McKinnie v. Tennessee Reply Brief for Petitioners

    I n the

?tt|irente (ta rt ii! %  United States
October Term, 1964 

No. 148

Lester G. McK innie, et al.,

—v.-
Petitioners,

Tennessee.

ON W RIT OP CERTIORARI TO THE SUPREME COURT OP THE 
STATE OP TENNESSEE

REPLY BRIEF FOR PETITIONERS

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 Building 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Petitioners

Charles L. Black, Jr. 
Charles Stephen R alston

Of Counsel



I N D E X

Argument ...........—.... - ..... -..........................-..........-.........  1

I. The Civil Eights Act of 1964 Abates These 
Prosecutions ...........................................................  1

PAGE

II. Petitioners’ Convictions Were an Enforcement 
of Racial Discrimination by State Action in Vio­
lation of the Fourteenth Amendment..................  8

III. Petitioners Were Convicted on a Record Con­
taining No Evidence of Guilt Contrary to 
Thompson v. Louisville, 362 U. S. 199 ..............  10

IV. Petitioners Were Substantially Prejudiced by 
the Trial Judge’s Erroneous Instructions to the 
Jury Concerning §62-710 of the Tennessee Code 11

V. Petitioners Were Denied Due Process Because 
the Appellate Review of Their Convictions Did 
Not Conform to the Rule of Cole v. Arkansas,
333 IT. S. 196 ........................................................  14

VI. Petitioners Were Denied Due Process Because 
the Jury Which Convicted Was Not Impartial 
or Indifferent on a Central Matter Presented 
to the Jury ...........................................................  17

T able of Cases

Arterburn v. State, 208 Tenn. 141, 344 S. W. 2d 362 
(1961) ............................................................................ 13



Bell v. Maryland, 378 U. S. 226 ................................... 16
Blackburn v. Alabama, 361 U. S. 199 ............................... 4
Blow v. North Carolina, -——- U. S. L. Week ------ (Feb.

1, 1965) ........... ....... ................ -...... -.............................  1
Burgess v. State, ------ Tenn. ------ , 369 S. W. 2d 731

(1963) ........................... -...............................................  13

Civil Bights Cases, 109 U. S. 3 ................................... 9
Cole v. Arkansas, 333 U. S. 196 ........................14,15,16,17
Crawford v. State, 197 Tenn. 411, 273 S. W. 2d 689 

(1954) .......... .............................................................. 13

DeJonge v. Oregon, 299 IT. S. 353 ...................................  15

Edwards v. South Carolina, 372 U. S. 229 ..................  4

Fox v. North Carolina, 378 U. S. 587 ......................... 8,10

Garner v. Louisiana, 368 U. S. 157 .............. .......—.7,14,16

Hamm v. City of Bock Hill, 379 U. S. 306 .............. 1, 2, 4, 6,
17,18

Hormel v. Helvering, 312 U. S. 551 ................................ 14,15

Irvin v. Dowd, 366 U. S. 717   ............................. 18,19

King v. State, 83 Tenn. 51 (1885) ..............................  13

Lombard v. Louisiana, 373 IT. S. 267 ......................... 8,16

Meredith v. Fair, 305 F. 2d 343 (5th Cir. 1962) ..........  3
Meredith v. Fair, 298 F. 2d 696 (5th Cir. 1962) ..........  3

Palmer v. Hoffman, 318 IT. S. 109 .................................  12
Pennekamp v. Florida, 328 U. S. 331 .................   4

ii

PAGE



Peterson v. City of Greenville, 373 U. S. 244 ..............8,10
Potter v. State, 85 Tenn. 88, 1 S. W. 614 (1886) ....... 13
Powers v. State, 117 Tenn. 363, 97 S. W. 815 (1906) .. 13

Robinson v. Florida, 378 U. S. 153 ........................8,10,16
Russell v. United States, 369 U. S. 749 ........................ 16

Shuttlesworth v. City of Birmingham, 376 U. S. 339 ....14,16
State v. Lasater, 68 Tenn. 584 (1877) ..................3, 9,10,11
Stirone v. United States, 361 U. S. 212 ...................... 17
Stromberg v. California, 283 U. S. 359 ......................12,14

Terminiello v. Chicago, 337 U. S. 1 .................................  14
Thompson v. Louisville, 362 U. S. 199 .......................... 10
Turner v. Memphis, 369 U. S. 350 .................................9,10

Williams v. Georgia, 349 U. S. 375 .................................13,14
Wright v. Georgia, 373 U. S. 284 .................................7,11

F ederal, Statutes

Civil Rights Act of 1875, 18 Stat. 335 .........................  4
Civil Rights Act of 1964, Title II, 78 Stat. 241 ....1, 2, 4, 6, 8

State Statutes

Tenn. Code Ann. §39-1101(7) ........................................  7
Tenn. Code Ann. §53-2120 .......................... ...................  9
Tenn. Code Ann. §62-710 ............................. 3, 7, 8,11,12,17
Tenn. Code Ann. §62-711 ............................................ 3, 9,10
Tenn. Code Ann. §62-715 ................................................ 9
Chapter 130, Acts of Tennessee, 39th General As­

sembly, 1875

I l l

PAGE

4



XV

Regulation No. R-18(L) of the Division of Hotel and 
Restaurant Inspection of the State Department of 
Conservation .................................................................  9

Other A uthority

110 Cong. Rec. 9463, daily ed., May 1, 1964 ................  6

PAGE



1st the

0uprm£ Court 0! tip Httitrft States
October Term, 1964 

No. 148

L e s t e r  GL McK innie, et al.,
Petitioners,

— v.—

T ennessee.

