below, that in this case coun­
sel had for the first time sought to demonstrate the ac­
cumulated experience of the prosecutor’s peremptory prac­
tice during the week’s trials and had been refused the op­
portunity to do so :

. . . Your motion is well in the record and your mo­
tion specifically states what you are seeking to do 
and the Court understands that and the record shows



25

that, and if this Court is in error by not permitting you 
to show that pattern, then you don’t have to show 
that pattern to the Supreme Court at all, the Supreme 
Court will reverse it because it didn’t let you do it. 
Your record is all right for that purpose (ED 25-26).

Petitioner Cobb contends that under Swain v. Alabama, 
380 U. S. 202, 224 (1965), he was entitled to “ show the 
prosecutor’s systematic use of peremptory challenges 
against Negroes over a period of time.” Assuredly, the 
period here was short, but it covered a series of related 
cases involving civil rights matters tried by the same 
prosecutor in the same court. The question raised is 
whether, in view of the difficulty of recording and pre­
serving evidence with regard to the volatile practice of 
exercising peremptory challenges, the proffer made here 
was sufficient within Swain. This Court should grant cer­
tiorari to determine that question.



26

CONCLUSION

For the foregoing reasons, the petition for writ of 
certiorari should be granted.

Respectfully submitted,

Jack Greenberg
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

R. J ess B rown
125% North Farish Street 
Jackson, Mississippi 39201

Attorneys for Petitioners



APPENDIX



la

A P P E N D I X

Opinion of Supreme Court of Mississippi in 
McLaurin Breach of Peace Case

In the
SUPREME COURT OF MISSISSIPPI 

No. 43,429

Charles McL aurin,

City of Greenville.

I nzer, Justice:

Appellant, Charles McLaurin, was convicted on a 
charge of disturbance of the public peace in violation of 
Mississippi Code Annotated section 2089.5 (Supp. 1964) 
in the Municipal Court of the City of Greenville. He ap­
pealed to the County Court of Washington County, where 
he was tried de novo before a jury. This trial resulted in 
a conviction, and he was sentenced to pay a fine of $100 
and serve a term of ninety days in the city jail. From this 
conviction, he appealed to the circuit court, wherein the 
conviction was affirmed. The circuit judge allowed an 
appeal to this Court because of the constitutional question 
involved.

When this case reached this Court, it was consolidated 
with three other cases for the purposes of argument 
and submission to the Court. They are Cause No. 43,436,



2a

which is a similar charge against Charles Cobh; Cause No.
43.497, which is a charge against this same appellant, 
Charles McLaurin, for resisting arrest; and Cause No.
43.498, which is a similar charge against Charles Cobb. 
The cases will be disposed of by separate orders. After 
the cases were submitted, it was discovered that the affi­
davits upon which these charges were based were not a 
part of the record; although they had been so designated 
by appellants in their notice of designation of record. The 
attention of counsel for the City and appellants was 
directed to this defect. The City suggested a diminution 
of the record, which suggestion was sustained. The affi­
davits are now a part of the records in all four cases.

The appellant’s assignment of errors is as follows:

I. The court below erred in affirming a judgment 
of conviction which punishes conduct in the exercise 
of the right of free speech guaranteed by the Four­
teenth Amendment to the Constitution of the United 
States.

II. The court below erred in approving the refusal 
of the trial court to give appellant’s instruction that 
the jury could not find appellant guilty of breach of 
the peace if the police officers had made no reasonable 
effort to calm or disperse appellant’s audience.

III. The court below erred in affirming a judgment 
of conviction based upon no evidence of guilt.

IV. The court below erred in affirming a judgment 
of conviction under a statute so vague and indefinite 
as to permit the punishment of the exercise of the right

Opinion of Supreme Court of Mississippi in
McLaurin Breach of Peace Case



3a

of free speech guaranteed by the Fourteenth Amend­
ment to the Constitution of the United States.

V. The court below erred in approving the denial 
by the trial court of appellant’s motion to quash the 
jury panel on the ground of systematic exclusion of 
Negroes therefrom through prosecutorial abuse of 
peremptory challenges.

