Abernathy v. Alabama Petition for Writ of Certiorari to the Court of Appeals of Alabama

    I n  t h e

Bvipvmt (Hmtrt of %  Imfrii Btutm
October Term, 1963

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

Ralph D. Abernathy, Clyde Carter, W illiam S. Coffin, 
J r., J oseph Charles J ones, Bernard S. L ee, J ohn David 
Maguire, Gaylord B. Noyce, F red L. Shuttlesworth, 
George Smith , David E. Swift and W yatt T ee W alker,

-v -
Petitioners,

State of Alabama.

PETITION FOR WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF ALABAMA

J ack Greenberg
Constance Baker Motley
J ames M. Nabrit, III 

Suite 2030 
10 Columbus Circle 
New York 19, N. Y.

F red D. Gray
34 North Perry Street 
Montgomery, Alabama

L ouis H. P ollak 
127 Wall Street 
New Haven, Connecticut

Attorneys for Petitioners

Leroy D. Clark 
Charles S. Conley 
F rank H. H effron 
Solomon S. Seay', J r. 

Of Counsel



I N D E X

PAGE

Citations to Opinions Below........................................... 2

Jurisdiction ....................................................................  2

Questions Presented ....................................   3

Constitutional and Statutory Provisions Involved........ 5

Statement ........................................................................ 6

How the Federal Questions Were Raised and Decided 
Below ........................... —-.............. -..................... ....... 15

Reasons for Granting the W rit........................ -........... 19
I. The Decision Below Affirms Criminal Convic­

tions Based on No Evidence of Guilt................ - 19
II. The State Statutes, as Construed and Applied 

to Convict Petitioners Are So Vague, Indefinite 
and Uncertain as to Offend the Due Process 
Clause of the Fourteenth Amendment ................  25

III. The Arrests and Convictions of Petitioners on 
Charges of Breach of the Peace and Unlawful 
Assembly Constitute Enforcement by the State 
of the Practice of Racial Segregation in Bus 
Terminal Facilities Serving Interstate Com­
merce, in Violation of the Equal Protection 
Clause of the Fourteenth Amendment, the Com­
merce Clause of the Constitution, and 49 U. S. C.
§316 (d) ....... -.......................................................  29



11

PAGE

IV. The Decision Below Conflicts With Decisions of 
This Court Securing the Fourteenth Amendment 
Right to Freedom of Expression, Assembly and 
Religion........... .............................................-....... 31

V. The Courts Below Deprived Petitioners of Due 
Process and Violated the Supremacy Clause by 
Refusing to Accept the Federal District Court 
Finding That Petitioners Were Arrested to En­
force Racial Segregation ...................................  34

Conclusion...................................................................... 36

Appendix :

Opinion of Court of Appeals in the Abernathy Case la
Order of Affirmance of the Court of Appeals in the 

Abernathy Case.................................................... 14a
Order of Affirmance of the Court of Appeals in the 

Carter Case .........................................................  15a
Order of the Court of Appeals Denying Rehearing 16a
Order of the Supreme Court of Alabama Denying 

Certiorari............................................................. 17a

T able of Cases

Aaron v. Cooper, 257 F. 2d 33 (8th Cir. 1958) ...............  21

Bailey v. Patterson, 369 U. S. 41 ...............................— 30
Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) ......  30
Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th

Cir. 1960) ....................................................................  30
Boynton v. Virginia, 364 U. S. 454 .....................19, 29, 34
Buchanan v. Warley, 245 U. S. 60.................................. 21
Burstyn v. Wilson, 343 U. S. 495 ..................................  31



I l l

PAGE

Cantwell v. Connecticut, 310 U. S. 296 ..............22, 26, 27, 32
Chaplinsky v. New Hampshire, 315 IT. 8. 568 .......... .....  33
Connally v. General Constr. Co., 269 U. S. 385 ............. 27
Cooper v. Aaron, 358 U. S. 1 .............. ...........................21, 26

Edwards v. South Carolina, 372 IT. S. 229 ..............22, 26, 32

Feiner v. New York, 340 U. S. 315.................................  33

Garner v. Louisiana, 368 IT. S. 157 ........ 20, 21, 23, 26, 31, 32
Gayle v. Browder, 352 U. S. 902, affirming, 142 F. Supp.

707 (M. D. Ala. 1956) ...................... ..........................19,30
Gitlow v. New York, 26S U, S. 652 .................................  33

Herndon v. Lowry, 301 U. S. 242 ...................................  27
Hoag v. New Jersey, 356 IT. S. 464 ............... ............  35

Lanzetta v. New Jersey, 306 IT. S. 451 ............ ..............  27
Lewis v. Greyhound Corp., 199 F. Supp. 210 (M. D. Ala. 

