Ford v. Tennessee Petition for Writ of Certiorari to the Supreme Court of Tennessee

    I n the

(Enurt of %  Imtpft States
October Term, 1962 

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

E vander F ord, et al.,

—v.—

State oe T ennessee.

Petitioners,

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF TENNESSEE

J ack Greenberg 
J ames M. Nabrit, I I I  
Derrick A. Bell, J r.

Suite 1790 
10 Columbus Circle 
New York 19, New York

R. B. S itgarmon, J r.
B. L. H ooks

H. T. L ockhard

A. W. W illis
B. F . J ones

I. H. Murphy

Memphis, Tennessee
Attorneys for Petitioners



I N D E X
PAGE

Citation to Opinions Below ...........................................  1

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

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

Constitutional and Statutory Provisions Involved........  2

Statement ........................................................................  3

How the Federal Questions Were Raised and Decided 6

Reasons for Granting the Writ .................................... 9
I—The Judgment of the Court Below Conflicts 

With the Principles Established by This 
Court That It Is a Denial of Due Process to 
Convict Persons of Crimes Without Evidence 
of Their Guilt....................................... ..........  9

II—The Conviction of Petitioners Denied Their 
Rights of Freedom From State Enforced Ra­
cial Segregation Protected by the Fourteenth 
Amendment to the Constitution of the United 
S tates................................................................. 12

III—If This Court Should Determine That the 
Court Below Improperly Decided the Consti­
tutional Issues, Justice Requires That an 
Order Be Entered Vacating the Judgment 
Against Petitioner Katie Jean Robertson .... 13

Conclusion 15



11

T able oe Cases

page

Barrows v. Jackson, 346 U. S. 249 ................................  13
Brown v. Board of Education, 347 U. S. 294 .................. 12
Burton v. Wilmington Parking Authority, 365 U. S. 715 12

Garner v. Louisville, 368 U. S. 157................................9,11
Gayle v. Browder, 352 U. S, 903 .................................... 12

Holmes v. Atlanta, 350 U. S. 879 ................................ 12

Muir v. Louisville Park Theatrical Association, 202 F.
2d 275 (6th Cir. 1953), judgment vacated and re­
manded 347 U. S. 971 (1954) .................................... 12

Patterson v. Alabama, 294 U. S. 600 ............................ 2,14

Shelley v. Kraemer, 334 U. S. 1 ................................... 13

Taylor v. Louisiana, 7 L. ed. 2d 395............................... 9,11
Thompson v. City of Louisville, 362 U. S. 199..............9,11
Turner v. Memphis, 369 IJ. S. 350 ............................. . 12

Statutes

Tennessee Code Annotated §39-1204 ..................... 2
28 U. S. C. §1257(3)..................................................  1



I s  THE

#uprm* (to rt ni %  MnxUb States
October Term, 1962 

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

E vander F ord, et al.,

—v.

State oe T ennessee.

Petitioners,

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 case on March 7, 1962, rehearing of 
which was denied on May 4, 1962.

Citation to Opinions Below

The opinion of the Supreme Court of Tennessee is re­
ported in 355 S. W. 2d 102 (1962), rehearing denied 356 
S. W. 2d 726 (1962), and is set forth in the Appendix here­
to, infra, pp. 17-23.

Jurisdiction

The judgment of the Supreme Court of Tennessee was 
entered March 7, 1962, infra, pp. 24-27. Petition for rehear­
ing was denied by the Supreme Court of Tennessee on May 
4,1962, infra, p. 28.

The jurisdiction of this Court is invoked pursuant to 
Title 28, U. S. C. 1257(3), petitioners having asserted below



2

and asserting here deprivation of rights, privileges and 
immunities secured by the Constitution of the Tjnited States.

Questions Presented

Whether petitioners were denied their rights under the 
due process and equal protection clauses of the Fourteenth 
Amendment to the Constitution of the United States:

1. When convictions of willfully disturbing a religious 
assembly were based on a record containing no evidence of 
their guilt.

