Ford v. Morris Appendix to Brief of Appellants

    In* t h e

Hutted States (Enurt uf Appeals
F ob t h e  S ix t h  C ir c u it

No. 16,502

E vander F ord, J r., A lfred  0 .  G ross, J am es H arrison  
S m it h , E r n e s t in e  H il l , J o h n n ie  M ay R ogers, C h a rles  
E dward P a tterso n , E dgar L ee  J am es a n d  K atie  J ean  
R obertson ,

Appellants,

H onorable W illia m  N. M orris, J r., S h e r if f ,  S h e lb y  County, 
a n d  th e  M e m p h is  B a il  B ond A g en cy ,

Appellees.

a p p e a l  f r o m  t h e  u n i t e d  s t a t e s  d i s t r i c t  c o u r t

FOR T H E  W ESTERN DISTRICT OF TEN N ESSEE

APPENDIX TO BRIEF OF APPELLANTS

J ack  Greenberg  
J am es M. N abrit , III 
J o h n  W . W alker  
M elv y n  Z arr

10 Columbus Circle 
New York, N. Y. 10019

A n t h o n y  G. A m sterdam  
3400 Chestnut Street 
Philadelphia, Penn. 19104

B u sse l l  B. S ugarm on

A. W . W il l is
B. L. H ooks
H. T. L ockard 
B. F. J ones

I . H. M u r p h y
588 Vance Avenue 
Memphis, Tennessee

Counsel for Appellants



INDEX TO APPENDIX

PAGE

Indictment .................... .................-......................... ...... la

Excerpts from Testimony:
Rev. T. E. Scruggs—

Direct ............. ................................ -.......—......  2a
Cross   ....... .............—- .................... ........ 6a
Redirect __.................. - .... ........... -................. 9a

Doyle E. Burgess, Jr.—
Direct ............     10a

Ed Bryeans—
Direct ..................   13a
Cross ...... ........... .... .............. ..................... -....  14a

William P. Sharp—
Direct ........ .... .......... ........................-........  — 15a
Cross -----          17a

J. E. Crawley—
Cross .....     18a

Ed Bryeans—
Direct ......     22a
Cross ..... ..... .... .....— ......................... — ....— 23a

William P. Sharp—
Cross ____ _________ - .... .....-......... —- ........ 24a

J. C. McCarver—
Direct  ......................... — ............... ..............  25a
Cross .............. ...............—............ ........... ..... 25a

Motion to Dismiss ..... ................... .....-......................... 26a

M o tio n  to  D ism is s  O v e r ru le d 28a



PAGE

Opinion of Tennessee Supreme Court ............... ......... 32a

Order .............................. ................... .............. ............  39a

Order ...... — ........ .................................................... . 41a

Denial of Petition to Rehear .............. ..... ................... 42a

Petition for Writ of Habeas Corpus............................ 43a

Motion to Dismiss Petition ................. ........... .......... . 51a,

Opinion of District Court ............ .............. .............. . 55a

Order ................................ .................. ......................... 65a

Relevant Docket Entries ................... ..........................  67a

ii



—6
Ind ic tm en t

STATE OF TENNESSEE 
S h e l b y  C ounty '

Cb im in a l  C oubt of S h e l b y  C o u n ty  

May Term, A.D. 1960

T h e  Geand  J ueo es  of the State of Tennessee, duly 
elected, empaneled, sworn and charged to inquire in and 
for the body of the County of Shelby, in the State afore­
said, upon their oath, present that Evander Ford, Jr., 
Alfred 0. Gross, Katie Jean Kobertson, James Harrison 
Smith, Anita Laverne Stiggers, Harry James, Jr., Ernes­
tine Hill, Johnnie May Rogers, Charles Edward Patterson 
and Edgar Lee James, late of the County aforesaid, here­
tofore, to-wit on the 30th day of August, A.D. 1960 before 
the finding of this indictment, in the County aforesaid, did 
unlawfully and willfully disturb and disquiet an assemblage 
of persons met for religious worship at the Overton Park 
Shell, in Memphis, Shelby County, Tennessee, after being 
refused admittance to the services therein, did force their 
way into the said assemblage, seated themselves among 
the worshippers, and by this act did cause the disruption 
of said religious assemblage against the peace and dignity 
of the State of Tennessee.

/s /  P h il  M. C a n a le , J b. 
Attorney-General Criminal Court of 

Shelby County, Tennessee



2a

Excerpts From Testimony

* * * * #

—63—

T estim o n y  of R ev . T. E. S cbuggs

Direct Examination by Mr. Beasley:
Q. Will you state your name to the Court and Jury, 

please. A. T. E. Scruggs.
* * * * #

— 69—

Q. Do you have a profession, or calling, Mr. Scruggs? 
A. Yes, sir. I am a minister.

Q, Will you tell us what faith you are a minister of! 
A. The Assembly of God.

* * * * *
Q. Do you have a church here in the City of Memphis? 

A. Yes, sir.
Q. Are you a pastor; would that be correct? A. Yes, 

sir.
Q. Would you tell the Court and Jury the name of this 

church? A. The Hollywood Assembly of God; 1383 Box­
wood.

* * * * *
— 70—

Q. Reverend Scruggs, looking hack and directing your 
attention back to 1960, were you the Pastor of the Church 
on Boxwood then? A. Yes, sir.

Q. At that time, as pastor, were you promoting these 
youth rallies you just talked about? A. Yes, sir.

Q, 1 will ask you if there was any place in particular 
you were holding these rallies? A. On this particular 
date, we were scheduled at the Overton Park Shell for a



3a

city-wide youth rally; consequently, all of our churches 
participated.

Q. Is that the Assembly of God Church in this city? 
A. Yes, sir.

—71—
Q. Without going into details, who did you lease the 

Shell from? A. The City of Memphis.
= & # # # *

Q. On August 30, 1960, do you recall that day—directing 
your attention back to that day? A. Yes, sir. I think it 
was on Tuesday.

Q. At that time, Reverend Scruggs, as Pastor of the
—72—

Assembly of God Church, were you having any rallies? 
A. Yes, sir. We had scheduled a rally at the Overton Park 
Shell.

Q. Can you digress and tell us what type services you 
were going to have at the Shell on October 30th? A. It 
was strictly an inspirational youth service which consisted 
of singing of choruses and hymns, a time of devotion, 
and a special film that was scheduled to be the main feature 
of the rally. And at the rallies, we try to climax it with 
Decisions for Christ.

The congregation is primarily for the youth in our 
churches.

# # * # #
—73—

Q. Reverend Scruggs, did you have ushers assigned out 
there to seat the people? A. Yes, sir. We did.

Q. Reverend Scruggs, at the time your services opened 
up there at 7 :30, was everything orderly and peaceful at 
that time? A. Yes, sir.

Testimony of Rev. T. E. Scruggs—Direct



Q. Were the services opened to the public, or confined 
to the Assembly of God Church? A. Open to the public.

Q. I will ask you if at any time after the services began, 
were they interrupted? A. Yes, sir. They were inter­
rupted.

Q. Could you tell us, Reverend Scruggs, as near as you 
can recall, .just what took place to interrupt your services 
out there? A. The services had been going on for about 
15 or 20 minutes—somewhere in that neighborhood—and 
it was called to my attention by one of the ushers that 
there were a couple of negro youths entering the Shell. 
And, of course,' they reported the brief conference they 
had had with them at the entrance, or near the entrance, 
of the Shell.

They stated to me they had informed them that it was 
segregated, and asked them to leave, and if they would

—74—
not go, then rather than to disturb the services, they 
were told they could sit at the rear, as the services were 
already going on. And, after being told that, they would 
not obey the ushers in charge; then, I felt it my duty, 
as I was the one overseeing the rally, to do something 
about it, and it was at that time that I went and called 
the police.

Q. Reverend Scruggs, could I interrupt you there.
After this discussion took place between the ushers and 

the colored people, what did they do, if anything? A. 
When I turned and I noticed there was quite a stir—I was 
sitting down toward the side on the front somewhere; I 
was not on the platform, but I was seated down at the 
front. The Program Committee in charge was on the plat­
form—and there was quite a stir among the youth, and I 
turned to see what was happening. And when I looked, I

Testimony of Rev. T. E. Scruggs—Direct



5a

saw this group of colored young people were dispersing 
themselves among the white young people that were there. 
This caused some of the white young people to slide away, 
not being accustomed to such practices; and some got up 
and left their seats in the Shell; and others were moving; 
and for some few minutes, because of the unrest, it dis­
quieted the services.

Q. I believe you stated that after experiencing this, you 
called the police? A. That’s right.

—75—
Q. And made a complaint to the Memphis Police De­

partment? A. Yes, sir.
Q. At the time these colored people entered your ser­

vices out there, what part of your service was taking place 
at that time, if you recall? A. If I  recall correctly, we 
were singing hymns. We were at what I wTould term the 
preliminary part; and, of course, the film was scheduled 
to be shown immediately following.

And when I left to go and call the police, and came back 
from the phone, I  saw that the place had been blacked 
out, and the film had started. It was then that I instructed 
—seeing that many of our people were leaving—I in­
structed the Program Director to hold the film until the 
audience was quieted and some arrangement could be 
made.

Q. Your congregation started going out? A. Yes, sir.
Q. And you stopped showing the film? A. Yes, sir.
Q. I will ask you if you see any colored youths in the 

courtroom that came out and disquieted your services? 
A. Yes, sir.

Q. Will you point out the ones you can recall? A. I re­
member that young man behind you.

Testimony of Rev. T. E. Scruggs—Direct



6a

Q. Evander Ford? A. Yes; and Earnestine Hill, and 
Johnnie May Rogers; and also Patterson.

# # * # #
— 76—

Q. Reverend Scruggs, do you recall how many there 
were that came in out there and disquieted your services? 
A. I believe there were fourteen; thirteen or fourteen, I 
believe.

Q. Reverend Scruggs, did the police come out ; did they 
answer your complaint? A. Yes, sir. It was about three 
to five minutes. There was one squad car on the scene, and 
then there were others that came. We let the colored youth 
stay in until the Lieutenant came.

# # * # #
— 77—

Q. Reverend Scruggs, I will ask you if you had these 
people removed because of their color? A. Not at all.

Q. Reverend Scruggs, I will ask you if they had fol­
lowed your ushers’ advice, if you would have made a com­
plaint to the Police Department? A. No, sir.

# # * # #
— 78—

Cross Examination by Mr. Hooks:
Q. And I believe you stated on your direct examination 

that this meeting was open to the public? A. Yes.
Q. If Methodists, or Baptists, or Catholics, or Presby­

terians had come, they would have been welcome? A. 
Yes.

Q. It would not have been necessary for the people com­
ing to have been members of the Assembly of God Church? 
A. No.

Testimony of Rev. T. E. Scruggs—Cross

# # # # #



7a

Q. It was an evangelistic meeting! A. Yes.
Q. Was this meeting given some advertisement! A. As 

to my own promotion, I did not do any. The only knowl-
—7 9 -

edge I have is the article you showed me at a former hear­
ing.

Q. And the service was open to the youth in this com­
munity? A. I believe that is what the article said.

Q. I believe you said that if they had followed the in­
structions of the ushers, they would not have been asked 
to leave! A. Yes.