ON W RIT OF CERTIORARI TO THE SUPREME COURT OF THE 
STATE OF TENNESSEE

REPLY BRIEF FOR PETITIONERS

On December 14, 1964, after petitioners’ brief was filed, 
this Court decided Hamm v. City of Rock Hill, 379 U. S. 
306. The purpose of this reply brief is to discuss the ap­
plicability of that decision, and to reply to arguments made 
by the Respondent.

I.

The Civil Rights Act of 1964 Abates These Prosecutions.

After certiorari was granted in this case,1 and after peti­
tioners’ brief was filed, this Court held in three cases that 
the Civil Rights Act of 1964, Title II, requires that convic­
tions in pending prosecutions similar to this one be vacated 
and the indictments dismissed. Hamm v. City of Rock Hill 
(and Lupper v. Arkansas), 379 U. S. 306; Bloiv v. North 
Carolina,------U. S. L. W eek-------  (Feb. 1, 1965). These

1 379 U. S. 811, October 12,1964.



2

decisions rested on the ancient common law doctrine of 
abatement, and on the language and purposes of the Act, 
including particularly §203(c).2 We respectfully submit 
that notwithstanding the fact that these decisions were 
not unanimous (see dissenting opinions in Hamm, 379 U. S. 
at 318, et seq.), the holding of the Court with respect to 
the meaning and effect of this important act of Congress 
should now be accepted as stare decisis. Tennessee has not 
challenged the basic ruling of Hamm, supra, but has at­
tempted to show that this case is different (State’s Brief, 
pp. 5-8).

We contend that the State’s attempted distinctions fail, 
and that a holding distinguishing Hamm on the grounds 
suggested on this record would substantially undermine the 
effectiveness of the Civil Rights Act as applied to criminal 
convictions for acts done before and since passage of the 
Act.

First, it should be noted that Tennessee has not argued 
that the B & W Cafeteria is not a place of public accommo­
dation covered by the Act. It assumes the contrary (State’s 
Brief, p. 5), as South Carolina and Arkansas did in the 
Hamm case (379 U. S. at 309-310).3

2 §203(c) provides:
“No person shall . . .  (c) punish or attempt to punish any 

person for exercising or attempting to exercise any right or 
privilege secured by Section 201 or 202.”

See also §§201 (b) (2) and (c) (2) of the Civil Rights Act of 1964.
3 The correctness of this assumption is clear, since it is uncontra­

dicted that the cafeteria was open to the general public (R. 94), 
and hence “offers to serve interstate travelers.” Section 201(c) (8)', ' 
Civil Rights Act of 1964. The indictment alleged that the B & W 
Cafeteria Inc., was “ a restaurant and cafeteria, elaborately fur­
nished and equipped, . . .  in the heart of the business, commercial 
and uptown district of Nashville, Tennessee, . . . with a large 
seating capacity for customers . . . [and a] reputation as serving



3

Second, it is undisputed that petitioners sought and were 
denied enjoyment of the goods and services of the cafeteria 
solely because of their race; the cafe manager (among 
others) flatly testified to this (R. 94-95). The State’s pres­
ent assertions that this is not a case involving racial dis­
crimination are so patently contrary to the evidence, the 
indictment, the State’s own theory at trial, and the pro­
ceedings at every stage of the trial as to be unworthy of 
serious consideration.4 Time and again states have made 
such arguments to this and other courts, but only rarely 
has it been attempted on a record so permeated with the 
race question from first page to last on the State’s own 
theory of the trial.5 The claim is all the more bizarre 
in this case where the law used to convict petitioners was 
admitted candidly by a contemporary Tennessee Supreme 
Court to have been “an extraordinary statute” “passed to 
avoid the supposed effects of an act of Congress on the same 
subject, known as the civil rights bill” of 1875. State v. 
Lasater, 68 Tenn. 584, 585 (1877).6

fine foods and which said cafeteria daily served hundreds of white 
patrons, customers and clientele (R. 2). The manager testified 
that “ adjacent and nearby” businesses were a jewelry store, a 
furrier, the Eastern Airlines office, the Cross Keys Restaurant 
and the Hermitage Hotel (R. 89) ; and that the capacity is 450 
customers (R. 88).

4 See, for example, R. 1-5.
5 In a celebrated case where the pretense of racial neutrality 

was maintained from the start, Judge Wisdom of the Fifth Circuit 
wrote that it “was tried below and argued here in the eerie at­
mosphere of never-never land.” Meredith v. Fair, 298 F. 2d 696, 
701 (5th Cir. 1962) ; see also, Meredith v. Fair, 305 F. 2d 343, 345 
(5th Cir. 1962).