2. When convicted of disturbing a religious assembly 
for merely peacefully taking seats on a non-segregated 
basis at a church youth rally held at a city-owned audi­
torium opened to the public.

3. Whether, if this Court should determine that the court 
below improperly decided the federal constitutional ques­
tions stated above, the doctrine of Patterson v. Alabama, 
294 U. S. 600, requires that an order be entered vacating 
the judgment against petitioner Katie Jean Robertson.

Constitutional and Statutory Provisions Involved

1. The Fourteenth Amendment to the Constitution of 
the United States.

2. The Tennessee statutory provision involved is §39- 
1204, Tennessee Code Annotated, which provides:

If any person willfully disturb or disquiet any as­
semblage of persons met for religious worship, or for 
educational or literary purposes, or as a lodge or for 
the purpose of engaging in or promoting the cause 
of temperance, by noise, profane discourse, rude or



3

indecent behavior, or any other act, at or near the 
place of meeting, he shall be fined not less than twenty 
dollars ($20.00) nor more than two hundred dollars 
($200), and may also be imprisoned not exceeding 
six (6) months in the county jail.

Statement

On August 30, 1960 (E. 71), the Assembly of God Church 
in Memphis, Tennessee (R. 69) held a city-wide Youth 
Rally at Overton Park Shell (R. 70) an open air auditorium 
located in a publicly owned park (R. 125). The church 
group had leased the auditorium from the City of Memphis 
(R. 71, 122) and had published advertisements of the ser­
vices which were to consist of singing, devotions and a 
special film (R. 78-79). Negroes were not excluded from 
the public invitation because, according to a church official, 
there are no Negro members in the Assembly of God 
Church and none were expected to attend (R. 78, 82, 276). 
The services began at 7 :30 P.M. with from 400 to 700 
people present (R. 72).

About 15 minutes after the service began (R. 73), and 
while the group was singing hymns (R. 75), a group of 13 
or 14 Negroes including the petitioners (R, 76) entered 
and was greeted by the head usher for the group who 
testified: “I asked them out of courtesy if he would not 
remain, since this was a segregated meeting, featuring the 
young people of the Assembly of God” (R. 91). When 
the Negroes failed to leave, the usher noting that there 
were some 20 rows vacant behind the audience (R. 92), 
“got a plan” (R. 92), and suggested that they sit at the 
rear of the building since the services were already in 
progress (R. 285, 293). At this request, petitioner Ford 
replied, “No, we are certainly not going to do that, . . . ”



4

(R. 308), and according to the usher directed the group to 
“scatter out” (R. 91).

The Negroes proceeded down into the audience, and 
seated themselves in couples among the gathering (R. 92). 
They were quiet, properly dressed (R. 80), and made no 
noise while talcing seats (R. 277, 293). Nevertheless, ac­
cording to State witnesses, as the Negroes moved in, white 
people began to move, and some left (R. 93, 288) because 
a church official reported “they were not accustomed to 
attending services with Negroes” (R. 79-80). This moving 
and shifting created some disturbance (R. 276-296).

At this point, the minister in charge of the group, Rev. 
Scruggs, testified that the service continued, but that he 
called the police and also sent word to assistants that 
the film which was scheduled to start should be held up 
until the disturbance could be quieted (R. 268). Neverthe­
less, when the police arrived about five or ten minutes 
later (R. 268, 297), most of the white people had settled 
down (R. 298), an offering may have been received (R. 83), 
the lights had been lowered (R. 298), and the movie was 
in progress (R. 114, 310).

When the police arrived, the lights were turned on again 
and the movie was stopped so that the police could find 
the petitioners (R. 298). The police were instructed to 
locate colored people in the Shell, inform them they were 
under arrest and bring them outside (R. 109, 329). Police 
officers testified that fourteen Negroes, male and female 
were arrested (R. 109). All were seated quietly when the 
police arrived, were properly dressed, used no loud or 
profane language, engaged in no boisterous or indecent 
conduct, and offered no resistance to arrest (R. 112, 326).