1961) .................................................. ............. 6,16,29,34

Martin v. Struthers, 319 U. S. 191....... .................... .....  31
Mitchell v. State, 130 So. 2d 198 (Ala. App. 1961) ........  22
Morgan v. Virginia, 328 U. S. 373 ................................19, 30

NAACP v. Alabama, 357 U. S. 449 .................. .......... 31
Nesmith v. Alford, 318 F. 2d 110 (5th Cir. 1963) ..... . 21

Raley v. Ohio, 360 IT. S. 423 ...........................................  27
Rochin v. California, 342 IT. S. 165 ............................  24

Sealfon v. United States, 332 U. S. 575 ........ ......... 34
Scull v. Virginia, 359 U. S. 344 .... ..............................  27
Shelley v. Kraemer, 334 U. S. 1 ________ _________ 30
Sherman v. United States, 356 U. S. 369 __ ________  24
Stromberg v. California, 283 U. S. 359 ___ ____ 28, 31, 33



IV

PAGE

Taylor v. Louisiana, 370 U. S. 154 ........................ 20, 21, 23
Terminiello v. Chicago, 337 U. S. 1 .   31
Thomas v. Collins, 323 U. S. 516  .............   28
Thompson v. Louisville, 362 U. S. 199 ................. 20, 22, 23
Thornhill v. Alabama, 310 U. S. 88 ............................  31
Turner v. City of Memphis, 369 U. S. 350 .................  30

United States v. L. Cohen Grocery Co., 255 U. S. 81 .... 27
United States v. Oppenheimer, 242 U. S. 85 ................ 34

Watkins v. United States, 354 U. S. 178 .....................  27
Watson v. City of Memphis, 373 U. S. 526 .................. 21
Whitney v. California, 274 U. S. 357 ........................  33
Williams v. North Carolina, 317 U. S. 387 ________  28
Wolfe v. North Carolina, 364 U. S. 177...... ................ 35
Wright v. Georgia, 373 U. S. 284 ________ ______ 22, 26

Yick Wo v. Hopkins, 118 U. S. 356 ............................  30
Yates v. United States, 354 U. S. 298 ........ ................  35

Statutes

28 United States Code §2283 ........................................... 7
49 United States Code §316 __________ ___..5,15,19, 30
49 Code of Federal Regulations §180(a) (1)-(10) ......  19
Alabama Code, tit. 14, §119(1) (Supp. 1961) .......... 5,8,22
Alabama Code, tit. 14, §407 (1958) ..................... 5, 8, 23, 27
Alabama Code, tit. 15, §363 (1958) ............................  8

Other Authorities

8 Am. Jur., Breach of the Peace, §3, p. 834 .............. 26
Restatement of Judgments, §68(1) .......................... .....  34



I n  t h e

^ujtrmp Qlourt of %  Inttefr Btutiz
October Term, 1963 

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

Ralph D. Abernathy, Clyde Carter, W illiam S. Coffin, 
J r., J oseph Charles J ones, Bernard S. L ee, J ohn David 
Maguire, Gaylord B. N oyce, F red L. S huttlesworth, 
George Sm ith , David E. Swift and W yatt T ee W alker,

Petitioners,
-v-

State of Alabama.

PETITION FOR WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF ALABAMA

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Court of Appeals of Alabama in the 
cases of Ralph D. Abernathy v. State of Alabama; Clyde 
Carter v. State of Alabama; William S. Coffin, Jr. v. State 
of Alabama; Joseph Charles Jones v. State of Alabama; 
Bernard S. Lee v. State of Alabama; John David Maguire 
v. State of Alabama; Gaylord B. Noyce v. State of Alabama; 
Fred L. Shuttlesworth v. State of Alabama; George Smith 
v. State of Alabama; David E. Swift v. State of Alabama 
and Wyatt Tee Walker v. State of Alabama, entered on 
October 23, 1962. The Supreme Court of Alabama denied 
certiorari on July 25, 1963.



2

Citations to Opinions B elow

The opinion of the Court of Appeals of Alabama in Aber­
nathy v. Alabama (ft. A. 476)1 is reported at 155 So. 2d 
586 and is set forth in the appendix attached hereto, infra, 
p. la. The Court of Appeals rendered no opinion in the 
other cases but affirmed the convictions on the authority of 
the Abernathy case (It. Ca. 34; ft. Co. 36; B. J. 35; ft. L. 
34; R. M. 35; B. N. 35; R. Sh. 34; B. Sm. 34; B. Sw. 35; 
R. W. 34).

