McKinnie v. Tennessee Petition for Writ of Certiorari

    I n  th e

ûprrutr Court of %  Imtrft B u U b
October Term, 1963 

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

L ester G. McK innie, Nathal W inters, J ohn R. L ewis, 
H arrison Dean, F rederick L eonard, A llen Cason, Jr., 
J ohn J ackson, Jr. and F rederick Hargraves,

Petitioners,

State oe T ennessee.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF TENNESSEE

J ack Greenberg 
James M. Nabrit, III 

10 Columbus Circle 
New York, New York 10019

A von N. W illiams 
Z. A lexander L ooby

McClellan-Looby Bldg. 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Petitioners



I N D E X

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

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

Questions Presented ____________ __ ________________  2

Statutory and Constitutional Provisions Involved .... 3

Statement ............................ ................. .................... ..... . 4

How the Federal Questions Were Raised and Decided 
Below..............................................................................  9

Reasons for Granting the Writ ............ .................... . 13

I. Petitioners’ Convictions Offend the Fourteenth 
Amendment to the United States Constitution 
in That They Constitute State Enforcement of 
Racial Discrimination ......... ...... .......... .... ...... .......  13
A. The State of Tennessee Has by Statute Per­

mitted and Encouraged Racial Segregation in 
Restaurants ....................... .................... ..... .....  13

B. The State of Tennessee by Arrest and Crim­
inal Conviction of Petitioners Deprived Them
of Equal Protection of the Laws ........... ......  15

II. These Convictions Deny Due Process of Law Be­
cause Based on No Evidence of the Essential 
Elements of the Crime of Unlawful Conspiracy .. 18

PAGE



11

III. Petitioners Were Denied Due Process in That
Their Convictions Were Affirmed on a Ground 
Not Litigated in the Trial Court ............. ............ 23

IV. Petitioners Were Denied Due Process in Violation
of the Fourteenth Amendment When the Trial 
Judge Instructed the Jury That Petitioners Were 
Charged With Violation of a Statute When (a) 
Petitioners Had Not in Fact Been Indicted for 
Violation of the Statute and (b) It Was Not 
Even a Criminal Statute ........................ ............ 25

V. Petitioners Were Denied a Fair and Impartially 
Constituted Jury Contrary to Due Process of Law 
and Equal Protection of the Laws Secured by the 
Fourteenth Amendment to the United States Con­

PAGE

stitution ............        28

Conclusion ......................................    30

A ppendix..............      la

Opinion of Supreme Court of Tennessee ________ la

Judgment .......... -.............-................................. .......  14a
Opinion on Petition to Rehear............. ....................  16a
Judgment on Petition to Rehear ------------- -------  18a

Table of Cases

Aldridge v. United States, 283 U. S. 308 ............. ....... 29, 30
Aymett v. State, 310 S. W. 2d 460 ......... ....................  19

Barr v. City of Columbia, No. 9, October Term, 1963 .. 15 
Bell v. Maryland, No. 12, October Term, 1963 ......... 15



Bouie v. City of Columbia, No. 10, October Term, 1963 15
Buchanan v. Warley, 245 U. S. 60 ________________  16
Burton v. Wilmington Parking Authority, 365 U. S.

715 .................................................... ........... ................ 14,16

Cantwell v. Connecticut, 310 U. S. 296 .........................  22
Cline v. State, 319 S. W. 2d 227 ........       19
Cole y. Arkansas, 333 IT. S. 196 .........     24

DeJonge v. Oregon, 299 IT. S. 353 .......... ...................... 26
Delaney v. State, 164 Tenn. 432 _____     19

Garner v. Louisiana, 368 IT. S. 157 ...............    22
Glasser v. United States, 315 U. S. 60 .....   29
Griffin v. Maryland, No. 6, October Term, 1963 ______ 15

Kelley v. Board of Education, 270 F. 2d 209 (6th Cir. 
1959) ..............................................................................  16

Lasater v. State, 68 Tenn. 584 (1877) ____ ____ _____  14
Lombard v. Louisiana, 373 U. S. 267 .............................. 15

Peterson v. City of Greenville, 373 TJ. S. 244 ..............14,15

Robinson v. Florida, No. 6, October Term, 1963 ..........  15
Roy v. Brittain, 201 Tenn. 140, 297 S. W. 2d 72 .......  16

Shelley v. Kraemer, 334 U. S. 1 _____________ ______ 16,17
Smith v. State, 205 Tenn. 502  .......... ................. ........ 19
Smith v. Texas, 311 U. S. 128______________________  29
State of Delaware v. Brown, 195 A. 2d 379 (1963) .... 17 
Stromberg v. California, 283 U. S. 359 .......... ...........26, 27

Taylor v. Louisiana, 370 U. S. 154......... ....................... 22
Terminiello v. Chicago, 337 U. S. 1 .................. ........ .26, 27

Ill

PAGE



IV

PAGE
Thiel v. Southern Pac. Co., 328 U. S. 218 ....... ............... 29
Thompson v. Louisville, 362 IT. S. 199 .......................... 22
Trustee of Monroe Ave. Church of Christ v. Perkins,

334 U. S. 813 ___________ __ _______ __________ ___ 16
Turner v. Memphis, 369 U. S. 350 (1962) ...... ....... ........  14

Winters v. New York, 333 U. S. 507 __ __________ ___ 22

Statutes:

Constitution of Tennessee, Article 1, Section 9 ......... 11
Constitution of Tennessee, Article 11, Section 12  ........ 16
T. C. A. §39-1101-(7) ___ __________
T. C. A. §§41-303, 41-1217 __________

T. C. A. §§49-3701, 3702, 3703, 3704
T. C. A. §§53-2120, 53-2121 _______

T. C. A. §§58-1021, 58-1412 _______ _

T. C. A. §62-710 .............. ................2,

T. C. A. §62-711 ................................
T. C. A. §62-715 ......... ....... ...........
T. C. A. §§65-1704-1709 .............. .......

T. C. A. §§65-1314-1315.....................

Title 28, IT. S. C. §1257(3) ...............

....2, 5,10,18, 25, 26, 27

........................... 16

............  ....... 16
__________ _____  14

........................... -  16
10,14,17, 23, 25, 26, 27

3, 5, 9,10,18, 25, 26, 27

...................... ......  16

........................... 16

............. ...............  16

............................ 1



In the

Bnpnmz (Emtrt af tit? lmt?d l̂ tatpis
October Term, 1963 

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

L ester G. McK innie, Nathal W inters, J ohn R. L ewis, 
H abbison Dean, F rederick Leonabd, A llen Cason, Jb., 
J ohn Jackson, Jb. and F redebick Hargraves,

Petitioners,

State oe T ennessee.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF TENNESSEE

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of Tennessee entered 
in the above-entitled cases on January 8, 1964.

Citation to Opinion Below

The opinion of the Supreme Court of Tennessee is not 
yet reported and is set forth in the appendix hereto, infra 
pp. l-13a with the opinion on Petition to Rehear at pp. 16- 
17a.

Jurisdiction

The judgment of the Supreme Court of Tennessee was 
entered on January 8, 1964 (App. p. 15a). Petition for 
rehearing was denied March 5, 1964 (App. p. 18a).



2

Jurisdiction of this Court is invoked pursuant to Title 28, 
U. S. C., Section 1257(3), petitioners having alleged below, 
and alleging here, deprivation of rights, privileges, and 
immunities secured by the Constitution of the United States.

Questions Presented

Whether petitioners, Negro college students, were denied 
rights protected by the due process and equal protection 
clauses of the Fourteenth Amendment to the United States 
Constitution:

1. By arrest and conviction for unlawful conspiracy 
after peacefully protesting against racial segregation in a 
“white” restaurant where they were denied entrance and 
service solely because they were Negroes and where racial 
segregation was permitted and encouraged by state statute.

2. By the use of state police officials to arrest and state 
courts to convict petitioners for unlawful conspiracy for 
the distinct purpose of enforcing the racially discrimina­
tory practices of a restaurant owner.

3. By conviction on a record devoid of any evidence of 
the essential elements of unlawful conspiracy.

4. By affirmance of their convictions in the Supreme 
Court of Tennessee on a ground not litigated in the trial 
court thereby denying them an appeal which considered 
the case as it was tried.

5. By the trial judge in twice instructing the jury that 
petitioners were charged with violating a law under which 
they had not been indicted and which was not even a crim­
inal statute.

6. By trial by an all white jury whose admitted per­
sonal practice, custom, philosophy and belief in racial seg­
regation precluded petitioners’ having a fair and impartial



3

jury of their peers, and by the trial judge’s refusal to dis­
miss jurors challenged by petitioners for good cause.

Statutory and Constitutional 
Provisions involved

This case involves Section 1 of the Fourteenth Amend­
ment of the Constitution of the United States and the fol­
lowing sections of the Code of the State of Tennessee:

39-1101. “Conspiracy” defined.—The crime of con­
spiracy may be committed by any two (2) or more 
persons conspiring: . . .  (7) to commit any act in­
jurious to public health, public morals, trade, or com­
merce . . .

62-710. Right of owners to exclude persons from 
places of public accommodation.—The rule of the com­
mon law giving a right of action to any person excluded 
from any hotel, or public means of transportation, or 
place of amusement, is abrogated; and no keeper of any 
hotel, or public house, or carrier of passengers for 
hire (except railways, street, interurban, and commer­
cial) or conductors, drivers, or employees of such car­
rier or keeper, shall be bound, or under any obligation 
to entertain, carry, or admit any person whom he shall, 
for any reason whatever, choose not to entertain, carry, 
or admit to his house, hotel, vehicle, or means of trans­
portation, or place of amusement; nor shall any right 
exist in favor of any such person so refused admission; 
the right of such keepers of hotels and public houses, 
carriers of passengers, and keepers of places of amuse­
ment and their employees to control the access and ad­
mission or exclusion of persons to or from their public 
houses, means of transportation, and places of amuse­
ment, to be as complete as that of any private person



4

over his private house, vehicle, or private theater, or 
places of amusement for his family.