The proof on behalf of the City is sufficient to show 
that on July 1, 1963, a large crowd of people were 
present at the Municipal Court in the City of Greenville 
where two Negro girls were being tried on a charge of 
disorderly conduct. The courtroom which is in the munic­
ipal building seats about 300 people, and it was filled 
to capacity. About one-half of the people in the court­
room were Negroes, and one-half were white. There was 
also a large crowd, consisting of mostly Negroes, on the 
outside of the courtroom. Appellant was present at the 
trial, but was not in the courtroom. He had gone into 
the courtroom prior to the trial and was directed to a seat 
by Officer Willie Carson; however, he did not sit where 
Officer Carson directed him to sit, and when Carson spoke 
to him about it, McLaurin protested that the courtroom 
was segregated. He then went out of the courtroom and 
protested to the chief of police about the courtroom being 
segregated. When he returned to enter the courtroom, 
it was filled to capacity, and he was not allowed to enter 
again.

The trial resulted in the conviction of the two girls 
being tried, and most of the people then departed from 
the courtroom. Thereafter, although court was still in

Opinion of Supreme Court of Mississippi in
McLaurin Breach of Peace Case



4a

session, McLaurin went outside the building and after 
talking with some of the people who were present at the 
trial, he began to shout in a loud voice, attracting the 
attention of the people who were leaving, and many turned 
and came back. He backed up on the steps of the building, 
and in a loud voice began exhorting the crowd of about 200 
people, mostly Negroes, which had gathered around him in 
front of the building. The crowd blocked the sidewalk all 
the way to the street and the entrances to the build­
ing. Officer Carson was on the outside of the building 
after the trial, and he testified that the crowd around 
McLaurin appeared to be upset over the outcome of the 
trial. Officer Carson is a Negro and had been employed 
on the police force in the City of Greenville for over 
thirteen years prior to the trial. He holds the rank of 
detective and has had experience as a military police­
man in the armed forces. He said that McLaurin said in 
a loud voice, “What you people going to do about this; 
this is wrong, the White Caucasian, this law is wrong; 
you going to take i t ; you going to let them get away with 
it.” The crowd began to mutter and say that it wasn’t 
right. It appeared to Officer Carson that the situation 
was very tense and anything could happen. It was his 
opinion that McLaurin was exciting the crowd in order 
to get them to do something about the court’s decision. 
Carson made his way through the crowd to where McLaurin 
was standing and told him he would have to stop, and that 
he could not block the sidewalk. McLaurin continued to 
talk, and once again Carson told him to stop. McLaurin 
refused, and Carson placed him under arrest. After he 
was arrested, McLaurin kept pulling back and talking over

Opinion of Supreme Court of Mississippi in
McLaurin Breach of Peace Case



5a

Carson’s shoulder to the crowd, saying, “ He’s arresting 
me, what are you going to do about it.”  In order for Car- 
son to get McLaurin into the building and out of the crowd, 
it was necessary for him to use all of his strength.

Captain Harvey Tackett, also a member of the City Police 
Force, was in front of the police station after the trial. 
He said that the first time he saw McLaurin, he was in 
the middle of the sidewalk in front of the station, and Mc­
Laurin started waving his arms and shouting in a loud 
voice to the people that were leaving. Most of the people 
immediately came back and gathered around McLaurin who 
then “ jumped” upon the steps of the building and contin­
ued to shout and holler, asking the people what they were 
going to do about what had happened. The crowd started 
mumbling and saying something that he could not under­
stand, but they appeared to be agreeing with McLaurin. It 
was his opinion that the crowd was about to take the situa­
tion into their own hands, and he. thought that a breach of 
peace was imminent. He had had long experience in police 
work, and it was his opinion that McLaurin would have 
to be removed or there would likely be a riot. He started 
over to where McLaurin was standing, but before he reached 
him, Officer Carson reached McLaurin and said something 
to him, which Captain Tackett could not hear. McLaurin 
kept shouting and hollering and waving his arms, and Car- 
son said something else to him; however, McLaurin con­
tinued shouting. Then he saw Carson take McLaurin by 
the arm and forcibly carry him inside the building. Dur­
ing this time McLaurin was still shouting to the crowd.

Chief of Police W. C. Burnley was also present at the 
scene and saw and heard what transpired. He had been

Opinion of Supreme Court of Mississippi in
McLaurin Breach of Peace Case



6a

on the police force in Greenville for seventeen years and 
was a graduate of the FBI National Academy. He had re­
ceived special training in methods relative to dealing with 
crowds. It was his opinion that the situation on the outside 
of the building was very tense. He saw McLaurin “ jump” 
to the steps of the building and begin to shout and wave 
his arms in an emotional manner. He saw the people gather 
around him and many that were leaving turned and came 
back. He heard McLaurin shout, “ Are you going to take 
this; what are you going to do about it,” repeating these 
words over and over and other statements that he could 
not remember. It was his opinion that the speech of Mc­
Laurin was having an emotional effect upon the already 
tense crowd, and that any moment a riot or some other 
violence could take pace.