6 The indictment charged petitioners, among other things, with 
a conspiracy to violate Term. Code Section 62-711. It also men­
tioned Section 62-710. Petitioners argue (see Part IV, infra) that 
the jury was erroneously instructed that they were charged with 
violating this law as well. Sections 62-710 and 62-711, respectively, 
were originally sections 1 and 2 of the Act which may be found



4

Thirdly, in conjunction with the new posture of racial 
neutrality, the State argues that the Hamm case is inap­
plicable because, it is asserted, petitioners did not behave 
in a “ peaceful manner” and their conduct is unlawful with­
out regard to the race issue (State’s Brief, p. 5). There 
are multiple answers to this contention. They may be sum­
marized by stating that the record and a reasonable con­
struction of the Civil Bights Act of 1964 do not support the 
assertion, and that in any event, considering the accusation, 
jury instructions and evidence, the jury’s general verdict 
does not necessarily, or even probably, indicate that the 
jury believed that petitioners were not “peaceful.”

We submit that the record demonstrates that the conduct 
of petitioners was within the statement in Hamm v. City 
of Hock Hill, 379 U. S. 306, 311, that “nonforcible attempts 
to gain admittance to or remain in establishments covered 
by the Act, are immunized from prosecution.” Needless to 
say, this Court is not bound by the State Supreme Court’s 
characterizations of the facts or prevented from making its 
own “ independent examination of the whole record” in de­
ciding the federal claim. Edwards v. South Carolina, 372 
U. S. 229, 235; Blackburn v. Alabama, 361 U. S. 199; Penne- 
kamp v. Florida, 328 U. S. 331, 336.

Such an examination shows clearly the following. Peti­
tioners sought entry to the B & W  Cafeteria on October 21, 
1962. They attempted to go into the cafeteria, but were 
prevented from doing so because the doorman blocked en­

in Acts of Term., 39th Gen. Assembly, 1875, Ch. 130, pp. 216-217 
(passed March 23, 1875; approved March 24, 1875). There have 
been only minor changes since the original enactment: (a) the 
parenthetical phrase— “ (except railways, street, interurban and 
commercial)”— was added to section 1; (b) minor stylistic changes 
in both sections.

The Act was an immediate response to the federal Civil Rights 
Act of 1875 which was approved March 1, 1875 (18 Stat. 335).



5

trance through the inner doors of the vestibule (R. 271, 100- 
101, 228-229). Clearly they would have gone in and obtained 
service if they had been allowed to do so (R. 94, 100-101, 
289-290).7 The record is completely devoid of any evidence 
that petitioners had planned, or wished, to block the en­
trance. Therefore, this case is certainly not one of a de­
liberate obstruction of an entry way in order to disrupt 
business. Any obstruction or inconvenience to white cus­
tomers was incidental to their unsuccessful demand for 
service.

Indeed, all the evidence supports the conclusion that the 
real cause of the obstruction of the doorway was the door­
man’s refusal to allow petitioners to move out of the vesti­
bule and into the cafeteria (R. 100-101, 165, 228-229). Peti­
tioners allowed numerous customers to pass by them, 
conduct not compatible with a deliberate scheme to in­
terfere with the B & W ’s business (R. 91-93, 109, 164). 
Even the evidence that petitioners were “pushing and shov­
ing” (R. 168, 169, 214, 278-280) is explained largely by 
testimony that this was caused in part by white patrons 
coming through the crowded vestibule (R. 175-177, 279-280). 
There was nothing more than the casual jostling normally 
encountered in crowded public places. Petitioners could 
have forced entry if they had wished, considering the age 
and size of the doorman (see Petitioners’ Brief, p. 6), but 
as the doorman admitted, they did not try “ to fight their 
way in” (R. 228). It would be hard to think of an example 
of a non-forcible attempt to gain entry, if this is not one. 
Petitioners standing at the door represented the only way 
open to them at the time to nonviolently request service.

7 Even the testimony of witnesses that one of petitioners said, 
“When we get there, just keep pushing. Do not stop. Just keep on 
pushing,”  indicates that they wished to go into the cafeteria, and 
did not want to prevent others from doing so (B. 210-211, 219-222).



6

If admitted they would have purchased food. The cafeteria 
employees’ conduct prevented them from ordering food.