Jurisd iction

The judgment of the Court of Appeals of Alabama in 
each of these cases was entered on October 23, 1962 (R. A. 
475; R. Ca. 34; R. Co. 36; R. J. 35; R. L. 34; B. M. 35; B. N. 
35; R. Sh. 34; R. Sm. 34; B. Sw. 35; R. W. 34). Rehearing 
was denied on November 20, 1962 (R. A. 489; R. Ca. 35; 
R. Co. 37; B. J. 36; B. L. 35; R. M. 36; R, N. 36; R, Sh. 35; 
R. Sm. 35; R. Sw. 36; B. W. 35). The Supreme Court of 
Alabama denied certiorari on July 25, 1963 (B. A. 496).2

The jurisdiction of this Court in each of these cases is 
invoked pursuant to Title 28, United States Code, Section 
1257(3), petitioners having asserted below and asserting 
here, deprivation of rights, privileges and immunities 
secured by the Constitution of the United States.

1 The record in the Abernathy case is cited herein as “R. A.” 
followed by the page number. The Abernathy record contains 
the trial transcript for each case. The other records are cited as 
follows: (1) Carter—“R. Ca.” ; (2) Coffin—“R. Co.” ; (3) Jones— 
“R. J .” ; (4) Lee—“R. L.” ; (5) Maguire—“R. M.” ; (6) Noyce— 
“R. N.” ; (7) Shuttlesworth—“R. Sh.” ; (8) Smith—“R. Sm.” ; 
(9) Swift—“R. Sw.” ; and (10) Walker—“R. W.”

2 In all cases except Abernathy, the order of the Supreme 
Court of Alabama denying certiorari was not included in the cer­
tified records as bound. However, the order in the Abernathy 
record, p. 496, contains the captions of all eleven eases, and in



3

Questions Presented

In May of 1961, when Montgomery, Alabama, was under 
the control of the Alabama National Guard, petitioners, 
seven Negroes and four whites, were escorted by Guards­
men to an interstate bus terminal, from which seven of 
petitioners were planning to take a bus to Mississippi. 
While awaiting the departure of the bus, petitioners, in 
the presence of their Guard escort—an escort which in­
cluded the senior guard officers controlling the city—crossed 
the terminal waiting room and sat down at the terminal 
lunch counter to get a snack. The Guard officers did not 
tell any of petitioners not to sit down at the counter; nor 
did they tell any of petitioners not to do so prior to escort­
ing petitioners to the terminal. After petitioners were 
seated at the lunch counter, the Sheriff of Montgomery 
County, acting on a signal from a ranking Guard officer, 
arrested petitioners for breach of the peace and unlawful 
assembly.

Petitioners promptly sought a federal court injunction 
to restrain the county solicitor from prosecuting them on 
these charges. After taking extensive testimony, District 
Judge Johnson denied the injunction on the ground that 
28 U. S. C. §2283 prevented him from restraining a pend­
ing state criminal prosecution; but in announcing his deci­
sion, Judge Johnson said that the arrest of petitioners was 
designed to perpetuate racial segregation.

At petitioners’ ensuing state court trial, ranking Guard 
officers testified that, in view of the presence across the

each of the other bound records appears an unnumbered page with 
the notation that the writ of certiorari was denied without opinion 
(R. Ca. 35-36; R. Co. 37-38; R. J. 36-37; R. L. 35-36; R, M. 
36-37; R. N. 36-37; R. Sh. 35-36; R. Sm. 35-36; R. Sw. 36-37; 
R. W. 35-36). Submitted with the bound records in these ten cases 
are certified copies of the Supreme Court of Alabama’s order deny­
ing certiorari.



4

street from the terminal of a large, hostile white crowd, 
petitioners’ action in seating themselves at the lunch coun­
ter had been likely to provoke violence by the crowd.

Did the arrest and subsequent conviction of petitioners 
deprive them of rights protected by:

1. the due process clause of the Fourteenth Amendment 
in that they were convicted on a record barren of any evi­
dence of guilt;

2. the due process clause of the Fourteenth Amendment 
in that they were convicted under penal provisions which 
were so indefinite and vague as to afford no ascertainable 
standard of criminality;

3. the due process and equal protection clauses of the 
Fourteenth Amendment to the United States Constitution 
in that they were arrested and convicted to enforce racial 
discrimination;

4. the due process clause of the Fourteenth Amendment, 
as that clause incorporates the First Amendment’s protec­
tion of freedom of expression, assembly and religion;

5. Title 49, United States Code, Section 316(d), which 
prohibits discrimination in terminal facilities of bus com­
panies operating in interstate commerce;

6. the commerce clause of the Constitution, in that the 
prosecution of petitioners constituted an unlawful burden 
on commerce;

7. the due process clause of the Constitution in that 
petitioners were, in effect, entrapped, in the sense that their 
military guardians permitted them to sit down at a lunch 
counter where they had federal and constitutional rights 
to be served and then, without requesting petitioners to 
withdraw from the lunch counter, arrested them for this 
permitted exercise of their federal rights;



5

8. the supremacy clause of the Constitution in that the 
courts of Alabama tried and convicted petitioners pursuant 
to their arrest on charges which, a federal district court 
had already determined, were intended to perpetuate racial 
segregation?