62-711. Penalty for riotous conduct.—A right is 
given to any keeper of any hotel, inn, theater, or public 
house, common carrier, or restaurant against any per­
son guilty of turbulent or riotous conduct within or 
about the same, and any person found guilty of so 
doing may be indicted and fined not less than one hun­
dred dollars ($100), and the offenders shall be liable 
to a forfeiture of not more than five hundred dollars 
($500), and the owner or persons so offended against 
may sue in his own name for the same.

Statement

These are eight sit-in convictions arising out of a single 
trial in Nashville, Tennessee.1 Petitioners, all Negroes, 
were arrested between 12:30 and 1:00 P.M. at the Burras 
and Webber Cafeteria2 (B.E. 765) and charged under a 
grand jury indictment3 (ft. 9-13) alleging that they:

On the 21st day of October, 1962, and prior to the find­
ing of this presentment, with force and arms in the

1 A  single record and transcript of testimony exists for all eight 
petitioners and a single opinion, affirming the convictions, was 
written by the Supreme Court of Tennessee (App. pp. l-13a).

Reference to the Technical Record will be designated (R. — ), 
and to the Bill of Exceptions (B.E. — ).

2 Burrus and Webber Cafeteria will hereafter be referred to as 
B. & W.

3 Petitioners were arrested without warrants by Nashville police 
officers and originally charged with violating City Code Chapter 26, 
Section 59 (state law regarding sit-ins) (B.E. 885). Eater, on 
the same day, warrants were issued charging them with unlawful 
conspiracy. The grand jury presentment was made on December 
12, 1962 (R. 8).



5

County aforesaid, unlawfully, willfully, knowingly, de­
liberately and intentionally did unite, combine, con­
spire, agree and confederate between and among them­
selves, to violate Code Section 39-1101-(7) and Code 
Section 62-711, and unlawfully to commit acts injurious 
to the restaurant business, trade and commerce of Bur­
ras and Webber Cafeteria, Inc., a corporation located 
at 226 Sixth Avenue, North, Nashville, Davidson 
County, Tennesee (R. 9).

After trial and conviction in the County Court of David­
son County, Tennessee, petitioners were sentenced to ninety 
(90) days in jail and fifty dollars ($50.00) fine4 (R. 39, 40). 
Appeals were taken to the Supreme Court of Tennessee 
which affirmed the convictions (R. 54). It is from this 
affirmance that this petition for writ of certiorari is brought.

Around noon on October 21,1962, eight young Negro men, 
all college students, quietly entered the front door5 of the 
B. & W. Cafeteria (B.E. 766). Two swinging doors on the 
sidewalk opened on the vestibule (B.E. 767), six feet by four 
feet in size (B.E. 1070).6 Another set of swinging doors led 
into the dining room (B.E. 767).

As petitioners approached the second doors, they were 
met by Otis Williams, the doorman (B.E. 1071), and told, 
“We don’t serve colored people in here. I want to be nice 
to you but we don’t serve ’em . . . and you can’t come in”

4 The jury recommended a fine of less than fifty dollars ($50.00) 
(R. 38), but the trial judge later imposed the severer sentence.

5 The cafeteria had a front entrance and a back entrance (B.E. 
825).

6 Estimates on the size of the vestibule varied from four feet by 
four feet (B.E. 767) to twelve feet by twelve feet (B.E. 903), 
though Otis Williams, the doorman at B. & W. testified that he 
measured it as six feet by four feet (B.E. 1070).



6

(B.E. 1071).7 Petitioners remained standing in the vestibule 
for approximately “20 or 25 minutes” when they were ar­
rested (B.E. 772). They committed no act other than at­
tempting to walk through the swinging doors into the 
cafeteria (B.E. 771, 1098). People were walking in front of 
the cafeteria, and estimates of the number of people who 
stood by or near the outside door of the vestibule varied 
from three or four to seventy-five or one hundred (B.E. 
780, 787, 808, 828, 918-919, 956). It was not established how 
many, if any, of those standing outside desired to en­
ter the B. & W. or were just curious observers. No wit­
ness testified that they were prevented either from entering 
or leaving the cafeteria (B.E. 782-792, 809-810, 841, 892- 
895, 919-923, 933, 948-949, 960, 1000, 1005, 1025, 1032-1033, 
1039), nor was there evidence of any turbulent, riotous or 
disorderly conduct, by petitioners or others, either inside 
or outside the cafeteria.

W. W. Carrier, Manager of B. & W., informed of peti­
tioners’ presence, entered the vestibule (B.E. 766) and testi­
fied that he “discovered a large gathering of people8 . . . 
on the outside and eight young Negroes were in the vesti­
bule in between the two doors” (B.E. 766). Carrier did not 
speak to petitioners (B.E. 771). He called the police and 
went outside to wait for them (B.E. 771). He testified:

7 Williams, a 64 year old man weighing only 140 pounds, held 
the door and kept petitioners out while allowing white patrons 
in the vestibule to enter the cafeteria, one at a time, through a 
“ crack in the door” (B.E. 1070-1071, 1078-1080). He stated he 
was hired to keep Negro patrons out (B.E. 1088) and was ordered 
to lock the doors if Negroes came (B.E. 1097). When petitioners 
arrived, Williams “ caught the door going into the cafeteria and 
stopped them there, and the white people, too . . . ” (B.E. 1065).

8 Carrier did not estimate the number of people.



7

Q. As you attempted to pass through the vestibule, 
what, if anything, occurred?

A. Well, actually nothing, sir. The—the young men 
were standing in position, and it was just a matter of 
my easing through the crowd (B.E. 772).

Petitioners informed him that they were seeking service 
(B.E. 775), but Carrier refused because they were Negroes® 
(B.E. 776). At no time did he order petitioners to leave.9 10 
His sole comment was to request that they move back and 
let a lady get out (B.E. 773) which petitioners did (B.E. 
773). He admitted that persons were able to get in and out 
of the cafeteria.11

Several patrons of B. & W. testified that the doorman 
was holding the door so the petitioners could not enter, 
thus causing the congestion (B.E. 785, 893).12 All entered

9 On cross-examination Carrier stated:
“ Q. You have the facilities to serve them!

A. We do have.
Q. Was your place of business crowded at the time?
A. It was beginning to be crowded, sir.
Q. Now, the only reason that you didn’t serve them was that 

they were Negroes and not white, wasn’t it?
A. Yes, sir.
Q. And the same boys, seeking service would have been all 

right if they were white?
A. Yes, sir” (B.E. 776-777).

10 Carrier testified he did not swear out warrants against peti­
tioners and had no idea how his name appeared on them as prose­
cutor (B.E. 823).

11 “ Q. What occurred to those persons in their attempt to gain
access to the cafeteria and leave?

A. Well, it was a little crowded . . . ”  (B.E. 770).
12 Charles Edwards stated:

“ Q. If the doorman hadn’t blocked the door, they would have 
gone in the place, so that ingress and egress would have 
been free? Wouldn’t it?

A. I suppose so, if he had wanted Negroes in, too.
Q. Yes, sir, the doorman was blocking them so that they 

couldn’t get in?



the cafeteria though a few spoke of having to “ elbow” or 
“push” their way through (B.E. 814, 933). Most entered 
without any difficulty at all.13

Two witnesses testified that petitioners were “pushing 
and shoving” in the vestibule (B.E. 900-901, 977). How­
ever, they admitted that petitioners used no bad language 
and committed no disorderly act (B.E. 977). One witness 
testified that as she approached the restaurant she heard 
someone say, “When we get there, just keep pushing, don’t 
stop. Just keep on pushing,” that she looked around and 
saw a group of Negroes who passed her on the street and 
entered the restaurant (R. 971, 987-990). No evidence, 
however, was offered to prove that petitioners agreed or 
conspired to block the entrance of B. & W.

A. The doorman was holding the door and the Negroes were 
blocking the vestibule so they couldn’t get in there.

Q. . . . The doorman was the one who was blocking the door 
and keeping people out? Wasn’t he?

A. He was holding the Negroes out and as a result, they 
had the vestibule blocked and the other people couldn’t 
get by.”

13 Mrs. Charles Edwards testified that she “ just went right in” 
(B.E. 799). Mickey Lee Martin testified:

“ Q. You had no trouble getting in?
A. No, sir.
Q. Did you have to ask them to let you in ?
A. Sir?
Q. Did you have to ask these colored boys to let you in?
A. Yes, sir.
Q. And did they let you in ?
A. Yes, sir, they let me in” (B.E. 882).

Patrolman Pyburn went to the B. & W. and testified that peti­
tioners were standing four on either side of the vestibule and that 
“a person medium sized could get in” (B.E. 1030-1031).



9

How the Federal Questions Were Raised 
and Decided Below

After motions to remand the cases from the County 
Court of Davidson County, Tennessee to the Court of Gen­
eral Sessions were denied on January 4, 1963 (E. 22), peti­
tioners, on January 10, 1963, filed a motion to quash the 
grand jury presentment and to dismiss alleging that (1) the 
State of Tennessee, through its judicial officers, was en­
forcing a policy of racial discrimination contrary to the 
Fourteenth Amendment to the United States Constitution ;
(2) the State was forbidden by the Fourteenth Amendment 
from prosecuting defendants under T. C. A. §62-711; (3) 
the acts charged constituted no crime; (4) the presentment 
neither alleged nor showed defendants conspired to do an 
unlawful act or an unlawful act by unlawful means; and 
(5) the rights exercised by petitioners were protected by 
the due process and equal protection clauses of the Four­
teenth Amendment to the United States Constitution. Janu­
ary 15, 1963, motion to quash and to dismiss overruled 
(E. 27).