Examining the occurrences as if they had taken place 
after enactment of the Civil Eights Act of 1964 illuminates 
the problem. The restaurant employees would obviously 
violate their duties under the Act by blocking petitioners’ 
entry. By standing in the vestibule and thus continuing to 
seek entry, petitioners, asserting rights under the Act, 
might by their presence make it more inconvenient for 
white customers to enter. But surely the policy of the 
Civil Rights Act would prevail over any incidental incon­
venience to customers coincident with and directly flowing 
from wrongful action of the restaurateur in defiance of the 
Act. We submit that this is exactly the type of situation 
Vice President (then Senator) Humphrey envisioned when 
he explained that the bill meant that “a defendant in a 
criminal trespass, breach of the peace, or other similar case 
can assert the rights created by 201 and 202 and that State 
courts must entertain defenses grounded upon these pro­
visions . . . ” (Cong. Rec., May 1, 1964, p. 9463; and see 
Hamm, supra, 379 U. S. at 311). A contrary holding would 
invite nullification of the Act by hostile prosecutors and 
fact finders. And, of course, this does not mean that the 
Act affords a shield for really violent conduct, any more 
than it was ever suggested by courts which supported the 
view that proprietors could exclude for racial reasons that 
the right of self-help excused such violence by restaura­
teurs.

However, even if the foregoing analysis is not accepted, 
that is by no means the end of the matter because in light 
of the manner in which the case was presented to the jury, 
the general verdict of guilty does not indicate that the jury 
believed that petitioners were not acting in a peaceful, non­
violent manner. (Matters pertinent to this are argued ex­



7

tensively below in connection with the arguments about the 
trial judge’s instruction to the jury and the nature of the 
indictment.) Indeed, the jury could have followed its in­
structions and nevertheless convicted if it merely believed 
that petitioners tacitly agreed to challenge the proprietor’s 
right to exclude Negroes,8 or that they tacitly agreed to 
seek service nonviolently but knowing that they ran the 
risk of being attacked by white bystanders or patrons.9 
Surely the case was never presented to the jury with in­
structions to determine merely whether petitioners used 
violent means or deliberately blocked the door to assert 
their own lawful right to enter against a proprietor who 
was lawlessly excluding them. The case was presented to

8 The judge read Section 62-710, conferring a right to exclude 
Negroes (R. 298) ; read the indictment which embraced that theory 
(R. 292-296) ; told incorrectly that the petitioners were charged 
with violating Section 62-710 on three separate occasions (R. 299, 
302, 305) ; and also told (in defining acts “ injurious” to restaurant 
trade or business as used in the conspiracy statute (§39-1101(7)) 
that injurious “ generally means in law, invasion or violation of 
legally protected interest or property right of another” (R. 300).

(Note that the court refused to give requested instructions that 
the restaurant had no right to exclude racially (R. 310). What is 
more it also deleted the key language of another requested instruc­
tion that might have made it clear that petitioners’ mere agreement 
to seek entry even though the cafeteria had a policy of refusing 
to serve Negroes was not unlawful. Compare requested instructions 
at E. 307 (deleted language in brackets) with actual instruction at 
R. 311.)

9 The indictment, which was read with approval to the jury 
during the instructions by the Court contained an allegation that 
defendants did certain acts “well knowing that their presence as 
‘sit-ins’ was likely to promote disorders, breaches of the peace, fights 
or riots by patrons, customers and clientele of such segregated 
cafeteria”  (R. 295, emphasis supplied). The indictment also as­
serted that previous sit-ins had “resulted in fights, breaches of the 
peace, disorders, brawls and riots” (R. 295). This invited convic­
tion on a theory, obviously unconstitutional under Garner v. 
Louisiana, 368 U. S. 157, and Wright v. Georgia, 373 U. S. 284, 
292, that petitioners’ acts were unlawful because they knew that 
others might attack them.



8

the jury on precisely the opposite basis, by a jury charge 
which included a reading of the indictment and Code Sec­
tion 62-710 with approval of the legal theories therein (E, 
292-296, 298, 300, 302, 305). To view the matter another 
way, and make it more than obvious, no one could reason­
ably contend that the indictment or charge to the jury were 
proper if they had taken place after passage of the Civil 
Eights Act of 1964. Any conviction after enactment of 
Title II that was based on such an accusation or such a 
jury instruction would be summarily reversed. The pre­
act conviction based on such a case falls by the same token 
because based on a general verdict arrived at by a jury 
erroneously instructed as to the law.

II.

Petitioners’ Convictions Were an Enforcement of 
Racial Discrimination by State Action in Violation of the 
Fourteenth Amendment.

The State’s brief makes no attempts to give a direct an­
swer to petitioners’ arguments based on the Fourteenth 
Amendment. However, a few additional remarks are ap­
propriate.

Tennessee has by its laws and administrative regulations 
directly encouraged and required segregation in violation 
of the principles set forth in Lombard v. Louisiana, 373 
U. S. 267; Peterson v. Greenville, 373 U. S. 244; Robinson 
v. Florida, 378 U. S. 153; and Fox v. North Carolina, 378 
U. S. 587.

