Fax to Johnson From Cox RE: Case Update

    TRANSCRIPT OF RECORD

Supreme Court of the U nited  States

OCTOBER TERM, 1963

No. 9

CHARLES F. BARR, ET AL., PETITIONERS,

vs.

CITY OF COLUMBIA

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF SOUTH CAROLINA

PETITION FOR CERTIORARI FILED APRIL 7, 1962 

CERTIORARI GRANTED JUNE 10, 1963



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1963

No. 9

CHARLES F. BARR, ET AL., PETITIONERS,
vs.

CITY OF COLUMBIA

ON WRIT OR CERTIORARI TO THE SUPREME COURT 
OR THE STATE OR SOUTH CAROLINA

I N D E X

Proceedings in the Supreme Court of the State of 
South Carolina

Statement_________________________________
Record from the Recorder’s Court of the City of

Columbia, State of South Carolina ________ —
Transcript of trial proceedings, March 30, 1960 

Testimony of Carl D. Stokes—
direct _______________
cross ________________
redirect _____________

John M. T e rry -
direct —
cross -------------------------

David Carter—
direct _______________
cross ________________
redirect ---------------------

Richard M. Counts—
direct_______ ________
cross ________________
redirect _____________

Original

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43 
46

Prin t

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Record Press, P rinters, New York, N. Y., J uly 1, 1963



11 INDEX

Original P rin t
Record from the Recorder’s Court of the City of 

Columbia, State of South Carolina—Continued 
Transcript of trial proceedings, March 30, 1960 

—Continued
Motions of defendants to dismiss the charges

against them, etc. and denial thereof______  46 38
Judgment _____________________________  50 41
Motions of defendants for arrest of judgment 

or in the alternative, for a new trial, etc. and
denial thereof ________________________  52 42

Record from the Richland County Court, Criminal
Division ________________________________  56 46
Opinion, Crews, J. ________________________ 56 46
Notice of intention to appeal________________  63 51
Exceptions ______________________________  63 51
Stipulation as to record____________________  64 52

Opinion, Oxner, J. __________________________ 65 53
Petition for rehearing and order denying________ 67 57
Petition for stay of remittitur _______________  71 59
Order staying remittitur ____________________  74 61
Clerk’s certificates (omitted in printing) _______  76 62
Order allowing certiorari _______    78 63



1

[fol. 1]
Statement

Appellants Charles F. Barr, Richard M. Counts, David 
Carter, Milton B. Greene and Johnny M. Clark, all Negro 
college students then attending college in the City of Colum­
bia, South Carolina, were .arrested on the 15th day of 
March, 1960 and charged with the. offenses of Trespass and 
Breach of the Peace. Appellantswere tried before Colum­
bia Recorder John I. Rice, without a jury, on the 30th day 
of March, 1960. Each appellant, at the conclusion of all 
evidence, was found “Guilty” by the Recorder on each 
charge and each was sentenced to pay a fine of One Hundred 
($100.00) Dollars on each charge, or serve a period of 
thirty (30) days in jail on each charge, provided that 
Twenty-four and 50/100 ($24.50) Dollars was suspended on 
each charge.

Within the time specified by law, Notice of Intention to 
Appeal was duly served on the Recorder, each appellant 
having deposited cash bonds. Subsequently, proper appeal 
bonds with sufficient sureties were substituted in lieu of 
the cash deposits.

Thereafter, by consent, this case was consolidated with 
a similar appeal from the Columbia Recorder’s Court and 
argued before Honorable John W. Crews, Judge of the 
Richland County Court (Criminal Division). By Order 
dated April 28, 1961, Judge Crews affirmed the judgment 
of the Recorder’s Court.

Notice of Intention to Appeal was timely served upon the 
City Attorney.



2

[fol. 2]
IN THE

RECORDER’S COURT OF THE CITY OF COLUMBIA 
STATE OF SOUTH CAROLINA

T he City of Columbia, Plaintiff, 
vs.

Chables F. B abb, R ichard M. Counts, David Cabteb, 
M ilton D. Greene and J ohnny  Clark.

Transcript of Trial Proceedings—March 30, 1960
The Court: Jenkins, how do the defendants plead!
Mr. Jenkins: They plead “Not Guilty”, your Honor.
Mr. Jenkins: If your Honor please, I would like to say 

at the outset that Mr. W. Newton Pough, of the Orangeburg 
Bar, is associated with me in these cases.

The Court: That is perfectly agreeable.

Mr. Carl D. S tokes, being duly sworn, testifies as follows: 

Direct examination.

By Mr. Sholenberger:
Q. I believe your name is Carl D. Stokes!
A. Yes.
Q. Now, Mr. Stokes, you are a member of the South 

Carolina Law Enforcement Division!
A. Yes, sir.
Q. Commonly known as SLED!
A. Yes, sir.
Q. How long have you been with that department!
A. I was commissioned in 1956.
Q. Had you had any prior police experience!
A. I worked with SLED while attending the University, 
Q. As a result of your connection with SLED, were you 

at the Taylor Street Pharmacy in the County of Richland,



3

State of South Carolina and the City of Columbia, on the 
15th day of March, some time during the day?

A. I was, sir.
Q. What time of the day was it!
A. We went down about 10:30 I believe, in the morning, 

[fol. 3] Q. All right, sir, why were you there?
A. Well, the first part of the morning when I went to 

work at Headquarters, I was informed by Chief Strom to 
come to Police Headquarters and assist them in anything 
that they needed our assistance.

Q. Had you had information that there might be some­
thing occurring at the store?

A. Well, I didn’t have information. I came down and 
met with the police officers and was assigned to work with 
Detective Cannon and Deputy Sheriff Mustard.

Q. That’s a County Sheriff?
A. Richland County Sheriff. We were informed then 

that something may occur at the Taylor Street Pharmacy 
and we were assigned to work at the Taylor Street Phar­
macy, and that’s the reason we were there.

Q. All right, Mr. Stokes, while you were there, please 
tell this Court just what took place in regard to these five 
defendants who have plead “Not Guilty”?

A. Approximately 12:35 the defendants, all five of them, 
came into the Taylor Street Pharmacy. Deputy Sheriff 
Mustard and myself were inside. I believe a couple of them 
stopped at the card counter and the others proceeded on 
back and eventually all five of them went back to the counter 
and sat down. The luncheon counter.

Q. Did they sit on stools?
A. Well, the counters are in a half moon shape, or similar 

to what we have here, and they sat at the counter. On the 
stools at the counter. Four of them sat at the first counter 
and one I believe, went over to the second counter.
[fol. 4] Q. All right, sir, were there any other people sit­
ting at the counter?

A. Yes, there were other customers there eating.
Q. What took place then?
A. Whenever they sat down, the owner, Mr. Terry, came 

back and at the entrance of the lunch counter, it is parti­
tioned off from the rest of the store. Well, at the entrance



4

of the lunch counter he made the statement to the five, that 
he wasn’t going to serve: them, that they would have to 
leave. I requested Mr. Terry— < '■

Q. Just a minute. After he requested them to leave, did 
they get up and leave ?

A. No, sir, they never turned around. They just sat there 
at the counter.

Q. In other words, they didn’t pay any attention to his 
request?

A. They didn’t do anything.
Q. What happened then?
A. I requested that Mr. Terry go to each individual and 

ask him to leave, in my presence, and he went to each one 
and asked him to leave, that he wasn’t going to serve them. 
Each one turned and looked at him but they never said 
anything, and after he had told all five of them, he turned 
and started out back from the luncheon portion of the 
store.

Q. After he had asked each one individually, did any of 
them attempt to leave ?

A. No, sir.
Q. All right, go ahead?
A. When he started out of the luncheonette, I believe 

Carter got up, stood up and asked Mr. Terry if he could 
ask him a question. Mr. Terry said that he had no comment 
[fol. 5] to make, that they would have to leave.

Q. That was the third time then that at least he asked 
Carter to leave ?

A. Yes. Whenever Carter stood up to ask a question, he 
took a couple steps and he stopped and the other four stood 
up as though they were going to follow Carter out. Carter 
then turned around and motioned for them to sit back down 
and they sat back down and sat there. I might add too that 
they had books, some type of books.

Q. What did you do then?
A. Well, I gave them, I couldn’t say exactly how long, 

but several minutes, after Mr. Terry had left the section, 
to see what they were going to do and they just sat there. 
The customers began to stand up and leave their dinners 
on the counter, so I went back—there were two on one



corner and one on the other corner of the second booth. 
I walked in the middle of those and told them, I believe 
the words I used, that I was a State officer and they had 
been asked to leave and they didn’t so they were under 
arrest. That’s when they got up and followed us out.

Q. Did you bring them down here to headquarters?
A. They followed Deputy Sheriff Mustard to the front 

of the store where three of them were placed in one police 
car and two in the other, because we didn’t have room for 
all five of them in one car, and we brought them to police 
headquarters.

Q. Do you know anything else about this case?
A. That’s all I know about it.

By the Court:
Q. That happened in Richland County, South Carolina? 

[fol. 6] A. Yes, sir.
Mr. Sholenberger: I asked him that to begin with.

Cross examination.

By Mr. Jenkins:
Q. You are Mr. Stokes?
A. Stokes.
Q. Now this occurrence that we are concerned with today, 

took place on March 15th?
A. March 15th.
Q. Now you have testified, Mr. Stokes, that you were at 

the Taylor Street Pharmacy on March 15th?
A. Right.
Q. In an official capacity?
A. Right.
Q. Now would you state to the Court your reason for 

being there?
A. As I stated before, I had orders from my Chief to 

come to police headquarters and assist the police depart­
ment, not only myself but other officers from my depart­
ment. We met here with them and upon information they 
had, I was assigned to work with Detective Cannon and 
Deputy Sheriff Mustard at the Taylor Street Pharmacy.



6

Q. I believe you testified on direct examination that you 
were informed, I believe that’s the word you used, that 
something would happen at Taylor Street Pharmacy?

A. We were told at the meeting, yes, sir.
Q. Would you tell the Court what was your information 

as to what was to occur ?
A. They told us a sit-down demonstration was to occur at 

the Taylor Street Pharmacy.
[fol. 7] Q. And were you assigned there to prevent the 
sit-down demonstration?

A. I was there to prevent any violence that might come 
from the sit-down demonstration, from either race, whether 
it be White or Colored.

Q. I didn’t hear the last part?
A. To prevent any violence at all that might occur from 

this sit-down.
Q. Is that your only reason for being there?
A. That was the reason we were assigned there.
Q. Did you have any other reason for being there other 

than to prevent some violence which may occur?
A. Other than Chief Strom informed me to come down 

here, or ordered me to come down here and assist the police 
department.

Q. Now you were in the store when these five defendants 
came in?

A. I was.
Q. Taylor Street Pharmacy is a very popular store. Is 

that correct?
A. I don’t know how popular. I t’s open 24 hours a day.
Q. I believe its radio program advertises that. Have 

you ever heard it?
A. I don’t know if they have a radio program but I think 

they advertise a good bit.
Q. Now you were there when these five defendants came 

in?
A. I  was.
Q. Did they come in in a group or separately?
A. They came in single file. In fact, there is a door—• 

one door leads into the store and one leads out of the 
store, more or less from the cash register counter, and



7

I couldn’t say all of them hut several of them went through 
[fol. 8] what I would call the exit door, to enter the store.

Q. You observed the manner and demeanor of these 
defendants?

A. I was trying to observe everybody.
Q. Were they orderly when they came in?
A. Oh, yes, they were orderly.
Q. They created no disturbance of any kind?
A. No disturbance at that time.
Q. Now were there other customers in the store at that 

time?
A. There were.
Q. A large number or one or two?
A. Do you mean in the whole store ?
Q. The whole store ?
A. I t’s a pretty large store. There were customers but 

I don’t know exactly how many. There were several eating 
in the lunch part and several in the other parts.

Q. What part of the store were you stationed in when 
these defendants came in?

A. I was up at the front part of the store.
Q. At that time could you see from the front of the store, 

to the lunch department?
A. I could see the partition which comes up to about my 

shoulders, I could see that part, and I could see in the back 
of the store.

Q. Now when these defendants came into the store, did 
they in any manner interfere with any of the other cus­
tomers in the store?

A. How do you mean by interfere?
Q. Did you observe them interfering physically?
A. No, they went in and sat down. That’s all they did. 

[fol. 9] Q. When they first went in the store, we haven’t 
reached the part when they were in the lunch department?

A. They walked in, and as I stated before, I believe a 
couple of them stopped at the card counter where you buy 
birthday cards, etc.