January 30, 1963, defendants filed motion to quash the 
presentment or, in the alternative, to require the State to 
make an election as to which of the state statutes alleged 
in the indictment to prosecute the defendants under (E. 28). 
February 1, 1963, motion overruled and defendants ex­
cepted (R. 29). Upon arraignment on March 5, 1963, defen­
dants entered pleas of not guilty (E. 30). Defendants 
were convicted in the County Court of Davidson County, 
Tennessee on March 9,1963 (E. 38). The jury recommended 
a fine of less than fifty dollars ($50.00). March 19, 1963, the 
court entered judgment and sentenced defendants to fifty 
dollar ($50.00) fines and ninety (90) days in the County 
Workhouse (E. 39, 40).



10

April 18, 1963, petitioners filed motions for new trial on 
the grounds that: (1) the court erred in overruling defen­
dants’ motions to remand the cases to the Court of General 
Sessions; (2) the court erred in overruling defendants’ mo­
tion to quash the presentment and to dismiss the action;
(3) the court erred in overruling defendants’ motion to 
quash the presentment or, in the alternative, to require the 
State to make an election as to which of the state statutes 
alleged in the indictment to prosecute the defendants under;
(4) the statutes under which defendants were arrested, 
tried and convicted were unconstitutional because they 
failed to warn defendants of the conduct proscribed and 
contained no standards upon which a judicial determination 
of guilt could be made, contrary to the due process clause 
of the Fourteenth Amendment to the United States Con­
stitution; (5) T. C. A. §62-710, one of the statutes under 
which defendants were charged, is not a criminal statute 
and conviction thereunder denied due process secured by 
the Fourteenth Amendment; (6) T. C. A. §§39-1101-(7), 
62-710 and 62-711 were unconstitutionally applied to peti­
tioners’ conduct because used to enforce racial segregation 
in facilities licensed by the State, open to the public, and 
invested with a public interest, contrary to the due process 
and equal protection clauses of the Fourteenth Amendment 
to the United States Constitution; (7) the arrest, trial and 
conviction of defendants were for the sole purpose of en­
forcing the discriminatory practices of a restaurant owner 
contrary to the due process and equal protection clauses of 
the Fourteenth Amendment; (8) there was no evidence that 
defendants committed any act either a breach of the peace, 
injurious to the trade or commerce or turbulent and riotous;
(9) prosecution of defendants denied them the right of 
free assembly and protest guaranteed by the First and 
Fourteenth Amendments to the United States Constitution;
(10) defendants were tried and convicted by a jury from



11

which all Negro veniremen were deliberately and systemati­
cally challenged by the State, depriving them of a fair 
and impartial jury in violation of Article 1, Section 9 of 
the Constitution of the State of Tennessee and the equal 
protection and due process clauses of the Fourteenth 
Amendment to the Constitution of the United States; (11) 
the court erred in holding certain white jurors competent 
who admitted a prejudiced attitude toward defendants con­
trary to Article 1, Section 9 of the Constitution of Ten­
nessee and the due process and equal protection clauses of 
the Fourteenth Amendment to the United States Constitu­
tion ; (12) there was no evidence of guilt of the offense 
charged in the presentment; (13) the evidence preponder­
ated in favor of defendants’ innocence; (14) the court’s 
judgment and sentence were contrary to the jury verdict 
and deprived defendants of rights secured by the due proc­
ess clause of the Fourteenth Amendment; (15) the court 
erred in denying certain instructions to the jury requested 
by defendants contrary to the equal protection and due 
process clauses of the Fourteenth Amendment to the United 
State Constitution (R. 41-50).

Motion for new trial was overruled May 10, 1963 (R. 53). 
Defendants excepted and “prayed an appeal in the nature 
of a writ of error” to the Supreme Court of Tennessee (R. 
54). Bill of Exceptions to the County Court order over­
ruling motion for new trial filed May 31, 1963 (R. 63).

On appeal to the Supreme Court of Tennessee the convic­
tions were affirmed. The Court held that:

These defendants physically blocked the entrance to 
the B&W Cafeteria by placing themselves in the small 
vestibule so as to prevent people from entering or leav­
ing ; and that entrance to and exit from the restaurant 
was not possible without squeezing and worming 
through the wall of flesh created by the defendants’



12

presence and position. The evidence likewise shows 
that in blocking this entrance the defendants were 
pushing and shoving to some extent in an effort to 
enter this restaurant, but were prevented from doing 
so because the doorman kept the inner door closed to 
them.

It further held that:
While the request for admittance by the defendants 
was not criminal in the first instance, and while for the 
sake of argument, we may even assume that they had 
a right to go on the premises of the restaurant, the 
method they employed to effect their admittance was 
clearly unlawful.

The Court stated that the dispositive question on appeal 
was whether or not the evidence showed that defendants 
used unlawful means; blocked the doorway of B. & W .; 
concluded that they did.

Petition for rehearing filed and denied March 5, 1964 
(App. 16, 17a).



13

Reasons for Granting the Writ
The decision below conflicts with applicable decisions of 

this Court on important constitutional issues.

I.

Petitioners’ Convictions Offend the Fourteenth 
Amendment to the United States Constitution in That 
They Constitute State Enforcement o f Racial Discrimi­
nation.

A. The State of Tennessee Has by Statute Permitted and 
Encouraged Racial Segregation in Restaurants.

The undisputed and sole basis for petitioners’ arrest 
and conviction was racial discrimination. At the time of 
arrest, petitioners were seeking service at B. & W., a white 
restaurant in the City of Nashville, Tennessee. When re­
fused entrance to the B. & W., they quietly remained in the 
vestibule until arrested. They were jailed and originally 
charged with violation of the “ state law regarding sit-ins” 
(B.E. 765). Later, the Davidson County grand jury re­
turned a presentment charging petitioners with unlawful 
conspiracy to injure trade or commerce by attempting to 
compel white restaurateurs, including the owners of B. & W., 
to serve Negroes contrary to their policy of racial segre­
gation.14

14 The presentment alleged, inter alia, that:
. . . Under the provisions of §62-710 of the Code of Tenn., the 
owner of said cafeteria reserved the right not to admit and to 
exclude from said cafeteria any person the owner, for any reason 
whatsoever, chose not to admit or serve in said cafeteria.

Among the rules established by the owner of said B. & W. was 
one that they would serve food only to persons of Caucasian 
descent, or white persons, and not to serve food to persons of 
African descent, or colored persons, and said B. & W. Cafeteria 
was known to the general public as a cafeteria and dining place, 
privately owned, serving food only to white persons.



14

The manager and the doorman15 of B. & W. stated peti­
tioners were refused service solely because they were 
Negroes (B.E. 776-777). In his charge the trial judge ex­
pressly instructed the jury to convict if it found petition­
ers conspired to violate, inter alia, T. C. A. §62-710, pro­
viding that a restaurateur may exclude persons for “any 
reason whatsoever,” including race. Lasater v. State, 68 
Tenn.584 (1877).16

It is patently clear from these facts that the purpose of 
petitioners’ arrest and conviction was to enforce racial 
discrimination which was permitted and, indeed, encouraged 
by T. C. A. §62-710. It is equally clear that such state 
sanction of racial discrimination conflicts with the Four­
teenth Amendment. Burton v. Wilmington Parking Au­
thority, 365 U. S. 715 (Stewart, J., concurring). (When a 
state law sanctions racial discrimination in restaurants, 
the 14th Amendment is invoked.)

In Peterson v. City of Greenville, 373 U. S. 244, this 
Court reversed trespass convictions where state law re­
quired a restaurant owner to discriminate and stated:

15 Indeed, the doorman was expressly hired for the purpose of 
keeping Negroes out. (B.E. 1088).

16 In 1875, the State of Tennessee repealed its Common Law 
innkeeper rule requiring innkeepers to serve all on an equal 
basis and passed T. C. A. §62-710 permitting them to discriminate.

And see Turner v. Memphis, 369 U. S. 350 (1962). There a 
restaurant owner set up as a defense to an action brought to 
enjoin racial segregation in the Dobbs House Restaurant in the 
City of Memphis T. C. A. §§53-2120, 53-2121, which authorized 
the Division of Hotel and Restaurant Inspection of the State De­
partment of Conservation to issue “such rules and regulations . . . 
as may be necessary pertaining to the safety or sanitation of 
hotels and restaurants . . . ”  The Inspection Division passed a 
regulation providing that “restaurants catering to both white and 
Negro patrons” should be arranged so that each race is properly 
segregated (Regulation No. R -18(L )). Dobbs House later amended 
its answer to include a defense based on T. C. A. §62-710 as jus­
tification for its discrimination.



15

When the State has commanded a particular result, it 
has saved to itself the power to determine that result 
and thereby “ to a significant extent” has “become in­
volved” in it, and, in fact, has removed that decision 
from the sphere of private choice (373 U. S. at 248).

When the state passes a law, as here, permitting and 
encouraging persons to discriminate against other persons 
because of race, and the state’s judicial processes are em­
ployed to enforce that same discrimination, such a “palpable 
violation of the Fourteenth Amendment cannot be saved by 
attempting to separate the mental urges of the discrim­
inator” (Peterson, supra at 248).

In Lombard v. Louisiana, 373 U. S. 267, there was no 
segregation provision but certain city officials had made 
pronouncements regarding segregation in restaurant facili­
ties. This Court found this constituted state compulsion of 
racial discrimination and reversed trespass convictions.