Rev. Scruggs contended that he arrested petitioners not 
because they were Negroes, but because they created a



5

disturbance when they refused to take seats in the rear 
and “decided to slide in and take seats and intermingle 
with the crowd” (R. 86, 296). He admitted that “the thing 
that caused the disturbance was that they intermingled” 
(R. 86), and surmised that the disturbance grew out of 
the fact that the white people were not accustomed to 
attending services with Negroes (R. 79-80).

“Q. And this disturbed the gathering, in this sense 
of the word because they were Negroes? A. I sup­
pose that’s true; yes” (R. 80).

Additional indications that it was petitioners’ color and 
not their actions that created the disturbance is seen in the 
testimony of the head usher who indicated that all white 
latecomers (10 to 20 persons) had taken seats among the 
audience without incident (R. 291).

“Q. Did any of them enter into a row of seats where 
anybody else was sitting, where they would have to 
pass over anyone? A. Most of them, we directed 
them how to be seated behind others or to where there 
were seats vacant on the aisle.

Q. Did any of the persons who came in after the 
services began go into a row of seats where it was 
necessary for them to pass by another person who 
was seated? A. I imagine so. That has been a year 
and a half. I am sure that there were some that did 
that. I did not pay exactly that close attention as to 
where they were sitting. I am sure that there was 
some who did that.

Q. Now, did they create any disturbance? A. No, 
sir.

Q. It did not. In fact, you hardly noticed it, is that 
correct? A. That’s right” (R. 291-292).



6

Following their arrest, the petitioners were tried and 
convicted of violating Section 39-1204, Tennessee Code 
Annotated.

The petitioners, with the exception of Katie Jean Robert­
son, were tried on June 19th and 20th, 1961, and were 
sentenced to serve 60 days in the Shelby County Penal 
Farm, and fined $200. Petitioner Katie Jean Robertson 
was tried on September 25, 1961 and was sentenced to 
serve 60 days and fined $175.00.

The Supreme Court of Tennessee affirmed the convic­
tions finding that the actions of the defendants created a 
disturbance in the religious service and therefore violated 
the statute. Moreover, they found that such actions were 
willful and designed to created an incident. The Court 
stated that the issue of whether Negroes could be segregated 
at the service held in a public facility was not present in 
this case and the convictions did not violate any constitu­
tional rights guaranteed by the Fourteenth Amendment to 
the petitioners.

How the Federal Questions Were Raised and Decided

The petitioners were tried before the criminal court of 
Shelby County, Tennessee in two separate trials on June 
19th and 20th, 1961 and September 25, 1961 (R. 258).

At the conclusion of the testimony in the trial of June 
19th, petitioners Evander Ford, Jr., Alford O. Gross, James 
Harrison Smith, Ernestine Hill, Johnnie May Rogers, 
Charles Edward Patterson and Edgar Lee James, made a 
motion to dismiss the charges, maintaining therein that the 
arrests followed petitioners’ peaceful efforts to attend a 
public meeting in a publicly owned facility leased to a 
private group who sought to operate it on a racially segre­
gated basis, and therefore such arrest deprived petitioners



7

of their rights under the due process and equal protection 
clauses of the Fourteenth Amendment (R. 131-136). This 
motion was denied (R. 137).

Petitioners were convicted and filed a motion for new 
trial on August 7, 1961 (R. 229), relying inter alia on a 
denial of their rights under the Fourteenth Amendment to 
be admitted on a nonsegregated basis to publicly owned 
facilities leased by private lessees for functions to which 
the public is invited. The motion was denied on August 
15,1961 (E. 231).