Statutory and Constitutional Provisions Involved

Each of these cases involves Section 1 of the Fourteenth 
Amendment, Article I, Section 8 (commerce clause), and 
Article VI (supremacy clause) of the Constitution of the 
United States.

Each petitioner was convicted under Code of Alabama, 
Title 14, Section 407 (1958):

If two or more persons meet together to commit a 
breach of the peace, or to do any other unlawful act, 
each of them shall, on conviction, be punished, at the 
discretion of the jury, by fine or imprisonment in the 
county jail, or hard labor for the county, for not more 
than six months.

Every petitioner except Walker was also convicted under 
Code of Alabama, Title 14, Section 119 (1) (Supp. 1961):

Any person who disturbs the peace of others by vio­
lent, profane, indecent, offensive or boisterous con­
duct or language or by conduct calculated to provoke 
a breach of the peace, shall be guilty of a misdemeanor, 
and upon conviction shall be fined not more than five 
hundred dollars ($500.00) or be sentenced to hard 
labor for the county for not more than twelve (12) 
months, or both, in the discretion of the Court.

Each case also involves Title 49, United States Code, 
Section 316 (d) :



6

. . . It shall be unlawful for any common carrier by 
motor vehicle engaged in interstate or foreign com­
merce to make, give, or cause any undue or unreason­
able preference or advantage to any particular person, 
port, gateway, locality, region, district, territory, or 
description of traffic, in any respect whatsoever; or 
to subject any particular person, port, gateway, local­
ity, region, district, territory, or description of traffic 
to any unjust discrimination or any undue or unrea­
sonable prejudice or disadvantage in any respect what­
soever :

Statem ent

Petitioners, seven Negro and four white men, were 
arrested in the Trailways Bus Depot in Montgomery, 
Alabama, on May 25, 1961, while participating in a “Free­
dom Bide” to test racial restrictions on the use of bus 
terminal facilities serving interstate commerce (R. A. 
172-80). The arrests occurred shortly after some of 
the petitioners sat together at the terminal’s segregated 
lunch counter (R. A. 132, 180).

On the same day, May 25, 1961, a suit was filed in the 
United States District Court for the Middle District of 
Alabama seeking to enjoin the arrest of persons using inter­
state transportation facilities in Montgomery on a deseg­
regated basis. Petitioner Abernathy was an original plain­
tiff in that action. The Attorney General of Alabama and 
the Circuit Solicitor for the Fifteenth Judicial Circuit 
(encompassing Montgomery) were defendants. Immedi­
ately after their arrests, the other ten petitioners filed a 
motion to intervene in the federal court action, which was 
granted on May 26, 1961. Lewis v. Greyhound Corp., 199 
F. Supp. 210, 213. A hearing was held in the district court 
on September 5, 1961. After hearing the plaintiffs’ evi-



7

dence, including the testimony of the ranking officers who 
arrested these eleven petitioners, Judge Johnson dismissed 
the action as to the arrests of these petitioners on the 
ground that 28 U. S. C. §2283 “precludes the granting of 
such relief.” Judge Johnson did, however, state:

the court does not find or believe that the arrest [of 
the eleven petitioners] against whom these criminal 
proceedings are now pending was for any purpose other 
than to enforce segregation. As a matter of fact, in 
this posture of the case, the court is of the opinion 
that the arrest of those individuals was for the purpose 
of enforcing segregation in these facilities” (E. A. 9, 
12-13; E. Ca. 8, 11; E. Co. 9, 12-13; R. J. 9, 12-13; E. L. 
9, 12-13; E. M. 9, 12-13; R. N. 9, 12-13; E. Sh. 8, 11; 
E. Sm. 8, 11; R. Sw. 9, 12-13; E. W. 8, 12).

The eleven petitioners were tried together on September 
15, 1961, in the Court of Common Pleas of Montgomery 
County on charges that each petitioner:

did disturb the peace of others by violent, profane, in­
decent, offensive or boisterous conduct or language or 
conduct calculated to provoke a breach of the peace in 
that he did come to Montgomery, Alabama which was 
subject to martial rule and did unlawfully and inten­
tionally attempt to test segregation laws and custom 
by seeking service at a public lunch counter with a 
racially mixed group, during a period when it was 
necessary for his own safety for him to be protected 
by military and police personnel and when the said 
lunch counter building was surrounded by a large num­
ber of hostile citizens of Montgomery.

and
did meet with two or more persons to commit a breach 
of the peace or to do an unlawful act, against the peace 
and dignity of the State of Alabama (R. each case 1).