The state’s involvement here is much stronger than, or at 
most equal to, that in Lombard. Indeed, existence of a state 
statute permitting and encouraging restaurateurs to dis­
criminate brings this case within the prohibition of Peter­
son.

B. The State of Tennessee by Arrest and Criminal 
Conviction of Petitioners Deprived Them of 
Equal Protection of the Laws.

The issues presented by this petition are almost identical 
to those presented in the “ Sit-in” cases now pending before 
this Court in Barr v. City of Columbia, No. 9, October 
Term, 1963; Bouie v. City of Columbia, No. 10, October 
Term, 1963; Bell v. Maryland, No. 12, October Term, 1963; 
Robinson v. Florida, No. 60, October Term, 1963; and 
Griffin v. Maryland, No. 6, October Term, 1963. Here, as



16

in. those cases, the question presented is whether a state 
may enforce, by arrest and criminal conviction, racial dis­
crimination in public accommodations, particularly where, 
as here, the state has been significantly involved in the 
acts of discrimination. That petitioners were in a cafeteria 
vestibule and not at a lunch counter, and charged with 
unlawful conspiracy rather than trespass, does not ma­
terially change the issues involved. As the questions pre­
sented are identical with, or similar to, issues now pending 
before this Court in other cases where certiorari has been 
granted, review of this petition is manifestly appropriate. 
Compare Trustee of Monroe Ave. Church of Christ v. 
Perkins, 334 U. S. 813, with Shelley v. Kraemer, 334 U. S. 1.

There is no question but that the State of Tennessee, by 
arrest and criminal conviction, has “ place [d] its authority 
behind discriminatory treatment based on race.” Burton 
v. Wilmington Parking Authority, 365 U. S. 715 (Frank­
furter, J., dissenting). No question exists but that this 
constitutes state action forbidden by the Fourteenth 
Amendment. Shelley v. Kraemer, 334 U. S. 1; Buchanan 
v. Warley, 245 U. S. 60. State action is further involved 
here because the State of Tennessee has fostered and but­
tressed racial segregation by state law,17 custom and tradi­
tion and has thereby significantly contributed to and sup­
ported the racial discrimination practiced by B. & W.

17 In Tennessee, Negroes and whites have been prohibited from 
studying together (Art. 11, Const, of Tenn., §12; T. C. A. §§49-3701 
(held unconstitutional in Boy v. Brittain, 201 Tenn. 140, 297 
S. W. 2d 72), 3702, 3703, 3704 (invalidated in Kelley v. Board 
of Education, 270 F. 2d 209 (6th Cir. 1959) ; going to prison 
together (T. C. A. §§41-303, 41-1217) ; marrying one another 
(T. C. A. §§49-3704, 36-402) ; riding streetcars together (T. C. A. 
§§65-1704-1709) ; or trains (T. C. A. §§65-1314-1315) ; using the 
same washhouses in coal mines (T. C. A. §§58-1021, 58-1412). 
Moreover, Tennessee law expressly permits hotels to provide sepa­
rate accommodations for Negroes and whites (T. C. A. §62-715).



17

Moreover, in addition to this, the State of Tennessee has 
refused to protect petitioners’ primary right to equality 
against the narrow, less significant property claim of res­
taurant owners and has actively endorsed and supported 
restaurateurs’ “ right to discriminate” by statute as well 
as by use of the state judicial process. Such palpable use 
of state power to enforce inequality far exceeds the thresh­
old required to invoke the Fourteenth Amendment’s limi­
tations. Shelley v. Kraemer, 334 U. S. I.18

In summary, the evidence leads to the inescapable con­
clusion that these convictions are no less or more than 
state enforcement of racial discrimination. The grand jury 
presentment charging defendants with unlawful conspiracy 
expressly recognized and relied upon T. C. A. §62-710 as 
authorizing B. & W.’s racial discrimination as did the trial 
judge in his instructions to the jury. This, added to the 
use of police officials to arrest and state courts to crimi­
nally punish petitioners solely to enforce a racial exclu­
sion policy sanctioned by the state, in a restaurant licensed 
by the State and open to the public, is such overwhelming 
state participation in racial discrimination as to be clearly 
prohibited by the Fourteenth Amendment to the Consti­
tution of the United States.

18 In State of Delaware v. Brown, 195 A. 2d 379 (1963), the 
Supreme Court of Delaware reversed trespass convictions against 
Negroes who refused to leave a restaurant after being requested 
to leave solely because of race and held that:

“ . . . Judicial action by the State to prosecute and convict 
defendant for trespass would constitute an encouragement of 
the actions of the proprietor in excluding defendant upon 
racially discriminatory grounds. This the State cannot do. 
As we have previously held, the owner or proprietor of a place 
of public accommodation, with the exceptions noted, may not 
be compelled by the State to accept patrons who are per­
sonally offensive to him or his customers. It is equally true, 
therefore, that the State may not compel the Negro patron 
to leave the place of public accommodation. To do so would 
place the weight of state power behind the discriminatory 
action of the owner or proprietor.”



18

II.
These Convictions Deny Dae Process o f Law Because 

Based on No Evidence o f the Essential Elements o f the 
Crime o f Unlawful Conspiracy.

The indictment under which petitioners ~were charged 
alleged that they:

. . . with force and arms, unlawfully, willfully, know­
ingly, deliberately and intentionally, did unite, com­
bine, conspire, agree and confederate between and 
among themselves, to violate Code Section 39-1101-(7) 
and Code Section 62-711, and unlawfully to commit 
acts injurious to the restaurant business, trade or com­
merce of Burrus and Webber . . .

In its opinion the Supreme Court of Tennessee stated:
Section 39-1101, T. C. A., makes it a misdemeanor for 
two or more persons to conspire to do an unlawful 
act. In order for the offense to be indictable, it must 
be committed manu forti—in a manner which amounts 
to a breach of the peace or in a manner which would 
necessarily lead to a breach of the peace (App. 4a).

The court further stated that:
. . . Conspiracy may be inferred from the nature of 
the acts done, the relation of the parties, the interest 
of the alleged conspirators, and other circumstances; 
and that such a conspiracy consists of a combination 
between two or more persons for the purpose of ac­
complishing a criminal or unlawful act, or an object, 
which although not criminal or unlawful in itself, is 
pursued by unlawful means, or the combination of two



19

or more persons to do something unlawful, either as 
a means or as an ultimate end.10

At the time of arrest, petitioners were merely seeking 
service at B. & W. in a peaceful manner. Of the numerous 
witnesses at trial, not one testified to being unable to enter 
or leave the cafeteria, nor did they see any other person 
who was prevented from entering or leaving B. & W. while 
petitioners were present. Most testified that they “had no 
trouble getting in” (B.E. 888, 892, 1030-1031, 1038). No 
witness testified that petitioners committed any disorderly 
act or acts which constituted a breach of the peace. They 
used no bad language and did not force themselves past 
the doorman who held the door. Although petitioners were 
told “we don’t serve colored people in here” and “you can’t 
come in” (B.E. 1071), no one asked them to leave the 
vestibule where they remained until they were arrested.

Two witnesses testified that petitioners were “pushing” 
and “ shoving” (B.E. 917, 977). However, it was not es­
tablished whether this pushing and shoving resulted from 
the natural congestion in the vestibule caused by the door­
man’s blocking the door or by petitioners’ actions alone. 
Moreover, a few white patrons stated that they “pushed” 
inside the vestibule . . . One man testified that he “kind 
a pushed” his way in (B.E. 845) and another testified that 
he “push[ed] my way through with my boy . . .  I did 
a little pushing” (B.E. 933).

is pior construction of Tennessee conspiracy statute see: Delaney 
v. State, 164 Tenn. 432 (Persons must unite and agree to pursue 
an unlawful enterprise) ; Aymett v. State, 310 S. W. 2d 460; Cline 
v. State, 319 S. W. 2d 227 (gist of conspiracy is agreement to effect 
unlawful end, but, before offense is complete, party to conspiracy 
must commit some ‘overt act’. But cf. Smith v. State, 205 Tenn. 
502 (overt act not required).



20

Petitioners were not “ugly” or “disrespectful” but were, 
as one witness testified, “ just there” 20 (B.E. 799-800). No 
witness testified that violence occurred or was even re­
motely threatened. No rude remarks or gestures were 
made either by petitioners or by any white persons in or 
around B. & W.

More importantly, not a mite of proof was offered to 
establish that petitioners conspired or agreed to obstruct 
the passageway at B. & W. As already stated, not one wit­
ness was prevented from entering or saw anyone else pre­
vented from entering B. & W.,21 so clearly the passageway 
was not blocked. And to the extent that it was congested, 
this stemmed from the doorman’s barring the door.

20 One woman, however, testified that a defendant “ embarrassed” 
and “humiliated” her (B.E. 976) because he allegedly called her 
a “hypocrite.” On cross-examination she stated that the defendant 
had said of all the people in the restaurant:

“Look at them sitting in there, supposed to be Christians, just 
come from church, but they are just a bunch of hypocrites” 
(B.E. 917).

21 Indeed, Patrolman Pyburn stated that when he arrived at 
B. & W. four of the petitioners were standing on either side of the 
door and there was ample room for him to enter (B.E. 1029). 
Policeman Moran testified:

“ Q. When you arrived at B. & W. restaurant, what did you 
do ?

A. We went over to the restaurant and seen four boys 
standing on either side of the restaurant and I turned 
around and went back to the car and called for our 
superior officer” (B.E. 1024).