In the second trial, in which judgment of conviction was 
returned on September 25, 1961, against petitioner Katie 
Jean Robertson (R. 251), a motion for new trial raising 
federal issues similar to those contained in the motion 
filed in the first trial, was overruled on November 3, 1961 
(R. 254).

The Supreme Court of Tennessee consolidated the appeal 
of Evander Ford, Jr., et al., with that of Katie Jean Robert­
son (R. 359). In their Assignment of Error filed with the 
Supreme Court of Tennessee on January 15, 1962 (R. 360), 
petitioners contended:

1. ‘‘Plaintiffs in Error contention is that the record con­
tains no evidence to support a finding that the defen­
dants disturbed a religious assembly in violation of 
Section 39-1204 of the Tennessee Code Annotated, 
and that a conviction of such violation violates the 
defendants’ rights to due process of the law guaran­
teed to them by the Fourteenth Amendment of the 
Constitution of the United States. (Thompson v. 
City of Louisville, 362 U. S. 99; Garner v. Louisiana, 
26, 27, 28 Oct. Term 1961, Supreme Court, U. S. A.)” 
(R. 366).



8

2. “The Jury and the Court failed to consider the fact 
that the defendants were members of the public, 
peacefully assembled and worshiping God at public 
meeting held at a publicly owned facility namely the 
Shell in Overton Park, and that they were peace­
fully worshiping and using said public facility in 
the same manner as white persons similarly situated; 
and that they were arrested, indicted and convicted 
solely because of the color of their skin” (R, 366).

The Supreme Court of Tennessee ruled that the appeal 
of Katie Jean Robertson must be affirmed for failure to 
timely file the Bill of Exceptions and that no reversible 
error was found in the technical record before the Court 
(R. 393-2).

As to the appeals of Evander Ford, Jr., et al., the Su­
preme Court of Tennessee construed petitioners’ acts as 
violative of Section 39-1204, Tennessee Code Annotated, 
in that they refused to be seated where requested and 
dispersed themselves throughout the Audience, which ac­
tions the court below concluded were planned and “com­
pletely interrupted the service.”

The court below then summarized petitioners’ constitu­
tional objections as follows:

The Defendants next argue that their constitutional 
rights are being violated by this conviction because 
this is a publicly owned facility and they could not 
be excluded. First, it must be noted that the Defen­
dants were tendered seats at this meeting even though 
they had been denied admission at the outset. Second, 
this is not a suit to enjoin a discriminatory practice, 
nor is it a damage suit based upon the violation of 
civil rights, but rather a criminal action charging the 
Defendants with willfully disturbing a religious as­



9

sembly. Whether these Defendants had a right to be 
at the place where this religions meeting was being 
conducted is not an issue in this lawsuit. The sole 
issue here is whether or not these Defendants willfully 
disturbed the meeting that was being held there and 
we have hereinbefore determined this question ad­
versely to the Defendants’ contention.

Reasons for Granting the Writ

I
The Judgment of the Court Below Conflicts With the 

Principles Established by This Court That It Is a Denial 
of Due Process to Convict Persons of Crimes Without 
Evidence of Their Guilt.

The principle that the due process clause of the Four­
teenth Amendment to the Constitution of the United States 
forbids criminal convictions based upon no evidence of 
guilt was set forth by this Court in Thompson v. City of 
Louisville, 362 U. S. 199, and has been applied and reaffirmed 
in Garner v. Louisiana, 368 U. S. 157, and Taylor v. Loui­
siana, 7 L. ed. 2d 395. This record presents another occa­
sion for the application of this principle.