First, we have mentioned above that the laws used to 
convict petitioners were passed by Tennessee in 1875 in an 
attempt to evade the Civil Eights Act of 1875 dealing with



s  etsftnf) r>

9

public accommodations.10 The judicial acknowledgment of 
this is corroborated by the fact that the Tennessee law 
paraphrased in exactly the same order the categories of 
accommodations covered by the federal act passed that same 
month.11 This was certainly an admitted state encourage­
ment of racial discrimination in restaurants, which are ex­
pressly mentioned in the act’s second section (now §62-711). 
But beyond this the State has taken administrative action 
to require segregation, as was brought to this Court’s at­
tention in Turner v. Memphis, 369 U. S. 350, 351. The 
Turner case involved Regulation No. R-18(L) of the Divi­
sion of Hotel and Restaurant Inspection of the State De­
partment of Conservation providing:

Restaurants catering to both white and negro patrons 
should be arranged so that each race is properly segre­
gated. Segregation will be considered proper where 
each race shall have separate entrances and separate 
facilities of every kind necessary to prevent patrons 
of the different races coming in contact with the other 
in entering, being served, or at any other time until 
they leave the premises.12

Violation of this regulation was a misdemeanor punish­
able by fine pursuant to Tennessee Code Section 53-2120.

; 10 See Note 6 above and accompanying text. State v. Lasater, 
68 Tenn. 584, 586 (1877).

11 This is also a repudiation of the assumption made in The Civil 
Rights Cases, that common law protected access to places of public 
accommodation, but although a Tennessee case was involved the 
law apparently passed unnoticed by the court (109 U. S. 3, 24).

After the Civil Rights Cases, supra, Tennessee grew bolder and 
explicitly declared the right to segregate in certain places of public 
accommodation. See Tenn. Code Ann. Section 62-715 (derived 
from Acts 1885, ch. 68, §4).

12 The quotation of the regulation is taken from the printed 
record in this Court in Turner v. Memphis, 369 TJ. S. 350, Oct. 
Term, 1961, No. 84, Record pp. 7, 19-20.



10

To be sure, the above-mentioned statute and regulation 
were held unconstitutional in Turner v. Memphis, 369 U. S. 
350, 353 (March 26, 1962), some 7 months before petitioners 
in this case were arrested. However, petitioners submit 
that the provisions represent such a clear and unequivocal 
state endorsement of the desirability of segregation as to 
be at least the legal equivalents of the invalid state encour­
agement of segregation in Robinson v. Florida, 378 U. S. 
153, and Fox v. North Carolina, 378 U. S. 587. Indeed, 
even the segregation ordinance involved in Peterson v. 
Greenville was clearly a nullity at the time the arrests in 
that case took place under the same precedents cited for 
invalidating the Tennessee provisions in Turner (369 U. S. 
at 353).

III.

Petitioners Were Convicted on a Record Containing No 
Evidence of Guilt Contrary to Thompson v. Louisville, 
362 U. S. 199.

It is submitted that the State has not sufficiently rebutted 
petitioners’ argument that there was no evidence sufficient 
to find them guilty of a conspiracy to violate the statutes 
mentioned in the indictment. The argument that there is 
no evidence supporting the charge that they conspired to 
obstruct the restaurant unlawfully has been detailed in the 
plaintiffs original brief and in part I of this brief above. 
However, it should also be emphasized that there was no 
evidence of a conspiracy to commit “ turbulent or riotous 
conduct.” 13 The Court below defined “ riotous” by refer­

13 It should be noted that the conspiracy conviction carried with 
it a jail term as well as a fine, penalties much more severe than 
those for a simple violation of Section 62-711. But State v. Lasater, 
68 Tenn. 584, 586 (1877) the Court said that the penalties in 
§62-711 itself were “severe, more so than in other kindred offenses” 
but overturned a trial court decision that the $100 fine and $500 
forfeiture under the act were a cruel and unusual punishment.



11

ence to the dictionary as “having the nature of a riot or 
disturbance of the peace” (R. 319).14 In the same para­
graph the court relates this to the problem of proving a 
conspiracy. There was plainly no evidence in the case that 
any actual riot occurred or that there was any breach of 
the peace. The Court’s conclusion that petitioners’ conduct 
met its definition might have adopted the unconstitutional 
theory in the indictment (R. 4), that petitioners’ actions 
might have provoked an attack by others.15 Cf. Wright v. 
Georgia, 373 U. S. 284, 292-93. Otherwise there is no evi­
dence that the petitioners conspired to cause a riot. Peti­
tioners raised both the “ no evidence” and a vagueness claim 
(R. 17-18, 21, 22, 25) expressly relying on the Fourteenth 
Amendment.

IV.

Petitioners Were Substantially Prejudiced by the Trial 
Judge’s Erroneous Instructions to the Jury Concerning 
§62-710 of the Tennessee Code.

The State contends that the Trial Judge’s error in the 
charge to the jury was “ in the nature of a typographical 
or clerical error as obvious to the jury as to counsel for 
the petitioners” and hence was harmless (State’s Brief, 
pp. 13-14).

The suggestion that the trial judge’s error was a mere 
inadvertence comparable to a slip of the tongue is readily 
subject to refutation. To start with the judge did not

14 In State v. Lasater, supra, the only prior construction of the 
law that has come to our attention, the law was held applicable 
to an allegation that a defendant engaged in “ quarreling, com­
mitting assaults and batteries, breaches of the peace, loud noises, 
and trespass upon a hotel.”