Q. Did the entrance of these defendants into the store, 
arouse any particular concern or interest on the part of the 
customers there?



8

• A. When they first entered the store? No.
Q. Nobody paid them any particular attention?
A. Not that I could tell.
Q. So it didn’t seem out of the ordinary that the defen­

dants would enter the store?
A. No.
Q. Now you said that shortly after entering the store, 

they proceeded to the lunch department?
A. They proceeded back to the luncheonette.
Q. Were there any other people in the lunch room depart­

ment of the Taylor Street Pharmacy when these defendants 
came in?

A. There were.
Q. Do you know whether there were several or a large 

number ?
A. There were several. At the first counter I believe 

maybe five and the other counter was approximately the 
same amount. I didn’t count how many there were, but 
there were a few empty seats. I ’ll put it that way.

Q. I am not familiar with the lunch room department of 
the Taylor Street Pharmacy but I believe you said there 
was crescent shaped counter?
[fol. 10] A. There were three crescent shaped counters 
similar ’to what we have here. The waitress would go in 
between the middle portion to take orders.

Q. Do you know approximately how many stools there 
are?

A. I don’t know how many. "
Q. When these defendants came in on March 15th. and 

proceeded to the lunch room department, there were vacant 
stools were there?

A. Yes.
Q. These defendants seated themselves on the stools?
A. Say this is the first counter, one sat here and one up 

there and I believe two over here and on the second counter 
one sat by himself.

Q. Did they all sit down simultaneously, or some sat 
down and others were standing?

A. One came to this one, one to that one and the other 
one walked around.



9

Q. Do you remember whether any of them had to look 
around to see if there were any vacant stools?

A. As well as I remember, they walked in to the entrance 
of the luncheonette section similar to the aisle here. They 
walked straight in the aisle and one came to this side and 
the others went over that way. They didn’t hunt for a seat.

Q. Did they place any order for food while sitting there?
A. No, they did not.
Q. Did anyone approach them to your knowledge, to 

inquire as to whether they wanted to place an order for 
food?

A. Not to my knowledge. Before they came in, the 
manager or the owner, Mr. Terry, had told me that he 
[fol. 11] wasn’t going to serve them and that he wanted 
them out of his store, if they came back.

Q. That was prior to the defendants ever getting there?
A. That was prior to their entering.
Q. So then one of your purposes in being at the Taylor 

Street Pharmacy was to prevent these people from seeking 
service ?

A. No.
Q. Well, what effect did the information given you by 

Mr. Terry, have on you?
A. It gave me, I wouldn’t say a reason, but it more or 

less gave me something to look out for. If they were to 
come back, then I could look out for maybe someone else 
interfering and causing some violence. He had informed 
us that if they came, he wasn’t gding to serve them.

Q. Did Mr. Terry give you the impression that he ex­
pected some violence to occur if they came in?

A. I didn’t come to any conclusion or observe any im­
pressions that he had.

Q. When these defendants sat at the counter, did they 
sit there as ordinary customers would sit?

A. Well, I don’t think an ordinary customer would come 
in and place their books up where a plate would be or 
where you would be eating dinner from, and leave it there.

Q. Mr. Stokes, during the time you were in school, cer­
tainly you carried books with you sometimes?

A. Sure.



10

Q. Did you ever carry books into the cafeteria or lunch­
room ?

A. If I did, I would leave them at the door.
[fol. 12] Q. I mean, with reference to you?

A. Excuse me, speaking of myself, or my hat, I wouldn’t 
carry them to the counter, I would leave them in the car 
or if I was walking I certainly wouldn’t place them, on the 
counter. If I had to take them to the counter, I would place 
them on the floor beside me.

Q. It is quite possible however, that these defendants 
may have wanted to preserve their books much more so 
than you wanted to preserve yours. That’s possible, isn’t it?

A. Oh, yes, it’s possible.
Q. So that they may not have just wanted to throw their 

books down on the floor?
A. I wouldn’t throw mine either.
Q. At the lunch counter, were there any provisions for 

putting books and other packages which a customer may 
have ?

A. I didn’t observe the structure of the counter.
Q. It is not so unusual that if a person came in to a lunch 

counter and had his books with him, it is not so unusual that 
he would place them on the counter is it?

A. Well, I don’t know what is usual or unusual but to me, 
if I were sitting by someone else who is eating, it certainly 
wouldn’t be proper for me to place my books beside them 
eating, where I would expect to be served.

Q. Did they place their books in front of them or scatter 
them all over the counter?

A. Their books were placed—
The Court: Counsel, I would like to make this observa­

tion. You are going rather far afield. I want to stick to 
the issue involved in the case but I don’t want to shut off 
any pertinent testimony, but at the same time I don’t want 
[fol. 13] to go into matters that are irrelevant and not 
germane to the issue. Whether they put their books on 
the floor or on the table, I don’t think has a thing to do 
with it frankly.

Mr. Jenkins: I believe, if your Honor please, it started 
off trying to find out from this witness whether the de-



11

meanor of these defendants, when they entered the lunch­
room, was any different from that of any other customer.

The Court: But he testified that their demeanor was not 
any different from any of the others.

Mr. Jenkins: He testified, if your Honor please, that 
they put their books on the counter, and to him that seemed 
a bit unusual, so I was merely trying to find out whether 
that was the ordinary thing that students with books would 
do when they entered.

The Court: I think he’s testified enough about the books.
Q. There were other customers in the lunch room when 

these defendants came in?
A. There were.
Q. Were they White or Negro?
A. They were White.
Q. These defendants of course are Negroes?
A. Right.
Q. Now these defendants seated themselves at the lunch 

counter, and did they sit by any persons other than them­
selves ?

A. If I remember correctly, the one that came to this 
side sat between—sat by a White lady. The one that sat 
at the other counter sat between two men. The other two 
sat at two empty seats together, with a White man on each 
side of them.
[fol. 14] Q. Do you recall what those other customers were 
doing when these defendants came in?

A. They were eating. The White lady had a plate in 
front of her and the others were eating. When they sat 
down, the White lady and a couple men on this side stood 
up and left their plates.

Q. Are you certain now that they just stood up immedi­
ately when these defendants came in?

A. Yes. I don’t say when they came in but when they 
sat down.

Q. Did you see anyone directing either of these persons 
to stand up ?

A. Which persons ?
Q. These other customers that stood up when these de­

fendants came in?



12

A. Did I see anyone directing them to stand up ?
Q. Yes?
A. No.
Q. You are certain now with reference to the lady, that 

no one invited her to move?
A. No. I mean, when they sat down, she jumped up, or 

stood up.
Q. Now the other customers who were seated there, they 

continued to sit?
A. Some of them.
Q. Some got up and some continued to sit?
A. Yes.
Q. To some, it didn’t seem any undue occurrence, that 

these defendants came in and sat down to eat?
A. I don’t know about that.
Q. Now you testified that some person from the store, 

I believe Mr. Terry, came over and said what to these 
defendants ?
[fol. 15] A. He stood at the entrance to the luncheonette 
and told them that they would have to leave, that he wasn’t 
going to serve them.

Q. About how long had they been there when he told 
them that?

A. They had come in and had been seated.
Q. Mr. Terry didn’t say anything to them prior to their 

sitting down?
A. No.
Q. Now in the beginning, you had been at the front of 

the store when these defendants came in. Did you just 
follow them on to the back?

A. Since I was in the store, I had been wandering around 
by myself looking at different articles on the counter, and 
observing different people.

Q. I mean, from the time these defendants came in, I 
believe you testified you were at the front of the store?

A. I was at the front of the store.
Q. So you just followed them on back to the lunch coun­

ter?
A. I wouldn’t say I followed them but I  walked on back.
Q. Not very long after they got there?
A. Eight.



13

Q. Now then, they were asked to leave by Mr. Terry and 
they refused to leave?

A. That’s right.
Q. Did he give them any reason for refusing to serve 

them?
A. I don’t recall whether he gave them a reason. All I 

remember him saying to each one of them, that he wasn’t 
going to serve them and they would have to leave. The 
[fol. 16] reason for him telling them to leave I reckon was 
because he wasn’t going to serve them.

Q. I merely asked you whether or not you heard him give 
them a reason?

A. Well, the reason I think that he asked them to leave 
was because he wasn’t going to serve them. I mean, that’s 
what I heard. Not what I think but that’s what I heard.

Q. Of course 1 didn’t ask you what you think about it. 
I merely asked you did you hear him?

A. That’s the reason I say it’s not what I think, it’s 
what I heard.

Q. What were you doing during that time while Mr. Terry 
was talking to these defendants?

A. He first made the statement to all of them in a group.
Q. You were doing what then?
A. I was standing by him. I had come up by him.
Q. Was your purpose in standing by him to assist him 

in refusing service to these defendants?
A. No, I was there to prevent violence.
Q. Up to that point was there any indication of violence?
A. No.
Q. As a matter of fact, throughout the entire incident 

was there any indication of violence ?
A. The only incident that I figured violence might come 

from was when they sat down and the customers stood up, 
and I didn’t know what was going to come off. I couldn’t 
read their minds or anyone else’s in fact.

Q. Did the customers stand in a threatening manner or 
just stood up as though they didn’t want to sit by these 
persons?
[fol. 17] A. I wouldn’t know exactly how to interpret the 
standing up, in a threatening manner.



14

Q. Well, we are not going to be too technical abont the 
word threat, but did they just stand up in an ordinary man­
ner?

A. Some word like threat could mean a lot.
Q. Now then, since we seem to have some question about 

the meaning of words and attitudes and things of that sort, 
you were there to prevent violence?

A. I was there to prevent violence, was my main purpose.
Q. Would you know what violence means?
A. When someone would maybe hinder someone else. 

Violence could be interpreted as fighting.
Q. Would a threatening manner tend to lead toward vio­

lence ?
A. I would think so.
Q. Now the manner in which these persons stood up, 

would that manner in your opinion tend to lead toward 
violence ?

A. As I stated before, when they sat down and the others 
stood up, the word you used before was simultaneous, that 
would apply in this case.

Q. Did they stand up or leave the area?
A. They stood up and the one on this side backed up 

to the wall. The others got in the corner.
Q. I asked you this before but I ’ll ask you again. Through­

out the entire incident, there was in fact no violence, was 
there?

A. No violence.
Q. And there was no threat of violence was there?
A. No, other than maybe when they stood up. I didn’t 

want anything to happen.
[fol. 18] Q. So, as it worked out, except for your assisting 
the manager in arresting these persons, you need not have 
been there. Is that true?

The Court: I don’t think that’s germane. He’s testified 
why he was there, under orders of his superior and I think 
that’s sufficient on that.

Q. You, after Mr. Terry had told the group to leave, sug­
gested to him that he tell each one individually?

A. Eight.
Q. State your reason for doing so?
A. Why I asked him to have them leave?



15

Q. Yes?
A. As I stated before, he had informed me that he wasn’t 

going to serve them and that he wanted them oat of his 
store. All right, after he had made the statement to all of 
them, they sat there like maybe they didn’t hear him. The 
others had started to get up, the White customers stood 
up, and the reason I asked to tell them again so that they 
would know that he wasn’t going to serve them and wanted 
them to leave.

Q. In fact, you were assisting him in refusing them 
service and asking them to leave?

A. I wouldn’t say I was assisting him.
Q. What was your point in being certain that they heard 

him?
A. So that whenever they didn’t leave and they had been 

asked to leave, well I heard him ask them to leave and they 
ignored him. He’s the owner of the store and as I said, 
my purpose was there to prevent violence, but at that par­
ticular point they refused to leave and it seemed to me 
another law was being broken.

Q. What was that law?
A. They were trespassing.

[fol. 19] Q. Are you familiar with the trespass law?
A. No, I don’t say I ’m all familiar with it.
Q. It was an ever present factor in your mind that day?
A. I wouldn’t say it was ever present. I tried to keep all 

the laws. I don’t say all of them but I try to keep most of 
them in my mind.

Q. You did however, assist the manager in refusing ser­
vice to these defendants, didn’t you?

A. I won’t say I assisted him in refusing service.
Q. You assisted him in evicting them from his premises?
A. As it turned out, I did.
Q. And you made the charges against them did you?
A. The warrant charges them with trespass and breach 

of the peace.
The Court: Let me ask counsel to try to be a little more 

brief. I want everybody to be heard but at the same time 
I don’t want to draw this out too long. There are a good 
many other witnesses, both on behalf of the prosecution and



16

the defense and I just don’t want to draw it out too long, 
so make it brief and to the point.