Moran further testified on cross-examination:
“ Q. And you went into the vestibule there? And you had 

plenty of room to go in?
A. Yes, sir, but it was kind of hard to do without hitting 

one of these boys with the door.
* * * * *

Q. Yes, what I mean is— you were able to get through it?
A. Oh, I could get through it, yes” (B.E. 1038).



21

There was no direct evidence of an agreement by peti­
tioners to do anything. The only agreement reasonably 
inferable from their conduct is that they agreed to go to 
the restaurant and seek service—admittedly lawful con­
duct.22 As there was no blocking of the doorway, there is 
no basis for inferring an agreement to block the door. In­
deed there is no indication that petitioners knew1 or could 
have known that a doorman had been hired to keep them 
out and would bar entrance to the door upon their arrival, 
thus causing the congestion. The evidence utterly fails to 
support the Supreme Court of Tennessee’s conclusion that 
they employed unlawful means by obstructing the passage­
way. Nor is argument required to show that the evidence 
fails to support any finding of conduct either “ riotous,” 
“ turbulent,” or likely to cause a “breach of the peace.” Yet 
the Supreme Court of Tennessee found that there was suf­
ficient proof of conduct “having the nature of a riot or 
disturbance of the peace so as to warrant conviction” (App. 
6a).

Not only, therefore, was there no evidence that peti­
tioners conspired to commit an unlawful act, the record 
solidly refutes the Supreme Court of Tennessee’s conclu­
sion that the means employed were unlawful.

This case is not materially different from the ordinary 
sit-in cases, where Negroes have been convicted for tres­
pass after remaining at lunch counters when requested to 
leave by restaurant owners, solely because of race. No 
constitutional difference exists between sitting quietly on

22 The Supreme Court of Tennessee stated:
While the request for admittance by the defendants was not 
criminal in the first instance, and while for the sake of argu­
ment, we may even assume that they had a right to go on 
the premises, the method they employed to effect their ad­
mittance was clearly unlawful.



22

a lunch stool and standing quietly in a vestibule to protest 
racial discrimination. This Court has found no problem 
in reversing sit-in convictions based on no more evidence 
than the Negroes’ “mere presence” at white restaurants. 
Garner v. Louisiana, 368 U. S. 157. Here as in Garner, 
the petitioners were not ordered to leave by the restau­
rateur or his employees.

It has been recognized that a Negro sitting at a lunch 
counter in a southern state to protect racial segregation is 
engaged in a type of expression protected by the Four­
teenth Amendment. Garner v. Louisiana, supra (Mr. Jus­
tice Harlan, concurring). If, therefore, petitioners’ conduct 
is construed to constitute an unlawful conspiracy, then the 
statute under which they were charged and convicted is 
unconstitutionally vague in that it failed to warn peti­
tioners that it was unlawful to quietly remain in a cafeteria 
vestibule and because, if so construed, it limits petitioners’ 
right of free expression. Garner v. Louisiana, supra; 
Cantwell v. Connecticut, 310 U. S. 296; Winters v. New 
York, 333 U. S. 507, 509.

Since the State offered no evidence of an agreement or 
combination to commit any act, or of the commission of 
any acts other than peaceably seeking equal food service 
as Negroes in a restaurant licensed and regulated by the 
State, open to the public and invested with the public in­
terest, which acts the State is constitutionally proscribed 
by the Fourteenth Amendment from declaring unlawful or 
prohibiting through the exercise of State power, these con­
victions rest on no evidence whatever and therefore deny 
petitioners due process of law. Taylor v. Louisiana, 370 
U. S. 154; Thompson v. Louisville, 362 U. S. 199.



III.
Petitioners Were Denied Due Process in That Their 

Convictions Were Affirmed ©n a Ground Not Litigated 
in the Trial Court.

The petitioners were tried and convicted under a grand 
jury presentment which was drawn on the theory that the 
B. & W. Cafeteria was legally entitled under Tennessee 
law (§62-710) to exclude petitioners because of their race 
(R. 10). The trial judge read the presentment and also 
§62-710 to the jury (B.E. 1104-1107; 1110), and refused a 
requested instruction that the cafeteria had no legal right 
to exclude persons because of race (B.E. 1126).

However, the Tennessee Supreme Court purported to de­
cide the case on the assumption “ for the sake of argument 
that discrimination based on race by a facility such as this 
cafeteria does violate the due process and equal protec­
tion clauses” (App. 5a-6a). The court asserted that the 
only question, given this assumption, was whether the 
method that petitioners adopted was illegal (App. 6a). The 
Supreme Court of Tennessee disposed of the claimed trial 
error in refusing an instruction that the cafeteria had no 
legal right to refuse service on the basis of race by saying 
(App. 10a):

As we have heretofore said, this question is not the 
issue in this case, and was not the basis of the indict­
ment and conviction. Even if we assume that the 
owner of the cafeteria had no right to exclude these 
defendants, this does not excuse their conduct in block­
ing this narrow passageway.

The fallacy of this reasoning is that the case was not 
submitted to the jury on this basis. The jury received the 
case on the theory that the petitioners had lawfully been



24

excluded from the B. & W. Cafeteria because of their race. 
Thus, the affirmance of the conviction was based on a 
theory directly contrary to that under which the petitioners 
were charged and the case went to the jury. As this Court 
said in Cole v. Arkansas, 333 U. S. 196, 201:

[If a state] provides for an appeal to the State Su­
preme Court and on that appeal considers questions 
raised under the Federal Constitution, the proceedings 
in that court are a part of the process of law under 
which the petitioners’ convictions must stand or fall.

Here, as in Cole, the State Supreme Court did not affirm 
the “ conviction on the basis of the trial petitioners were 
afforded.” The affirmance was on a theory directly con­
trary to that under which the jury was instructed.

It is obvious that the jury might have reached a different 
result if it had been instructed that the B. & W. Cafeteria 
had no legal right to exclude petitioners because of race 
and violated their rights when it did so. Further, the jury 
was never instructed to consider the issue which the State 
Supreme Court did decide, that is, whether petitioners’ 
method of seeming to vindicate their (assumed) right to 
enter the cafeteria was unlawful. Thus, the conviction 
clearly must be reversed under the holding of Cole v. 
Arkansas, supra, at 202:

To conform to due process of law, petitioners were 
entitled to have the validity of their convictions ap­
praised on consideration of the case as it was tried 
and as the issues were determined in the trial court.

It is submitted that the Tennessee Supreme Court’s dis­
position of the petitioners’ appeal on grounds not con­
sidered at the trial denied them due process.



25

IY .

Petitioners Were Denied Due Process in Violation o f 
the Fourteenth Amendment When the Trial Judge In­
structed the Jury That Petitioners Were Charged With 
Violation o f a Statute When (a) Petitioners Had Not 
in Fact Been Indicted for Violation o f the Statute and 
(b )  It Was Not Even a Criminal Statute.

Petitioners were indicted for violating Section 39-1101(7) 
and Section 62-711 of the Code of Tennessee. In his in­
structions, however, the trial judge told the jury that peti­
tioners were charged not only with violation of §39-1101(7) 
and §62-711, but also that they were charged with a viola­
tion of §62-710 (B.E. 1110-1111; 1116). Section 62-710, 
which is not a criminal law at all, merely abrogates the 
common law responsibility of innkeepers and other keep­
ers of public places to serve all comers and gives them the 
right to control the admission or exclusion of persons in 
such places. It had been mentioned in the indictment, but 
there was no indication that petitioners were charged with 
violating it. But, after reading all three laws to the jury 
the trial judge on two separate occasions told the jury 
that the defendants were charged with violating §62-710 
(B.E. 1110; 1116).23 Petitioners’ motion for new trial

23 The trial judge told the jury (B.E. 1110-1111) :
You will note from the language of the presentment that 

the defendants are charged with the offense of unlawful con­
spiracy to violate Code Section 39-1101(7), Code Sections 
62-710 and 62-711, in that they did unlawfully commit acts 
injurious to the restaurant business, trade and commerce of 
Burrus & Webber Cafeteria, Inc., a corporation, located at 
226 6th Avenue North, Nashville, Davidson County, Tennessee.

And also at B.E. 1116-1117 he said:
. . .  If you find and believe beyond a reasonable doubt that 

the said defendants unlawfully, wilfully, knowingly, deliber-



26

urging this as a denial of due process was overruled (E. 
42-43).

The action of the trial judge in twice instructing the 
jury that they could convict petitioners upon a charge not 
made or even capable of being made, clearly violated peti­
tioners’ rights to due process of law. In Stromberg v. 
California, 283 U. S. 359, a conviction based on a general 
verdict under a state statute was set aside because one 
part of a statute submitted to the jury was unconstitu­
tional. In Terminiello v. Chicago, 337 U. S. 1, the court in 
instructing the jury about a city ordinance did so with a 
theory which permitted conviction on an unconstitutional 
basis.

Here, the statute which petitioners were alleged to have 
violated is not even a statute under which one may be 
criminally punished. Moreover, petitioners were never 
charged with its violation. In DeJonge v. Oregon, 299 TJ. S. 
353, 362, this court said: “ Conviction upon a charge not 
made would be sheer denial of due process.”

The Supreme Court of Tennessee attempted to explain 
away the manifest error of the trial judge by correctly 
characterizing Section 62-710 as a civil statute abrogating 
the common law, but this in no sense can be taken as a

ately, and intentionally did unite, combine, conspire, agree and 
confederate between and among themselves, to violate Ten­
nessee Code Section 39-1101-(7) and Code Sections 62-710 and 
62-711, and unlawfully to commit acts injurious to the res­
taurant business, trade and commerce of Burrus and Webber 
Cafeteria, Inc., a corporation, located at 226 6th Avenue 
North, Nashville, Davidson County, Tennessee, as charged in 
the presentment, then it would be your duty to convict the 
defendants; provided, that they, or one of them, did, in pur­
suance of said agreement, or conspiracy, do some overt act 
to effect the object of the agreement; that is, if you find that 
said agreements and acts in the furtherance of said objective 
were done in Davidson County, Tennessee.