15 See Note 8 supra.



12

merely tell the jury once that petitioners were charged 
with conspiring to violate §62-710. He told them this three 
times. In addition, he not only read the statute to the jury, 
he also read the grand jury presentment which relied on 
the statute and indeed made a variety of references to 
restaurateurs’ purported right to exclude Negroes. The 
harmful potential of this coupled with the instruction that 
a conspiracy under the law included injury to a “ legally 
protected interest or property right” (R. 300) is patent. 
The fact that the trial judge denied contrary instructions 
also shows that the error was not an inadvertence.

We submit that the instructions under §62-710 could 
have led a jury of laymen to believe that they could find 
petitioners guilty solely because they sought to induce the 
cafeteria to serve them by nonviolently challenging its 
segregation policy established pursuant to §62-710. The 
Court below said “ the only purpose in referring to this 
statute was to indicate that this restaurant was being oper­
ated for white people only by authority of this section” 
(R. 321). That is exactly what was wrong with reading 
the statute to the jury. It asserted that the proprietor’s 
racial policy was valid and relevant—a theory, incidentally 
at odds with the pretense that race was not involved in 
the case.

The emphasis on §62-710 in the indictment and jury 
charge is at the heart of the invitation to the jury to decide 
the case on a variety of unconstitutional grounds such as 
those mentioned in the text accompanying notes 7 and 8 
above. This requires reversal of the convictions under 
Stromberg v. California, 283 U. S. 359.

The State also argues that petitioners failed to object 
when the instruction was given, and cites the case of Palmer 
v. Hoffman, 318 U. S. 109, 119-120. However, the decision



13

there involved and turned on a rule of federal procedural 
law, and is therefore inapplicable. Neither the Supreme 
Court of Tennessee (R. 321) nor the State in its brief (pp. 
13-14) pointed to any Tennessee authority that would 
establish that petitioners failed to raise the issue properly 
by requesting a contrary instruction,16 followed by citing 
the erroneous instruction in its motion for a new trial (18- 
19).17 Moreover, the Tennessee Supreme Court only men­
tioned that no questions were raised about the propriety 
of reading the section, and then proceeded to decide on the 
merits that the error was harmless. Quite possibly the Court 
thought that this passing mention supported its harmless 
error holding and intended no procedural implication at all. 
Since the state court, if it considered the matter procedur- 
ally, exercised an apparent discretion to decide the issue, 
there is no reason for this Court to decide that it is barred

16 See R. 310. Defendants’ Special Request No. 4 sought to have 
the jury instructed that Section 62-710 could not constitutionally 
form the basis of enforcing a policy of racial segregation or exclu­
sion through a criminal action.

Apparently, under Tennessee law the requesting of an instruc­
tion in opposition to the one given is a sufficient objection. Cf., 
Arterburn v. State, 208 Tenn. 141, 344 S. W. 2d 362 (1961) ; 
Crawford v. State, 197 Tenn. 411, 273 S. W. 2d 689 (1954) ; 
Powers v. State, 117 Tenn. 363, 97 S. W. 815 (1906).

Moreover, the appellate courts do have discretion to rule on the 
validity of an instruction even where no contrary request has 
been made. See, Potter v. State, 85 Tenn. 88, 1 S. W. 614 (1886); 
King v, State, 83 Tenn. 51 (1885). This is particularly the case 
where the judge’s error has been an affirmative one, as was the
case here. Thus, in Burgess v. State,------ Tenn.--------, 369 S. W. 2d
731 (1963) the trial judge had charged the jury by reading them 
the language of a statute that had been passed after the defendant 
had committed the offense. The Supreme Court of Tennessee 
reversed, even though no special request for a different instruction, 
or apparently any other objection, had been made. Thus, under 
the rule of Williams v. Georgia, 349 U. S. 375, this court is not 
barred from deciding the question.

17 The record does not indicate what, if any, other opportunities 
were given petitioners to object to the erroneous instruction.



14

from also determining the question.18 Williams v. Georgia, 
349 U. S. 375; Shuttlesworth v. City of Birmingham, 376 
U. S. 339.

V.

Petitioners Were Denied Due Process Because the 
Appellate Review o f Their Convictions Did Not Conform 
to the Rule of Cole v. Arkansas, 333 U. S. 196.

Petitioners have argued that the appellate review af­
forded below did not conform to due process because their 
convictions were not appraised “ on consideration of the 
case as it was tried and as the issues were determined in 
the trial court.” Cole v. Arkansas, 333 U. S. 196, 202. The 
State has replied that the Tennessee Supreme Court found 
an independent ground to support the judgment even as­
suming, as petitioners contended, that the racial policy of 
the cafeteria was illegal, and that in so holding the state 
court merely followed the usual appellate principle of avoid­
ing the unnecessary decision of constitutional questions. 
The State relies on Garner v. Louisiana, 368 U. S. 157, 
and Hormel v. Helvering, 312 U. S. 551.