Q. Mr. Terry, did he request that you arrest these defen­
dants ?

A. No.
Q. Did he request that you evict them from his premises!
A. You mean at that time!
Q. At any time!
A. No. He did state before that he didn’t want them in 

his store.
[fol. 20] Q. And did he go further and say: “If they come 
in my store, I want you to arrest them” or words to that 
effect!

A. No, I won’t say he said that.

Redirect examination.

By Mr. Sholenberger:
Q. In other words, you went there for the purpose of 

preventing something which you didn’t know for sure what 
might happen?

A. That’s correct.
Q. You didn’t know what might happen under these cir­

cumstances?
A. No, I didn’t.
Q. That’s why you were there as a Peace Officer for the 

State of South Carolina?
A. Yes, sir.

Mr. J ohn M. T ekby, being duly sworn, testifies as follows: 

Direct examination.

By Mr. Sholenberger:
Q. Mr. Terry, you are the owner of the Taylor Street 

Pharmacy in the City of Columbia, are you not?
A. I am a Co-Owner.
Q. You actually manage the place?
A. Yes, sir.



17

Q. All right, sir, on March 15,1960, did you have occasion 
to see these five defendants in your place of business?

A. Yes, sir.
Q. Just go ahead and tell the Court what they did when 

they came in your store. Did you see them when they came 
in?

A. Yes.
[fol. 21] Q. What did they do when they came in?

A. Well, just the same testimony as Mr. Stokes gave, 
they went back to the lunch department, through the store 
and back to the lunch department. Four of them sat at 
the first counter and one at the second counter, and I went 
back and asked them, or told them I would not serve them 
and asked them to leave, and Mr. Stokes then requested that 
I ask each one individually, which I did, all but one, and 
the luncheonette manager asked him and they refused to 
leave, and I left the department, with the law enforcement 
officers there.

Q. Do you recall David Carter coming up to you and 
making a request?

A. He got up and started towards me, and said “Sir, 
could I ask you a question”, and I directed the luncheonette 
manager, Mr. Cothran, to tell them to leave.

Q. You say he left the lunch department?
A. He left the lunch department and started toward the 

front, and I left the law enforcement officers to enforce the 
law.

Q. Had you informed Mr. Stokes prior to the defendants 
coming in, that you were not going to serve them, and that 
you wanted them to leave?

A.. That’s correct. I was informed on Monday that they 
would be there at 12:35 Tuesday, under their plans, etc.

Q. In other words, Mr. Terry, you didn’t know what might 
happen?

A. That’s correct.
Q. Mr. Terry, is it or is it not your policy to serve food 

to persons of the Negro Race?
A. We do not serve Negroes at our lunch department, 

[fol. 22] Q. Has that been your policy?
A. That’s been the store policy.



18

Cross examination.

By Mr. Jenkins:
Q. Mr. Terry, how long have you operated the Taylor 

Street Pharmacy?
A. At the present location or across the street?
Q. Your present location?
A. It will soon he four years. ,
Q. Prior to that you operated across the street how long?
A. Approximately six years.
Q. The Taylor Street Pharmacy advertises itself as being 

a complete department store, or something to that effect?
A. That’s correct.
Q. You have many departments?
A. That’s correct.
Q. Including a lunch room department?
A. That is a separate department, yes.
Q. I t’s one of the departments in your store?
A. It is a separate department in our store.
Q. When you say separate, would the drug department 

be a separate department?
A. Well, the reason I mention separate department, we 

have two City licenses at Taylor Street Pharmacy, the 
luncheonette is one and the front area is another.

Q. That clarifies it. You in the operation of your store, 
cater to the public generally don’t you?

A. That’s correct.
Q. Irrespective of race?
A. In the front area, that’s correct, the Taylor Street 

Pharmacy department: ^
[fol. 23] Q. Now tell me what you mean when you qualify 
your answer by saying you cater to the public generally 
in the front area irrespective of race ?

A. I just explained to you we have two city licenses. 
We have the Taylor Street Pharmacy license to operate 
and we have the Taylor Street Pharmacy luncheonette 
license to operate.

Q. And you call the entire area other than the luncheon­
ette, the front area?



19

A. The front area of the store, yes, sir. That includes 
everything other than the luncheonette.

Q. These defendants are Negroes aren’t they?
A. I  would think so. They look like it to me.
Q. What we generally accept as Negroes?
A. Yes.
Q. Do you have Negroes trading in your store ?
A. Yes.
Q. One or two, or in large numbers ?
A. I think quite large numbers.
Q. So quite a bit of the income from your store comes 

from Negroes?
A. Quite a bit.
Q. You don’t hesitate to give them service do you?
A. In the front area, definitely not.
Q. As a matter of fact, you invite them in don’t you?
A. That’s correct.
Q. Just like any other member of the public, you invite 

them in ?
A. That’s correct.
Q. You don’t invite them into the luncheon area. I mean 

Negroes?
A. We do not.
Q. Under any circumstances?

[fol. 24] A. If they request it, we will fix an order to go 
for them, at their request.

Q. So Negroes can then come into the back area, I guess 
I’ll call it, the luncheon area, and receive food service?

A. Food service to go.
Q. Do any of them make such requests ?
A. Some.
Q. Large numbers or just scattered?
A. I think it would be very minute.
Q. Do you ever recall seeing any of these defendants, 

other than on March 15th, 1960, order any food from 
the lunch counter?

A. No, I haven’t. I mean, I don’t recall seeing them 
because I ’m not there all the time. I don’t remember them.

Q. Is there any public notice given by you that you do 
not serve Negroes generally in the luncheon department?

A. I beg your pardon?



20

Q. You say you do not serve Negroes generally in the 
lunch department?

A. That’s right.
Q. Other than they may come in and order food to take 

out, you do not serve them?
A. That’s correct.
Q. That’s the policy of your store ?
A. I have Negroes on my payroll in the kitchen depart­

ment.
Q. I ’m talking about customers. Now then you testified 

that your policy is with reference to the food service, not 
to serve Negroes other than they may purchase food to 
take out?

A. If they request it, we will fix it for them.
[fol. 25] Q. Now I ask you, is there any public notice 
provided by you that you do not serve Negroes in the 
lunch counter, other than they may purchase food and take 
it out ?

A. I  never have advertised in any way on the lunch 
department.

Q. So there is no public notice then that you do not serve 
them?

A. I have the public notice that I can refuse to serve 
anyone in that department.

Q. You do have a public notice to that effect?
A. I t’s a sign there.
Q. You do have occasion to refuse to serve people other 

than these defendants ?
A. Definitely.
Q. For your own personal reasons ?
A. I don’t think my personal reasons are involved in 

this case, are they?
The Court: No, that’s correct.
A. But for business reasons or personal or any way 

you put it, I feel that I have a right to refuse to serve 
anyone.

Q. That’s what I asked you. There’s no argument about 
that. Now on March 15, 1960, you testified that you knew 
that these defendants or some others would come into your 
store?

A. I didn’t know that. I was informed on Monday,



21

that a demonstration was planned for the Taylor Street 
Pharmacy at 12:35. Didn’t say what date.

Q. Based npon your information yon then asked the 
assistance of the police department and other police officers ?

A. That’s correct.
[fol. 26] Q. And the police officers who were in your 
store on March 15, 1960, were there at your request?

A. Well, I would say yes or no. I mean they came and 
informed me of the demonstration and we were working 
as a group. I ’ll put it that way. I didn’t call them to 
come around and inform me. They informed me in advance.

Q. When you say working together, you requested their 
assistance in preventing this demonstration?

A. Not necessarily a demonstration. Any type of vio­
lence could erupt or anything, against my store policy. 
It could create violence.

Q. Anything against your store policy, you then wished 
the officers to assist you in preventing?

A. That’s correct.
Q. So you then requested their assistance?
A. I would put it that way, yes. I wanted them there. 

Let’s put it that way.
Q. And did you observe these defendants when they 

came into your store?
A. Yes.
Q. Did any of them make a purchase in the store?
A. Not to my knowledge at that time.
Q. You were some place near the lunch counter when 

they came in?
A. I was up in the front area.
Q. But you saw them when they went to the lunch 

counter?
A. Correct.
Q. And you immediately came back?
A. That’s right.
Q. Did you see them when they took seats ?

[fol. 27] A. Well, immediately after. I was following them 
back there through the aisleway and I immediately pro­
ceeded on back.

Q. Did they physically interfere with anyone on the 
way to the lunch counter?



22

A. Not to my knowledge.
Q. After they reached the lunch counter did they phys­

ically interfere with anyone ?
A. Not to my knowledge.
Q. They were generally orderly?
A. That’s correct.
Q. Were they neatly dressed?
A. I would think so.
Q. Their appearance then was generally that of any 

customers, other than the color of their skin?
A. That’s right. They were carrying books.
Q. The seats that they took were vacant? There was 

nobody on the seats that they took?
A. That’s correct.
Q. They didn’t interfere with anybody that way?
A. That’s correct.
Q. Did they order any food while in your store ?
A. No, they didn’t.
Q. Did anybody approach them to ask for an order?
A. No, they didn’t.
Q. How long after they sat down did you come up and 

request them to leave ?
A. Very briefly.
Q. So they really didn’t have time to order, did they?
A. I didn’t give them time actually because I wasn’t 

going to serve them.
Q. Suppose they had stood up when you requested them, 

and then requested food to take out, would you have served 
them?
[fol. 28] A. If they had moved on to the side without 
creating any disturbance, which they had already created. 
If they had demonstrated, I would not have, if they came 
in there for the express purpose of demonstrating, which 
I feel sure they did.

Q. I’m trying to get your answer to my question?
A. I  don’t think I would have. Not these five, no.
Q. You wouldn’t have served them?
A. No, or anyone else who comes down there and causes 

a disturbance.
Q. But any other Negroes coming in there and walking 

up and ordering food to take out, you would serve them?



23

A. If they request it I will fix an order to go, yes.
Q. Now your only reason for refusing them service 

was the fact that they sat down. Is that right?
A. Well, we’ve been through that already.
The Court: We won’t have any demonstrations in the 

courtroom. (Some commotion in the rear of the courtroom.) 
I think he has answered that, counsel.

Mr. Jenkins: If your Honor please, I don’t know the 
answer he gave.

A. What was your question again, please?
(Question read.)
A. That’s correct.
Q. That and the fact that they were Negroes ?
A. That’s correct.
Q. Now Mr. Terry, after they sat down and refused to 

move, did you request any police officer to arrest them? 
A. After they sat down.
Q. You told them to move and they refused, did you ask 

them then to arrest them?
[fol. 29] A. We had a previous agreement to that effect, 
that if they did not leave, they would be placed under arrest 
for trespassing.
. Q. You had already agreed with the Police Department— 

A. If we had a demonstration, if we requested them to 
leave and they refused, then they would be arrested.

Q. So in fact you had instructed the Police Department 
to arrest them if they refused to leave at your request?

A. Not necessarily, I had instructed them but that was 
an agreement pertaining to the law enforcement division.

Q. You let the police department know that that was your 
wish ?

A. That I would not serve them.
Q. And if they did not leave when you asked them, you 

wanted them arrested?
A. That’s correct.
Q. Other than the fact that they came in and sat at the 

lunch counter, they created no other disturbance did they?
A. When they sat down they created a disturbance, yes. 

You could have heard a pin drop in there, especially two



J

24

weeks before that or whatever time before that, a large 
number came in, it just completely stopped everything.

Q. Did you notice the behaviour of any other customers 
who were seated at the lunch counter when these defendants 
came in and took seats?

A. I think everyone was on pins and needles, more or 
less, for fear it could possibly lead to violence.
[fol. 30] Q. I have in mind the fact, did you observe them 
continue to eat or get up and leave, or just what did you 
observe the other customers doing?

A. Just a brief observation, I think a couple of them 
got up and left their food on their tables, and the rest 
were just watching to see what was going to happen.

Q. They didn’t move. They sat where they were?
A. That’s correct. Some of them moved, yes.
Q. Did you request any of the other customers to move?
A. No, I did not.
Q. To your knowledge, did anyone else employed by the 

store, request any of the customers to move ?
A. No, not to my knowledge.
Q. Was it your idea to have these defendants arrested, 

or was it the idea of the police department?
A. I ’ll put it that it was the both of us’ idea, that if they 

were requested to leave and failed to leave, and given time 
to leave, that they would be arrested.