Q. What were the instructions of the ushers? A. I be­
lieve—First of all, they were asked if they would leave, 
and they would not; and then they were asked to sit be­
hind in these rear seats so as not to disturb the services.

Q. As a matter of fact, they were invited to have seats 
in the rear? A. They were invited to have seats in the 
rear, so as not to disturb the services that were going on.

Q. Is it generally true that people who come in late to a 
meeting, disturb the meeting? A. Yes; but anyone that 
would disturb my services, I  would have them removed.

Q. Anybody that came in late, you would have them 
removed? A. Anybody that would cause a disturbance.

Q. People are not accustomed to negroes coming in, in 
this area? A. That’s right. They were not accustomed to

—SO-
attending services with negroes.

Q. And this disturbed the gathering, in this sense of the 
word, because they were negroes? A. I suppose that is 
true; yes.

Q. Were they loud? A. According to the reports I re­
ceived that—

Q. (Interrupting.) I mean, to your knowledge.

Testimony of Rev. T. E. Scruggs—Cross



8a

The Court: Reverend Scruggs, in answer to his 
questions, just tell him what you know of your own 
knowledge.

A. Not to my knowledge.

By Mr. Books:
Q. Did you see any rudeness or indecent behavior, or 

hear any cursing or profanity! A. No.
Q. Were they dressed more or less like the other young 

people that were there! A. Yes.
Q. They were! A. Yes.
Q. But they would not take seats at the rear of the 

Shell! A. Not necessarily—they would not take seats as­
signed them by the ushers.

Q. Were there not a number of vacant seats between 
where they came in and where the audience was sitting! 
A. Yes.

=& # * =*=
— 81—

Q. You testified that these people were told that the meet­
ing was segregated. A. I testified that that was what was 
told to me.

Q. That the meeting was segregated! A. Yes.

— 82—

By Mr. Books:
Q. The question is: You have stated here that the pub­

lic, generally speaking, was invited! A. That is correct.
Q. But not Negroes? A. We had never faced a situa­

tion of this nature, and in invitations we never have found 
it necessary to have to use any terms of that nature in

Testimony of Rev. T. E. Scruggs—Cross



9a

advertising; having no Negro members of our church, of 
course we do not expect any such thing as this to happen. 

* * * * *
-84-—

Redirect Examination by Mr. Dwyer:
Q. I would like to ask you one other question.
Reverend Scruggs, if a Methodist or Baptist or Catholic 

had come out there, white or black, and disturbed your 
service, would you have had them arrested! A. Yes, sir. 

* * * * *
By Mr. Hooks:

Q. What caused the disturbance! A. Any time that 
people have to move by others and slide into a seat late, 
they disturb the other people. They did not obey the ushers; 
they did not take the places that were assigned to them. 
The thing that caused the disturbance was that they in­
termingled—and if you know anything about the Overton

- 8 6 -
Park Shell, the seats are very close together—and instead 
of them taking seats in the vacant rows, they decided to 
slide in and take seats and intermingle with the crowd.

* * * * *
—87—

Q. Do you have any knowledge as to whether the ushers 
asked anybody other than the Negroes to take seats in the 
rear? A. You have said that I only can say what I know, 
not what I heard, and that is all I could repeat—what I 
heard. I don’t know what the ushers did?

Q. You don’t know what they did? A. No, sir. 
* * * * *

Testimony of Rev. T. E. Scruggs—Redirect



10a

Testimony of Doyle E. Burgess, Jr.—Direct

—8 9 -
T estim o n y  of D oyle E. B urgess , J r.

Direct Examination by Mr. Beasley:
Q. Did you have occasion to attend that rally on August 

30, 1960? A. Yes, sir.
Q. Did you perform any particular function? A. Yes, 

sir, as an usher and co-ordinator in the meeting?
Q. What time did you arrive at the Shell? A. About

7 :20.

Q. What time was the rally scheduled to start? A. 
Seven-thirty.

Q. I will ask you whether or not there were many or few 
people in attendance by 7:30 that evening? A. Yes, sir; 
there was a fairly good crowd by 7 :30.

Q. Did you make a count of the people there ? A. There 
was no exact per capita count, but I would estimate four 
to six hundred people; something like that.

—90—
Q. Did the services start at 7 :30, as scheduled? A. Yes, 

sir.
Q. Mr. Burgess, I will ask you if during the course of the 

services—did anything out of the ordinary happen? A. I 
think the proceeding got under way about 7 :30, and then 
around about 7:40 or 7.45 I was standing at the rear of the 
auditorium, when I was met by a group of colored young 
people. And as they entered, I walked toward the back and 
greeted the young man that was leading the group, and 
shook hands and talked just a minute.

Q, Mr. Burgess, at this time do you see the young boy 
whom you met and shook hands with that night; do you see 
him in the courtroom? A. Yes, sir, the young man sitting, 
in the second row to my left.



11a

Q. Could you tell the Court and Jury which one in the 
row? A. This one at the extreme left—in the second row 
there.

Testimony of Doyle E. Burgess, Jr.—Direct

Mr. Beasley: Let the record show that he has in­
dicated Evander Ford.

By Mr. Beasley:

Q. You stated that you walked to the group. Could you 
tell how many were in the group? A. It is hard to tell; 
they came two-by-two, and there were several groups, but 
I would say 14 or 15.

Q. And you walked up to that person whom you have
—91—

identified as Evander Ford, and shook hands with him? 
A. Yes, sir.

Q. Did you converse with him at that time? A. Yes, sir. 
When I met them, I tried to anticipate that there might be 
difficulty at the meeting, since at that particular time it 
was not uncommon that this type situation occur. And I 
asked them out of courtesy if he would not remain, since 
this was a segregated meeting, featuring the young people 
of the Assembly of God.

Q. Did you greet him and talk with him in a courteous 
manner? A. Yes, sir.

Q. Did he talk with you in a courteous manner? A. I 
don’t remember what was said, but in a moment he turned 
and instructed the group to scatter out. Those were his 
exact words, “Scatter out”.

Q. He instructed the other young people to scatter out? 
A. Yes, sir.

Q. Mr. Burgess, had you at any time invited the people 
to be seated; had you made a statement along those lines?-



12a

A. Yes, sir. At the moment we first met there, 1 told them 
that I thought it would be better if they not come in ; and 
then I got a plan. There were about 20 rows that were 
vacant, and since the group was quite large, I suggested 
that they sit in the 20 rows, since the meeting was going on.

—-92—
And that is when he said, “Scatter out”.

Q. Did you make that offer at that time, for them to 
please be seated? A. Yes, sir.

Q. Mr. Burgess, at that time I believe you stated there 
were about 20 empty rows in the back, 15 or 20! A. Yes, 
sir.

Q. Were there also empty seats close to the aisles? A. 
Yes, sir.

Q. After that statement was made, was anything further 
said, or what happened? A. Well, I was standing approx­
imately in the center of the aisle, and it was fairly wide, 
and some of the group just pushed past me and made their 
way mostly, I would say to the center of the rows, where 
the people were sitting.

Q. Did they sit as a group? A. No, sir. There might 
have been as many as two or three sitting together, but 
mainly they went in couples. There might have been four 
together, but it was mainly different couples that split up.

Q. Mr. Burgess, if you will, please explain to the Court 
and Jury what, if anything, occurred upon these people 
moving in and seating themselves among the people al­
ready present? A. The young people began to make their 
way into the congregation and disperse themselves through

—93—
the congregation. Many of our young people began to 
move to the other parts of the auditorium, and quite a 
number began to leave. I couldn’t estimate how many

Testimony of Doyle E. Burgess, Jr.—Direct



13a

exactly, but quite a number left the auditorium as a result 
of that.

# * # * *
—96—

T e stim o n y  of E d B byeans

Direct Examination by Mr. Dwyer:
Q. Do you recall if on that date you were in the City of 

Memphis? A. Yes, sir.
Q. Around 7:30 p.m., do you remember where you were 

in the City, Mr. Bryeans? A. Yes, sir. I was at the 
Overton Park Shell.

Q. Could you tell the Court and Jury the reason for your 
being out there that evening? A. I was supposed to be 
the head usher with six ushers under me.

# # # # #
—98—

Q. Around 7 :45 p.m., your services were under way and 
had started? A. Yes, sir.

Q. Around 7 :45 were you still acting as usher? A. Yes, 
sir.

Q. Did any disturbance take place out there at that time? 
A. Yes, sir.

Q. Will you tell us as near as you can recall what took 
place and what you observed on that evening, at that time? 
A. Several colored people came in the entrance, and Gene 
went over—

Q. (Interrupting.) Who is Gene? A. Gene Burgess.
Q. That is the gentleman who just testified? A. Yes, 

sir. —(Continuing.) And they came in the entrance and, 
Gene asked them to leave, and they said they wouldn’t.

—99—
And we asked them to take seats over at the side, and they 
wouldn’t do that.

Testimony of Ed Bryeans—Direct



14a

And at that time, the leader told the rest of them to 
scatter out, and that is when they pushed by us and took 
seats all over the auditorium.

Q. Were there any vacant seats? A. Yes, sir; in the 
back.

# * # * *
— 100—

Q. —(Continuing.) After they pushed past you and Mr. 
Burgess, would you tell us what they did, and what took 
place, as near as you recall? A. After they pushed past 
us, they took different seats in different rows, and as they 
went in they made people move over and disrupted the 
services completely, as the people were disturbed as they 
made their way into the rows.

Q. Did you notice whether or not anybody left? A. Yes, 
sir. There wrere several people leaving.

Q. Would you say they caused the services to be dis­
rupted by their pushing past you out there? A. Yes, sir.

Q. Do you know whether or not part of your services 
was a showing of a film? A. Yes, sir; that was supposed 
to be the inspirational part of the service, and that was in­
terrupted because of the colored people entering.

# * * # #
—101-

Cross Examination by Mr. Hooks:
Q. Mr. Bryeans, about how many were in the group, if 

you recall? A. In my estimation, from the group I saw, 
I would say close to thirteen.

— 102—

Q. As far as you know, all were arrested? A. They 
were all arrested.

Q. Did any of them use any profanity? A. They didn’t 
use any profanity.

Testimony of Ed Bryeans—Cross



15a

Testimony of William. P. Sharp—Direct

Q. Did they talk loud! A. No, sir.
Q. Did you hear anyone say anything other than Evander 

Ford? A. No, sir.
*  *  *  *  *

—104—
Q. Did anybody come in at all after 7 :30, other than 

these defendants? A. Certainly.
Q. About how many people? A. I don’t know.
Q. And I believe you testified that this was a segregated 

meeting? A. It was.
Q. The people who came in after the services started— 

I believe there were people who came in after it started? 
A. Yes, sir.

Q. Did you ask them to sit in the back? A. Not in the 
hack, but I asked them to sit where I wanted them to sit. 

Q. Were the vacant rows in the back? A. Yes, sir.
Q. Approximately how many vacant rows were there? 

A. Fifteen, at least.
Q. And you hadn’t asked anybody to sit in these fifteen 

rows? A. It was not needed. They were lined up behind 
each other.