Charles Cobb who was a Field Secretary employed by 
the Student Non-violent Co-ordinating Committee testified 
in behalf of appellant. It was his testimony that he saw 
McLaurin when he entered the courtroom and saw Officer 
Carson go up to him and say something. McLaurin then 
left, and Cobb went out to ascertain why McLaurin had 
left. He went with McLaurin to protest to Chief Burnley 
relative to segregation in the courtroom, and when they re­
turned, they were not allowed to enter the courtroom. When 
the trial was over, he left McLaurin and went outside. 
When he next saw McLaurin he was standing on the side­
walk saying something to the people gathered there. He 
estimated that there were about 100 Negroes on the side­
walk in front of the municipal building. As McLaurin was 
talking he backed up the steps of the building, and although

Opinion of Supreme Court of Mississippi in
McLaurin Breach of Peace Case



7a

he was only twenty to thirty feet from McLaurin, he said 
he could not hear what McLaurin was saying. He saw one 
of two police officers say something to McLaurin, who con­
tinued talking. The officers then carried McLaurin into 
the municipal building. It was his opinion that the crowd 
did not appear to be so upset that they would do anything 
violent; he thought that they were mostly curious.

Appellant testified in his own behalf and said that he 
had been in Greenville off and on for about nine and one- 
half months. He was a Field Secretary for the Student 
Non-violent Co-ordinating Committee, and had been en­
gaged in voter registration work during the time he had 
been in Greenville. He was also affiliated with other groups 
engaged in civil rights work, including a group of which 
the two Negro girls being tried were members. When he 
first went into the courtroom, he was directed to take a 
seat on the right side of the room, but he saw a vacant 
seat on the left side and sat there. He assumed that since 
he was directed to the right side where the Negroes were 
sitting that the left side was reserved for whites. After he 
sat down, Officer Carson told him he could not sit there. He 
asked Carson whether the courtroom was segregated, and 
Carson told him to come to the back of the room with him. 
He followed Carson out of the courtroom, but Carson didn’t 
say anything else to him. He and Charles Cobb went to 
talk with Chief Burnley about the courtroom being segre­
gated, and Burnley told them that they were in the room 
once, and turned and walked away from them. He was not 
allowed to re-enter the courtroom, and stayed outside dur­
ing the trial. After the trial, he then walked outside of the

Opinion of Supreme Court of Mississippi in
McLaurin Breach of Peace Case



8a

municipal building and began talking with some of the 
people who were present at the trial. He moved to the 
front of the building, and it appeared to him that the people 
coming out were shocked by the conviction of the girls. 
He said he started trying to get the attention of the crowd 
to tell them about registering and voting so that this kind 
of thing could not happen. Officer Carson then came up 
and told him that he could not make a speech without a 
permit, and when he continued to talk, Carson arrested him 
and carried him inside the building. He said, “ I was saying- 
different things like, this wouldn’t have happened if Ne­
groes were registered to vote, that in Washington County 
Negroes are in the majority of the population—50 per cent 
of the population is Negro and that they could have used 
the park or anyother (sic) thing had they been registered 
voters.” He was asked whether the crowd appeared angry 
and in a tense and angry mood, and he replied, “I feel that 
the crowd was sorta upset as to the out come (sic) of the 
trial, but certainly the words that I was using wouldn’t 
have caused them to jump—to go in there and try to beat 
up the Judge. Negroes know they can’t go beat up the 
Judge and be justified, and tear down the building and be 
justified, or jump on a policeman in the State of Mississippi 
and be justified.” On cross-examination, he admitted that 
during the entire time he had been in Greenville he had 
not been interfered with in any way in his voter registra­
tion work. He said Negroes were allowed to register with­
out interference, although some did not pass the test. Most 
of his work had been with groups under the voting age, and 
he had not been interfered with in any way in this work.