The State rests.
The Court: Is there any testimony on behalf of the 

Defendants?
Mr. Jenkins: Yes, your Honor, if you will indulge me for 

just a minute.

Mr. David Cabter, being duly sworn, testifies as follows: 

Direct examination.

By Mr. Jenkins:
Q. You are David Carter, one of the defendants in this 

case?
A. That’s correct.

[fol. 31] Q. You are one of those persons who on March 
15th, 1960, went into the Taylor Street Pharmacy?



A. Correct.
Q. In Columbia, South Carolina?
A. Right.
Q. In your own words, please relate to the Court what 

took place on that day?
A. On March 15th, around 12:35, five of us entered the 

Taylor Street Pharmacy. As we entered the store, I 
glanced to my left and I saw the Deputy standing on the 
side of the store. As we started toward the back, I saw 
Mr. Stokes coming from the back. They stopped and 
looked at some cards. We moved on to the back of the 
store, to the luncheonette section.

Q. May I interrupt you just a minute. What was your 
purpose in going into the Taylor Street Pharmacy that 
day?

A. The purpose of going into Taylor Street Pharmacy 
that day was to be served. '  '

Q. When you say “served”— .
A. Served food. Being a part of the general public 

we felt we had a right there, and we still feel we have 
a right there.

Q. Did you have in mind making any purchases other 
than foodl

A. Not that particular time, no.
Q. Had you been in Taylor Street Pharmacy previous to 

this?
A. Yes, I have.
Q. Made purchases there?
A. I ’ve made several purchases there, plus I had checks 

cashed there.
Q. Have you ever made any purchases of food there? 

[fol. 32] A. No, I never purchased food there.
Q. Go ahead with your account?
A. As I said, I saw Mr. Stokes coming from the back, 

I moved on to the back and immediately I took a seat at 
the lunch counter beside a White lady. At that particular 
time, I called him the Cashier, it could have been the 
luncheonette manager, came to the lady and said: “Get up, 
w’e’ll get them out of here.”

Q. May I interrupt you? Is it your testimony that an 
employee of the store came up to the person sitting there 
and made a statement to them ?



26

A. That’s my testimony, said to the lady: “Get up, we’ll 
get them out of here”, so he caught the lady by the hand 
and assisted her in getting up.

Q. Prior to that time had this lady made any indication 
that she would get up ?

A. The lady made no indication at all. She sat there 
and began eating just as if I was a human being sitting 
beside her, which I was.

Q. Now will you continue ?
A. Then about that time the Deputy Sheriff, I think 

it’s the Deputy. Am I right? The Deputy Sheriff came 
back and he stood beside this luncheonette manager, not 
Mr. Terry, and he said to me—the luncheonette manager 
said to me: “You might as well leave because I ain’t going 
to serve you”.

Q. Did you leave?
A. No I didn’t because he didn’t ask me to leave. He 

said: “You might as well leave because I ’m not going to 
serve you.”

Q. Suppose he had asked you to leave, would you have 
left?

A. Had he asked me to leave, I would have left and to 
go on with my testimony, he went to Mr. Counts there and 
[fol. 33] said the same thing: “You might as well leave 
because I ain’t going to serve you.” Then he did not turn to 
Mr. Stokes but he turned to the Deputy and said: “I’ve 
asked them to leave”. So then I bowed to Counts and 
Counts bowed to me and we stood up. Then I said to the 
luncheonette manager: “Sir, may I ask you a question?” 
and at that time Mr. Terry said: “No, don’t answer him.” 
He said: “No, I don’t want to talk to you” so I said: “Thank 
you, sir” and I turned to walk away. When I turned to walk 
away I looked back and no one had gone to the other three 
boys yet, so they were about to leave and I told them to just 
sit until somebody asked them to leave, and then I turned 
to walk away and the Deputy patted me on the shoulder 
and said: “Just a minute please.” I said: “Thank you, sir” 
and I just stood there and waited, and after a while he 
led me on out and we got in the car and they brought us 
down to the jail.



27

Q. Were you told while in the store, that you were under 
arrest?

A. I was not told that I was under arrest. Mr. Stokes 
got in the ear we were in and he said: “I suppose you boys 
don’t know who I am.” Then he pulled out his credentials 
and said: “I am Mr. Stokes from SLED.” I said: “Well, 
good.” I said to him: “It’s a very good day isn’t it? The 
weather certainly has changed.” He didn’t say a word but 
the other man driving the car said: “Yes it has.” They 
did not tell me that we were under arrest until we got to the 
jail. However, I knew we were under arrest. I assumed 
it because they were carrying us down. Yes I did for this 
reason, when I got in the car and saw the News Reporter, 
and I called for the News Reporter, and the man who was 
driving the car, whoever it was, I don’t know, I said: 
[fol. 34] “Who are you talking about? The young man 
there?” He pointed to Mr. Stokes. I said: “No, not him, 
I ’m talking to Mr. Bill Handle” so he said to Mr. Stokes: 
“He wants the News Reporter.” Mr. Stokes said: “No 
he doesn’t, he wants to go to jail”, so I knew then I was 
under arrest.

Q. Did you observe any conversation between any em­
ployee of the Taylor Street Pharmacy and any of the ar­
resting officers up there ?

A. At that particular time no, because I don’t remember 
seeing Mr. Terry until I turned to the luncheonette man­
ager and asked him a question. At that particular time 
he was very emotional and said “No.” Whether he con­
versed with any of the other officers, I don’t know.

Cross examination.

By Mr. Sholenberger:
Q. You are David Carter?
A. That’s correct.
Q. I believe you stated to your counsel that your purpose 

for going to the Taylor Street Pharmacy was to sit down 
at the lunch counter and be served food?

A. Be served food, correct.



Q. And of course it was also your purpose, if you did that 
and it led to your arrest, why you wanted to be arrested. 
Is that correct!

A. Oh I wouldn’t say I wanted to be arrested. No one 
wants to be arrested. I wanted to be served.

Q. You went there with the idea that you would be 
arrested?

A. I went there with the idea of being served. I did 
not go with the idea of being arrested but I had been 
promised that I would have equal protection in that store 
or any other store.
[fol. 35] Q. Who promised you that?

A. The City Manager. There were five of us went down 
to City Hall.

Q. He promised you?
A. Listen to me now. Five of us went to the City Hall 

one day to see the Mayor. The Mayor was not in. We then 
talked with the City Manager, who was very polite to us. 
He said to u s: “Gentlemen, further demonstrations will 
not be tolerated.” We said: “Mr. McNayr, what would 
you do to stop such demonstrations?” He said to us: “If 
you are going to go down, I don’t object to nobody—”

Mr. Sholenberger: This is all hearsay, your Honor.
The Court: I ’m going to strike that out. You see, you 

have to answer counsel’s questions.
A. I ’m answering his questions—
The Court: We don’t want any speech here. We’re not 

going to tolerate any great big speech.
Mr. Jenkins: Your Honor, I want the record to show 

that counsel opened the door for this type of testimony.
The Court: He didn’t open the door for any hearsay 

testimony. I ’m going to rule hearsay testimony out, defi­
nitely, I rule it out right now. Ask him the questions.

By Mr. Sholenberger:
Q. But you did have an idea when you went there, that 

if you were asked to leave and you didn’t leave, that you 
would be arrested?



29

A. Well, my intentions were to leave when we were 
asked properly to leave.

Q. Now, did Mr. Terry, the owner and proprietor of the 
store, ask yon to leave ?

A. No, sir, he did not ask us to leave.
Q. Do yon deny he asked you to leave!

[fol. 36] A. I certainly deny he asked us to leave.
Q. You deny completely, in the face of his testimony and 

in the face of the testimony of the officer, that he asked you 
to leave ?

A. I do.
Q. You deny that?
A. That’s right.
Q. Well, why did you leave ?
A. Why did I leave ?
Q. Yes?
A. Because the luncheonette manager said: “You might 

as well leave, I ain’t going to serve you.” Then he looked 
to the Deputy and said: “I ’ve asked them to leave.” There 
was no point in sitting there.

Q. Didn’t you leave because the manager told you—the 
man from SLED told you to leave ?

A. The man from SLED did not tell us to leave. As a 
matter of fact, I did not talk to the man from SLED until 
after I was in the car, when I called for the News Reporter. 
The man driving the car said I wanted a News Reporter 
and he said: “No, he wants to go to jail.” That’s the first 
word he said to me.

Q. That’s what you went there for, was the intention of—
A. Not to be arrested, to be served.
Q. And you intended to be served even though it might 

lead to your arrest?
A. No, we wanted to be served, if they were going to 

serve us. We had nothing to say about being arrested.
Q. Wasn’t it your intention to make a case so that you 

could be arrested?.
A. I think I told you I went there to be served and not 

to be arrested. I think I’ve told you that.
[fol. 37] Q. Now, after Mr. Terry told all of you to leave,



30

and the rest of them started to get up, didn’t you motion 
them to get down?

A. Mr. Terry did not tell all of us to leave.
Q. Did you motion them to sit down again after they 

started to get up?
A. When I started to leave, since nobody went to them, 

I said just like that. (Indicating with the hand.)
Q. Mr. Terry is correct in that, and also the officer from 

SLED, that you were motioning them to sit down?
A. That’s right, I did that.
Q. Of course this group going there, was the result of 

a prearranged plan on the part of all of you to go there 
and sit down and be served. Is that correct?

A. Well, in order to go there it had to be prearranged 
before we left our place of departure.

Q. In other words it was a prearranged plan of the 
group ?

A. That particular day I went, I invited three men to 
go along with me to the Taylor Street Pharmacy. To leave 
the building to go there, it had to be prearranged.

Q. Are you a student?
A. I am.
Q. Where?
A. At Benedict.

Eedirect examination.

By Mr. Jenkins :
Q. Assuming, without saying, that you did go to Taylor 

Street Pharmacy according to some prearranged plan, did 
you see anything wrong in that?

A. No, I didn’t.
[fol. 38] Q. Did you go to Taylor Street Pharmacy as a 
member of the general public, invited in to do business?

A. I certainly did.



31

Mr. R ichard  M. C o u n ts , b e in g  d u ly  sw o rn , te s tif ie s  a s  
f o l lo w s :

Direct examination.

By Mr. Jenkins:
Q. Yon are Richard M. Counts of Columbia!
A. That’s correct.
Q. You are a student at Benedict!
A. That’s correct.
Q. What’s your classification?
A. Junior.
Q. You are a native Columbian I believe?
A. I am a native Columbian.
Q. Do you remember March 15th, 1960, going into Taylor 

Street Pharmacy on Taylor Street in Columbia, South 
Carolina?

A. I do.
Q. State to the Court your reason for going there?
A. Well, I invited a Fraternity Brother of mine, Charles 

Barr, to come and have lunch with me, and the two of us 
walked in last, and as we walked in, or before we got to 
the door, we saw the news man and the police on the out­
side—•

Q. May I interrupt you. What was your reason for going 
to Taylor Street Pharmacy?

A. To be served food.
Q. You invited I believe, a friend of yours, to have lunch 

with you?
A. Charles Barr. He and I entered together.

[fol. 39] Q. Now briefly describe to the Court the events 
that took place in Taylor Street Pharmacy with reference 
to yourself on that day, March 15th?

A. Well, as I said, when we arrived there we saw the 
newsmen and the policemen on the outside, so we just 
ignored them completely because we didn’t know why they 
were there, so we walked on in and as I entered last, the 
photographer came behind me so I stopped and went over 
to the cigarette counter and bought a pack of cigarettes 
and from there I went to the back and as I entered the en-



32

trance to the lunch counter I imagine it was the luncheonette 
manager, but it wasn’t this gentleman here, Mr. Terry, 
he extended his arm to me like this (indicating) as if to 
say he was showing me a seat because as I got there it 
was very crowded and I didn’t see a vacant booth or stool.

Q. When you went into the store you proceeded to the 
lunch department!

A. After I purchased a pack of cigarettes.
Q. You purchased the cigarettes first!
A. That’s right.
Q. Where was Barr at this time!
A. I don’t know. I  think he had walked ahead of me.
Q. That was your companion who had gone with you to 

get lunch?
A. That’s right.
Q. Now did you see these other defendants at that time!
A. Well, when I got to the entrance of the luncheonette 

counter, they were already seated.
Q. You saw these four!
A. Yes, sir.

[fol. 40] Q. They were seated at the lunch counter!
A. Already seated.
Q. Were there any vacant seats available when you first 

walked in?
A. There was one but I didn’t see it, and so I stopped 

and looked as if I was looking for a stool, and then the 
gentleman extended his arm to me and said: “Have a seat 
here” and I sat there.