The petitioners were convicted under a State statute pro­
hibiting willful disturbance of a religious assembly “by 
noise, profane discourse, rude or indecent behavior, or any 
other act.” There was no claim or evidence that petitioners 
engaged in any noise, profane discourse or rude or in­
decent behavior. The indictment charging them alleged 
that they disturbed and disquieted an assemblage of per­
sons met for religious worship in that “after being refused 
admittance to the services therein, did force their way into 
the said assemblage, seat themselves among the worshipers



10

and by this act did cause the disruption of said religious 
assemblage.” However, the record shows that petitioners 
entered the open air auditorium owned by the City of Mem­
phis and leased to a religious group and merely peacefully 
took seats therein during the services. When they first 
entered an usher told them that the meeting was racially 
segregated and asked them to leave but, subsequently of­
fered them seats at the rear of the auditorium some twenty 
rows behind the audience. Petitioners declined this offer 
and proceeded down into the auditorium where they quietly 
seated themselves among the audience. In this regard, there 
is no evidence that petitioners conducted themselves any 
differently from ten to twenty white persons who, according 
to testimony of the ushers, also entered after the services 
had started. The evidence is clear that if there was any 
disturbance of the meeting it was caused by white persons 
in the audience who began to change their seats after the 
Negroes entered because “they were not accustomed to 
attending services with Negroes” (E. 78-80).

The services which were in progress continued and were 
not halted until the police, having been summoned by the 
minister in charge of the meeting, arrived at the audi­
torium and halted the proceedings in order to locate and 
arrest all Negro persons in the audience. The police re­
ported that the Negroes were properly dressed, used no 
rude or profane language, were engaging in no boisterous 
or indecent conduct and offered no resistance to arrest.

It is apparent that the disturbance of the service resulted, 
as the minister in charge indicated, from the fact that the 
petitioners “intermingled” with whites instead of segregat­
ing themselves to the rear of the gathering as directed. 
Thus, it is also apparent that the arrest of the petitioners 
was based upon their color and the fact that they failed to 
racially segregate themselves when taking seats in the audi­



11

ence. As this Court held in Garner v. Louisiana, supra, the 
mere refusal to obey a segregation custom cannot by itself 
be made the equivalent of a breach of the peace. It should 
be noted that petitioners had a plain legal right to be present 
in the auditorium and not to be racially segregated therein 
because the premises were owned and operated by the City 
of Memphis for the use of the public, as is argued below 
in Part II of this Petition.

There is no evidence to support the conclusion reached 
by the court below that petitioners attended the services 
for the purpose of intentionally causing a disturbance. 
Indeed, there is every indication that any Negro attempting 
to attend the services on a nonsegregated basis, regardless 
of his intentions, would have caused a similar upset among 
those white persons present who were not accustomed to 
worshipping with Negroes. Clearly, it was the petitioners’ 
color and not either their actions or intentions that led 
to the disturbance and their arrests. The court below denies 
that race was a factor in the arrests. There remains then 
no basis on which to sustain the convictions, and the due 
process clause of the Fourteenth Amendment requires that 
they be reversed. Thompson v. City of Louisville, supra; 
Garner v. Louisiana, supra and Taylor v. Louisiana, supra.



12

II
The Conviction of Petitioners Denied Their Rights 

of Freedom from State Enforced Racial Segregation 
Protected by the Fourteenth Amendment to the Con­
stitution of the United States.

Petitioners’ convictions were obtained in violation of 
their Constitutional rights in that they resulted directly 
from efforts by petitioners to attend, on a nonsegregated 
basis, a religions youth rally held at a city-owned audito­
rium open to, and provided for, the use of the public. If 
the convictions were not based upon no evidence of guilt, 
as is argued above, the only possible conclusion available 
on the record is that the state court equated petitioners’ 
breach of the segregation custom or policy with a distur­
bance of the assembly, and is merely enforcing racial segre­
gation under another label. This the State cannot do under 
the numerous decisions of this Court. Brown v. Board of 
Education, 347 U. S. 294; Gayle v. Browder, 352 U. S. 903; 
Holmes v. Atlanta, 350 U. S. 879.