Opinion of Supreme Court of Mississippi in
McLaurin Breach of Peace Case



9a

We will first address ourselves to the question of whether 
the circuit court was in error in affirming the action of the 
trial court, in overruling a motion of appellant to quash 
the jury panel on the ground of systematic exclusion of 
Negroes therefrom through prosecutorial abuse of peremp­
tory challenges. Appellant contends that the trial court 
refused to allow him to show a pattern or practice of sys­
tematic exclusion by peremptory challenges by the City. 
This contention is not supported by the record in this case. 
The record reflects that the trial judge did at first deny 
appellant’s motion to be allowed to show that the City had 
peremptorily challenged two Negroes, but immediately 
thereafter, she rescinded that ruling and granted appellant’s 
motion. Appellant offered no further evidence in support 
of the motion to show that the City had followed the prac­
tice of systematically excluding Negroes by means of per­
emptory challenges. After the jury was selected, appellant 
made a motion to quash the panel because of systematic 
exclusion of Negroes therefrom because of race and color. 
He does not contend that the evidence in the record is suffi­
cient to show a prosecutorial abuse of the peremptory chal­
lenges, but contends that this case should be remanded to 
give the appellant an opportunity to explore this matter 
further. There is no merit in this contention. In this con­
nection, it is interesting to note that in Cause No. 43,498, 
which involves an appeal from McLaurin from a conviction 
on a charge of resisting arrest, wherein the City did not 
exercise its peremptory challenges to excuse Negroes from 
the jury panel, appellant made a motion to quash the panel 
because of systematic inclusion of Negroes. This position

Opinion of Supreme Court of Mississippi in
McLaurin Breach of Peace Case



taken by appellant is without merit and deserves no further 
discussion. Swain v. Alabama, 380 U. S. 202, 85 Sup. Ct. 
824,13 L. Ed. 2d 759 (1965).

The question of whether appellant’s conduct in this case 
is protected by the First and Fourteenth Amendments to 
the Constitution of the United States presents the impor­
tant question. It is appellant’s contention that his speech 
was merely a protest against segregated conditions in 
Greenville and the fact that it made the crowd restive and 
angry does not support a conviction for a breach of public 
peace. In support of this condition, he cites and relies upon 
the case of Terminiello v. Chicago, 337 U. S. 1, 69 Sup. Ct. 
894, 93 L. Ed. 1131 (1949). Terminiello was convicted of a 
violation of a city ordinance forbidding any breach of 
peace. The decision turned on the construction placed upon 
the ordinance by the trial court as reflected by the instruc­
tions to the jury. The court held that the construction was 
as binding upon it as though the precise words had been 
written into the ordinance. The conviction was reversed 
because the ordinance as construed by the Illinois court was 
at least partly unconstitutional. Appellant contends that 
he has been convicted of expressing unpopular views, and 
the construction of Mississippi Code Annotated section 
2089.5 (Supp. 1964) by the trial court comes within the rule 
announced in Terminiello, supra. This directs our atten­
tion to the construction placed upon the statute by the 
trial court. This is reflected by the instructions to the jury 
as requested by the City and by the appellant. The court 
instructed the jury that if appellant was arrested for public 
protest against racial segregation, then they could not find

Opinion of Supreme Court of Mississippi in
McLaurin Breach of Peace Case



11a

the defendant guilty. The trial court recognized that sec­
tion 2089.5 could not be applied to restrict appellant’s con­
stitutional right to protest against racial segregation, and 
that this statute could not be used to infringe upon the 
constitutional right of appellant or any other person to 
speak freely within the framework of the law. This Court 
is fully cognizant of our duty to construe our statutes in 
such a manner to be sure that they will not infringe upon 
the constitutional rights of any person. The statute as con­
strued by the trial court is not unconstitutional.

Appellant also urges that section 2089.5 is so vague and 
indefinite as to permit the punishment of the exercise of 
the right of free speech guaranteed by the Fourteenth 
Amendment to the Constitution of the United States. His 
argument is based upon the contention that as applied 
here the term “breach of peace” reaches federally pro­
tected activities that create unrest in others. The stat­
ute as drawn is in broad terms, but it is not unconstitu­
tional upon its face. It is true that it could be construed 
in such a manner that it would reach federally protected 
activities, but we are well aware of the fact that neither 
this statute nor any other statute may be constructed 
so as to infringe upon the state or federally protected 
constitutional rights of appellant or any other person. 
This is evidenced by many decisions of this Court, includ­
ing our decision in the case relative to the two girls whose 
conviction resulted in this action. Bolton v. City of Green­
ville, 253 Miss. 656, 178 So. 2d 667 (1965); Bynum v. City 
of Greenville, 253 Miss. 667, 178 So. 2d 672 (1965).