Q. You say a gentleman. Was it one of the employees 
of the store!

A. I would assume so.
Q. Upon what do you base your assumption?
A. Well, right after that he made the statement, after 

I had been seated, he said: “You may as well leave because 
we ain’t going to serve you”, so I thought he had some 
authority after having gone through all that.

Q. Now, I believe that you testified that when you walked 
in and looked around for a seat, this employee made a wide 
sweep of his arm?

A. That’s correct.



33

Q. Was that sweep made in the direction of the vacant 
stool?

A. It was, and that’s where I sat.
Q. Yon sat on that stool?
A. That’s correct.
Q. How long after you were sitting there at the counter, 

—after you sat at the counter, you testified that this same 
store employee made some remark to you?

A. That’s true.
Q. What was the remark?
A. He said: “You may as well leave, we ain’t going to 

serve you.”
[fol. 41] Q. Did you leave then?

A. No, I didn’t because that left me a choice to stay or 
to leave, so I preferred to stay.

Q. Did you order any food while there?
A. Well, the waitress didn’t come to take my order.
Q. Had the waitress come would you have ordered food?
A. Yes, sir.
Q. Did any police officer advise you to leave the stool 

where you were seated?
A. No, they did not.
Q. Why did you leave?
A. Well, the same gentleman whom I spoke of earlier, 

he came and he practically whispered in my ear the same 
thing he said before.

Q. What was that?
A. “You may as well leave, we ain’t going to serve you”, 

so after having been told twice I looked around at David 
Carter and he nodded to me as if to say we will leave, 
so as I stood up I walked to the exit, and then I think it 
was the Deputy Sheriff whispered in my ear “You’re under 
arrest.”

Q. He did tell you you were under arrest?
A. Yes.
Q. Did he tell you for what reason?
A. No.
Q. I don’t know whether you testified to this or not but 

on previous occasions have you been in the Taylor Street 
Pharmacy?

A. I have.



34

Q. Have you made purchases there?
A. I have.
Q. Have you made any purchases in the food department 

of the Taylor Street Pharmacy?
[fol. 42] A. Once that I remember very distinctly when it 
was. It was during my Probation week, around the first 
week of May, that’s the week I went over to the Fraternity, 
and I had to go up there one night on an errand and we 
purchased a sandwich and a soda.

Q. Did you eat that food there at the counter?
A. No, it was to go, because our time was limited.
Q. You took the food with you?
A. Yes.
Q. Did you believe that you had a right to sit at the 

counter and be served food at the Taylor Street Pharmacy?
A. I did then and I still do.
Q. Did you observe any conversation between any of 

the officials of the store or employees of the store and any 
police officer, while you were there on March 15th?

A. Only between the Deputy Sheriff and the luncheonette 
manager.

Q. Was the conversation you observed between them, be­
fore your arrest or after?

A. Well, it was before. It was after he had made the 
first general statement that “We ain’t going to serve you.”

Q. And after this conversation, the same officer came 
and told you you were under arrest?

A. Well, not directly. After the luncheonette manager 
talked to him, the luncheonette manager came to me again 
and whispered in my ear: “You may as well leave, we ain’t 
going to serve you.” Then I looked at Mr. Carter and he 
nodded to me and then we got up and then the Deputy 
Sheriff whispered in my ear: “You’re under arrest.”

[fol. 43] Cross examination.

By Mr. Sholenberger:
Q. You are Richard M. Counts?
A. That’s right.
Q. You say that you never had any conversation with,



35

or nobody said anything to yon except the luncheonette 
manager ?

A. I imagine that’s who it was.
Q. Do you recall seeing Mr. Terry?
A. Not at all.
Q. You don’t recall seeing him?
A. No, I don’t.
Q. In other words, do you deny that he told you to leave 

the luncheonette?
A. He didn’t address me in any way.
Q. Do you remember seeing Mr. Stokes?
A. I do, because he rode in the same car I was in.
Q, You remember him, Mr. Stokes, telling you to leave 

the luncheonette?
A. Mr. Stokes did not tell me to leave.
Q. He didn’t say a word?
A. No, sir, he didn’t.
Q. The sum and substance of your testimony is that 

nobody told you to leave this establishment?
A. "With the exception of the gentleman who I mentioned 

earlier.
Q. The luncheonette manager ?
A. I imagine that’s who it was.
Q. You say he told you to leave?
A. That’s right.
Q. And you didn’t leave did you?
A. Because he didn’t address me in any direct manner 

to leave.
[fol. 44] Q. That’s the point about having it phrased in so 
direct a manner.

A. The importance is I assume he had authority there. 
Had he told me to leave directly, I would have left, but 
he made it as if I had a choice to stay or leave. He made 
it clearly understood I wasn’t going to be served, there­
fore I left the second time after he told me.

Q. Wasn’t it agreed that this was a planned group to 
make a test case?

A. No, it was not.
Q. If that was not the case, then why is it that you never 

had gone to the luncheonette before during your stay in



36

Columbia, and seated yourself at the luncheonette counter!
A. Well, because as I say—•
Q. Why this particular occasion, if there wasn’t some­

thing behind it!
A. There wasn’t any particular occasion,
Q. Why had you not gone there before!
A. That would be the same thing as why I had not gone 

to another store.
Q. You’ve been in this store before!
A. I have, on several occasions.
Q. Why didn’t you sit down at the lunch counter then!
A. I was rushing on to do something else after I made 

my purchase.
Q. You say you went there with this group of four boys.
A. Charles Barr and I were walking together, and the 

other three walked in previously. In fact, if the officers 
recall, we saw them coming this direction, I can’t recall 
the name of the street, but coming from towards Assembly 
[fol. 45] Street, and we were coming from the campus di­
rection. We came from opposite directions.

Q. You met there at the same time!
A. They had entered before we had.
Q. How long!
A. I imagine a minute or two.
Q. All right, in addition to your purpose of going there 

to be served, and that was your purpose, wasn’t it!
A. To be served food, yes, sir.
Q. Didn’t you also go there for the purpose of being 

arrested!
A. No, I did not.
Q. You didn’t have any idea that you would be arrested?
A. I did not.
Q. You had no idea you would be arrested!
A. I didn’t see any reason to be.
Q. I  think you testified to your counsel that you looked 

to David Carter in regard to this thing before you left. 
Wasn’t he the leader of the group!

A. Well, I wouldn’t call him the leader of the group. 
My purpose for looking at him was because he had been 
told the same thing I had been told.



37

Q. But you looked to him for leadership!
A. Not really. I just wanted to see what he was going 

to do.
Q. And why didn’t you turn to this boy Barr that you 

came in with!
A. Well, because Carter was the closest to me.
Q. In other words, you didn’t actually sit with the boy 

you came there with!
[fob 46] A. Because he walked in ahead of me and there 
weren’t any seats there for me to sit next to him.

Q. But you did go there for the purpose of creating a 
situation that would likely lead to your arrest!

A. No, I did not.
Q. Do you deny that!
A. I deny it.

Redirect examination.

By Mr. Jenkins:
Q. State whether you went into Taylor Street Pharmacy 

as a member of the general public invited to trade there! 
A. I did.
Q. Now as far as the lunch room area is concerned, did 

you see any posted notice that you would not be served in 
that section!

A. I didn’t notice any.
Q. How long did you stay in the lunch room section that 

day!
A. I think it was about five minutes.
Q. There were other persons 'in the lunch room area, 

than you and these four defendants!
A. That’s right.
Q. Were any of them Negroes, other than you five!
A. No.
Q. Did you see anyone evicted on that day, other than 

you and these four other defendants?
A. No, I did not.



38

M otions  op D e pen d a n ts  to D ism iss  t h e  C harges 
A ga in st  T h e m , e t c . and D e n ia l  T h er eo f

Mr. Jenkins: We have no further testimony, your Honor, 
but at this time we would like to make certain motions.

The defendants move the Court to dismiss the charges 
against them and each of them, on the ground that the 
Court lacks jurisdiction to try these defendants as charged, 
[fol. 47] The evidence shows that the defendants were ar­
rested and charged by police officers, agents of the State, 
not for the commission of any crime as charged, or any 
other for that matter, but in furtherance and in aid of the 
wishes of private individuals to discriminate against the 
defendants, based solely on their race and color.

This Court, also an agent of the state, cannot use its au­
thority to aid in the enforcement of a private discrimina­
tion based solely on race and color. For this Court to sub­
ject the defendants to fine and conviction under the evi­
dence and testimony in this case, would be a violation of 
due process of law and would deny to the defendants the 
equal protection of the laws as guaranteed the defendants 
by the 14th Amendment to the United States Constitution.

The Court: I ’ll have to overrule that motion on the 
ground that under the laws of South Carolina and of the 
United States, I can’t grant it.

Mr. Jenkins: The defendants move to dismiss all 
charges against them and each of them, on the grounds 
that the evidence shows that the statutes (i.e., S. C. Code, 
Sec. 16-386, as amended, Trespass, and S. C. Code Sec. 
15-909, Breach of Peace) though nondiseriminatory on 
their faces, are discriminatory when applied to these de­
fendants, thus denying to them due process of law and 
equal protection of the laws, in violation of the 14th Amend­
ment of the United States Constitution and Article 1, Sec. 5 
of the Constitution of South Carolina. The grounds for 
said motion are that the evidence proves,

(1) That said statutes are being used by the police power 
of the State to aid private individuals in businesses cater­
ing to the general public, to discriminate against these 
defendants solely on the basis of race and color, in violation



39

[fol. 48] of the 14th Amendment of the United States 
Constitution;

(2) That said statutes are being used as a basis of un­
constitutional State action in that the State police power 
is provided to eject the defendants from a public place 
where they have been invited and where they have a legal 
right to go, and to arrest them and deprive them of their 
liberty solely on the basis of race and color;

(3) That said statutes are being used as a basis of un­
constitutional State action in depriving said defendants of 
the equal protection of the laws in that they are arbitrarily 
and unreasonably singled out by being ejected and arrested 
solely on the basis of their race and color, while others are 
allowed to remain where the defendants had the legal right 
to be.

The Court: Motion denied.
Mr. Jenkins: The defendants move for the dismissal of all 

charges against themselves and each of them, on the ground 
that the operator of the private business catering to the 
general public, invited them in and afterwards discrim­
inated against them in the sale and purchase of wares and 
services solely on the basis of race and color, and that the 
State, through the use of its police as its agents, cannot 
become a party to and assist in this unequal treatment. 
If the State should so assist the private business operator 
by ejecting and arresting the defendants, the State denies 
to said defendants the equal protection of the laws in vio­
lation of the 14th Amendment of the United States Con­
stitution.

The Court: I ’ll deny that motion, too.
Mr. Jenkins: Defendants move to dismiss the charges 

of trespass and breach of the peace, in violation of State 
Statutes, Section 16-386 and 15-909, on the ground that the 
[fol. 49] evidence proves that the defendants, as business 
invitees of a business catering to the general public were 
merely attempting in a peaceful and lawful manner to 
exercise the freedom of being served by said business on a 
nondiscriminatory basis, without regard to race and color, 
and in so doing were not guilty of any crime.



40

Further, the defendants move to dismiss the charges of 
trespass and breach of the peace on the ground that to 
deprive them of their liberty to enter such a business estab­
lishment in a peaceful and lawful manner as the record 
describes, and be served as others, and that to be ejected 
and arrested by agents of the State, solely on the basis of 
race and color, and to be singled out as the only persons 
ejected and arrested while others remain, is a denial of 
due process of law and the equal protection of the law as 
guaranteed by the 14th Amendment of the United States 
Constitution.

The Court: Motion denied.
Mr. Jenkins: The defendants move for a dismissal of 

the charge of trespass because of the insufficiency of the 
evidence to substantiate the charge. The basis of the mo­
tion is that even if a private individual in a public business 
may discriminate against these defendants on the basis of 
race and color alone (a point which we do not concede), 
nevertheless, for the State to back up this discrimination 
by State action in ejecting, arresting and subjecting to trial 
these defendants, is a denial of due process of law and a 
denial of the equal protection of the laws as guaranteed by 
the 14th Amendment of the Constitution of the United 
States.