The leasing of this open-air auditorium to a private 
group does not alter the conclusion that the State is for­
bidden to enforce segregation. This Court has repeatedly 
held that the enforcement of racial segregation in publicly- 
owned facilities cannot legally be accomplished by leasing 
such facilities to private persons. Burton v. Wilmington 
Parking Authority, 365 U. S. 715; Turner v. City of Mem­
phis, 369 U. S. 350; Muir v. Louisville Park Theatrical 
Association, 202 F. 2d 275 (6th Cir. 1953), judgment vacated 
and remanded, 347 U. S. 971.

The State cannot enforce segregation in such facilities 
indirectly through the use of its criminal laws any more 
than it could do so directly by a segregation law or rule. 
The Constitution forbids the courts, as well as other arms



13

of the States, from enforcing racial discriminations. Shelley 
v. Kraemer, 334 U. S. 1; Barrows v. Jackson, 346 U. S. 249.

The Supreme Court of Tennessee stated in its opinion 
that the issue in the case was not whether petitioners had 
a right to be at the meeting, but rather whether they will­
fully disturbed the meeting. However, the record plainly 
indicates that the only claim that petitioners created a 
disturbance was based upon the fact that their mere pres­
ence as Negroes in a white assembly was in itself a dis­
turbance. Thus the State has made the presence of Negroes 
in a white assembly a crime just as surely as if it had 
directly punished petitioners under a segregation law. It 
is submitted that the issues presented by this case deserve 
plenary consideration by this Court because the decision 
of the court below ignores the principle that States and 
other agents may not enforce racial segregation.

Ill
If This Court Should Determine That the Court Below 

Improperly Decided the Constitutional Issues, Justice 
Requires That an Order Be Entered Vacating the Judg­
ment Against Petitioner Katie Jean Robertson.

The petitioner Katie Jean Robertson was indicted in 
the same indictment with the other petitioners based upon 
the same occurrences. The record reveals that her conduct 
was no different from that of the other petitioners. How­
ever, because she was unavailable for trial when the other 
petitioners were tried, her trial was separate. The same 
issues were raised and presented to the trial court in 
her case and her case was consolidated with that of the 
others on appeal. The cases were decided by the court be­
low in one opinion and the record of both trials has been 
certified to this Court as one record. The court below ruled



14

that it could not consider the merits of the constitutional 
arguments urged for petitioner Katie Jean Robertson 
(which were identical to those urged by the other peti­
tioners) on the ground that the Bill of Exceptions for 
her case was filed in the Supreme Court of Tennessee two 
days too late. The court thus determined that it must 
affirm the conviction of petitioner Robertson as noted. 
In the same opinion the court rejected all of the arguments 
urged on behalf of the other petitioners, which were the 
same arguments made on behalf of petitioner Robertson.

It is submitted that in accordance with the principles 
of Patterson v. Alabama, 294 U. S. 600, if this Court should 
determine that the court below improperly decided the 
federal constitutional questions presented, this Court should 
enter an order vacating the judgment as to petitioner 
Robertson in view of that supervening development. It is 
submitted that the ends of justice would then require that 
the Court vacate the judgment and remand it to the Su­
preme Court of Tennessee in order that that court might 
reconsider its disposition of the case of Katie Jean Robert­
son in light of the properly applicable constitutional prin­
ciples. The rule stated in Patterson v. Alabama, 294 U. S. 
600, 617, in circumstances very similar to this, was that:

We have frequently held that in the exercise of our 
appellate jurisdiction we have power not only to cor­
rect error in the judgment under review but to make 
such disposition of the case as justice requires. Anri 
in determining what justice does require, the Court is 
bound to consider any change, either in fact or in law, 
which has supervened since the judgment was entered. 
We may recognize such a change, which may affect the 
result, by setting aside the judgment and remanding 
the case so that the state court may be free to act.



15

CONCLUSION

Wherefore, for the foregoing reasons, it is respect­
fully submitted that the petition for a writ of certiorari 
should be granted.