Opinion of Supreme Court of Mississippi in
McLaurin Breach of Peace Case



We find no merit in the assignment of error relative 
to the refusal of the trial court to grant appellant an in­
struction to the effect that the jury could not find appellant 
guilty of a breach of peace if the police officer made no 
reasonable effort to calm or disperse the crowd. We do not 
understand the law to be that when an officer is faced 
with a situation such as Officer Carson was confronted with 
in this case, where there was a clear and present danger 
of a riot or disturbance of court then in session, that such 
officer must, before arresting the person who is creating the 
danger, attempt to disperse the crowd. Such an attempt 
might well trigger the imminent, danger, and in such cases, 
the officer must use his best judgment in determining the 
means or manner in which to prevent the threatened dan­
ger. The arrest of appellant and the subsequent arrest of 
Charles Cobb enabled the officers to control the situation 
that otherwise might have created a riot beyond control. 
The factual situation in this ease is somewhat similar to 
the facts in the ease of Feiner v. New York, 340 U. S. 315, 
71 Sup. Ct. 303, 95 L. Ed. 295 (1951), wherein the court 
quoted from Cantwell v. Connecticut, 310 U. S. 296, 60 Sup. 
Ct. 900, 84 L. Ed. 1213 (1940), where it is said:

The language of Cantwell v. Connecticut, 310 U. S. 
296 (1940), is appropriate here. ‘The offense known as 
breach of the peace embraces a great variety of con­
duct destroying or menacing public order and tran­
quility. It includes not only violent acts but acts and 
words likely to produce violence in others. No one 
would have hardihood to suggest that the principle of

Opinion of Supreme Court of Mississippi in
McLaurin Breach of Peace Case



13a

freedom of speech sanctions incitement to riot or that 
religious liberty connotes the privilege to exhort 
others to physical attack upon those belonging to an­
other sect. When clear and present danger of riot, 
disorder, interference with traffic upon the public 
streets, or other immediate threat to public safety, 
peace, or order, appears, the power of the State to 
prevent or punish is obvious.’ 310 U. S. at 308. . . . 
(340 U. S. at 320, 71 Sup. Ct. at 306, 95 L. Ed. at 300.)

The factual situation involved in this case is entirely 
different from the situation involved in the cases of Cox 
v. Louisiana, 379 TJ. S. 85 Sup. Ct. 453, 13 L. Ed. 2d 471 
(1965), and Wright v. Georgia, 373 U. S. 284, 83 Sup. Ct. 
1240, 10 L. Ed. 2d 349 (1963), and these cases do not 
control.

Appellant’s contention that there was no evidence of 
appellant’s guilt of the charge is without merit. This con­
tention is based solely upon the proposition that appellant’s 
acts were constitutionally protected, and we hold that they 
were not for the reasons heretofore stated.

We have carefully considered all the questions raised by 
the appellant in this case, and we are of the opinion that 
there was ample evidence from which the jury could find 
that appellant was guilty of the offense charged. The con­
stitutional rights of the appellant were fully protected, 
and this conviction must be affirmed.

Affirmed.

Opinion of Supreme Court of Mississippi in
McLaurin Breach of Peace Case

A ll justices concur.



14a

Monday, June 13, 1966, Court Sitting

43,429

Judgment of Supreme Court of Mississippi in
McLaurin Breach of Peace Case

Charles McL aurin,

vs.

City of Greenville.

This cause having been submitted at a former day of 
this Term on the record herein from the Circuit Court of 
Washington County and this Court having sufficiently ex­
amined and considered the same and being of the opinion 
that there is no error therein doth order and adjudge that 
the judgment of said Circuit Court rendered in this cause 
on the 16th day of September 1963—a conviction of dis­
turbance of the peace violation of Section 2089.5 Missis­
sippi Code Annotated—and a sentence to pay a fine of 
$100.00 and to serve 90 days in jail be and the same is 
hereby affirmed. It is further ordered and adjudged that 
the appellant, Charles McLaurin, do pay the costs of this 
appeal to be taxed.

Minute Book “BN” Page 597



In the
SUPREME COURT OF MISSISSIPPI 

No. 43,498

Opinion of Supreme Court of Mississippi in
McLaurin Resisting Arrest Case

Charles McL aurin,

v.

City op Greenville.