8

All eleven defendants were convicted of both breach of 
the peace (Ala, Code, tit. 14, §119(1) (Supp. 1961)) and 
unlawful assembly (Ala. Code, tit. 14, §407 (1958)). Walker 
was sentenced to 90 days in jail, and the others were sen­
tenced to 15 days in jail with fines of $100 and costs (R. 
each case 2).

On appeal to the Circuit Court of Montgomery County, 
petitioners were tried again.3 The eleven cases were con­
solidated for trial, but a separate judgment was entered in 
each case (R. A. 21; R. Ca. 20; R. Co. 21; R. J. 21; R. L. 20; 
R. M. 21; R. N. 21; R. Sh. 20; R. Sm. 20; R. Sw. 21; R. W. 
20). Each petitioner was convicted, fined one hundred dol­
lars and sentenced to thirty days at hard labor (R, A. 38; 
R. Ca. 21; R. Co. 22; R. J. 22; R. L. 21; R. M. 22; R. N. 22; 
R. Sh. 21; R. Sm. 21; R. Sw. 22; R. W. 21),4 an increase in 
jail sentence for each petitioner except Walker.

Appeal was taken to the Court of Appeals of Alabama. 
Only the Abernathy record contained the transcript of 
trial in the Circuit Court, but pursuant to stipulation (R. 
A. 47; R. Ca. 30; R. Co. 32; R. J. 31; R. L. 30; R, M. 31; 
R. N. 31; R. Sh. 30; R. Sm. 30; R, Sw. 31; R. W. 30) the 
Court of Appeals considered the transcript a part of the 
record in each of the other cases (R. A. 476-77). The

3 In the Circuit Court, where proceedings are begun by a Solic­
itor’s complaint (Ala. Code, tit. 15, §363 (1958)), petitioner 
Walker was charged only with unlawful assembly (Ala. Code, tit. 
14, §407 (1958)) (R. W. 3-4) and arraigned on that charge alone 
(R. A. 68). At the trial the Circuit Judge acknowledged that only 
one charge was pending against Walker (R. A. 74; see also R. A. 
227, 228).

4 Default in payment of the fine will result in an additional 
thirty days in jail (R. A. 38; R. Ca. 21; R. Co. 22; R, J. 22; 
R. L. 21; R. M. 22; R. N. 22; R, Sh. 21; R, Sm. 21; R, Sw. 22; 
R, W. 21). Default in payment of court costs, wfhich also were 
assessed, will result in an additional 133 days for petitioner Aber­
nathy (R. A. 38-39), 80 days for the others (R. Ca. 21-22; 
R. Co. 22-23; R. J. 22-23; R. L. 21-22; R. M. 22-23; R. N. 22-23; 
R. Sh. 21-22; R. Sm. 21-22; R. Sw. 22-23; R. W. 21-22).



9

Court of Appeals affirmed each judgment of conviction, 
and rehearing was denied. The Supreme Court of Alabama 
denied certiorari.

In the Circuit Court the Solicitor’s Complaint, which con­
stitutes the formal charge, alleged that each petitioner 
(except Walker):

did disturb the peace of others in Montgomery, Ala­
bama, at a time when said city and county were under 
martial rule as a result of the outbreak of racial mob 
action, by conduct calculated to provoke a breach of 
the peace, in that he did wilfully and intentionally seek 
or attempt to seek service at a public lunch counter 
with a racially mixed group, at which time and place 
the building housing said lunch counter was surrounded 
by a large number of hostile citizens of Montgomery, 
Alabama, and it was necessary for his own safety for 
him to be protected by military and civil personnel 
(R. A. 3-4; R. Ca. 3; R. Co. 3; R. J. 3; R. L. 3; R. 
M. 3; R. N. 3; R. Sh. 3; R. Sm. 3; R, Sw. 3)

and that each petitioner:
did meet with two or more persons to commit a breach 
of the peace or to do an unlawful act, in that he did 
meet with two or more persons in Montgomery, Ala­
bama, at a time when said city and county were under 
martial rule as a result of the outbreak of racial mob 
action, for the purpose of wilfully and intentionally 
seeking or attempting to seek service at a public lunch 
counter with a racially mixed group at which time and 
place the building housing said lunch counter was sur­
rounded by a large number of hostile citizens of Mont­
gomery, Alabama, and it was necessary for his own 
safety for him to be protected by military and police 
personnel, against the peace and dignity of the State



10

of Alabama (R. A. 4; R. Ca. 3; R. Co. 3; R. J. 3;
R. L. 3; R. M. 3; R. N. 3; R. Sh. 3; R. Sm. 3; R, Sw.
3; R. W. 3-4).