—105—
# # # # #

—107-
T estim o n y  of W il l ia m  P. S harp

Direct Examination by Mr. Beasley:
Q. I will ask you, Mr. Sharp, if sometimes after 7:30 

p.m. that evening, you received a call to go to Overton 
Park? A. I did.

Q. Where did you go to at Overton Park? A. The call 
was to the Shell in Overton Park, and we drove to the



16a

front entrance of the Shell where we were met by Reverend 
Scruggs and several other people.

Q. Was the Shell being used for anything at that time? 
A. Yes, sir. Reverend Scruggs stated that his church was 
having a youth rally at that time.

Q. Were there a lot of people in the Shell at that time? 
A. Yes, sir, there was a very large number.

Q. Mr. Sharp, did you go into the Shell area and into
—108—

where the congregation was at that time? A. No. We 
did not.

Q. And did other members of the Police Department 
come out to the Shell? A. Yes, sir.

Q. Mr. Sharp, did you at any time enter the area of the 
Shell, the seating area of the congregation? A. Yes, sir. 
We did after the Lieutenant arrived on the scene. We did 
enter, on his instructions.

Q. I will ask you if you will please tell the Court and 
Jury just what you observed as you passed in the con­
gregation! A. Everyone seemed to be in a disquieted 
frame of mind. Several people were milling around, and 
several people were leaving, as we went in.

Q. Was the majority of people white or colored? A. 
The majority was white—and several colored scattered 
among the people.

Q. There were colored scattered among the white people? 
A. Yes, sir.

Q. Mr. Sharp, how were these colored people sitting; 
were they in a particular group, or how were they sitting? 
A. They were sitting—just mingled out in different spots 
among the group of people there—in groups of two’s, 
mostly with one or two single ones.

Testimony of William P. Sharp—Direct



Testimony of William P. Sharp—Cross

— 109—

Q. Did you place anyone under arrest that night? A. 
Yes, sir.

Q. Will you tell us how you went about that? A. Our 
instructions were—as we went in the Shell—to locate these 
colored people that were in the Shell and inform them that 
they were under arrest, and bring them to the outside 
entrance of the Shell.

Q. Did you do that? A. Yes, sir.
Q. Did any of them resist you? A. No, sir.
Q. Did you get them together in one place ? A. Yes, sir.
Q. Do you know how many colored people were there, 

or how many you rounded up? A. Fourteen.
• * # # #

Cross Examination by Mr. Hooks:
Q. Officer Sharp, did I understand you to say that the 

Negroes were not milling around? A. Not that I saw.
Q. What were they doing? A. When we arrived on 

the scene, we didn’t see them.
Q. You didn’t see them? A. When we first arrived, we 

didn’t.
Q. What were they doing when you saw them? A. They 

were seated in the Shell?
Q. They were sitting; they were not milling around; is 

that correct? A. Yes.
—Ill—

Q. Did they commit any offense that you know of, in 
your presence? A. The offense was, that I could see there 
was a large disturbance among everyone there, and it was 
stated by the people directing the thing that it was caused 
by these people.



18a

Q. Did you see them do anything other than being seated 
in the Shell? A. No, sir.

Q. This is a public park? A. Overton Park Shell; yes. 
Q. Owned by the City of Memphis? A. Yes.
Q. And what you observed was that they were sitting 

in this place? A. Yes, sir.
Q. Were they appropriately dressed? A. Yes, sir.
Q. Did you notice any of them using loud or profane 

language? A. No, sir.
Q. Engaged in any boisterous or indecent conduct? A. 

No, sir.
Q. Did they put up any resistance when you arrested 

them? A. No, sir.
—112—

# # * # #
T e st im o n y  of J. E. C raw ley

Cross Examination by Mr. Hooks:
Q. When you saw the Negroes, were they sitting or 

standing ? A. Sitting.
Q. Were the white people in the Shell scattered around? 

A. They were sitting in the front, sides and center.
Q. When you used the term “scattered around”, what 

did you mean? A. They were mixed among the white.
—119—

Q. They just had seats in the Shell? A. Seats among 
the white.

Q. And they were not sitting together ? A. That’s right. 
Q. And that is what you mean by the term “scattered 

around”? A. Yes, sir.
Q. Did you hear any cursing or profanity among the 

Negro Defendants, when they were arrested? A. No, sir.

Testimony of J. E. Crawley—Cross



19a

T estimony of J. E. Crawley—Cross

—120—
Q. When you got ready to arrest the Defendants, did 

they stop the service so you could arrest them? A. The 
best I remember, the show had been stopped and we walked 
in and told them to come with us, and they followed us in 
an orderly manner.

Q. The movie was going on? A. Yes, sir.
Q. And when you got ready to arrest them, the movie 

was stopped? A. I believe it had been stopped.
Q. But it was going on when you got there? A. Yes, 

sir.
Q. Did these Defendants commit any acts of boisterous 

or rude conduct, in your presence? A. No, sir.
Q. Did they make any resistance when you arrested 

them? A. No, sir.
Q. Do you know why you arrested them, Mr. Crawley? 

A. We had orders—we just carried out orders.
Q. You had orders to arrest the negroes? A. Yes, sir.
Q. The Overton Park Shell is public property; is it not? 

A. It is public; yes.

Mr. Hooks: That is all.
(Witness excused.)
(Short recess.)

—294—
Q. You asked them to take seats in the same place? 

A. Yes, I did.
Q. These parties who came late after services began 

before these Defendants did? A. Right.
Q. You asked them to sit in the rear ? A. Some of them. 

Of course, these that came past while I was talking with 
others, I was unable to. Others went ahead while I  was



20a

Testimony of J. E. Crawley—Gross

talking to others, like I told you, that went down and 
dispersed themselves in the middle.

Q. Some walked down and did exactly as these Defen­
dants! A. Some of them did go in the middle.

Q. But some of them did go down and sit in the middle; 
is that correct? A. Yes, sir.

Q. I want to get a clear picture as to this disturbance 
you testified to. Now, just what was the disturbance? 
A. The only disturbance to my knowledge was that as the 
young people, of course, are met at the door, when I would 
ask them to be seated in a certain section, they would obey, 
and the colored young man seemed to be somewhat rude. 
I was trying to be friendly with him. He instructed his 
group to scatter out. The only disturbance I could see was 
that when they began to move in different parts of the 
audience, numbers of the young people did leave the

—295-
meeting.

Q. Was that the noise you heard when they were leaving? 
A. There was actually no noise.

Q. There was no noise? A. No, sir.
Q. What was the disturbance? A. Well, the disturbance 

was caused by these people, such a large group coming in 
at one time in the various parts of the audience that were 
already assembled.

Q. And what did this large group do to create a dis­
turbance ; you say there was no noise; they didn’t say 
anything? A. Well, simply by—it was just the magnitude 
of the restless people moving. And also I think our young 
people could sense more or less what was going on. If we 
were sitting here today and a large group dispersed itself 
among us, we would sense something wras going on. Thus, 
many of them moved.



•21a

Q. But the disturbance was the moving; is that right! 
A. Yes, both—(interrupted).

Q. The only audible disturbance was the moving of the 
young people! A. The moving in of the colored young 
people and the moving out of the white young people.

—296—
Q. I thought you testified they were quiet and orderly! 

A. Both groups were orderly, but moving in and out 
disturbs. The moving in disturbed and the moving out, 
disturbed. Just people moving in and out causes a dis­
traction where they are quiet even.

Q. The people, the Defendants, moved in and the other 
people moved out! A. Yes, sir.

Q. And that was the disturbance? A. Yes, sir.
Q. But only the ones who moved in were arrested; is 

that correct? A. That’s right.
Q. But they were not the only ones who created a dis­

turbance, were they? A. Well, if they had progressed like 
we had asked, there would have been no disturbance either 
way.

Q. But we are getting to the disturbance and who 
created the disturbance. The actual noise was the people 
leaving; is that correct? A. There was no noise, let’s 
understand that. There was no noise by either group.

Q. You testified that the program was stopped? A. 
Yes, sir.

Testimony of J. E. Crawley—Cross

# # # # *



22a

Testimony of Ed Bryearn—Direct

—306—
* * # # #

T e st im o n y  op E d B ryeans

Direct Examination- by Mr. Beasley:
Q. Tell us what happened, if anything, out of the ordi­

nary? A. After services started, a group of colored people 
—I don’t know exactly how many it was—possibly twelve 
or thirteen—came in the back entrance into the Overton 
Park Shell. Gene Burgess and myself—Gene was in front 
of me and he greeted them first and we told them it was a 
segregated meeting and asked them to leave.

Q. Were these people white or colored? A. They were 
colored.

# # * * #
—307—

Q. Mow, I believe you have testified that Mr. Burgess 
stated something to the effect that this was a segregated 
meeting; is that correct? A. Yes, sir.

Q. Exactly what, if anything, was said ? A. When Gene 
told them it was a segregated meeting and asked them to 
leave, they said they were not going to do that, and then 
Gene asked them would they take a place over there behind 
the group instead of going down through them. They said, 
“No, we are certainly not going to do that,” like it insulted 
them. Their leader, Ford, as I brought out a while ago, 
he said, “Scatter out”. Before they all scattered out and 
brushed by us, he asked them would they sit right behind 
the others, but they would not do that either.

Q. What did they do out there, Mr. Bryeans; where did 
they sit, if anywhere? A. After he said, “Scatter out,” 
they just took the areas and went down the middle aisles



23a

and side aisles and infiltrated the audience. They went in 
the rows, pushing, not exactly pushing, but made their way 
through the aisles and sat down, and when they sat down 
people naturally moved down to keep from sitting by them. 
Of course, a lot of our people got up and left.

—308—
# # * # *

—312—
Cross Examination by Mr. Sugarmon:

Q. Now, about what time did you say the Defendants 
came in? A. I don’t recall exactly what time it was.

Q. Approximately what time did they come in? A. I 
couldn’t say for sure. I think it was about twenty ’til 
eight.

Q. And who addressed any of the Defendants; who 
talked with them? A. Gene addressed them first.

Q. How close were you to where he carried on this con­
versation? A. Directly behind him.

—313—
Q. Now, who did he talk with? A. Ford.
Q. Did he talk to all of them? A. He talked to all of 

them, but his conversation was directed to Ford.
Q. Did Ford say anything to the other Defendants? 

A. He directed them to scatter out.
Q. Before that did he say anything? A. No, sir.
Q. He turned to them? A. He turned to them and said, 

“Scatter out”.
Q. When they took seats were they orderly? A. It is 

according to what you mean by “orderly”.
Q. Were they noisy when they took seats? A. They 

were not noisy, no.
Q. Did you hear any of them cursing, having conversa­

tions? A. No, sir.

Testimony of Ed Bryeans—Cross



24a

Q. They did not say anything as far as you know? A. 
Not that I know.

Q. Did you see the Defendant take a seat? A. I could 
not say that I saw her take a seat. I saw her in the hack. 

Q. You saw her in the back. You did not see her take
—314—

a seat. Do you know where she sat? A. I  don’t know 
where she sat.

Q. You don’t know whether she sat in the front or back, 
or where? A. No, sir.

Q. You stated they were orderly as far as making noise? 
A. They did not make any noise.

Q. You can not testify this particular Defendant took a 
seat to the front or to the center or to the back or any 
place? A. I couldn’t tell you where she sat.