Respectfully submitted,

J ack Greekberg 
J ames M. Nabrit, III 
Derrick A. B ell, J r.

Suite 1790 
10 Columbus Circle 
New York 19, New York

R. B. Sugarmoh, J r.
B. L. H ooks
H. T. L ockhard

A. W. W illis

B. F. J okes
I. H. Murphy

Memphis, Tennessee
Attorneys for Petitioners





APPENDIX

Opinion of Supreme Court 
of Tennessee

OPINION
The Defendants, Evander Ford, Jr., Alfred O’Neil Gross, 

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

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

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



18

to for any purpose. O’Brien v. State, 193 Tenn. 361. This 
leaves only the technical record before the Court and we 
are unable to detect any reversible error therein.

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

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



19

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

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

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

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

At the outset it must be noted that this statute is not a 
breach of the peace statute as such, but rather it is a statute 
which is designed to protect to the citizens of this State the 
right to worship their God according to the dictates of their 
conscience without interruption. As a general rule these 
statutes have been very liberally construed by the Court. 
Hollingsworth v. State, 37 Tenn. 518. However, in order to



20

determine the exact boundaries of this statute we feel that 
it is necessary to review its historical development.

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

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

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

However, when the Code of 1858 was adopted, Chapter 
35 of the Acts of 1801 and Chapter 60 of the Acts of 1815 
were brought forward into that Code. Thus, the Code of 
1858 contained both Chapter 35 of the Acts of 1801 and 
Chapter 60 of the Acts of 1815, along with a section which 
was the same as our present Section 39-1204 after the 
abovementioned amendments. This remained in this state



21

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

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

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



22

very clearly that these Defendants had planned their 
course of action before arriving at the meeting. This 
leaves us no choice but to conclude that this was a well 
organized scheme designed to create an incident.

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

The Defendants next argue that their constitutional 
rights are being violated by this conviction because this 
is a publicly owned facility and they could not be excluded. 
First, it must be noted that the Defendants were tendered 
seats at this meeting even though they had been denied 
admission at the outset. Second, this is not a suit to 
enjoin a discriminatory practice, nor is it a damage suit 
based upon the violation of civil rights, but rather a crim­
inal action charging the Defendants with willfully disturb­
ing a religious assembly. Whether these Defendants had 
a right to be at the place where this religious meeting was



23

being conducted is not an issue in this lawsuit. The sole 
issue here is whether or not these Defendants willfully 
disturbed the meeting that was being held there and we 
have hereinbefore determined this question adversely to 
the Defendants’ contention.

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

Judgment affirmed.
P rewitt, C.J.



24

Oi’der of Supreme Court 
of Tennessee

No. 37462

E vander F ord, J r., et al.,

-v-

State of T ennessee.

Shelby Criminal.
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 Shelby County; and upon consideration 
thereof, this Court is of opinion that there is no reversible 
error on the record, and that the judgment of the Court 
below should he affirmed, and it is accordingly so ordered 
and adjudged by the Court.

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

It is further ordered by the Court that the plaintiffs 
in error be confined in the county jail or workhouse of



25

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

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

3/7/62



26

Order of Supreme Court 
of Tennessee

K atie J ean R obertson, 

—v.—

State op Tennessee.

Shelby Criminal.
Affirmed.

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

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

It is further ordered by the Court that the plaintiff 
in error be confined in the county jail or workhouse of 
Shelby County, subject to the lawful rules and regulations 
thereof, for a term of sixty days, and that after expiration 
of the aforesaid term of imprisonment, she remain in the



27

custody of the Sheriff of Shelby County until said fine 
and costs are paid, secured or worked out as required by 
law, and this cause is remanded to the Criminal Court of 
Shelby County for the execution of this judgment.

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

3/7/62



28

Order Denying Rehearing

K atie J ean R obertson, E vander F ord, J r., et al.,

State of T ennessee.

Shelby Criminal.
Petition to Rehear Denied.

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

5/4/62



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