The petitioners are four ministers (Coffin, Abernathy, 
Walker and Shuttlesworth), three professors of religion 
(Maguire, Noyce and Swift), three theology students (Car­
ter, Jones and Lee), and a law student (Smith) (R. A. 
172-178). Coffin, Maguire, Smith, Noyce and Swift 
traveled from Connecticut to Atlanta, Georgia, where they 
were joined by Carter and Jones, who had begun in North 
Carolina (R. A. 176). On Wednesday, May 24, 1961, the 
seven set off from Atlanta on a bus trip across the South 
to determine the extent of segregation in interstate bus 
terminal facilities and to protest against segregation (R. 
A. 117, 175, 176). They arrived at the Greyhound terminal 
in Montgomery late Wednesday afternoon and stayed the 
night (R. A. 176).

Martial law had been declared in Montgomery on the 
previous Sunday, May 21, 1961 (R. A. 127-28). At 
the request of Gen. Henry Graham, Commander of the Ala­
bama National Guard detachment in Montgomery (R. A. 
135), the petitioners notified the military authorities 
of their intention to depart from Montgomery on Thurs­
day morning, and a number of military vehicles were sent 
to Rev. Abernathy’s home, where the petitioners were 
gathered. A heavily armed military convoy escorted the 
seven interstate passengers along with Abernathy, Walker, 
Shuttlesworth, and Lee to the rear of the Trailways terminal 
(R. A. 83, 129-31, 178, 218). Across the street from the 
front of the terminal was a crowd of three to five hundred 
persons (R. A. 77, 122, 131) under the control of more 
than one hundred National Guardsmen and several civilian 
law enforcement officers (R. A. 121-23, 219).



11

Still under military escort, petitioners entered the white 
waiting room from the rear of the segregated terminal 
(R. A. 106-07, 123, 132, 180). In the terminal at the time 
were thirty to fifty persons including the eleven petitioners 
and twelve to twenty-five Guardsmen and local officers 
(R. A. 77, 111, 121, 132, 220). xlfter the seven travelers 
bought tickets to Jackson, Mississippi (R. A. 132, 180), 
all of the petitioners except Walker, who was making a 
telephone call (R. A. 123-24), proceeded toward the lunch 
counter, where some of them sat down on the available 
seats and ordered coffee (R. A. 132, 133, 180). They were 
served by the counter man (R. A. 184) after the waitress 
had moved aside (R. A. 133), but within a very short time 
Sheriff M. S. Butler arrested all eleven men pursuant 
to a signal given by Col. Poarch, Staff Judge Advocate of 
the National Guard (R. A. 76, 84, 89, 127).

It is uncontested that petitioners conducted themselves 
in an orderly fashion. They were continuously respectful 
toward the authorities who had escorted them to the termi­
nal and accompanied them inside (R. A. 98, 124, 141, 
185). Having been taken into the white waiting room 
by these authorities, they were unmolested while the 
travelers bought tickets and Walker used the telephone. 
They were not told to refrain from buying a cup of coffee, 
and when they sat down, they were neither requested nor 
ordered to leave (R. A. 96, 139-40, 186, 211). They were 
abruptly arrested by the authorities who had brought them 
to the depot.

While the petitioners were in the terminal, but before 
they moved toward the lunch counter, two or three white 
men were ejected from the terminal for pouring coffee on 
the counter seats. Although Col. Poarch viewed the con­
duct of these “white toughs” as calculated to provoke a 
breach of the peace, they were not arrested (R. A. 84, 91, 
102, 133, 139, 146).



12

Sheriff Butler, the officer who arrested petitioners, tes­
tified that he heard an “outburst” from the crowd outside 
when the petitioners sat down at the counter, and that peti­
tioners’ conduct could have caused a riot (ft. A. 98, 102-03).° 
Col. Poarch stated that the crowd outside was very tense 
and hostile toward petitioners (ft. A. 131); that the “air 
was electric with excitement and tension” (ft. A. 134); 
that tension inside the terminal increased because the 
waitresses left the counter area when the petitioners ap­
proached (ft. A. 133). Col. Poarch said that he had no 
time to assess the attitudes or actions of the crowd out­
side (R. A. 146), but he ordered the arrests when peti­
tioners sought service because “you can’t yell ‘Fire’ in 
a crowded theater” (R. A. 141). “They were arrested be­
cause of the danger of provoking a riot causing injury to 
themselves and to all other persons involved including the 
National Guardsmen” (R. A. 149). Gen. Graham testified 
that violation of the custom of segregation at that time 
could have inflamed the crowd outside (R. A. 211, 220-221). 
Floyd Mann, Director of Public Safety, thought that peti­
tioners’ conduct was calculated to cause disorder in the bus 
station (R. A. 120).