27

cure of the fundamental evil involved here. By interject­
ing provisions of law which not only confused the jury, 
and which may have provided a basis for conviction not 
present in Section 39-1101(7) and Section 62-711, the con­
duct of the trial judge placed petitioners in jeopardy of 
conviction upon a charge never made, under a law incapa­
ble of sustaining a conviction, and for conduct not even 
made criminal by state law. The Tennessee Supreme Court 
acknowledged that this was error, but deemed it harmless 
(App. 9a). The Court’s description of what occurred, 
focused merely on the fact that the trial judge read §62-710 
to the jury. But petitioners’ objection was that the judge 
twice told the jury that they were charged with violating 
§62-710, when this was not the case. Obviously this incor­
rect instruction about what was charged may well have 
affected the verdict and cannot be regarded as harmless. 
Indeed it is difficult to conceive any more harmful instruc­
tion than an incorrect statement of the crime charged.

The State Supreme Court’s statement that “ there were 
no questions raised following the charge about the pro­
priety of reading it [§62-710]” misses the mark on several 
counts. First, the petitioners sought and were refused an 
instruction contrary to the one given to the effect that not­
withstanding §62-710, the restaurant had no right to ex­
clude them (B.E. 1126). Secondly, they did object, by mo­
tion for new trial to the reading of this statute (R. 42-43). 
Thirdly, they also objected, on due process grounds, to the 
trial judge’s misstatement of the offense charged, in the 
motion for new trial (R. 43). Finally, there is nothing in 
the opinion below to indicate that this objection came too 
late. The stated ground of decision below was “harmless 
error” and not any theory that the objection was not timely. 
In any event there were no objections made to the instruc­
tions given in Stromberg and Terminiello, supra.



V.

Petitioners Were Denied a Fair and Impartially Con­
stituted Jury Contrary to Due Process of Law and Equal 
Protection of the Laws Secured by the Fourteenth 
Amendment to the United States Constitution.

Almost without exception, the white veniremen, including 
some of the twelve persons who tried and convicted peti­
tioners, upon extensive examination by petitioners’ coun­
sel during voir dire, admitted a firm and life-long practice, 
custom, philosophy and belief in racial segregation. Most 
of the veniremen expressed belief that a restaurant owner 
had a right to exclude anybody, including Negroes, from 
his place of business.

Despite this fact, the trial judge in every instance over­
ruled petitioners’ challenges for good cause and held cer­
tain white jurors competent. For instance, Herbert Amick 
was held competent by the trial court over petitioners’ chal­
lenge after testifying:

Q. But you think that a business open to the public 
should be allowed to exclude Negroes?

A. If they so desire, yes.
Q. A restaurant business, then specifically,—in par­

ticular? And having that opinion where in the indict­
ment in this case charges that the B & W Cafeteria 
had had such a rule, and that these defendants went 
there and sought service, knowing that the B & W 
had such a rule and then you would start out with a 
prejudiced attitude toward these defendants?

A. Well, I would—
Q. By reason of your belief?
A. I would believe the B & W would be right in this 

case on their position.



29

Q. And yon would start—what I am saying, though 
is you would start out in this case with a prejudiced 
attitude toward the defendants, wouldn’t you!

A. In this particular case, I imagine I would (B.E. 
452-453).

Similarly, the trial court held competent other jurors, 
over petitioners’ objections for cause, who testified that 
their entire lives and all their personal associations had 
been on a segregated basis without any contact with 
Negroes on a basis of equality (B.E. 665-669, 756, 759).

In the case at bar, where the very issue to be tried was 
the right of a restaurateur to exclude persons on the basis 
of race, the trial judge’s failure to exclude these jurors 
with admittedly preconceived notions against Negroes and 
in favor of B. & W.’s practice of racial segregation, was 
highly prejudicial and denied petitioners’ right to trial by 
a fair and impartial jury.

This Court has repeatedly recognized that “ the Ameri­
can tradition of trial by jury, considered in connection 
with either criminal or civil proceedings, necessarily con­
templates an impartial jury drawn from a cross-section of 
the community.” Smith v. Texas, 311 U. S. 128, 130; 
Glasser v. United States, 315 U. S. 60, 85; Thiel v. South­
ern Pacific Co., 328 U. S. 218, 220. This Court has also rec­
ognized that racial prejudice is a valid ground for disquali­
fication of a juror, Aldridge v. United States, 283 U. S. 
308. In Aldridge it was said:

. . . [T]he question is not as to the civil privileges 
of the Negro, or as to the dominant sentiment of the 
community and the general absence of any disqualify­
ing prejudice, but as to the bias of the particular 
jurors who are to try the accused. If in fact, sharing 
the general sentiment . . . one of them was shown to



30

entertain a prejudice which would preclude his ren­
dering a fair verdict, a gross injustice would he per­
petrated in allowing him to sit (283 U. S. at 314).

It is clear that the jurors described above and declared 
competent by the trial court were incapable, by virtue of 
their segregationist beliefs, to render petitioners a fair 
and impartial verdict and that their presence as jurors 
prejudiced petitioners’ right to an unbiased trial. Such 
action denied due process as well as equal protection of 
the laws. The test established in Aldridge, supra, is more 
than met here.

CONCLUSION

Wherefore, it is respectfully submitted that the petition 
for certiorari should be granted.

Respectfully submitted,

J ack Greenberg 
J ames M. Nabrit, III 

10 Columbus Circle 
New York, New York 10019

A von N. W illiams 
Z. A lexander L ooby

McClellan-Looby Bldg. 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Petitioners



APPENDIX



APPENDIX

Davidson Criminal 

H on. J ohn L. Draper, Judge

Lester G. McK innie, Nathal W inters, J ohn R. L ewis, 
H arrison D ean, F rederick L eonard, A llen Cason, Jr., 
J ohn Jackson, J r., and F rederick Hargraves,

State of T ennessee.

For Plaintiffs in Error:

Looby & Williams 
Nashville, Tennessee

For the State:

Thomas E. Fox 
Assistant Attorney General

Opinion
The plaintiffs in error were convicted of conspiring to 

injure the business of the B & W Cafeteria by blocking 
the entrance thereto in the event they were denied entrance 
to and service in said cafeteria. The jury recommended a 
line of less than $50.00. The trial judge sentenced each of 
these defendants to ninety days in the Davidson County 
workhouse and lined each of them $50.00. An appeal was 
seasonably perfected, able briefs filed, and oral arguments 
were heard, and, after a thorough study of the record and 
applicable authorities, we now have the matter for dis­
position.



2a

The indictment alleges a violation of two sections of the 
Tennessee Code, §39-1101 (7), T. C. A., and §62-711, 
T. C. A. The pertinent part of §39-1101, T. C. A., is as 
follows:

“The crime of conspiracy may he committed by any 
two (2) or more persons conspiring: . . . (7) to com­
mit any act injurious to public health, public morals, 
trade, or commerce . . . ”

Section 62-711, T. C. A., provides, in part, that “any 
person guilty of turbulent or riotous conduct within or 
about” any hotel, inn, restaurant, etc., is subject to in­
dictment and a fine of not less than $100.00. Section 62-710, 
T. C. A., was also mentioned in the indictment and the 
trial court’s charge, but the defendants were not charged 
with violating this Section of the Code; nor could they 
have been so charged since this Section does not purport 
to define an indictable offense. It was mentioned merely 
to indicate that the B & W Cafeteria was permitted, by 
statute, to refuse admittance to any person whom it did 
not desire to serve.

There are thirteen assignments of error. They will not 
be taken up seriatim, but all of them will be treated and 
answered in the course of this opinion.

At about 12:20, P.M., Sunday, October 21, 1962, just 
after many church services had ended, and at a time when 
the patrons of the B & W Cafeteria were arriving for 
lunch, the defendants appeared at the entrance of the 
cafeteria which is located on Sixth Avenue, in the heart 
of Nashville, Tennessee. When they arrived, they were 
informed by the doorman that the cafeteria did not serve 
colored people and that they could not enter. Despite this,

Opinion



3a,

the defendants remained at the entrance to the cafeteria 
and insisted that, “We are coming in and are going to 
eat when we git in.”

The defendants were asked in a polite way to move 
along and to refrain from making any trouble. At this 
time, they had entered a vestibule to the cafeteria, the 
size of which is estimated as being from four feet by four 
feet to six feet by six feet and four inches. The defendants 
were in the vestibule, but were not permitted to enter the 
main part of the restaurant. After the defendants refused 
to remove themselves from the vestibule and after the acts 
hereinafter set forth had been committed, the police were 
called and they escorted the defendants away.

In considering the evidence hereinafter briefly summa­
rized, we must remember that, in this State, fact deter­
minations and reasonable inferences to be drawn therefrom 
are for the trier of facts, in this case the jury. On a review 
of a judgment of conviction, if there is material evidence 
to support the judgment, the defendants are presumed to 
be guilty and this Court will not reconsider the question 
of whether or not the evidence shows that they are guilty 
beyond a reasonable doubt; but will consider only the 
question of whether the evidence preponderates against 
their guilt and in favor of their innocence. Smith and 
Reynolds v. State, 205 Tenn., 502, 327 S. W. 2d, 308 (1959), 
certiorari denied by the Supreme Court of the United 
States, 361 U. S., 930, 80 S. Ct,, 372, 4 L. Ed. 2d, 354 
(1960).