Q. And not seeing her sit down, you could not tell 
whether any of the people around her were disturbed, 
could you? A. Not her by herself, no, I couldn’t tell 
you that.

—326—
# # * # #

Testimony of William P. Sharp—Cross

T estim o n y  of W il l ia m  P. S h a r p

Cross Examination by Mr. Jones:
Q. I asked you was there anything going on in there and 

you said there was a disturbance going on inside. But my 
question was, were these Defendants doing anything when 
you went in there that would create a disturbance? A. No.

Q. Did they, at any time while you were there, do any­
thing that would be a violation of any ordinance, law, stat­
ute, regulation? A. No.

* * # # *



25a

Testimony of J. C. McCarver—Direct—Cross 

T estim o n y  of J .  C. M cCarveb

Direct Examination by Mr. Beasley:
Q. Now, Officer McCarver, did you go inside the Shell 

area, in the seating areal A. Yes, sir. When we got
— 329—

there, there were other cars on the scene by the time I got 
there, and when we arrived on the scene we found out that 
—we met the Reverend Scruggs and he told us they had 
some colored people that had come in and created quite a 
disturbance inside and quite a few of his people had got 
up and left and he wanted us to go in and get them out. 
And we went in and got the colored people out.

#  *  *  *  *

— 331-

Cross Examination by Mr. Jones:
Q. Officer McCarver, you testified that you received a 

call to go the Shell and that you were told by Reverend 
Scruggs that the Negro people were in there and that they 
created a disturbance? A. I don’t remember if those are 
his exact words. He was standing there and he told us 
that there was colored people inside and quite a few of his 
congregation had got up and left and he wanted us to 
remove them from the premises.

Q. But he did not state to you that they were creating 
a disturbance? A. I don’t really remember whether it 
was in those exact words or not.

— 332—

Q. Was there any disturbance created by these Defen­
dants in your presence? A. No, there was no disturbance 
created.



26a

Q. Were all these people properly dressed? A. Yes, 
properly.

Q. Were they all seated when you went in? A. Yes, 
they were all seated.

Q. Were they quiet? A. Well, yes, sir, they were quiet.
—132-—

D e fe n d a n t s’ M otion  to D ism iss

“Come now your Defendants, Evander Ford, Jr., Alfred 
O. Gross, James Harrison Smith, Ernestine Hill, Johnnie 
May Rogers, Charles Edward Patterson, and Edgar Lee 
James, and respectfully Move the Court to dismiss the 
charge of Disturbing Public Worship now pending against 
them for the following reasons:

I
“That the evidence against the Defendants, Negroes, 

establishes that they, at the time of the arrest and at all 
times covered by the warrant, were members of the public 
peacefully attempting to use a publicly owned facility, 
to-wit: Overton Park Shell, being leased at the time of

—133—
their arrest by the Assembly of God Church, in which the 
Defendants were segregated because of their race or color; 
such segregation was in accordance of the policies, cus­
toms, and usage of the Assembly of God Church carried 
out under the color of State Law of the State of Tennessee 
operating such facilities and services on a racially segre­
gated basis, which policies, customs and usage violate 
the due process and equal protection clauses of the 14th 
Amendment to the Constitution of the United States.”

We have cases cited holding this which we can give to 
the Court.

Defendants’ Motion to Dismiss



27a

II
“That the evidence offered against the Defendants, 

Negroes, in support of the indictment charging them with 
Disturbing Religious Worship establishes that they were, 
at the time of their arrest and at all times covered by the

- 1 3 4 -
charge, peacefully worshipping with others and in the same 
maimer as white persons similarly situated and at no time 
did they disturb or disquiet the congregation by making 
any noise or by rude and indecent behavior or by boisterous 
or profane discourse nor any other act within or near said 
Overton Park Shell and, therefore, the arrest of said 
charge is thereby depriving them of rights without due 
process of law and of equal protection of law secured by 
the 14th Amendment to the Constitution of the United 
States.”

III
“That the evidence establishes that prosecution of De­

fendants was procured for the purpose of preventing them 
from engaging in peaceful assembly with others for the 
purpose of enjoying public facilities and accommodations 
in tax operated facilities in the City of Memphis and

—135—
opened to the public and expressly opened to the public 
on the date of August 30, 1960; and that by this prosecu­
tion, prosecuting witnesses and arresting officers are at­
tempting to employ the aid of the Court to enforce a 
racially discriminatory policy contrary to the due process 
and equal protection clauses of the 14th Amendment to 
the Constitution of the United States.”

If the Court please, on this matter we also have a case, 
Timms versus The State, which citation we can furnish.

Defendants’ Motion to Dismiss



28a

later, dealing with the fact that The State has the duty 
of proving all of the essential elements of the indictment, 
and the indictment which reads in pertinent part that they, 
“Did unlawfully and willfully disturb and disquiet an as­
semblage of persons met for religious worship at the Over- 
ton Park Shell of Memphis-Shelby County, Tennessee, after

—136-
being refused admittance to the services therein, did force 
themselves into the assembly, seated themselves among 
the worshippers, and by this act did cause disruption of said 
religious assembly.”

If Your Honor please, we submit that the testimony of 
all the State’s witnesses failed to show they were refused 
admittance to the assembly, and failed to show that they 
forced their way into the Overton Park Shell. The best 
the State has made out, is that one person in this group 
was asked to sit in the rear. He was informed this was a 
segregated assembly, that they could take seats in the 
rear. This does not rise to the dignity of the criminal 
statute having to do with Disturbance of Religious As­
sembly.

For that reason and for reasons delegated in our written 
Motion, we ask the Court to dismiss these charges.

- 1 3 7 -
D ism issa l  of D e fe n d a n t s’ M otion  to D ism iss

The Court: Well, of course, your Motion is not well 
taken for the reason that this Court doesn’t have the au­
thority to direct verdicts. It does in Civil Courts, but it 
doesn’t in Criminal Courts. I can’t direct a verdict for the 
State and by the same reason I can’t direct a verdict for 
the Defendant.

Dismissal of Defendants’ Motion to Dismiss



29a

As far as the violation on the taking some of these 
parties who went to this assembly that night, no right 
was deprived them, none whatsoever.

Attorney Hooks: If the Court please—did you—(inter­
rupted ).

The Court: No, I am not through.
Attorney Hooks: Oh, I  am sorry.
The Court: The right to peacefully assemble and wor­

ship God is a right that is paramount to all other rights. 
That is written in the 1st Amendment to the Constitution 
of the United States. It is not in the State Constitution.

—138—
The 1st Amendment, of course, is the beginning of the 
first ten Amendments to the Constitution which is the Bill 
of Bights and cannot be changed. The Congress shall pass 
no act creating any religion or the free exercise thereof, 
the free exercise thereof.

Now, the racial question involved here doesn’t enter 
into this thing at all, as I see it. There is the attempt to 
inject it here, but this Court is not going to let it he in­
jected into it. If the situation were reversed, where we 
would say a colored church was having a peaceful as­
semblage of for the purpose of worshipping God and it 
was disturbed or entered by the White, and the will of the 
colored people were holding, then they would be in viola­
tion of law.

Now the right to worship God as you please extends to 
single and individual, to individuals or a group. They can 
worship segregated, integrated, or any other manner, and

—139—
they must not be disturbed. Now that is paramount to all 
other rights, Civil and otherwise. If you take that away 
from the people of this country, why then we have just

Dismissal of Defendants’ Motion to Dismiss



30a

about the same situation we have in Russia today where 
they have no religion and where a good many people are 
not permitted to practice a religion, also with their free 
assemblage where they won’t let them assemble. They are 
interfered with.

So, then the Legislature in its wisdom and one of the 
framers of the Constitution of this country thought enough 
of it to write it into the Bill of Rights of our nation, that 
Congress itself cannot interfere with the exercise of reli­
gion; therefore, an individual certainly does not have that 
right, and in this act here which was enacted at first in 
1870 and then again in 1879 and amended 1833—no

—140—
—1801 was the first enactment, I believe, and 1858 it was 
amended, and on down to 1932 it was carried over into 
that Code and it now in the Tennessee Code Annotated, 
Section 39-1204, which it says, “The disturbing of religious, 
educational, literary or temperance assemblage, if any per­
son willfully disturb, or disquiet any assemblage of per­
sons met for religious worship,” and it goes on here, “or 
for educational or literary purposes or as a lodge.” Of 
course, we have the right under the Constitution to peace­
fully assemble. That is a right that is given to us.

Now these rights that are given to us or when they are 
—I would say this right to worship God peacefully was a 
right that existed long before the Constitution itself, a 
right that was given to man by God and it therefore be­
comes the duty of all other people to respect that right. 
Now that is the way I, as a Court, feel about this. I really

- 1 4 1 -
do. If these people are deprived of the right to worship 
as they please, integrated, segregated, or say to the world,

Dismissal of Defendants’ Motion to Dismiss



31a

“We intend to worship tonight with people who are one- 
eyed and are Chinese,” they have the sanctity of the law 
thrown around them to worship, and nobody has the right 
to go in there and disturb them.

There is a difference between a church and a business, 
and I am just saying this for the record, not prejudicing 
anyone at all, this is a matter entirely in the hands of the 
Jury, and the Court will so charge the Jury at the time, 
but you brought in there the 14th Amendment which doesn’t 
apply in this case at all. The 1st Amendment is the one 
that applies and the 14th is not a part of the Bill of Rights. 
The first ten is. And the due process of law and the use 
of civic sales tax supported civic facilities, that is not a 
question before this Court. The question here and the only

- 1 4 2 -
question was whether that religious assembly was dis­
turbed. That is all that the Jury has to decide. That is 
the one issue. The National Government doesn’t enter into 
it at all. You have no right to interfere with the people’s 
worship. If such was done it will be found by the Jury.

Therefore, your Motion is overruled.

Dismissal of Defendants’ Motion to Dismiss



32a

The Defendants, Evander Ford, Jr., Alfred O’Neil Gross, 
James Harrington Smith, Ernestine Hill, Johnnie May 
Rogers, Charles Edward Patterson, and Edgar Lee James, 
were convicted upon the same trial for willfully disturbing 
an assemblage of persons meeting for religious purposes 
(Section 39-1204, Tennessee Code Annotated), and each was 
sentenced to serve sixty days in the Shelby County Penal 
Farm, plus a fine of $200.00.

The Defendant, Katie Jean Robertson, was tried sepa­
rately, she not being available at the time of the first trial, 
and was convicted of the same offense and sentenced to 
serve sixty days and fined $175.00. Since these two cases 
grew out of the same set of facts and the Defendants were 
acting in concert with each other, the cases were joined 
for purposes of appeal.

In the case of the Defendant, Katie Jean Robertson, the 
conviction must be affirmed for failure to timely file the 
bill of exceptions. The Trial Court overruled the Defend­
ant’s motion for a new trial on November 3, 1961. On 
Friday, December 1, 1961, the Defendant moved the Court 
for additional time in which to file and prepare her bill of 
exceptions. This motion was granted by the Trial Judge 
and the time for filing was extended thirty days from the 
3rd day of December, 1961. As a result of this extension 
the Defendant had until January 2,1962 in which to prepare 
and file the bill of exceptions. However, the bill of excep­
tions was not filed until January 4, 1962, which is two days 
late. A bill of exceptions which is filed too late does not 
become a part of the record in a case and cannot be looked 
to for any purpose. O’Brien v. State, 193 Tenn. 361. This

Opinion o f Supreme Court
o f Tennessee



33a

leaves only the technical record before the Court and we 
are unable to detect any reversible error therein.