The Court: Motion denied.
[fob 50] Mr. Jenkins: The defendants move for a dis­
missal of all charges against them for the reason that the 
evidence fails to show the commission of any of the charges 
alleged. Instead, the evidence, interpreted most favorably 
to the State, shows that the said defendants, without vio­
lating any rights of the public, were attempting to exercise 
their common law right of free access to the common mar­
ket. To be denied that right by the State ejecting them 
from the business places described in the record, and sub­
jecting them to arrest solely on the basis of race and color 
is a denial of the equal protection of the laws and due 
process of law as guaranteed by the 14th Amendment of 
the United States Constitution and Article 1, Section 5 of 
the South Carolina Constitution.

The Court: Motion denied.



41

J ud g m en t

The Court: Now I would like to say this: The law of 
this State and of the United States is well established, 
that any private concern or any private individual operat­
ing any business, has the right fundamentally and under 
the Constitution of the United States and of South Caro­
lina, to do business with anybody whomsoever he pleases. 
That’s the fundamental law of this State and of the United 
States. The witness Mr. Terry, testified that he had a 
notice posted on the door that he had a right to refuse to 
serve anybody, whether they are White, Colored or anybody 
else, if he saw fit to do it, which he had a right to do. Now 
it’s just like a doctor or a lawyer, if a man comes to a 
doctor’s office and wants to be treated, the doctor hasn’t got 
to treat him if he don’t want to do it, and neither has a 
lawyer got to accept a client if he don’t want to accept him. 
That’s a fundamental inherent right which an individual 
has. Now we have a lot of talk about Civil Eights. The 
[fol. 51] Senate of the United States is today debating the 
Civil Rights Bill in Washington, but we overlook often­
times certain property rights and certain inherent rights 
that an individual has. An individual has rights to do 
business with anybody he wants to. I t’s not merely a 
Colored person or a White person or any other race, but 
it’s a right that if anybody don’t want to do business with 
a person, he don’t have to transact business with him. I 
might mention in passing, that the relationship between 
the Colored people and the White people of this section has 
been most harmonious and very cordial for a great many 
years. I t’s been very harmonious and very cordial, until 
some outside interest comes in and tries to create trouble 
and start trouble, which is a very bad thing, and oftentimes 
these outside interests are insidious. The Colored race has 
made great progress down in this part of the country and 
we can continue to get along well if these outside interests 
will not come in and try to interfere with our relationship. 
I ’m sick and tired of the Northern politicians playing 
politics with human rights, and that’s what it amount to, 
the Northern politicians are playing politics with human 
individual rights which they are making a serious mistake



42

to do. We can get along well. We can transact onr business 
well as we have done in the past, if we will just keep these 
outside insidious and selfish interests out. Now I ’m not 
going to quote much law because it’s not necessary, but in 
Second Ruling Case Law, page 559, I ’m quoting: “It is a 
well settled principle that the occupant of any house, store 
or other building, has a legal right to control it and to 
admit whom he pleases to enter and to remain there and 
that he also has the right to expel from the room or build­
ing, anyone who abuses the privilege, which has been thus 
given to him. Therefore, while the entry by one person 
[fol. 52] on the premises of another, may be lawful by 
reason of express or implied invitation to enter, his failure 
to depart on the request of the owner, will make him a 
trespasser and justify the owner in using reasonable force 
to eject him.” That’s the fundamental law of the land and 
we are going to have to abide by it.

The judgment of the Court is that the defendants are 
guilty as charged, and they will be fined the sum of $100.00 
on each charge, of which amount the sum of $24.50 will be 
suspended on each charge.

M otions of D e fe n d a n ts  fo e  A eeest  of J u d g m en t , ob in
THE A l TEBNATIVE, FOB A NEW T bIAL, ETC. AND 

D e n ia l  T h eb eo f

Mr. Jenkins: Tour Honor, at this time, on behalf of the 
defendants I should like to make certain motions. At this 
time the defendants move the Court for the Arrest of Judg­
ment, or in the alternative, for a New Trial, on the ground 
that the Court lacks jurisdiction to try these defendants as 
charged. The evidence shows that the defendants were 
arrested and charged by police officers, agents of the State, 
not for the commission of any crime as charged, or any 
other for that matter, but in furtherance and in aid of the 
wishes of private individuals to discriminate against the 
defendants, based solely on their race and color. This 
Court, also an agent of the State, cannot use its authority 
to aid in the enforcement of a private discrimination, based 
solely on race and color. For this Court to subject the 
defendants to fine and conviction under the evidence and



43

testimony in this case, would be a violation of due process 
of law and would deny to the defendants the equal protec­
tion of the laws as guaranteed the defendants by the 14th 
Amendment to the United States Constitution.

The Court: I ’ll refuse the motion.
Mr. Jenkins: The defendants move for an Arrest of 

Judgment or in the alternative, for a Sew Trial, on the 
[fol. 53] grounds that the evidence shows that the Statutes 
(be., S. C. Code, Sec. 16-386, as amended, trespass, and 
S. C. Code, Sec. 15-909, breach of the peace) though non- 
discriminatory on their faces, are discriminatory when ap­
plied to these defendants, thus denying to them due process 
of law and equal protection of the laws, in violation of the 
14th Amendment of the United States Constitution and 
Article 1, Section 5 of the Constitution of South Carolina.

The grounds for said motion are that the evidence proves:
(1) That said statutes are being used by the police power 

of the State to aid private individuals and businesses cater­
ing to the general public to discriminate against these de­
fendants solely on the basis of race and color, in violation 
of the 14th Amendment of the United States Constitution;

(2) That said statutes are being used as a basis of un­
constitutional State action in that the State police power 
is provided to eject the defendants from a public place 
where they have been invited and where they have a legal 
right to go and to arrest them and deprive them of their 
liberty solely on the basis of race and color;

(3) That said statutes are being used as a basis of un­
constitutional State action in depriving said defendants of 
the equal protection of the laws, in that they are arbitrarily 
and unreasonably singled out by being ejected and arrested 
solely on the basis of their race and color, while others are 
allowed to remain where the defendants had the legal 
right to be.

The Court: Motion denied.
Mr. Jenkins: The defendants move for an Arrest of 

Judgment or in the alternative, for a New Trial, on the 
ground that the operator of the private business catering



44

[fol. 54] to the general public, invited them in and after­
wards discriminated against them in the sale and purchase 
of wares and services solely on the basis of race and color, 
and that the State, through the use of its police as its 
agents, cannot become a party to and assist in this unequal 
treatment. If the State should so assist the private business 
operator by ejecting and arresting the defendants, the 
State denies to said defendants the equal protection of the 
laws in violation of the 14th Amendment of the United 
States Constitution.

The Court: I ’ll deny that motion.
Mr. Jenkins: The defendants move for an Arrest of 

Judgment, or in the alternative, for a New Trial, on the 
ground that the evidence proves that the defendants as 
business invitees of a business catering to the general pub­
lic, were merely attempting in a peaceful and lawful man­
ner, to exercise the freedom of being served by said business 
on a nondiscriminatory basis, without regard to race or 
color, and in so doing were not guilty of any crime.

Further, the defendants move for an Arrest of Judg­
ment, or in the alternative, for a New Trial, on the ground 
that the charge of breach of peace and trespass, the charges 
with which they are being charged here today will deprive 
them of their liberty to enter such a business establishment 
in a peaceful and lawful manner as the record describes, 
and to be served as others, and that to be ejected and ar­
rested by agents of the State, solely on the basis of race 
and color, and to be singled out as the only persons ejected 
and arrested while others remain, is a denial of due process 
of law and the equal protection of the laws as guaranteed 
by the 14th Amendment to the United States Constitution, 
[fol. 55] The Court: Motion denied.

Mr. Jenkins: The defendants move for an Arrest of 
Judgment or in the alternative, for a New Trial, on the 
ground that the evidence is insufficient to substantiate the 
charge of trespass. The basis of this motion is that even 
if the private individual in a public business, may discrim­
inate against these defendants on the basis of race and 
color alone, a part which we do not concede, neverthe­
less, for the State to back up this discrimination by State



45

action in ejecting, arresting and subjecting to trial these 
defendants, is a denial of due process of law and a denial of 
the equal protection of the laws as guaranteed by the 14th 
Amendment to the Constitution of the United States.

The Court: Motion denied, likewise.
Mr. Jenkins: The defendants move for an Arrest of 

Judgment or in the alternative, for a New Trial, for the 
reason that the evidence fails to show the commission of 
any of the charges alleged against these defendants. In­
stead, the evidence, interpreted most favorably to the State, 
shows that the said defendants, without violating any rights 
of the public, were attempting to exercise their common 
law right of free access to the common market. To be 
denied that right by the State ejecting them from the 
business places described in the record and subjecting them 
to arrest solely on the basis of race and color, is a denial 
of the equal protection of the laws and due process of law 
as guaranteed by the 14th Amendment of the United 
States Constitution and Article 1, Section 5 of the South 
Carolina Constitution.

The Court: Motion denied.
Mr. Jenkins: At this time if your Honor please, on be­

half of these defendants, I serve notice of intention to 
appeal and request that the Court set bond.
[fol. 56] The Court: Mr. Sholenberger, I think we might 
let the same cash bond stand as an Appeal Bond.

Mr. Jenkins: We just want the record to show that we 
are not paying any fine—

The Court: Let the record show that I am letting that 
stand as an Appeal Bond. Is there anything else?

Mr. Jenkins: If your Honor please, I discussed this 
matter yesterday, that in the previous hearing the Motions 
were passed to the Court Stenographer. I am certain it 
was the intention that they be entered in the record and 
I notice in taking the testimony that Mr. Cordell did not 
include them into the record. At this time I am requesting 
if your Honor please, that they be included.

The Court: I ’ll attach them to the testimony and make 
them a part of the record. They will be attached to the 
record and made a part of the record.



46

I hereby certify that the foregoing is a true and correct 
transcript of the stenographic notes of testimony taken by 
me at the trial of the above cases.

Jas. C. Cordell, Reporter.

I n t h e  R ic h la n d  C o u n ty  C o urt , Cr im in a l  D iv isio n  

Op in io n —April 28, 1961
These Appeals from the Recorder’s Court of The City 

of Columbia were orally argued together before me and 
taken under advisement. The facts are largely undisputed. 
All of the Defendants are Negroes. Eckerd’s Drug Store 
and Taylor Street Pharmacy are separate stores in The 
City of Columbia. Besides filling prescriptions, each sell 
drugs and sundries and has a section where lunch, light 
snacks and soft drinks are served. Trade is with the gen­
eral public in all the departments except the lunch depart­
e d . 57] ment where only white people are served.

On one occasion, Bouie and Neal went into Eckerd’s 
and on another day the other Defendants went into the 
Taylor Street Pharmacy, sat down in the lunch depart­
ment and waited to be served. All said they intended to 
be arrested. In each case, the manager of the store came 
up to them with a peace officer and asked them to leave. 
They refused to do so and were then placed under arrest 
and charged with trespass and breach of the peace. Bouie, 
in addition, was charged with resisting arrest. It is un­
denied that he resisted.

Bouie and Neal were tried on March 25, 1960, and the 
other Defendants on March 30, 1960, before The Honorable 
John I. Rice, City Recorder of Columbia, without a jury; 
trial by jury having been waived by all the Defendants.

All the Defendants were convicted and sentenced and 
these appeals followed. Motions raising the constitutional 
questions were timely made.

There are 16 grounds of Appeal in the Bouie and Neal 
proceeding and 13 grounds of appeal in the proceeding



47

involving the other Defendants, raising the following ques­
tions : (1) Did the State deny Defendants, who are Negroes, 
due process of law and equal protection of the laws within 
the Federal and State Constitutions either by using its 
peace officers to arrest them or by charging them with 
violating Sects. 16-386 (Criminal Trespass) and 15-909 
(Breach of Peace) of the Code of Laws of South Carolina, 
1952, as amended, when they refused to leave a lunch coun­
ter when asked by the manager thereof to do so! (Bouie 
and Neal Nos. 1, 2, 3, 4, 5, 6, 10, 11, 12, 13, 14, and 15; other 
Defendants, Nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12 and 13.) 
(2) Was there any substantial evidence pointing to the 
[fol. 58] guilt of the Defendants'? (Bouie and Neal, No. 8; 
other Defendants, No. 7.)

Since Defendants did not argue Bouie and Neal’s Excep­
tions 7, 9 and 16, I have considered them abandoned.

The State has not denied Defendants equal protection of 
the laws or due process of law within the Federal or State 
Constitutional provisions.