Inzer, Justice:

Appellant, Charles McLaurin, was convicted in the 
Municipal Court of the City of Greenville on a charge of 
resisting arrest in violation of a city ordinance. Upon 
appeal to the County Court of Washington County, he was 
tried de novo by a jury and this trial resulted in a convic­
tion, and he was sentenced to pay a fine of $100 and serve 
ninety days in the city jail. He appealed to the circuit 
court, wherein the conviction was affirmed. The circuit 
judge allowed an appeal to this Court because of the con­
stitutional question involved.

Appellant does not contend that he did not resist arrest, 
but does contend that his arrest was unlawful. He urges 
that he was arrested for exercising his constitutional right 
of free speech guaranteed by the Fourteenth Amendment 
to the Constitution of the United States. We held in. 
Charles McLaurin v. City of Greenville, Cause No. 43,429, 
this day decided, that his arrest was not unlawful and 
was not in violation of his constitutional right.

We also settled the other question raised on this appeal 
in that decision; therefore, this cause must be affirmed.

Affirmed.

A ll justices concur.



16a

Monday, June 13, 1966 Court Sitting

No. 43,498

Judgment of Supreme Court of Mississippi in
McLaurin Resisting Arrest Case

Charles McLaurin, 

vs.

City of Greenville.

This cause having been submitted at a former day of this 
Term on the record herein from the Circuit Court of Wash­
ington County and this Court having sufficiently examined 
and considered the same and being of the opinion that there 
is no error therein doth order and adjudge that the judg­
ment of said Circuit Court rendered in this cause on the 
24th day of July 1964— a conviction of resisting arrest 
and a sentence to pay a fine of $100.00 and to serve a 
term of 90 days in jail—be and the same is hereby affirmed. 
It is further ordered and adjudged that the appellant, 
Charles McLaurin do pay the costs of this appeal to be 
taxed.

Minute Book “BN” Page 598



17a

In the
SUPREME COURT OF MISSISSIPPI 

No. 43,436

Opinion of Supreme Court of Mississippi in
Cobb Breach of Peace Case

Charles Cobb, 

v*

City of Greenville.

Inzer, Justice:

This case is controlled by our decision in the case of 
MeLaurin v. City of Greenville, Cause No. 43,429, this day 
decided. For the reasons stated therein, this case must be 
affirmed.

Affirmed.

A ll justices concur.



18a

Monday, June 13, 1966, Court Sitting

43,436

Judgment of Supreme Court of Mississippi in
Cobb Breach of Peace Case

Charles E arl Cobb,

vs.

C ity op Greenville.

This cause having been submitted at a former day of 
this Term on the record herein from the Circuit Court of 
Washington County and this Court having sufficiently ex­
amined and considered the same and being of the opinion 
that there is no error therein doth order and adjudge that 
the judgment of said Circuit Court rendered in this cause 
on the 18th day of September 1963—a conviction of breach 
of the peace and a sentence to pay a fine of $100.00 and to 
serve a term of 90 days in jail—be and the same is hereby 
affirmed. It is further ordered and adjudged that the 
appellant, Charles Earl Cobb, do pay the costs of this 
appeal to be taxed.

Minute Book “BN” Page 398



19a

I n the
SUPREME COURT OF MISSISSIPPI 

No. 43,497

Charles Cobb, 

y.

City of Greenville.

Opinion of Supreme Court of Mississippi in
Cobb Resisting Arrest Case

Inzer, Justice:

This case is controlled by onr decisions in the cases of 
Charles McLaurin v. City of Greenville, Cause Nos. 43,429 
and 43,498. For the reasons stated therein, this case is 
affirmed.

Affirmed.

A ll justices concur.



20a

Monday, June 13th, 1966, Court Sitting

43,497

Charles E arl Cobb,

Judgment of Supreme Court of Mississippi in
Cobb Resisting Arrest Case

vs.

City of Greenville.

This cause having been submitted at a former day of 
this Term on the record herein from the Circuit Court of 
Washington County and this Court having sufficiently ex­
amined and considered the same and being of the opinion 
that there is no error therein doth order and adjudge 
that the judgment of said Circuit Court rendered in this 
cause on the 24th day of July 1964—a conviction of re­
sisting arrest and a sentence to pay a fine of $100.00 and 
to serve a term of 90 days in jail—be and the same is 
hereby affirmed. It is further ordered and adjudged that 
the appellant, Charles Earl Cobb, do pay the costs of this 
appeal to be taxed.

Minute Book “BN” Page 598



38