Having disposed of Katie Jean Robertson’s case the 
Court will now proceed to discuss the appeal as to the re­
maining Defendants. At the outset it must be noted that 
all of the proof in the record is uncontroverted. These De­
fendants are negro youths and their criminal prosecution 
resulted from an incident which took place in the City of 
Memphis on the evening of August 30,1960. It appears that 
the Assembly of God Church on this evening had leased 
the “Shell”, a municipally owned amphitheater situated in 
Overton Park of that city, for the purpose of conducting 
a youth rally as a part of their church activities. This 
meeting had received a considerable amount of advertise­
ment as to time and place it was to be conducted.

The meeting commenced at 7 :30 o’clock, P.M. on this 
evening. At approximately 7 :45 o’clock, P.M. the Defend­
ants herein, and some other negro youths who are not on 
trial here, entered the amphitheater. An usher on duty at 
this entrance met these Defendants as they entered. The 
usher then informed the group that it would be better if 
they did not come in, that this was a meeting for the youth 
of the Assembly of God Church. When the Defendants 
would not leave the usher asked them to take the rear seats. 
At this time the Defendant, Evander Ford, Jr., who was 
the apparent leader of this group, turned and told his 
group to “scatter out”. The Defendants then broke into 
groups of two and simultaneously disbursed themselves 
throughout the audience. Even though there were seats 
available at the ends of the rows, the Defendants for the 
most part proceeded to step over the people already seated 
and moved to the center of the rows. The people who were 
already seated began to move away and in some instances

Opinion of Supreme Court of Tennessee



34a

left the meeting. As a result of this mass entrance a gen­
eral milling around was caused and an undercurrent went 
up throughout the audience which caused a delay in the 
service that was in progress. The police were then sum­
moned and the Defendants were placed under arrest for 
the offense indicated above.

The Defendants stand convicted of Section 39-1204, Ten­
nessee Code Annotated, which reads as follows:

“If any person willfully disturb or disquiet any assem­
blage of persons met for religious worship, or for 
educational or literary purposes, or as a lodge or for 
the purpose of engaging in or promoting the cause of 
temperance, by noise, profane discourse, rude or in­
decent behavior, or any other act, at or near the place 
of meeting, he shall be fined not less than twenty dol­
lars ($20.00) nor more than two hundred dollars 
($200), and may also be imprisoned not exceeding six 
(6) months in the county jail.”

The Defendants first argue that the statute only con­
demns acts which are noisy, rude, profane, indecent, or 
other similar acts and that their action was none of these, 
therefore, the State has failed to make out a case against 
them. The State on the other hand insists that the statute 
reaches any willful disturbance of a religious assembly 
regardless of how it is accomplished. This squarely presents 
us with the problem of the construction of this statute.

At the outset it must be noted that this statute is not a 
breach of the peace statute as such, but rather it is a statute 
which is designed to protect to the citizens of this State the 
right to worship their God according to the dictates of their 
conscience without interruption. As a general rule these 
statutes have been very liberally construed by the Court.

Opinion of Supreme Court of Tennessee



35a

Hollingsworth v. State, 37 Tenn. 518. However, in order to 
determine the exact boundaries of this statute we feel that 
it is necessary to review its historical development.

The first statute upon this subject made any person who 
would disturb a religious assembly punishable as a rioter 
at common law. Chapter 35  of the Acts of 1801 . Then by 
Chapter 60 of the Acts of 1815 , the legislature enacted an 
additional statute to supplement Chapter 35 of the Acts of 
1801. The part of Chapter 60 of the Acts of 1815  which is 
pertinent to our discussion here reads as follows:

“It shall be the duty of all justices of the peace, . . . that 
whenever any wicked or disorderly person or persons 
shall either by word or gesture or in any other manner 
whatosever disturb any congregation which may have 
assembled themselves for the purpose of worshipping 
Almighty God, . . . shall immediately cause offender or 
offenders to be apprehended and brought before them 
or some other justice of the peace for the county in 
which such offense may be committed . . . ” (Section 1, 
Chapter 60, Acts of 1815) (Emphasis supplied).

Then in 1858 the first Code of this State was adopted 
which contained a section that is the same as Section 39- 
1204, Tennessee Code Annotated, except that it only cov­
ered religious assemblies. By Chapter 85 of the Acts of 
1870 this section was extended to cover educational and 
literary meetings and by Chapter 209 of the Acts of 1879 
the section was placed in its present form.

However, when the Code of 1858 was adopted, Chapter 
35 of the Acts of 1801 and Chapter 60 of the Acts of 1815 
were brought forward into that Code. Thus, the Code of 
1858 contained both Chapter 35 of the Acts of 1801 and 
Chapter 60 of the Acts of 1815, along with a section which

Opinion of Supreme Court of Tennessee



36a

was the same as our present Section 39-1204 after the 
abovementioned amendments. This remained in this state 
of affair until 1921 when the Court was called upon to 
compare these various sections in Dagley v. State, 144 
Tenn. 501. The Court in this case reached the conclusion 
that the section which is now Section 39-1204, of our 
present Code, embraced the same offense which was set 
out in the section containing Chapter 35 of the Acts of 
1801 and Chapter 60 of the Acts of 1815.

It will be noted from the quoted part of Chapter 60 
of the Acts of 1815 that it constituted an offense to disturb 
a religious assembly in any manner whatsoever. There­
fore, in the light of the conclusion reached by the Court 
in the Dagley case, supra, i.e., the offense set out in Chap­
ter 60 of the Acts of 1815 was included in the offense 
prescribed in what is now Section 39-1204, Tennessee Code 
Annotated, the only logical result to be reached here is 
that the phrase “or any other act” which appears in Sec­
tion 39-1204, Tennessee Code Annotated, is all encompass­
ing and it is unlawful for anyone to willfully disturb a 
religious assembly in any manner whatsoever.

In view of the construction which must be placed upon 
Section 39-1204, Tennessee Code Annotated, we are of the 
opinion that these Defendants violated the statute. Un­
questionably the act was willful. These Defendants had 
been tendered seats at this meeting even though they were 
at first asked not to come in. However, the Defendants 
would not take these seats and upon command of their 
leader to “scatter out” they disbursed themselves through­
out the audience simultaneously. The proof shows that 
there were seats available at the ends of the rows where 
they could be seated, but they, nevertheless, proceeded 
to step over the people already seated in an effort to get

Opinion of Supreme Court of Tennessee



37a

to the center of the rows. These acts are wholly incon­
sistent with any theory that these Defendants came with 
the intent of joining in the meeting. The very precise 
manner in which this maneuver was executed indicates 
very clearly that these Defendants had planned their 
course of action before arriving at the meeting. This 
leaves us no choice but to conclude that this was a well 
organized scheme designed to create an incident.

This brings us to the question of whether or not their 
act disturbed the meeting. The record shows that when 
the Defendants descended upon this meeting in mass and 
began to step over the persons already seated it caused 
these people to move to let them in and some to move 
away, and others to leave the meeting. Reverend Scruggs, 
the official in charge of the meeting, stated that there was 
quite a commotion caused by this act with all these people 
moving around and further that they had to delay the 
service. The Court in the case of Bolt v. State, 60 Tenn. 
192, ruled that it was only necessary that the act attract 
the attention of any part or parts of the assembly to 
constitute a violation of the statute. This act undoubtedly 
attracted the attention of a great portion of this assembly 
if not all of it, but the Defendants’ act even went further 
than that which is required under the rule in the Bolt case, 
supra, because their act completely interrupted the ser­
vice. We are, therefore, of the opinion that there is more 
than ample proof contained in this record to support the 
verdict of the jury.

The Defendants next argue that their constitutional 
rights are being violated by this conviction because this 
is a publicly owned facility and they could not be excluded. 
First, it must be noted that the Defendants were tendered 
seats at this meeting even though they had been denied

Opinion of Supreme Court of Tennessee



38a

Opinion of Supreme Court of Tennessee

admission at the outset. Second, this is not a suit to 
enjoin a discriminatory practice, nor is it a damage suit 
based upon the violation of civil rights, but rather a crim­
inal action charging the Defendants with willfully disturb­
ing a religious assembly. Whether these Defendants had 
a right to be at the place where this religious meeting was 
being conducted is not an issue in this lawsuit. The sole 
issue here is whether or not these Defendants willfully 
disturbed the meeting that was being held there and we 
have hereinbefore determined this question adversely to 
the Defendants’ contention.

Lastly, the Defendants contend that the verdict of the 
jury is so severe that it evinces passion, prejudice and 
caprice and, therefore, is void. The evidence as presented 
by the record clearly shows them to be guilty of violating 
this particular statute. We have diligently searched this 
record and are unable to find any mitigating circumstances 
which would warrant us in disturbing the verdict of the 
jury.

Judgment affirmed.

P b e w i t t , C.J.



39a

No. 37462

Order o f Supreme Court
o f Tennessee

E vander F ord, J r., e t a l.,
—v.—

S tate  oe T e n n e s s e e .

Shelby Criminal.
Affirmed.

Came the plaintiffs in error b y  counsel, and also came 
the Attorney General on behalf of the State, and this 
cause was heard on the transcript of the record from the 
Criminal Court of Shelby County; and upon consideration 
thereof, this Court is of opinion that there is no reversible 
error on the record, and that the judgment of the Court 
below should be affirmed, and it is accordingly so ordered 
and adjudged by the Court.

It is therefore ordered and adjudged by the Court that 
the State of Tennessee recover of Evander Ford, J r . ; 
Alfred O’Neil Gross; James Harrington Smith; Ernestine 
Hill; Johnnie May Rogers; Charles Edward Patterson; 
and Edgar Lee James; the plaintiffs in error, for the use 
of the County of Shelby, the sum of $200.00 each, the fine 
assessed against Evander Ford, Jr. et al. in the Court 
below, together with the costs of the cause accrued in this 
Court and in the Court below, and execution may issue 
from this Court for the cost of the appeal.



40a

Order of Supreme Court of Tennessee

It is further ordered by the Court that the plaintiffs 
in error be confined in the county jail or workhouse of 
Shelby County, subject to the lawful rules and regulations 
thereof, for a term of sixty days each, and that after 
expiration of the aforesaid term of imprisonment, they 
remain in the custody of the Sheriff of Shelby County until 
said fine and costs are paid, secured or worked out as re­
quired by law, and this cause is remanded to the Criminal 
Court of Shelby County for the execution of this judgment.

The Clerk of this Court will issue duly certified copies 
of this judgment to the Sheriff and the Workhouse Com­
missioner of Shelby County to the end that this judgment 
may be executed.

3/7/62



41a

Order o f Supreme Court
o f Tennessee

K a tie  J ea n  R obertson ,

-v.-

S tate  op T e n n e s s e e .

Shelby Criminal.
Affirmed.