A lunch room is like a restaurant and not like an inn.
The difference between a restaurant and an inn is ex­

plained in Alpaugh v. Wolverton, 36 S. E. (2d) 907 (Court 
of Appeals of Virginia) as follows:

“The proprietor of a restaurant is not subject to the 
same duties and responsibilities as those of an inn­
keeper, nor is he entitled to the privileges of the latter. 
28 A. Jr., Innkeepers, No. 120, p. 623; 43 C. J. S., Inn­
keepers, No. 20, subsection b, p. 1169. His responsibil­
ities and rights are more like those of a shopkeeper. 
Davidson v. Chinese Republic Restaurant Co., 201 Mich. 
389, 167 N. W. 967, 969, L. R. A. 1919 E, 704. He is 
under no common-law duty to serve anyone who applies 
to him. In the absence of statute, he may accept some 
customers and eject others on purely personal grounds. 
Nance v. May-flower Tavern, Inc., 106 Utah 517, 150 
P. (2d) 773, 776; Noble v. Higgins, 95 Misc. 328, 158 
N. Y. S. 867, 868.”



48

And the proprietor can choose his customers on the basis 
of color without violating constitutional provisions. State 
v. Clyburn, 101 S. E. (2d) 295, 247 N. C. 455; Williams v. 
Howard Johnson’s Restaurant, 268 F. (2d) 845; Slack v. 
Atlantic Whitetower, etc., 181 F. Sup. 124 (Dist. Court 
Md.), 284 F. (2d) 746.
[fol. 59] In the Williams case, supra, Judge Soper, speak­
ing for the Court of Appeals for The Fourth Circuit, said: 
“As an instrument of local commerce, the restaurant is 
not subject to the Constitution and statutory provisions 
above (Commerce Clause and Civil Eights Acts of 1875), 
and is at liberty to deal with such persons as it may select.”

And in Boynton v. Virginia, . . . U. S. . . . , 81 S. Ct. 182, 
5 L. Ed. (2d) 206, The Supreme Court of The United 
States took care to state:

“Because of some of the arguments made here it is 
necessary to say a word about what we are not decid­
ing. We are not holding that every time a bus stops at 
a wholly independent roadside restaurant the Inter­
state Commerce Act requires that restaurant service 
be supplied in harmony with the provisions of that 
Act. We decide only this case, on its facts, where cir­
cumstances show that the terminal and restaurant 
operate as an integral part of the bus carrier’s trans­
portation service for interstate passengers.”

I have reviewed all of the cases cited by both the City 
and the Defendants, and in addition have reviewed sub­
sequent cases of the Court of Appeals and The United 
States Supreme Court, including the case of Burton v. 
Wilmington Parking Authority, handed down on April 17, 
1961, and find none applicable or controlling except the 
Williams and Slack cases, supra.

The Defendants, under South Carolina law, had no right 
to remain in the stores after the manager asked them to 
leave. Shramek v. Walker, 149 S. E. 331, 152 S. C. 88. 
As the Court quoted the rule, “while the entry by one per­
son on the premises of another may be lawful, by reason 
of express or implied invitation to enter, his failure to 
[fol. 60] depart, on the request of the owner, will make him



49

a trespasser, and justify the owner in using reasonable 
force to eject him.”

If the manager could have ejected Defendants himself, 
he could call upon officers of the law to eject them for him.

Since the Defendants refused to leave, they were crim­
inal trespassers under Sect. 16-386 and breached the peace 
under Sect. 15-909 of The Code of Laws of South Carolina, 
1952, and their conviction was proper.

Shelly v. Kraemer, 334 IT. S. 1, 92 L. Ed. 845, 68 S. Ct. 
836, 3 A. L. R. (2d) 441, and Barrows v. Jackson, 346 IT. S. 
249, 97 L. Ed. 1586, 73 Supreme Court 1031 cited by the 
Defendants are not in point. In both of these cases, there 
had been a sale of real estate to a non-caucasian in violation 
of restrictive covenants. In the Shelly case, the Court held 
that the equity of court of the State could not he used 
against the non-caucasian to enforce the covenant. In the 
Barrows case, the court held that the covenant could not 
be enforced by an action at law for damages against the 
co-covenanter, who broke the covenant.

In both of these cases, there were willing sellers and 
willing purchasers. The purchasers paid their money and 
entered into possession. Having entered, they had a right 
to remain.

In the cases before the Court, there were no two willing 
parties to a contract. True, the Defendants wanted to buy, 
hut the storekeeper did not want to sell and the Defendants 
had no right to remain after being asked to leave. A white 
person would not have the right to remain after being asked 
to leave either. In either case, a person would be a tres­
passer. The Constitutions provide for equal rights, not 
paramount rights.
[fol. 61] I have only to pick up my current telephone di­
rectory and look in the yellow pages to find at least four 
establishments listed under “Restaurants” that advertise 
that they are for colored or for colored only.

To say that a white proprietor may not call upon a police­
man to remove or arrest a Negro trespasser or a Negro 
proprietor cannot call a policeman to remove or arrest 
a white trespasser would lead to confusion, lawlessness and 
possible anarchy. Certainly, the Constitutions intended 
no such result.



50

The fundamental fallacy in the argument of Defendants 
is the classification of the stores and lunch counters as 
public places and the operations thereof as public carriers.

A person, whatever his color, enters a public place or 
carrier as a matter of right. The same person, whatever 
his color, enters a store or restaurant or lunch counter by 
invitation.

That person’s right to remain in a public place depends 
upon the law of the land, and in a public carrier upon such 
law and such reasonable rules as the carrier may make, and, 
under the Constitution, neither the law nor rules may dis­
criminate upon the basis of color.

On the other hand, the same person has no right to enter 
a store, a restaurant, or lunch counter unless and until 
invited, and may remain only so long as the invitation is 
extended. Whether he enters or remains depends solely 
upon the invitation of the storekeeper, who has a full choice 
in the matter. The operator can trade with whom he wills, 
or he can, at his own whim and pleasure, close up shop.

There is no question but that the Defendants are guilty. 
They were asked to leave and they refused. They, there­
upon, were trespassers and such constituted a breach of the 
[fol. 62] peace. In addition, Bouie. admittedly resisted a 
lawful arrest.

The trespass statute (Section 16-386, as amended, Code 
of Laws of South Carolina, 1952) is not restricted to “pas­
ture or open hunting lands” as Defendants argue. The 
statute specifically says “any other lands”. In Webster’s 
New International Dictionary, the definition of “land” in 
“Law” is as follows:

“ (a) any ground, soil, or earth whatsoever, regarded 
as the subject of ownership, as meadows, pastures, 
woods, etc., and everything annexed to it, whether by 
nature, as trees, water, etc., or by man, as buildings, 
fences, etc., extending indefinitely vertically upwards 
and downwards, (b) An interest or estate in land; 
loosely any tenement or hereditament.”

The statute thus applies everywhere and without dis­
crimination as to color. There is no question but that it was 
designed to keep peace and order in the community.



51

Since Defendants had notice that neither store would 
serve Negroes at their lunch counters, they were trespassers 
ab initio. Aside from this however, the law is that even 
though a person enters property of another by invitation, 
he becomes a trespasser after he has been asked to leave. 
Shramelc v. Walker, supra.

For the reasons herein stated, 1 am of the opinion that 
the judgments and sentences of the Recorder should be sus­
tained and the Appeals dismissed, and it is so ordered.

John W. Crews, Judge, Richland County Court.
Columbia, S. C., April 28, 1961.

[fol. 63]
I n  t h e  R ic h la n d  C o u n ty  C ourt , Cr im in a l  D iv isio n

N otice of I n t e n t io n  to A ppe a l— May 2, 1961
To: Messrs. John W. Sholenberger and Edward A. Harter, 

Jr., Attorneys for the City of Columbia:
You will please take notice that the defendants above 

named intend to and do hereby appeal to the Supreme 
Court of South Carolina from the Order of the Richland 
County Court, Criminal Division, in the above entitled 
matter, dated April 28, 1961, upon a case and exceptions 
hereafter to be served upon you.

Jenkins & Perry, By: Lincoln C. Jenkins, Jr., At­
torneys for Defendants.

Acceptance of service (omitted in printing).

I n t h e  R ic h la n d  C ou n ty  C ourt , Cr im in a l  D iv isio n  

E xceptio n s

1. The Court erred in refusing to hold that the City 
failed to prove a prima facie case.

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



52

3. The Court erred in refsuing to hold that the evidence 
shows conclusively that the arresting officers acted in the 
furtherance of a custom, practice and policy of discrim­
ination based solely on race or color, and that the arrests 
and convictions of appellants under such circumstances are 
a denial of due process of law and the equal protection of 
the laws, secured to them by the Fourteenth Amendment 
to the United States Constitution.
[fol. 64] 4. The Court erred in refusing to hold that the
evidence establishes merely that at the time of their ar­
rests appellants were peaceably upon the premises of 
Taylor Street Pharmacy as customers, visitors, business 
guests or invitees of a business establishment performing 
economic functions invested with the public interest, and 
that the procurement of the arrest of appellants by man­
agement of said establishment under such circumstances 
in furtherance of a custom, practice in and policy of racial 
discrimination is a violation of rights secured appellants 
by the due process and equal protection clauses of the 
Fourteenth Amendment to the United States Constitution.

In t h e  R ic h la n d  C o u n ty  C o urt , C r im in a l  D iv isio n  

S t ipu l a t io n

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

Respectfully submitted,
John W. Sholenberger, Edward A. Harter, Jr., Co­

lumbia, South Carolina, Attorneys for Respon­
dent.

Jenkins & Perry, Columbia, South Carolina, By: 
Lincoln C. Jenkins, Jr., Attorneys for Appellants.



53

[fol. 65]
I n  t h e  S u p r e m e  C ourt oe t h e  S tate of S o u t h  C arolina

Case No. 4777

T h e  C ity  of C o lu m b ia , R esp o n d en t,,

v .

C h a rles  F .  B arr, R ichard  M. C o u n t s , D avid Carter , 
M il t o n  D . Gr e e n e  a n d  J o h n n y  Cla rk , A p p e lla n ts .

Appeal From Richland County, John W. Crews, County 
Judge.

Affirmed
Jenkins & Perry, of Columbia, for appellants.
John W. Sholenberger and Edward A. Harter, Jr., both 

of Columbia, for respondent.

Opinion  No. 17857—Filed December 14, 1961
Oxner, A. J . : The five appellants, all Negroes, were con­

victed in the Municipal Court of the City of Columbia of 
trespass in violation of Section 16-386 of the 1952 Code, 
as amended, and of breach of the peace in violation of 
Section 15-909. Each defendant was sentenced to pay a 
fine of $100.00 or serve a period of thirty days in jail on 
each charge but $24.50 of the fine was suspended. From an 
order of the Richland County Court affirming their con­
viction, they have appealed.

The exceptions can better be understood after a review 
of the testimony. The charges grew out of a “sit-down” 
demonstration staged by appellants at the lunch counter 
of the Taylor Street Pharmacy in the City of Columbia, a 
privately owmed business. In addition to selling articles 
usually sold in drugstores, this establishment maintains 
a lunch counter in the rear, separated from the front of the



54

store by a partition. The customers sit on stools. The 
policy of this store is not to serve Negroes at the lunch 
counter although they are permitted to purchase food and 
eat it elsewhere. In a sign posted the privilege of refusing 
service to any customer was reserved.

Shortly after noon on March 15, 1960, appellants, then 
college students, according to a prearranged plan, entered 
this drugstore, proceeded to the rear and sat down at the 
lunch counter. The management had heard of the proposed 
demonstration and had notified the officers. To prevent 
violence, three were present when appellants entered. As 
soon as they took their seats several of the customers at 
the counter, including a White woman next to whom one 
of appellants sat, stood up. The manager of the store then 
came back to the lunch counter. He testified that the situa­
tion was quite tense, that you “could have heard a pin drop 
in there”, and that “everyone was on pins and needles, more 
or less, for fear that it could possibly lead to violence.” He 
immediately told appellants that they would not be served 
and requested them to leave. They said nothing and con­
tinued to sit. At the suggestion of one of the officers, the 
manager then spoke to each of them and again requested 
that they leave. One of them stood up and inquired if he 
could ask a question. As this was done, the other four 
appellants arose. The manager replied that he did not care 
to enter into a discussion and a third time told appellants 
to leave. Instead of doing so, they resumed their seats. 
After waiting several minutes, the officers arrested all of 
them and took them to jail.