The record clearly shows that these defendants physi­
cally blocked the entrance to the B & W Cafeteria by 
placing themselves in this small vestibule so as to prevent 
people from entering or leaving; and that entrance to and 
exit from the restaurant was not possible without squeezing

Opinion



4a

and worming through the wall of flesh created by the 
defendants’ presence and position. The evidence likewise 
shows that in blocking this entrance, the defendants were 
pushing and shoving to some extent in an effort to enter 
this restaurant, but were prevented from doing so because 
the doorman kept the inner door closed to them. For 
example, one of the State’s witnesses testified about the 
situation as follows:

“ Well, it was still blocked and people inside couldn’t 
get out. And you could see the crowd outside—wasn’t 
coming in. And it just seemed like an awfully long 
time till the—under the circumstances—it wasn’t too 
long—while that state of confusion existed. . . . ”

A number of other witnesses testified to this state of 
facts and as to things they heard while they were trying 
to get in or out of the restaurant. Probably under the 
record, one or two white people did squeeze their way 
either in or out while all of this was going on, but never­
theless these defendants refused to vacate the vestibule 
until they were peacefully escorted away by the police. 
The record clearly shows that after the vestibule was 
cleared, the people inside the restaurant were able to go 
out and the people outside the restaurant were able to 
enter. There is also proof that there were as many as 
seventy-five people on the outside attempting or wanting 
to get in while these defendants were in the vestibule.

Section 39-1101, T. C. A., makes it a misdemeanor for 
two or more persons to conspire to do an unlawful act. 
In order for the offense to be indictable, it must be com­
mitted mcmu forti—in a manner which amounts to a breach 
of the peace or in a manner which would necessarily lead

Opinion



5a

to a breach of the peace. The charge here, as it is clearly 
set forth in the indictment, is that the defendants crowded 
into this small vestibule and through their actions, as de­
tailed above, committed an act injurious to trade and com­
merce. When two or more persons conspire to commit 
an act such as this, §39-1101, T. C. A., provides that they 
shall be guilty of a conspiracy. Section 62-711, T. C. A., 
in part provides that when a person is guilty of turbulent 
or riotous conduct within or about restaurants, hotels, etc., 
he may be indicted and fined not less than $100.00. One 
of the questions raised by the defendants is whether the 
indictment in this case sufficiently describes the offense to 
meet the requirements of §40-1802, T. C. A., which provides 
that the indictment must state the facts in ordinary and 
concise language so as to enable a person of common un­
derstanding to know what was intended, etc. Clearly, the 
indictment in this case, which consists of over a legal page 
in 10 point type, informs each of the defendants of the 
conduct for which he has been indicted, and the statutes 
which the State contends that such conduct has violated.

The defendants through various motions and throughout 
the trial attempted to say that this prosecution was brought 
for the purpose of enforcing a rule of segregation or racial 
exclusion in facilities licensed by the State, open to the 
public, and vested with public interest; and that such a 
prosecution is contrary to the due process and equal pro­
tection clauses of the 14th Amendment to the Constitution 
of the United States. From a very careful examination 
and reading of the record, the indictment, and the charge 
of the court, we certainly feel that such questions are 
not determinative of this prosecution. We can assume for 
the sake of argument that discrimination based on race 
by a facility such as this cafeteria does violate the due

Opinion



6a

process and equal protection clauses, but these questions 
are not presented here. A  careful reading of this record 
shows that the only question is whether or not these de­
fendants were attempting, in an illegal manner, to correct 
what they deemed to be an unconstitutional practice on the 
part of this cafeteria; and, if the method which these de­
fendants adopted was illegal, whether it constitutes a mis­
demeanor under the Sections of the Code under which they 
were indicted.

This Court long ago in State v. Lasaler, 68 Tenn., 584 
(1877), held that an indictment under §62-711, T. C. A., 
was good and that the act was constitutional. In that case, 
a judgment quashing the indictment was reversed where 
the indictment alleged that the defendant had been guilty 
of turbulent and riotous conduct within and about a hotel 
by quarreling, committing assaults and batteries, breaches 
of the peace, loud noises, and trespass upon a hotel. It 
seems to us that there is sufficient proof in the instant case, 
which the jury apparently believed, to warrant the con­
viction under this Section. The word “ riotous” is defined 
by Webster’s New World Dictionary as “having the nature 
of a riot or disturbance of the peace.” The conduct of the 
defendants certainly meets this definition. Nowhere in this 
record is it insisted that there was not a prior agreement 
to engage in such conduct if entrance to this restaurant 
was denied. In Smith and Reynolds v. State, supra, this 
Court had occasion to define a criminal conspiracy. This 
definition seems to meet the situation here. We likewise 
held in the Smith and Reynolds case that a conspiracy 
may be inferred from the nature of the acts done, the 
relation of the parties, the interest of the alleged con­
spirators, and other circumstances; and that such a 
conspiracy consists of a combination between two or more

Opinion



Opinion

persons for the purpose of accomplishing a criminal or 
unlawful act, or an object, which although not criminal 
or unlawful in itself, is pursued by unlawful means, or the 
combination of two or more persons to do something un­
lawful, either as a means or as an ultimate end. While 
the request for admittance by the defendants was not crim­
inal in the first instance, and while for the sake of argu­
ment, we may even assume that they had a right to go on 
the premises of the restaurant, the method they employed 
to effect their admittance was clearly unlawful.

It is very earnestly and ably argued by counsel for the 
defendants that to prevent the defendants from acting as 
alleged in the indictment would constitute a denial of 
freedom of speech in contravention of the 1st Amendment 
to the Federal Constitution as made applicable to the 
States through the 14th Amendment. Of course, in this 
country, a person has a right to speak freely and a denial 
of this right offends our heritage of freedom. The indi­
vidual must feel free to speak his mind; the press must 
be free to publish its opinion; and the movies must be 
free to express their views. There are literally hundreds 
of different agencies to whom freedom of expression is 
guaranteed. But around such freedoms there must be cer­
tain safeguards for the protection of society and when 
these safeguards are violated, the violator is subject to 
civil or criminal sanctions or both. Thus one cannot be 
allowed to recklessly shout “ fire” in a crowded theatre. 
In crowding into this narrow vestibule and effectively 
blocking the entrance to this restaurant, the defendants 
interfered with the right of other individuals to come and 
go in the furtherance of trade and commerce and in so 
doing they violated the Sections of the Code hereinbefore 
set forth. See Feiner v. New York, 340 IT. S., 315, 71 S. Ct., 
303, 95 L. Ed., 295 (1951).



8a

Had this been a labor dispute, the actions of the de­
fendants would clearly be beyond that of peaceful picket­
ing, which does not include in its definition any form of 
physical obstruction or interference with business. It is 
well established that labor has the right to peacefully 
picket and thereby express its views on the subjects in­
volved in a labor dispute. But the picketing must be 
peaceful. When it goes beyond the peaceful stage and 
involves force, violence, threats, terror, intimidation, coer­
cion and other things of like kind, it cannot be tolerated 
and those persons guilty of such acts are subject to state 
and federal laws. By analogy, if the conduct of the defen­
dants here transcended the bounds of peaceful picketing, 
they would, under the evidence in this record, be guilty of 
acts injurious to trade. We think that their conduct clearly 
goes beyond the bounds of peaceful demonstration and 
picketing.

It is very forcefully insisted that the two Sections of 
the Code under which this indictment was laid should have 
been declared unconstitutional because they do not clearly 
and sufficiently define the offense charged against the de­
fendants. In all the years that these Code Sections have 
been the law in this State, this question has not been 
raised as far as we can determine. As far as we know, 
there is no criminal statute which describes every specific 
kind of violation that might be indictable under it; but 
so long as the statute generally states, as these statutes 
do, what is prohibited, their constitutionality cannot be 
challenged for indefiniteness. We think that the statutes 
now under consideration clearly set forth the offense in­
tended and that the indictment framed thereunder clearly 
sets forth the way in which these defendants allegedly 
violated their provisions.

Opinion



9a

In Ms charge to the jury, the trial judge (page 1109 of 
the transcript) told the jury that the presentment charged 
the defendants with the offense of an unlawful conspiracy 
to commit acts injurious to the B & W ’s business in vio­
lation of Code Sections 39-1101 (7), T. C. A., and 62-711, 
T. C. A. Following this, he read these various sections 
of the code to the jury, including §62-710, T. C. A., and 
then on the following page of his charge, he set forth the 
provisions of §62-710 once again. It is argued in behalf 
of these defendants that the charging and reading of 
§62-710, T. C. A., which does not purport to define a crim­
inal offense, but is instead a civil statute, was error. A 
careful reading of the indictment and the whole charge 
shows that the only purpose in referring to this statute 
was to indicate that this restaurant was being operated 
for white people only by authority of this section. There 
were no questions raised following the charge about the 
propriety of reading it and we do not see how reference 
to a civil statute such as this, although error, could affect 
the jury’s verdict, since there was ample evidence to con­
vict the defendants of the offense defined in the other sec­
tions of the code charged.

It would not have been an unlawful conspiracy for the 
defendants to agree to seek entry into this cafeteria for the 
purpose of being served food coupled with an overt act 
in furtherance of this agreement; but any agreement to 
obstruct the entrance of a place of business and thus injure 
their business does constitute an unlawful conspiracy.

Among other requested special instructions was one to 
the effect that the State had abandoned the portion of the 
indictment charging a conspiracy to violate §62-711, 
T. C. A. We think that this special instruction was prop­
erly refused by the trial court because the whole case is 
built upon the theory that the defendants’ actions in ob­

Opinion



10a

structing this passageway was the overt act committed 
in furtherance of this conspiracy.

Another requested instruction was to the effect that the 
cafeteria had no legal right to refuse to serve a person 
because of his race or color. As we have heretofore said, 
this question is not the issue in this case, and was not 
the basis of the indictment and conviction. Even if we 
assume that the owner of the cafeteria had no right to 
exclude these defendants, this does not excuse their conduct 
in blocking this narrow passageway. As citizens, we are 
not permitted to take the law in our own hands and cor­
rect what we consider to be wrongs, except in the abatement 
of a private nuisance and then we can act only when we 
can do so without committing a breach of the peace. When 
we thus commit a breach of the peace by attempting to 
assert our rights, we are liable under the law for this 
breach of peace. “ Two wrongs do not make a right.”