The size of the crowd outside the terminal was variously 
estimated at three hundred, several hundred, and four to 
five hundred (R. A. 131, 122, 77). Uncontradicted tes­
timony establishes that at least one hundred troops were 
lined up across the street between the crowd and the termi­
nal (R. A. 100, 121-23, 178, 219). Traffic on the street 
in front of the terminal was blocked off (R. A. 131). 
Motorcycle policemen were patrolling it, and thirty- 
five men from the Department of Public Safety were on

5 The state presented testimony that the inside of the terminal 
was visible through the front windows to the crowd across the 
street from the terminal (R. A. 103). This was disputed (R. A. 
183-84).



13

hand (R. A. 121-22). Throughout the record there is 
no reference to any overt action or threat on the part 
of any person or group outside the station. One prosecu­
tion witness testified that no one in the crowd was arrested 
(R. A. 122).

A considerable amount of testimony was admitted with 
respect to events of the week previous to these arrests. 
It was established that a group of Freedom Riders arriving 
in Montgomery on Saturday, May 20, 1961 were greeted by 
an angry crowd (R. A. 80). Fighting broke out between 
whites and Negroes and between local persons and visit­
ing newsmen. Several were hurt, including some of the 
Riders (R. A. 113-114, 225). An hour after the crowd 
was dispersed, fighting broke out again (R. A. 114). 
On the following day, Sunday, May 21, an angry crowd, 
predominantly white, gathered outside Rev. Abernathy’s 
Negro church where an evening meeting was being con­
ducted (R. A. 81, 82, 114-15, 118). Bricks and rocks were 
thrown, and a car was found burning when the police ar­
rived (R. A. 81, 115).

Following the Sunday riot, martial law was declared by 
the Governor (R. A. 128). Fourteen hundred National 
Guardsmen, armed and equipped, were brought in; the 
City was patrolled by armed convoys, and sentry posts 
were set up (R. A. 128). Mr. Mann testified that 
“racial unrest” continued through the week (R. A. 125). 
A moving line of cars encircled the Greyhound station 
on Monday when a group of Freedom Riders was ex­
pected, and National Guard reinforcements “encountered 
some difficulty in clearing the situation up,” but the Riders 
did not appear (R. A. 128). A Negro minister was shot 
at an unspecified time during the week, but the sus­
pected perpetrators were arrested the following day 
(R. A. 117, 129). Crowds gathered at various times at



14

air, bus, and train terminals (R. A. 129). On Wednes­
day the National Guard escorted two groups of Free­
dom Riders from Montgomery to the Mississippi line 
(R. A. 119, 142-143, 206). Col. Poarch testified that the 
populace and authorities thought the crisis was over on 
Wednesday when the second group was safely escorted 
to Mississippi, only to have the seven out-of-state petition­
ers arrive in Montgomery (R. A. 142-144). Col. Poarch 
said he had heard that these petitioners had been met by 
“hostile crowds of some two thousand who stoned the car in 
which they were riding” from the station (R. A. 143). An­
other prosecution witness, an observer on the scene, stated 
that they were greeted by a crowd of 150 to 200, that there 
were no demonstrations at the time, and no bricks or other 
objects were thrown (R. A. 154).

Undisputed testimony established that one group of Free­
dom Riders departing from the Trailways Bus Depot on 
Wednesday had used the lunch counter on an integrated 
basis and had remained in the terminal for thirty to forty- 
five minutes. They were not arrested and no incident oc­
curred although 250 to 350 people were crowded around the 
terminal (R. A. 223), approximately the same number as 
on Thursday when petitioners were arrested (R. A. 122). 
Sheriff Butler, Col. Poarch and Gen. Graham were aware 
on Thursday that the Trailways lunch counter had been 
integrated without incident on the previous day (R. A. 95, 
135, 206). Petitioner Coffin stated that the petitioners also 
knew of this when they proceeded to the counter on Thurs­
day (R. A. 177).

The Trailways Bus Depot in Montgomery is “in the busi­
ness of providing accommodations for interstate pas­
sengers” (R. A. 165). It is used by three bus companies 
engaged in interstate commerce (R. A. 165) and its “facili­
ties are an integral part of interstate commerce” (R. A.



15

167). The lunch counter portion of the terminal is leased 
by the three carriers to a corporation which in turn leases 
it to another corporation which operates the counter under 
the supervision of an employee of one of the interstate car­
riers (E. A. 49).6

How the Federal Questions Were Raised 
and Decided Below

In the Circuit Court, petitioners filed identical motions 
to quash the complaint. Invoking the provisions of the 
Fourteenth Amendment, petitioners alleged deprivation 
of freedom of expression, freedom of religion, freedom of 
movement, and freedom of association; denial of due 
process arising from prosecution on vague charges; and 
denial of equal protection of the laws. The motions to quash 
also claimed that petitioners were arrested in order to en­
force segregation in facilities serving interstate commerce, 
in violation of Title 49, United States Code, Section 316(d) 
and the commerce clause (Article I, Section 8) of the Con­
stitution as well as the due process and equal protection 
clauses of the Fourteenth Amendment (E. A. 6-8; E. Ca. 
5-7; E, Co. 6-8; R. J. 6-8; E. L. 5-8; E. M. 6-8; R, N. 6-8; 
E. Sh. 5-7; R. Sm. 5-7; E. Sw. 6-8; E. W. 5-8). The mo­
tions were overruled (R. A. 21; E. Ca. 20; E. Co. 21; R. 
J. 21; E. L. 20; R. M. 21; R. N. 21; E. Sh. 20; R. Sm. 
20; R. Sw. 21; E. W. 20).