The foregoing summary is taken from, the testimony of­
fered by the State. Only two of the appellants testified. 
They denied that the manager of the store requested them 
to leave. They testified that an employee at the lunch coun­
ter stated to them, “You might as well leave because I 
ain’t going to serve you”, which they did not construe as 
[fol. 66] a specific request. They said after it became ap­
parent that they were not going to be served, they volun­
tarily left the lunch counter and as they proceeded to do so, 
were arrested. They denied that any of the White customers 
got up when they sat down, stating that these customers did



55

so only after the employee at the lunch counter said: “Get 
up, we will get them out of here.”

The questions involved are stated in appellants’ brief as 
follows:

“I. Did the Court err in refusing to hold that under 
the circumstances of this case, the arrests and convic­
tions of appellants were in furtherance of a custom of 
racial segregation, in violation of the Fourteenth 
Amendment to the United States Constitution? (Ex­
ceptions 3, 4).
“A. Was the enforcement of segregation in this case 
by State Action within the meaning of the Fourteenth 
Amendment ?

“B. Were appellants unwarrantedly penalized for 
exercising their freedom of expression in violation 
of the Fourteenth Amendment?
“II. Did the State fail to establish the corpus delicti 

or prove a prima facie case? (Exceptions 1, 2).”

The questions designated 1, A and B, must be decided 
adversely to appellants under City of Greenville v. Peter­
son, filed November 10, 1961, -----  S. C. ----- , -----  S. E.
(2d)----- , and City of Charleston v. Mitchell, filed Decem­
ber 13, 1961,----- S. C.------ , ------S. E. (2d)------ . Each of
these cases involved a sit-down demonstration at a lunch 
counter in a privately owned place of business and the 
precise questions raised by Exceptions 3 and 4 in the in­
stant case were raised in those cases and overruled. In 
the City of Charleston case we affirmed a conviction for 
violation of Section 16-386 as amended, which is the same 
section under which the appellants were convicted.

We think that Question II is based on exceptions too 
general to be considered. They are as follows:

“1. The Court erred in refusing to hold that the 
City failed to prove a prima facie case.

“2. The Court erred in refusing to hold that the 
City failed to establish the corpus delicti.”



56

The foregoing exceptions do not comply with Rule 4, 
Section 6 of this Court. They do not point out in what re­
spect the City failed to make out a prima facie case or to 
establish the corpus delicti. We do not know to which of 
the two offenses involved these exceptions are directed. 
We are not aided by appellants’ brief. Only scant refer­
ence is there made to these two exceptions and apparently 
the position is taken that their determination is dependent 
upon the disposition of the other questions which we have 
held to be without merit.

It has been held that an exception to the effect that the 
judgment is contrary to the law and the evidence is too 
general to be considered. State v. Turner, 18 S. C. 103; 
State v. Cokley, 83 S. C. 197, 65 S. E. 174; State v. Davis, 
121 S. C. 350, 113 S. E. 491. The same conclusion has been 
reached with reference to an exception “that plaintiff failed 
to make out a case against defendant.” Concrete Mix, Inc. 
v. James, 231 S. C. 416, 98 S. E. (2d) 841. Other pertinent 
cases are reviewed in Hewitt v. Reserve Life Insurance Co., 
235 S. C. 201, 110 S. E. (2d) 852. It was pointed out in 
Brady v. Brady, 222 S. C. 242, 72 S. E. (2d) 193, that 
“every ground of appeal ought to be so distinctly stated 
that the Court may at once see the point which it is called 
upon to decide without having to ‘grope in the dark’ to 
ascertain the precise point at issue.”

In oral argument counsel for appellants raised the ques­
tion of merger of the two offenses and argued that there 
could not be a conviction on both charges. But this question 
is not raised by any of the exceptions, is not referred to in 
the brief of appellants and, therefore, is not properly 
before us.

Affirmed.
Taylor, C.J., Legge, Moss and Lewis, JJ., concur.

Clerk’s Certificate to foregoing paper (omitted in 
printing).



57

[fol. 67]
I n  t h e  S u pr e m e  C ourt of t h e  S tate of S o u t h  Carolina

Case No. 4777

[Title omitted]

P e t it io n  for  E eh ea r in g— Piled December 20, 1961
To the Honorable Chief Justice and Associate Justices 

of the Supreme Court of South Carolina:
Petitioners, Charles F. Barr, Richard M. Counts, David 

Carter, Milton D. Greene and Johnny Clark, respectfully 
request a rehearing in the above case. Petitioners submit 
that this Court in affirming that the judgment of the Court 
below may have overlooked or misapprehended certain 
facts and rules of law, urged by petitioners in their appeal.

1. The Court may have misapprehended that Section 
16-386, Code of Laws of South Carolina for 1952, was in­
voked against petitioners in this case solely for the purpose 
of preserving and furthering the custom of excluding Ne­
groes from lunch counters in Columbia, South Carolina or 
segregating them in same, in violation of petitioners’ rights 
to due process of law and equal protection of the laws, pro­
tected by the Fourteenth Amendment to the United States 
Constitution.
[fol. 68] 2. The Court may have overlooked petitioners’
assertion that they were unwarrantedly penalized for ex­
ercising their freedom of expression in violation of the 
Fourteenth Amendment. The Court further overlooked the 
applicability of Marsh v. Alabama, 326 TJ. S. 501, 90 L. Ed. 
265, 66 S. Ct. 276, and Munn v. Illinois, 94 U. S. 113, 24 
L. Ed. 77, to this argument.

3. The Court may have overlooked petitioners’ assertion 
that in arresting and prosecuting petitioners, the State has 
either enforced or supported racial segregation in a place 
open to the general public, thereby infringing their rights 
under the Fourteenth Amendment to the United States Con­
stitution. Petitioners, in their appeal, did not challenge 
the right of the store manager to select his customers, but



58

asserted that the State cannot implement and enforce segre­
gation by direct action on the part of its police nor by stat­
utory scheme.

4. The Court may have overlooked or misapprehended 
that petitioners’ convictions of the offenses of trespass 
after notice under Section 16-386, Code of Laws of South 
Carolina for 1952 and breach of peace under Section 15-909, 
Code of Laws of South Carolina for 1952, rested upon no 
evidence of any substantial element of either of said of­
fenses, in violation of petitioners’ right to due process of 
law under the Fourteenth Amendment to the United States 
Constitution. Thompson v. City of Louisville, 362 U. S. 199, 
80 S. Ct. 629 (1960).

Conclusion
Wherefore, petitioners request they be granted a re­

hearing in this case.
Jenkins and Perry, Columbia, South Carolina, By 

Matthew J. Perry, Attorneys for Petitioners.

Columbia, South Carolina, December 20, 1961.

[fol. 69]
Certificate

I, Harold R. Boulware, hereby certify that I  am a prac­
ticing attorney of this Court and am in no way connected 
with the within case. I further certify that I am familiar 
with the record of this case and have read the opinion of 
this Court which was filed December 14, 1961, and in my 
opinion there is merit in the Petition for Rehearing.

Harold R. Boulware

Columbia, South Carolina, December 20, 1961.



59

[fol.70] [File endorsement omitted]

O rder D e n y in g  P etitio n  eor R e h ea r in g  
—Filed January 8, 1962

The within petition for a rehearing is denied.
C. A. Taylor, C.J., G. Dewey Oxner, A.J., Lionel K. 

Legge, A.J., Joseph R. Moss, A.J., J. Woodrow 
Lewis, A.J.

[fol. 71]
I n t h e  S u p r e m e  C ourt  of t h e  S tate of S o u t h  Carolina

Case No. 4777

[Title omitted]

P e t it io n  for S tay of R e m it t it u r

To the Honorable G. Dewey Oxner, Associate Justice of 
the Supreme Court of South Carolina:

The Petition of Charles F. Barr, Richard M. Counts, 
David Carter, Milton D. Greene and Johnny Clark, re­
spectfully shows: 1.

Petitioners have been convicted of the offense of trespass 
after notice under Section 16-386, Code of Laws of South 
Carolina for 1952 and breach of peace under Section 15- 
909, Code of Laws of South Carolina for 1952. Their con­
victions and sentences have been affirmed by the Supreme 
Court of South Carolina in an Opinion which was filed on 
December 14, 1961.

2.
Thereafter, petitioners requested rehearing of said cause 

in a Petition therefor dated December 20, 1961. Rehearing 
was denied this day.



60

[fol. 72] 3.
Petitioners are aggrieved with said decision and in­

tend to petition the Supreme Court of the United States 
for a Writ of Certiorari in order that that Court can pass 
upon petitioners’ contention that their arrests and convic­
tions were in furtherance of a custom of racial segregation 
and rested upon no evidence of any substantial element of 
said offenses in violation of their rights to due process of 
law and equal protection of the law, protected by the Four­
teenth Amendment to the United States Constitution.

4.
Under the Rules of the United States Supreme Court, 

petitioners have ninety (90) days after the rehearing of the 
final judgment of this Court within which to file their Peti­
tion for Writ of Certiorari. Petitioners are therefore de­
sirous of obtaining a stay of the sentences imposed upon 
them and a Stay of the Remittitur herein for a period of 
ninety (90) days after the rendering of the final judgment 
of this Court in order that they may have time within 
which to file said Petition for Writ of Certiorari.

5.
Counsel for the City of Columbia have agreed to a pro­

posed Order, Staying the Remittitur for the requested 
period.

Wherefore, petitioners pray that execution of their sen­
tences be stayed and that Remittitur in this matter be 
stayed by order to this Honorable Court for a period of 
[fol. 73] ninety (90) days after the final judgment of said 
Court in order that petitioners may file in the United States 
Supreme Court a Petition for Writ of Certiorari.

Jenkins and Perry, Columbia, South Carolina, By: 
Matthew J. Perry, Attorneys for Appellants.

[File endorsement omitted]



61

[fol. 74]
I n t h e  S u p r e m e  C ourt of t h e  S tate  of S o u t h  C arolina

Case No. 4777

C ity  of C olu m bia , Respondent, 
against

C h a rles  F. B arr, R ichard  M . C o u n ts , D avid Carter , 
M il t o n  D . Gr e e n e  and J o h n n y  Clark , Appellants.

O rder S taying  R e m it t it u r—January 8, 1962
On the 14th day of December, 1961, we issued an Opinion 

in the above case, affirming the judgment of the Richland 
County Court which sustained the judgment of the Re­
corder’s Court of the City of Columbia wherein appellants 
were convicted of violating Section 16-386, Code of Laws 
of South Carolina for 1952, namely, Trespass after Notice, 
and Section 15-909, Code of Laws of South Carolina for 
1952, namely, Breach of Peace.

Thereafter, appellants petitioned this Court for a re­
hearing and, on January 8, 1962 we entered an Order, deny­
ing same.

Appellants have now indicated that they desire and in­
tend to file in the Supreme Court of the United States a 
Petition for Writ of Certiorari, seeking review of our judg­
ment in said cause. Under the rules and decisions of the 
United States Supreme Court, they have ninety (90) days 
after the final judgment of this Court within which to file 
[fol. 75] their Petition for Writ of Certiorari. The final 
judgment of this Court is the Order, denying rehearing. 
Department of Banking, State of Nebraska v. Pink, 63 S. Ct. 
253, 217 U. S. 264, 87 L. Ed. 254. They desire a stay of the 
Remittitur and Sentences in this matter pending the filing 
of their Petition for Writ of Certiorari in the United 
States Supreme Court and thereafter until said matter has 
been disposed of by that Court. It appears that the request 
for stay of remittitur and sentences is proper. Now, on



62

motion of counsel for the appellants, by and with the con­
sent of counsel for the respondent,

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

It Is Further Ordered that if a notice from the Clerk of 
the United States Supreme Court that the Petition for 
Writ of Certiorari has been filed in that Court is filed with 
the Clerk of the Supreme Court of South Carolina within 
the time aforesaid, the Stay of Remittitur and execution of 
Sentences herein shall continue in effect until final disposi­
tion of the case by the Supreme Court of the United States.

G. Dewey Oxner, Associate Justice.
January 8, 1962.

We Consent: John W. Sholenberger, Edward A. Harter, 
Jr., Attorneys for Respondent.

Clerk’s Certificate to foregoing paper (omitted in 
printing).

[fol. 76] Clerk’s Certificates to foregoing transcript 
(omitted in printing).



63

[fol. 78]
S u p r e m e  C ourt of t h e  U n ited  S tates 

No. 90—October Term, 1962

C h a rles  F. B arr, et a l ,  Petitioners,
YS.

C ity  of C olu m bia .

O rder A llo w in g  Certiorari— June 10, 1963
The petition herein for a writ of certiorari to the Su­

preme Court of the State of South Carolina is granted, and 
the case is placed on the summary calendar.

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