The cross-examination of the witnesses for the State by 
counsel for the defendants pitches their case on the propo­
sition that if the restaurant people hadn’t prevented their 
entrance they would not have blocked the door. This, of 
course, is an excellent argument to the jury; but at the 
same time even assuming that the restaurant people had 
no right to exclude these people from their premises, this 
does not permit these defendants to block this passageway.

It is argued and several volumes of this large record 
are taken up with the proposition that the jury was com­
posed only of white persons whose “personal practice, 
custom, philosophy, and belief in complete racial segre­
gation in virtually all aspects of their social existence” 
thus disqualified them to act as jurors in this case. The 
jurors on voir dire were questioned and cross-examined 
by counsel for both sides and by the court. See Smith

Opinion



11a

and Reynolds v. State, supra. Those who were accepted 
stated that even though they might have the social belief 
set forth in the above quotation from defendants’ counsel, 
they could exclude this for the purpose of trying these 
defendants and could decide the case on the basis of the 
evidence and the law charged to them by the court. As 
we have said a number of times herein, this is not a case 
of racial segregation but is rather a prosecution for a 
conspiracy to obstruct trade. There were a number of 
Negro jurors examined but all of them were excused for 
one reason or another and no Negro was on the jury ; but 
there is no constitutional requirement that a trial be by 
a mixed racial jury. If there has been no illegal exclusion 
of these people from a jury, regardless of their color, 
then there is no constitutional violation of the rights of 
the parties. As we said in Kennedy v. Stale, 186 Tenn., 
310, 210 S. W. 2d, 132 (1947):

“It should be borne in mind that members of the 
Negro race have no constitutional right to trial by a 
mixed racial jury. All that they have is a right that 
their race shall not be discriminated against in the 
selection and drawing of grand juries.”

No such discrimination is shown in this case.
Finally it is insisted that the judgment of the court was 

inconsistent with the verdict of the jury. The jury found 
each of the defendants guilty and agreed upon a fine of 
less than $50.00, but did not fix any amount. The trial 
judge charged the jury that if they did find the defen­
dants guilty under §39-1101, T. C. A., they could impose 
punishment of imprisonment in the county jail or work- 
house for not more than one (1) year and a fine not ex­
ceeding $1,000.00 or both, as provided by the statute. He

Opinion



12a

then went on to charge the jury, after reading the statute, 
that if they convicted these defendants “ and believe that 
a fine of $50.00 or less would be sufficient punishment, 
then all you need to say in your verdict is that you find 
the defendant, or defendants, guilty, and the court will fix 
the punishment.” All the jury was trying to do in its 
verdict was to state that they found the defendants guilty 
and fixed a fine at less than $50.00 according to the charge 
of the court. By Article 6, Section 14 of the Tennessee 
Constitution, no fine in excess of $50.00 may be fixed except 
by a jury. Section 40-2525, T. C. A., contains the same 
provision. Thus all the trial judge was doing was trying 
to comply with this constitutional and statutory provision. 
The trial judge had the right and discretion to levy a 
fine, if the jury found them guilty, up to $50.00 and to 
attach a workhouse sentence, if, in his discretion, he thought 
the facts merited such punishment. Clearly, he has not 
abused this discretion in doing what he did here. If the 
defendants had wanted the jury to fix the fine and impris­
onment, if the jury found them guilty, all they had to do 
at the beginning of the trial was to make the proper re­
quest, as provided by §40-2704, T. C. A., that this be done, 
and if such had been done then the trial judge would have 
had no authority to fix this fine and imprisonment as he 
did. Under the situation here, the fine and imprisonment 
which he levied were clearly in accordance with his right 
and duty.

Counsel for the defendants in his able brief argues that 
Peterson v. City of Greenville, 83 S. Ct., 1119 (1963) and 
Lombard v. State of Louisiana, 83 S. Ct., 1122 (1963) are 
applicable. These two cases are distinguishable from the 
instant case. The trespass complained of in the Peterson 
and Lombard cases was the act of sitting on a stool at

Opinion



13a

a lunch counter. This is basically an innocent and unof­
fensive act. It was only unlawful, in the eyes of the city 
and state concerned, because of a city ordinance in the 
Peterson case and an executive directive in the Lombard 
case, both of which required segregation of the races in 
public facilities. But absent the governmental mandate 
and the color of the defendants’ skin in those two cases, 
and the act is basically unoffensive and innocent. This is 
not so in the instant case. Stripped of any question of 
race and discrimination, the act complained of is still un­
lawful. In the instant case, if these eight defendants had 
been white boys, their acts would still have been unlawful. 
We cannot escape from the fact that these eight defendants 
were blocking the entrance to the doorway of the B & W 
Cafeteria. Regardless of who they were and why they 
were blocking the doorway, their conduct is still basically 
unlawful.

In the instant case, we are presented with the timely 
question of how far a person can go to secure his consti­
tutional rights. Now it seems clear that a person cannot 
commit an assault on another to gain these rights. It 
seems equally clear that one cannot damage the property 
of another with impunity because the other has committed 
an act of racial discrimination against him. We think that 
it is also clear that these eight defendants cannot inter­
fere with the B & W’s trade by blocking the latter’s door­
way in order to redress the wrong that they feel the 
cafeteria has visited upon them. The securing of constitu­
tional rights must be done in a lawful manner.

As a result of what we have said herein, the convictions 
must be affirmed.

Opinion

/ s /  H amilton S. B ubnett 
Hamilton S. Burnett, 
Chief Justice.



14a

Judgment

SUPREME COURT 
Nashville

Davidson Criminal

L ester G. M cK innie, Nathal W inters, John R. L ewis, 
Harrison Dean, F rederick L eonard, A llen Cason, Jr., 
J ohn Jackson, Jr., and F rederick Hargraves,

—vs.—

State oe T ennessee.

Affirmed.
Came the plaintiffs in error by counsel, and also came 

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

It is therefore ordered and adjudged by the Court that 
the State of Tennessee recover of Lester G. McKinnie, 
Nathal Winters, John R. Lewis, Harrison Dean, Frederick 
Leonard, Allen Cason, Jr., John Jackson, Jr., and Frederick 
Hargraves, the plaintiffs in error, for the use of the County 
of Davidson the sum of $50.00, each, the fine assessed 
against each of them in the Court below, together with 
the costs of the cause accrued in this Court and in the Court 
below, and execution may issue from this Court for the cost 
of the appeal.

It is further ordered by the Court that each of the plain­
tiffs in error be confined in the County Jail or Workhouse 
of Davidson County, subject to the lawful rules and regu-



15a

Judgment

lations thereof, for a term of ninety days; and that after 
expiration of the aforesaid term of imprisonment, they 
remain in the custody of the Sheriff of Davidson County 
until said fines and costs are paid, secured or worked out as 
required by law, and this cause is remanded to the Criminal 
Court of Davidson County, for the execution of this judg­
ment.

The Clerk of this Court will issue duly certified copies 
of this judgment to the Sheriff and the Workhouse Commis­
sioner of Davidson County to the end that this judgment 
may be executed.

1/8/64.



16a

Davidson Criminal

O pin ion  on  Petition to Rehear

L ester G. M cK innie, et al.,

State or T ennessee.

The plaintiffs in error through able counsel have filed 
herein a courteous and dignified petition to rehear. After 
very carefully considering this petition and the brief in 
support thereof, we must conclude that it is nothing more 
than a reargument of the questions presented at the time 
this case was originally heard.

One additional authority is cited, State of Delaware v. 
Brown, 195 A. 2d, 379. This Delaware case is in no wise in 
point herein. The same reasons that we assigned as to why 
Peterson v. City of Greenville and Lombard v. State of 
Louisiana were not in point are applicable to the Brown 
case. In the Brown case, Brown, a Negro, entered the prem­
ises of a restaurant and requested service of food. The 
proprietor denied him service solely because of his race, 
and, upon his refusal to leave, obtained a warrant for his 
arrest for violation of the criminal trespass statute of 
Delaware. That is not the question here.

Basically and essentially the whole argument made origi­
nally, and now made, is based upon the philosophy and legal 
reasoning which summed up may be stated thus: in so 
long as our motives are right we can pursue any means 
(even though illegal and unlawful) we may choose to ac­
complish those motives. The authorities cited by the plain­
tiffs in error all go to the proposition that the motives of



17a

Opinion on Petition to Rehear

these plaintiffs in error were lawful. There is no authority, 
nor so far as we know can any be found, whereby one may 
resort to unlawful and illegal means to accomplish lawful 
motives.

After thoroughly considering this petition to rehear and 
the matter again, we are convinced that the means em­
ployed by these plaintiffs in error to accomplish their mo­
tives were illegal and unlawful, and it is for this alone 
that they are convicted. Under the factual situation of this 
case by their using these illegal and unlawful means they 
have thus violated fundamental law and are guilty. The 
verdict against them for reasons set forth in our original 
opinion must be sustained. The petition to rehear is ac­
cordingly overruled.

/ s /  H amilton S. B urnett 
Hamilton S. Burnett, 
Chief Justice.



18a

Petition to Rehear Denied

SUPREME COURT 
Nashville 

Davidson Criminal

L ester G. McK innie, et al., 
—vs.—

State of T ennessee.

P etition to R ehear D enied

This cause coming on further to be heard on a petition 
to rehear and reply thereto, upon consideration of all of 
which and the Court finding no merit in the petition, it is 
denied at the cost of the petitioner. 3/5/64.



38