We submit that neither the reasoning nor the authorities19 
cited by the State refute petitioners’ argument that the ap­

18 See Note 16 supra. In addition, Strom,berg v. California, 283 
U. S. 359, and Terminiello v. Chicago, 337 U. S. 1, indicate that 
even if there had been a failure to properly object, this Would not 
bar the challenging of an erroneous instruction where the error 
was sufficiently prejudicial.

19 Garner v. Louisiana, 368 U. S. 157, was a case where the Court 
reversed convictions and freed convicts, finding it unnecessary to 
reach all their claims. This is a quite different matter from sending 
men to jail without deciding their properly presented constitu­
tional claims by seizing on a theory directly contrary to that upon 
which the jury was instructed to decide the ease.

Hormel v. Helvering, 312 U. S. 552, was a civil tax case where 
the Court recognized the general rule that appellate courts should 
not consider issues never raised below in order that parties may



15

pellate court unfairly sustained their convictions on a 
ground not litigated.

The Tennessee Supreme Court said that: “ Stripped of 
any question of race and discrimination, the act complained 
of is still unlawful” (E. 324). Aside from the fact that one 
must disregard the facts to strip the case of race issues, 
the problem with this is that the jury never considered the 
facts “ stripped of any question of race and discrimination,” 
and the defense never had notice of or opportunity to defend 
against any such charge. The issues of whether petitioners 
used illegal means to enter a place they had a right to 
enter was never put before the jury, and was not fairly 
presented by the indictment. It "was decided by the Supreme 
Court of Tennessee in the first instance. Thus petitioners 
were convicted “ upon a charge not made” a “ sheer denial of 
due process” DeJonge v. Oregon, 299 U. S. 353, 362.

Cole v. Arkansas, 333 U. S. 196, 201, emphasizes that 
notice of the specific charge and a right to be heard at 
trial of the issues raised by the charge is essential to a fair 
trial. If petitioners had notice of this quite different charge, 
their cross-examination and argument might have been dif­
ferent. Indeed, faced with such a charge defense counsel 
might have evaluated the risks differently and found it 
prudent to call on the defendants to testify in their own 
defense. This determination alone can vitally affect the 
outcome of a trial.20 As the charge was actually framed,

have an opportunity to offer evidence on the relevant issues. But 
recognizing that the rule was not inflexible, the Court found that 
in the particular case an injustice would result if the case was not 
decided on the basis of the correct rule of law as embodied in 
statute not mentioned before the Board of Tax Appeals. We 
submit that in this case the failure to apply the general rule 
stated in Hormel, supra, has resulted in an injustice to petitioners 
whose liberty is at stake.

20 A defendant’s failure to testify obviously may have an impact 
on the jury even if it is admonished not to hold his failure against 
him.



16

and the case actually tried the tactical considerations for 
defense counsel were quite different because the state’s case 
at trial flatly rested on the premise that state judicial en­
forcement of racial segregation did not violate the Four­
teenth Amendment. Defense counsel might very reasonably 
stake the defense on the belief that this proposition was 
wrong (Of. Lombard v. Louisiana, 373 U. S. 267; Robinson 
v. Florida, 378 U. S. 153; and the concurring opinions in 
Bell v. Maryland, 378 U. S. 226), but they might well have 
taken an entirely different view of defense tactics and put 
on defensive proof if faced with a charge that the defen­
dants used illegal means of self-help in support of a law­
ful right to enter the premises.

In Russell v. United States, 369 U. S. 749, 766 the Court 
made it clear that the reasoning of Cole v. Arkansas, supra, 
was not limited to the case where an appellate court ex­
plicitly switched statutes on a defendant.21 In reversing be­
cause of a vague indictment the court said (369 U. S. at 
766):

“It enables his conviction to rest on one point and the 
affirmance on another. It gives the prosecution free 
hand on appeal to fill in the gaps of proof by surmise or 
conjecture. The Court has had occasion before now to 
condemn just such a practice in a quite different factual 
setting. Cole v. Arkansas, 333 U. S. 196, 201, 202.”

In Garner v. Louisiana, 368 U. S. 157, this Court rejected 
a request that it do something similiar to what was done by 
the Tennessee Court. Louisiana argued that although de­
fendants were convicted of disorderly conduct, the real issue 
was whether the record proved the elements of a criminal 
trespass. The Court rejected the argument on the authority 
of Cole, supra. Garner v. Louisiana, 368 U. S. 157, 164.

21 This occurred in Shuttlesworth v. Birmingham, 376 U. S. 339.



17

Here the Tennessee Supreme Court convicted the defen­
dants on a charge that the trial jury never considered 
and which the grand jury never made. Cole v. Arkansas, 
supra; Stirone v. United States, 361 U. S. 212.

The prosecution thus attempts, we think unfairly, to get 
the benefit of the emotionally charged segregation issue be­
fore a favorably disposed jury (see Argument VI, infra), 
while attempting to cleanse the ease of the race issue for 
review in this Court, in the face of adverse precedent 
(Hamm v. Rock Hill, 379 TJ. S. 306).

VI.

Petitioners Were Denied Due Process Because the 
Jury Which Convicted Was Not Impartial or Indifferent 
on a Central Matter Presented to the Jury.