Came the plaintiff in error by counsel, and also came 
the Attorney General on behalf of the State, and this 
cause was heard on the transcript of the record from the 
Criminal Court of Shelby County; and upon consideration 
thereof, this Court is of opinion that there is no reversible 
error on the record, and that the judgment of the Court 
below should be affirmed, and it is accordingly so ordered 
and adjudged by the Court.

It is therefore ordered and adjudged by the Court that 
the State of Tennessee recover of Katie Jean Robertson, 
the plaintiff in error, for the use of the County of Shelby, 
the sum of $175.00, the fine assessed against Katie Jean 
Robertson in the Court below, together with the costs of 
the cause accrued in this Court and in the Court below, 
and execution may issue from this Court for the cost of 
the appeal.

It is further ordered by the Court that the plaintiff 
in error be confined in the county jail or workhouse of 
Shelby County, subject to the lawful rules and regulations



42a

thereof, for a term of sixty days, and that after expiration 
of the aforesaid term of imprisonment, she remain in the 
custody of the Sheriff of Shelby County until said fine 
and costs are paid, secured or worked out as required by 
law, and this cause is remanded to the Criminal Court of 
Shelby County for the execution of this judgment.

The Clerk of this Court will issue duly certified copies 
of this judgment to the Sheriff and the Workhouse Com­
missioner of Shelby County to the end that this judgment 
may be executed.

3/7/62

Order of Supreme Court of Tennessee

Order Denying Rehearing

K a tie  J ea n  R obertson , E vander F ord, J r ., et a l.,

-v.

S tate  oe T e n n e s s e e .

Shelby Criminal.
Petition to Rehear Denied.

This cause coming on further to be heard on a petition 
to rehear and reply thereto, upon consideration of all which 
and the Court finding no merit in the petition, it is denied 
at the cost of the petitioner.

5/4/62



43a

I n  t h e

UNITED STATES DISTRICT COURT
F or t h e  W estern  D istr ic t  of T e n n e s s e e  

M e m p h is  D iv isio n

Petition for Writ o f Habeas Corpus

E vander F ord, J r ., e t a l.,

•v.—
Petitioners,

T h e  H onorable W il l ia m  N. M orris, J r., Sheriff of Shelby 
County, Tennessee, and T h e  M e m p h is  B ail  B ond A gen cy ,

Respondent.

To the Honorable United States District Court for the 
Western District of Tennessee:

The petition of Evander Ford, Jr., Alfred O. Gross, 
James Harrison Smith, Ernestine Hill, Johnnie May Rog­
ers, Charles Edward Patterson, Edgar Lee James, and 
Katie Jean Robertson respectfully shows:

I .

The jurisdiction of this court is invoked pursuant to 
Title 28, United States Code, Section 2241-3 and Section 1, 
Fourteenth Amendment to the United States Constitution.

II.
The petitioners are citizens of the United States and 

residents of the State of Tennessee. The petitioners are 
ail members of the Negro race.



44a

III.

The petitioners seek by this action to obtain review of 
their conviction for an alleged violation of wilfully dis­
turbing a religious assembly (Section 39-1204, Tenn. Code 
Ann.). The judgment was rendered by the Criminal Court 
of Shelby County, Tennessee, on June 20, 1961.

IV.

The petitioners, through the making of appropriate bail 
bond, have not served the jail sentences nor paid the fines 
imposed upon them by the Shelby County Criminal Court.
Petitioners are advised and believe that within ...........they
will be served with [a capias] for their arrest. When 
that circumstance occurs, petitioners will be required to 
start serving the jail term illegally imposed upon them by 
the Shelby County Criminal Court.

V.

The convictions of petitioners are violative of the due 
process of law and equal protection of the laws as guaran­
teed by the Fourteenth Amendment to the Constitution of 
the United States; the said convictions were based upon 
arrests made by Memphis police officers to enforce that 
City’s illegal policy of racial segregation in its public parks.

VI.

Petitioners’ convictions were secured despite the absence 
of evidence of willful disturbance of a religious assembly 
as required by both the state law under which the arrests 
were prosecuted and the due process clause of the Four­
teenth Amendment. The evidence before the court was 
simply that (1) the accused were Negroes; (2) the accused

Petition for Writ of Habeas Corpus



45a

sought to use a public facility located in a public park 
then being used by white persons for a religious service 
to which the public was invited, and (3) a few white people 
then present in the auditorium moved out of their seats 
when the Negroes seated themselves in the auditorium.

VII.

Petitioners have exhausted every available remedy in 
the courts of Tennessee and certiorari before the United 
States Supreme Court has been sought as set forth below. 
At the conclusion of testimony in their trial on June 20, 
1961 petitioners Ford, Gross, Smith, Hill, Rogers, Patter­
son and James made a motion to the trial court to dismiss 
the charges on the ground that such arrests deprived peti­
tioners of their rights under the due process and equal 
protection clauses of the Fourteenth Amendment. The 
court denied the motion.

Petitioners were convicted on June 20, 1961 [petitioner 
Robertson was convicted on September 25, 1961] and filed 
a motion for a new trial, again raising the issue of denial 
of their Fourteenth Amendment rights to use public facil­
ities on a nonsegregated basis. The motion was denied on 
August 15, 1961. [Petitioner Robertson made a motion for 
a new trial which raised the same federal questions at the 
conclusion of her trial. The motion was overruled on No­
vember 3, 1961.]

The cases were consolidated for appeal by consent of 
the Supreme Court of Tennessee. That court affirmed the 
judgment of the Criminal Court and denied an application 
for rehearing on May 4, 1962. Robertson, et al. v. State, 
-----Tenn.------ .

Petition for Writ of Habeas Corpus



46a

Petition for Writ of Habeas Corpus 

VIII.
After the petition for certiorari was filed before the 

Supreme Court, in 1962, but on or before certiorari was 
denied on June 22, 1964, four eases important to this pro­
ceeding were decided by the Supreme Court:

1. In Watson v. City of Memphis, 373 U.S. 526 (1963), 
the Supreme Court had before it a record showing that at 
the time of petitioners’ arrest, Overton Park, a public 
park on which the facility where petitioners were arrested 
is located, was racially segregated pursuant to City policy. 
The Supreme Court held that racial segregation in Mem­
phis’ public parks, necessarily including Overton Park, 
must be completely and immediately ended.

2. In Peterson v. City of Greenville, 373 U.S. 244 (1963), 
the court reversed trespass convictions of Negroes who, 
after having been refused service at a lunch counter be­
cause of race, remained seated over the manager’s protest. 
There, a city ordinance forbade nonsegregated food ser­
vice, but the State contended that the arrests were made 
pursuant to the manager’s request and not the segregation 
ordinance. The Court ruled, however, that:

“When a State agency passes a law compelling persons 
to discriminate against other persons because of race, 
and the State’s criminal processes are employed in a 
way which enforces the discrimination mandated by 
that law, such a palpable violation of the Fourteenth 
Amendment cannot be saved by attempting to separate 
the mental urges of the discriminators.” 373 U.S. at 
248. See also Lombard v. Louisiana, 373 U.S. 267.



3. In Lombard v. Louisiana, 373 TT.S. 267 (1963), the 
Court reversed trespass convictions of Negroes who re­
fused to leave a refreshment counter in New Orleans after 
being advised by the management that the counter was 
operated on a segregated basis and served only white 
patrons. Segregated facilities were not dictated by any 
statute or ordinance in New Orleans, but the Mayor and 
Superintendent of Police had issued statements warning 
that persons participating in sit-in demonstrations would 
be arrested. The Court ruled that the convictions as in 
Peterson, supra, had been commanded by the voice of the 
State and could not stand.

4. In Robinson v. State of Florida,----U.S.----- (1964),
the Court reversed convictions of Negroes and whites who 
were refused service at a Miami restaurant. Again, rely­
ing on the rationale of Peterson, supra, and Lombard, 
supra, the Court ruled that State health regulations re­
quiring separate facilities for each race connoted a State 
policy of segregation which placed discouraging burdens 
on any restaurant serving the two races together.

IX.
The petitioners are restrained pursuant to sentence and 

fines that are illegal and void, in that petitioners were de­
nied due process and equal protection of the laws secured 
by the Fourteenth Amendment to the Constitution of the 
United States. The facts and circumstances under which 
denial of petitioners’ constitutional rights occurred are as 
follows:

(a) On August 30, 1960, petitioners and several other 
Negro persons sought to attend a public rally, advertised

Petition for Writ of Habeas Corpus



48a

as such in a daily newspaper of general circulation, spon­
sored by an all-white religious organization and held in 
an auditorium owned and operated by the City of Mem­
phis, located in Overton Public Park. The Negroes were 
properly dressed, used no rude or profane language and 
engaged in no improper conduct.

(b) Upon their attempt to enter the auditorium the Ne­
groes were advised by an usher of the sponsoring organ­
ization that they should leave because the meeting was 
“segregated” and they were not wanted there.

(c) When the Negroes refused to leave, the usher offered 
them seats far behind the audience of white persons. This 
offer was refused by the Negroes, who thereupon pro­
ceeded to take vacant seats in various parts of the audi­
torium in the same manner as several white late entrants 
had done. When they took seats, a few white persons in 
the audience moved to other places in the auditorium or 
left altogether “because they were not accustomed to at­
tending services with Negroes.” Although the service was 
not interrupted, City police were called.

(d) Soon thereafter, the service was halted, City police 
officers appeared, went through the auditorium, sought out 
for arrest and arrested only the Negroes seated therein.

(e) At the time of petitioners’ arrests, Overton Park 
was designated by the City of Memphis for white persons 
only. Racial segregation at the park was enforced by the 
City of Memphis through its park or police officers or 
through orders to Negroes to leave or through arrests made 
by the police. Such arrests were usually made, as these 
were, under the guise of violating statutes, e.g., disorderly

Petition for Writ of Habeas Corpus



49a

conduct, breach of the peace, etc., rather than segregation 
laws.

(f) The events preceding petitioners’ arrests show that 
had petitioners been white persons responding to the re­
ligious group’s advertisement, they would never have been 
arrested:

(1) First, petitioners were detained at the entrance of 
the auditorium by the usher because they were Ne­
groes. Petitioners would not have been so detained 
had they been white persons.

(2) Second, police officers were called, and came to the 
auditorium, for the sole purpose of removing or 
causing the removal of the petitioners. Police of­
ficers would not have been called by the spokesman 
of the organization, nor would the officers have re­
sponded to a call to remove or cause the removal 
of white persons in attendance at the auditorium if 
the behavior of those persons had been similar to 
that of these petitioners under the circumstances 
described.

Thus, petitioners were arrested clearly because the City 
of Memphis operated Overton Park, including the audi­
torium, located therein for white people only; the City 
was requested to enforce that policy; and the City en­
forced that policy by arresting petitioners. Petitioners 
were, therefore, arrested solely because of their race in 
violation of rights secured to them under the due process 
and equal protection clauses of the Fourteenth Amend­
ment to the United States Constitution. Accordingly, the 
conviction under the guise of nondiscriminatory applica­
tion of a valid state criminal statute cannot stand.

Petition for Writ of Habeas Corpus



50a

No previous application to this Court has been made for 
writ of habeas corpus on the grounds alleged herein.