Petitioners have argued from the very beginning that 
they were denied due process because the jury which tried 
them was prejudiced against them as evidenced by the 
jurors’ admitted life-long practice, custom and philosophy 
of racial segregation.22 The relationship of this point to 
the objection to the indictment and its references to the 
cafeteria’s segregation policy under Section 62-710 was 
pointed out to the trial court during the jury selection 
process (B. 59-60, 63).

22 Only a portion of the lengthy voir dire proceedings to select 
the jury have been printed in the record in this Court (R. 29-87), 
however, the entire original record in typewritten form is on file 
in this Court. In addition to the general objection, the motion 
for new trial (R. 24-25) raised particular objections to jurors 
Win. T. Moon, Wendell H. Cooper and Herbert Amic, reiterating 
objections made during the voir dire itself. Moon and Cooper 
were seated after all of petitioners’ peremptory challenges were 
exhausted; others were seated over petitioners’ protests that chal­
lenges for cause were improperly denied though they declined to 
use their limited number of peremptory challenges.



18

The State’s brief in this Court argues first, that there was 
no showing that the jurors were prejudiced about an issue 
that was involved in the case, and second, that the jurors 
stated that their opinions were not so fixed that they could 
not try the case impartially.

The State’s first point is patently erroneous. The case 
was presented to the jury by the indictment and the judge’s 
instructions as a case centrally concerned with the question 
whether petitioners conspired to deprive the cafeteria of 
its explicitly assumed right to exclude Negroes. The case 
was submitted to the jury on an instruction exactly con­
trary to the arguendo assumptions made by the Tennessee 
Supreme Court, and the ruling of Hamm v. Rock Hill, 379 
U. S. 306, i.e., that petitioners had a right to service and 
the proprietor no right to exclude them. Note that the 
jurors’ prejudice was not a mere “mistake of law” as urged 
by the state; their prejudice was about what the law should 
be and their view was that restaurants should be allowed 
to discriminate racially. The prejudice was expressed in 
these terms by juror Amic, and was plainly implicit in the 
testimony of the others who believed in and practiced seg­
regation in every area of their daily lives.

But this Court has held that “ the right to jury trial guar­
antees to the criminally accused a fair trial by a panel of 
impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U. S. 
717, 722. The fair jury is a basic requirement of due proc­
ess. In Irvin the Court quoted with approval Lord Coke 
who said “a juror must be as ‘indifferent as he stands un- 
sworne’ Co Litt 155b” (366 U. S. at 722).

In answer to the state’s second point, Irvin v. Dowd, 
supra, makes it plain that while it is sufficient that a juror 
can lay aside his impression or opinion and render a ver­
dict on the evidence, this rule does not foreclose inquiry 
even if every juror says that notwithstanding his opinion



19

he can render an impartial verdict, and holds that “ impar­
tiality is not a technical conception” (366 U. S. at 723-724). 
In Irvin the Court held the trial unfair because a va­
riety of evidence such as newspaper comment and re­
porting of the crime demonstrated a “pattern of deep and 
bitter prejudice against” the defendant (Id. at 727). The 
evidence of the pattern of segregationist belief in this case 
came from the jurors and veniremen themselves, as one 
after another the white jurors expressed this view and 
every Negro juror was either excused for cause or per­
emptorily challenged by the state.

Juror Amic, after telling the Court that he could be im­
partial (E. 61-62) practically returned to his earlier ex­
pression (E. 62):

Q. Wait just a minute—please, sir. That if evidence 
was shown in this case—that if the indictment charges 
that the defendants went there, knowing of this rule 
and the defendants, being Negroes, sought service, that 
it would prejudice you against them?

A. Well, it would have to be shown to me that it 
was—that they did violate some regulation like that.

*  #  #  *  #

Q. But, if they had a rule that they excluded Negroes, 
and these defendants went there and violated that rule, 
it would prejudice you against these defendants, 
wouldn’t it?

A. If—if it was a proven fact that that was their 
rule, and that they were there against the cafeteria’s 
rule, why I think they have a right to enfore (sic) 
that rule.

Q. And you would start out with that prejudice 
against the defendants, wouldn’t you?

A. Not necessarily, not until it is proven exactly 
they did violate the rule and violate some law.



20

In particular it was argued that juror Herbert Amie was 
erroneously held competent, despite petitioners’ objections, 
after testifying that he believed a business open to the 
public should be allowed to exclude Negroes; that in such 
a case he would start out with a prejudiced attitude toward 
the petitioners; and that the cafeteria would be right in 
its position (R. 56-57).

Petitioners were denied a jury which was “ impartial” 
and “ indifferent” on the principal issue presented to it for 
decision by the instructions and indictment. It is reason­
ably inferable that the prosecutor prepared the indictment 
emphasizing race in order to exploit the segregationist 
attitudes of local jurors. The state may not now avoid 
the consequences of that decision.

Respectfully submitted,

Jack 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 Building 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Petitioners

Charles L. B lack, Jr. 
Charles Stephen R alston

Of Counsel



38