In view of the showing made in this petition, petitioners 
believe that the writ of habeas corpus should immediately 
and forthwith be granted; that service of the sentences 
and payment of the fines hereinbefore mentioned should 
be stayed pending further proceedings before this Court; 
and that the respondents should be ordered to produce 
before this Court the bodies of the petitioners should the 
petitioners he taken into custody prior to the filing and 
service of this petition and order upon the respondents, 
along with the records had upon the trial in the said matter 
in the Criminal Court of Shelby County, Tennessee.

W h e r e f o r e , petitioners pray the Court as follows:
(a) That the writ of habeas corpus immediately issue 

to respondents and petitioners be immediately brought 
before the Court should need therefor be made to appear;

(b) That the respondents be required to appear and 
answer in writing the allegations of this petition;

(c) That after full and complete hearing this Court re­
lieve petitioners of the unconstitutional restraint, sentences 
and fines imposed;

(d) That the execution and service of the judgments and 
sentences be ordered stayed until further proceedings are 
had in this Court; and

(e) That the Court grant such other and further relief 
as to the Court appears just and proper under the circum­
stances.

Respectfully submitted,

[Names of Attorneys Omitted]

Petition for Writ of Habeas Corpus



51a

I n  t h e

UNITED STATES DISTRICT COURT
F or t h e  W estern  D istr ic t  op T e n n e sse e  

W ester n  D iv isio n

Motion to Dismiss Petition for Writ o f  Habeas Corpus

S tate  of T e n n e s s e e , ex rel. E vandbr F ord, J r., et al.,

—v.—
Petitioner,

H onorable W il l ia m  N. M orris, J r., Sheriff, 
Shelby County, Tennessee,

Respondent.

To The Honorable Bailey Brown, Judge, United States 
District Court for the Western Division of Tennessee:

Come now Phil M. Canale, Jr., District Attorney General 
for the Fifteenth Judicial Circuit of Tennessee, on behalf 
of the State of Tennessee, and William N. Morris, Jr., 
Sheriff of Shelby County, Tennessee, and move the Court 
to deny and dismiss the Petition for Writ of Habeas Corpus 
filed against them in this cause on the following grounds:

I.
The Court will not assume or take jurisdiction of this 

matter due to the fact that Petitioners have not fully ex­
hausted all of their available remedies under the laws of 
the State of Tennessee as required by Title 28, Section 2254 
U.S.C.A.



52a

II.

That the petition of Alfred 0. Gross, Charles Edward 
Patterson, Edgar Lee James and Katie Jean Robertson 
be stricken on the additional grounds that these aforesaid 
petitioners have not signed or certified this petition and 
further based on information and belief that these peti­
tioners are not in the territorial jurisdiction of this Court 
at this time nor at the time of filing this petition.

III.

That none of the petitioners are in the custody of the 
respondent, Sheriff William N. Morris.

IV.

The petitioners are all free and at liberty on appeal 
bonds awaiting execution of judgments entered in their 
cause on March 7, 1962, and are, therefore, not under such 
restraint as to entitle them to habeas corpus relief.

V.

The respondents further move the Court to order stricken 
from the Petition those portions consisting of argumentive 
conclusions and quotations from statutes and cases in that 
only statements of facts should be alleged in a Petition for 
Writ of Habeas Corpus.

Motion to Dismiss Petition for Writ of Habeas Corpus

VI.

The respondent moves the Court to deny and dismiss the 
Petition on the grounds that the constitutional question 
therein raised has been presented and litigated in the Crim­
inal Courts of Shelby County, Tennessee, the Supreme



53a

Court of the State of Tennessee and by denial of the appli­
cation for certiorari to the United States Supreme Court.

V II.

The respondent denies that the conviction of the peti­
tioners was in any way violative of the rights of said 
petitioners under the Constitution of the United States or 
the State of Tennessee, but alleges and would show to the 
Court that said petitioners were duly indicted, tried and 
convicted for violation of Section 39-1204 of the Tennessee 
Code Annotated, which is as follows:

“Disturbing religious, educational, literary, or tem­
perance assemblies—Penalty.—If any person willfully 
disturb or disquiet any assemblage of persons met for 
religious worship, or for educational or literary pur­
poses, or as a lodge or for the purpose of engaging in 
or promoting the cause of temperance, by noise, pro­
fane discourse, rude or indecent behavior, or any other 
act, at or near the place of meeting, he shall be fined 
not less than twenty dollars ($20.00) nor more than 
two hundred dollars ($200), and may also be impris­
oned not exceeding six (6) months in the county jail.”

VIII.
The respondent denies the allegation of facts as set 

forth in paragraph VI of the Petition as being the evidence 
on which said conviction was based and would respectfully 
direct the attention of the Court to the opinion of the 
Supreme Court of Tennessee styled Evander Ford, et al., 
and Katie Jean Robertson vs. State of Tennessee, 210 Ten­
nessee 105; 355 S.W. 2, 102, and the official transcript of 
the proceedings which, in compliance with the Court’s re-

Motion to Dismiss Petition for Writ of Habeas Corpus



54a

Motion to Dismiss Petition for Writ of Habeas Corpus

quest, have heretofore been filed; for a true and correct 
statement of the evidence upon which the conviction was 
based.

Wherefore, the State of Tennessee and Sheriff William 
N. Morris move the Court to deny and dismiss the Petition 
for Writ of Habeas Corpus and to revoke the stay order 
heretofore entered in this cause.

P h il  M. C an a le , J e.



Memorandum Decision

I n  t h e

UNITED STATES DISTRICT COURT
F or t h e  W e ster n  D istr ic t  of T e n n e s s e e  

W ester n  D ivision  

Civil No. 5348

S ta te  of T e n n e s s e e , ex rel. E vander F ord, J r., et al.,
Petitioners,

H onorable W il l ia m  N. M orris, J r., Sheriff,
Shelby County, Tennessee, et al.,

Respondents.

This is a petition for a writ of habeas corpus filed by 
eight persons, all of the Negro race, who were convicted 
in the Criminal Court of Shelby County, Tennessee of 
wilfully disturbing a religious assembly. Petitioners con­
tend that their convictions cannot stand in that they 
violate the Fourteenth Amendment to the United States 
Constitution.

At the trial in state court, petitioners raised, by way 
of a motion to dismiss and later by a motion for a new 
trial, their Fourteenth Amendment defenses, which mo­
tions were overruled. They appealed their convictions to 
the Supreme Court of Tennessee, again asserting their 
Fourteenth Amendment defenses, and that court affirmed 
their convictions. Ford et al. v. State, 210 Tenn. 105, 355



56a

S.W. 2d 102 (1961); rehearing denied 210 Tenn. 114, 356 
S.W. 2d 726 (1962).1

Thereafter, petitioners sought a writ of certiorari in 
the Supreme Court of the United States, basing their 
petition on their contention that the convictions could 
not stand under the Fourteenth Amendment, but that
Court denied certiorari. -----  U.S. ----- , 12 L. Ed. 2d
1046 (1964); rehearing denied -----  U .S .----- , 13 L. Ed.
2d 76 (1964).

At the time of filing of this petition for a writ of habeas 
corpus, petitioners, who had made bond, had not yet been 
arrested pursuant to the final affirmance of their convic­
tions but a capias for their arerst was in the hands of 
respondent Sheriff of Shelby County. The Sheriff and the 
bonding company were made respondents. This court 
issued an order to show cause why a writ of habeas corpus 
should not issue and ordered a stay of their service of 
sentences and payment of fines pending the determination 
of their application for habeas corpus. A hearing has 
been held pursuant to the show cause order, following 
which this Court took the matter under advisement.

Respondents first contend that this petition for habeas 
corpus must fail because petitioners’ Fourteenth Amend­
ment contentions have been raised and decided adversely 
to them both in the state criminal court and the state 
Supreme Court and the Supreme Court of the United States 
has denied certiorari. These state adjudications, however, 
do not bar this application for habeas corpus, for the 
doctrine of res judicata does not apply here, Fay v. Noia, 
372 U. S. 391 (1963) and Townsend v. Sain, 372 U. S. 293

1 The appeal of petitioner Robertson was dismissed on the ground that 
she had not timely filed her bill of exceptions, but, as will be seen, this is 
of no importance in our determination of her right to a writ of habeas 
corpus.

Memorandum Decision



57a

(1963); and denial of certiorari is not an affirmance, 
Brown v. Allen, 344 U. S. 443 (1953).

Next, respondents contend that this petition must fail 
because, not having brought a state habeas corpus pro­
ceeding, they have not exhausted state remedies. But 
the requirement, in a federal habeas corpus proceeding, 
that all state remedies first be exhausted is as a matter 
of law satisfied when the petitioner has received an ad­
verse adjudication as to his federal rights in the highest 
court of the state. Brown v. Allen, 344 IT. S. 443 (1953) 
and Irvin v. Dowd, 359 U. S. 394 (1959).

Next, respondents contend that this petition must fail 
because, at the time it was filed, petitioners were not 
“in custody” within the meaning of 28 U.S.C.A., Sec. 
2241(c)(3), the federal habeas corpus statute. It was ap­
parently a recognition of this requirement that caused the 
petitioners to join the bonding company as a respondent. 
We conclude that a federal habeas corpus petitioner must 
be in custody at the time he files his petition and that 
these petitioners were not so in custody at the time they 
filed this petition.

The cases generally hold that a person who is at large 
on bail is not in custody so as to entitle him to a writ of 
habeas corpus. Stallings v. Splain, 253 U.S. 339 (1920), 
Baker v. Grice, 169 U.S. 284 (1898), Sibray v. U. S., 185 
Fed. 401 (C. A. 3, 1911), Annotation, 77 A. L. R. 2d 1307. 
It is true that MacKenzie v. Barrett, 141 Fed. 964 (C. A. 
7, 1905), holds to the contrary, but the Sibray opinion, 
supra, later criticized the MacKenzie opinion and the 
Seventh Circuit itself later overruled the MacKenzie case 
in U. S. ex rel. Waimer v. Tittemore, 61 F. 2d 909 (C.A. 7, 
1932). Accordingly, unless these federal cases have been 
overruled by the recent decision of the Supreme Court in

Memorandum Decision



58a

Jones v. Cunningham, 371 U.S. 236 (1963), a person at 
large on bail may not maintain a petition for a writ of 
habeas corpus. There the Court held that a former prisoner 
on parole could maintain a petition for habeas corpus. 
However, the Court emphasized that petitioner’s parole 
was subject to many conditions which controlled his day- 
to-day actions. In particular, he was confined to his com­
munity, house and job at the sufferance of his parole 
officer. Persons at large on bond are not, and particularly 
petitioners in the case at bar were not, subject to such 
control. We therefore hold that Jones does not overrule 
these earlier cases.

Petitioners also rely, in this connection, on Ries v. U.S. 
Marshal, 192 F. Supp. 79 (E.D. Pa., 1961). In that case, 
petitioner had brought a habeas corpus proceeding and 
had been released on bond pending the hearing on his 
application. The Government contended that his applica­
tion must fail because petitioner was not in custody at 
the time of the hearing. The Court simply held that the 
custody requirement was met because petitioner was in 
custody when he filed his petition.

Our holding that this petition for a writ of habeas corpus 
must fail on the ground that petitioners were not in 
custody at the time the petition was filed would, of course, 
dispose of this matter. However, this is a technical de­
fense which would no longer be available to respondents 
upon the dismissal of the petition and the arrest of peti­
tioners, after which, undoubtedly, petitioners would file a 
second petition. We, therefore, think it proper to deal 
with respondents’ nest contention, which is that, in any 
event, the conviction of petitioners does not violate their 
due process and equal protection rights under the Four­
teenth Amendment.

Memorandum Decision



59a

As stated, petitioners were convicted of wilfully dis­
turbing a religious assembly. More specifically, petitioners 
entered a youth rally, to which the public was invited, of 
the Assembly of God Church being held in a leased public 
amphitheatre on the premises of a public park in the City 
of Memphis. It is petitioners’ contention that their conduct 
which was the basis for their conviction was nothing more 
than their assertion of their equal protection right under 
the Fourteenth Amendment to attend this rally. In this 
connection they rely on, among other cases, Watson v. 
City of Memphis, 373 IT.S. 526 (1963) which holds that 
segregation in a public park based on race is unconstitu­
tional. It is petitioners’ additional contention that their 
conviction violates their due process right under the 
Fourteenth Amendment because there is no evidence from 
which a jury could reasonably find them guilty of the 
crime defined in the statute and in the indictment charged. 
See, for example, Townsend v. Sain, 372 IT.S. 293 (1963).

The Tennessee statute under which petitioners were 
indicted and convicted (T.C.A. 39-1204) reads as follows:

“Disturbing religious, education, literary, or temperance 
assemblies—Penalty—. If any person willfully disturb 
or disquiet any assemblage of persons met for reli­
gious worship, or for educational or literary pur­
poses, or as a lodge or for the purpose of engaging 
in or promoting the cause of temperance, by noise, 
profane discourse, rude or indecent behavior, or any 
other act, at or near the place of meeting, he shall 
be fined not less than twenty dollars ($20.00) nor 
more than two hundred dollars ($200), and may also 
be imprisoned not exceeding six (6) months in the 
county jail.”

Memorandum Decision



60a

The transcript of the record of the proceedings in the 
state criminal court has been furnished to this court and 
has been carefully reviewed. This transcript will he filed 
as a part of the record in this habeas corpus proceeding.

With respect to the equal protection issue, on the mo­
tion to dismiss in the state criminal court, that court in­
dicated that it thought that petitioners had no constitutional 
right to attend the rally, the Court’s theory being that 
the religious freedom guaranty in the First Amendment 
allowed segregation by race at the rally. (Tr. pp. 107-114). 
(The First Amendment, of course, can have application 
to non-federal authorities only to the extent that its 
guaranty is incorporated into the Fourteenth Amendment.) 
Although the competing guaranties of religious freedom 
and equal protection might raise a serious question as to 
the right of petitioners to attend this rally, we assume, as 
respondents assume, for purposes of this decision, that 
they did have such a constitutional right. However, even 
if the trial court was incorrect in thinking that petitioners 
had no right to attend the rally, it appears that this had 
no effect on the outcome of the prosecution. This is true 
because the transcript, and particularly the charge to the 
jury, indicates clearly that the case was not tried on the 
theory that petitioners had no right to attend the rally. 
Also, the trial court’s belief that they did not have such 
a right was not made known to the jury. Moreover, the 
opinion by the Supreme Court of Tennessee on appeal, 
affirming the convictions, clearly is not based on the as­
sumption that petitioners had no constitutional right to 
attend the rally. (210 Tenn. 105, 355 S.W. 2d 102).

The due process of law question for our determination 
is whether or not, from the evidence adduced at the trial, 
a jury could reasonably find that the ingredients of the

Memorandum Decision



61a

crime defined in the statute and charged in the indict­
ment were proven. Under this statute, it is necessary that 
it be shown that a defendant attended a religious gather­
ing with intent to disturb or disquiet the gathering and 
committed some objective act which in fact disturbed or 
disquieted the gathering. Since we assume that petitioners 
had a constitutional right to attend under the equal protec­
tion clause, it follows that the objective conduct must be 
conduct other than and beyond the simple assertion of 
their right to attend.

Petitioners chose not to testify at their trial, or to 
introduce any other evidence, and therefore the only evi­
dence adduced was that offered by the State. From this 
evidence, the jury could find the following:

The religious rally began promptly as scheduled at 7 :30 
p.m. and petitioners appeared at an entrance at about 
7:45 p.m. The participants in the rally were singing at 
that time. Petitioners were met by ushers who advised 
them that they could not enter because it was a segre­
gated meeting. Petitioners, however, insisted on entering, 
and the ushers then advised them that they might be 
seated but to take the first available empty seats imme­
diately to the rear of those persons already seated. With 
this, petitioner Ford, the leader of the group, exclaimed 
“Scatter out,” and at this direction, petitioners moved 
down into the area where persons were already seated, 
passed up empty seats at the ends of the rows, moved in 
front of persons already seated, and made room for them­
selves in the middle of the rows. This conduct caused a 
commotion, the stopping of the showing of a film that 
had begun, and caused some of the participants to begin 
to leave.

Memorandum Decision



62a

We believe that upon such findings the jury could fur­
ther find that petitioners attended the rally with the 
intent to disturb or disquiet it, and that following their 
assertion of their right to attend, petitioners, with such 
intent, committed objective acts beyond the assertion of 
this right, and that the rally was disturbed by this conduct.

Petitioners contend that even if they committed acts 
which went beyond the assertion of their right to attend, 
a conviction based on such conduct would still deprive 
them of equal protection of the laws. At the time of this 
incident, petitioners claim in this connection, the City of 
Memphis had an ordinance or at least a policy requiring 
racial segregation with respect to this amphitheatre under 
these circumstances. Petitioners then rely, by analogy, 
upon such cases as Paterson v. City of Greenville, 373 
U.S. 244 (1963) and Lombard v. Louisiana, 373 U.S. 267 
(1963), holding that criminal trespass laws cannot be con­
stitutionally invoked to support the desire of the owner 
of a private business to maintain racial segregation on 
his premises provided there is a local ordinance or even 
a local policy requiring such segregation. It does not 
actually appear in the record here whether the City of 
Memphis at that time had such an ordinance or policy 
applicable to this religious rally. However, even if there 
was such an ordinance or policy in effect, we do not believe 
that, the Peterson and Lombard cases require the invalida­
tion of these convictions. Those decisions do not prevent 
a prosecution for a breach of the peace based on conduct 
beyond and in addition to the entering of a place of busi­
ness for service.

Petitioners further contend that this Court should, in 
order to determine whether these convictions are uncon­
stitutional, hold a full evidentiary hearing and in effect

Memorandum Decision



63a

try the facts de novo, relying on Townsend v. Sain, 372 
U.S. 293 (1963). There the Court said at p. 313:

“We hold that a federal court must grant an eviden­
tiary hearing to a habeas applicant under the follow­
ing circumstances: If (1) the merits of the factual 
dispute were not resolved in the state hearing; (2) 
the state factual determination is not fairly supported 
by the record as a whole; (3) the fact-finding pro­
cedure employed by the state court was not adequate 
to afford a full and fair hearing; (4) there is a sub­
stantial allegation of newly discovered evidence; (5) 
the material facts were not adequately developed at 
the state court hearing, or (6) for any reason it ap­
pears that the state trier of fact did not afford the 
habeas applicant a full and fair fact hearing.”

It does not appear here that petitioners’ criminal trial 
fits into any of these categories. The facts were not as 
fully developed as might have been desirable but this 
was largely due to the choice of petitioners not to testify. 
The charge to the jury, moreover, could have been fuller 
and more explicit, but employed counsel for petitioners 
at the criminal trial did not offer special requests for an 
additional charge. In any event, petitioners make no 
quarrel with the charge. We have already determined 
that the record supports the factual determination.

At bottom, petitioners’ complaint is that they would not 
have been convicted for what they did had they not been 
Negroes. However, the record not only indicates that 
petitioners were not tried on the theory that they had 
no right to attend the rally, but it also indicates that 
the prospective jurors were carefully questioned on voir 
dire examination as to any racial bias. This court cannot

Memorandum Decision



64a

invalidate a state criminal court conviction because of a 
suspicion that the jury might have been influenced by 
unconstitutional considerations.

It results that the petition for habeas corpus will be 
denied and the order staying the service of sentences and 
payment of fines will be rescinded.

E n tered  this 5 day of January, 1965.

B a iley  B ro w n  
United States District Judge

Memorandum Decision



65a

Isr t h e

UNITED STATES DISTRICT COURT

Order Dism issing Petition for Writ o f Habeas Corpus

P oe t h e  W ester n  D ist r ic t  oe T e n n e s s e e  

W estern  D iv isio n  

Civil No. 5348

S tate  of T e n n e s s e e , ex rel. E vander  F ord, J r ., et al.,
Petitioners,

—vs.—

H onorable W il l ia m  N. M orris, J r., Sheriff,
Shelby County, Tennessee, et al.,

Respondents.

This cause came on to be heard upon the petition for a 
writ of habeas corpus of the petitioners, Evander Ford, 
Jr., Alfred 0. Gross, James Harrison Smith, Ernestine 
Hill, Johnnie May Rogers, Charles Edward Patterson, 
Edgar Lee James and Katie Jean Robertson; the Motion 
to Dismiss Petition for Writ of Habeas Corpus filed by 
the Respondent, William N. Morris, Jr., Sheriff of Shelby 
County, Tennessee, upon the statements in open court of 
counsel for the petitioners and respondent, and upon the 
entire record in this cause, and

It satisfactorily appearing to the Court that, after a 
full and complete hearing, the Court has handed down 
a memorandum decision in this cause which decision this



66a

Court hereby ratifies and adopts in this order, the same 
as if copied verbatim herein, and

It further satisfactorily appearing to the Court that the 
Petition for Writ of Habeas Corpus in this cause is not 
well taken and should be denied, and

It further satisfactorily appearing to the Court that 
the order staying the service of sentences and payment 
of fines should be rescinded.

I t is  th e r e fo r e  ordered, adjudged  and  decreed  by the 
Court that the Petition for Writ of Habeas Corpus be, 
and the same is, hereby, denied, and that the order stay­
ing the service of sentences and payment of fines be, and 
it is hereby rescinded.

I t is  f u r t h e r  ordered, adjudged  and  decreed  by the 
Court that the costs of this cause be, and the same are 
hereby adjudged against the petitioners, for which let 
execution issue.

This the 6 day of January, 1965.

Order Dismissing Petition for Writ of Habeas Corpus

B a i l e y  B r o w n

Judge

Approved as to form:
R .  B .  S u g a r m o n  

Attorney for Petitioner



67a

Relevant Docket Entries

October 22, 1964 Filed Petition for Writ of Habeas 
Corpus.

November 2, 1964 Filed Motion to Dismiss Petition.
January 5, 1965 Filed Memorandum Decision.

January 6, 1965 Filed Notice of Appeal.

April 6, 1965 Record filed and cause docketed.

April 28, 1965 Filed Appellants’ Designation of Rec­
ord.



MEILEN PRESS IN C  —  N. Y. C 2 1 S