6 The parties stipulated (R. A. 47, 49) that:
. . . The lunch counter portion of the terminal is leased 
by the aforesaid carriers to the Interstate Co., a Dela­
ware Corporation, which in turn leases the lunch 
counter portion of the terminal to Southern House, 
Inc., which operates the lunch counter portion of the 
terminal subject to the supervision with respect to the 
manner of serving white and negro patrons of R. E. 
McRae.



16

Petitioners also demurred to the complaint, again raising 
all of the objections made in the motions to quash. The 
demurrers alleged, in addition, that each statute under 
which petitioners were charged was vague, indefinite and 
uncertain, and as such was unconstitutional on its face and 
as interpreted and applied (R. A. 14-20; R. Ca. 13-19; R. 
Co. 13-20; R. J. 14-20; R. L. 13-19; R. M. 14-20; R. N. 14- 
20; R. Sh. 13-19; R. Sm. 13-19; R. Sw. 14-20; R. W. 13-19). 
The demurrers were overruled (R. A. 21; R. Ca. 20; R. 
Co. 21; R. J. 21; R. L. 20; R. M. 21; R. N. 21; R. Sh. 20; 
R. Sm. 20; R. Sw. 21; R. W. 20).

After presentation of the state’s case (R. A. 161), a 
motion was made on behalf of each petitioner (R. A. 47, 
48) to exclude the state’s evidence (R. A. 22). This mo­
tion made again all objections raised in the motions to 
quash and demurrers, and in addition alleged a denial 
of federal due process because the record was devoid of 
proof of each element of the offenses charged (R. A. 22-27). 
Attached to the motion to exclude was a copy of the tran­
script (R. A. 229-472), opinion (R. A. 27-36), and decree 
(R. A. 36-37) in the case of John R. Lewis, et al. v. Grey­
hound Corp., et al., 199 F. Supp. 210 (M. D. Ala. Nov. 1, 
1961), in which the federal court enjoined further arrests 
such as those of the petitioners and found that the peti­
tioners’ arrests were designed to enforce segregation. The 
Circuit Judge granted the State’s motion to strike the ex­
hibits and overruled the petitioners’ motion to exclude the 
evidence (R. A. 163-64). The motion to exclude was pre­
sented again at the conclusion of the case, and denied (R. A. 
227).

Following the judgment and sentence in the Circuit 
Court, identical motions for new trial were filed, renewing 
all objections raised in previous motions (R. A. 40-44; 
R. Ca. 23-27; R. Co. 24-29; R. J. 24-28; R. L. 23-27; R.



17

M. 24-28; E. N. 24-28; R. Sh. 23-27; E. Sm. 23-27; E. Sw. 
24-28; E. W. 23-27). The motions for new trial were over­
ruled (E. A. 46; E. Ca. 29; E. Co. 31; E. J. 30; E. L. 29; 
B, M. 30; E. N. 30; E. Sh. 29; E. Sm. 29; E. Sw. 30; E. 
W. 29).

The Court of Appeals of Alabama, in an opinion de­
livered in the Abernathy case, expressly decided several 
issues adversely to the petitioners, holding:

that the statutes creating the offenses of unlawful as­
sembly, Sec. 407, Title 14, and breach of the peace, 
Sec. 119(1), Title 14, Code, supra, do not, either in 
themselves or as construed and applied to this defen­
dant, abridge the right of free speech and assembly 
guaranteed by the First Amendment to the Constitu­
tion of the United States, nor has he been denied the 
equal protection of the law guaranteed by the Four­
teenth Amendment to the Constitution of the United 
States . . . (E. A. 485; appendix, infra, p. 10a).

Every issue was met by the Court of Appeals’ declara­
tion that “The motion to quash [,] the demurrer, and the 
motion to exclude the evidence were properly overruled” 
(E. A. 485; appendix, infra, p. 10a).

The Court of Appeals accepted the following definition 
of unlawful assembly:

an assembly of [two] or more persons, who, with intent 
to carry out any common purpose, assemble in such a 
manner, or so conduct themselves when assembled, as 
to cause persons in the neighborhood of such assembly 
to fear on reasonable grounds that the persons so as­
sembled would commit a breach of the peace or provoke 
others to do so. 2 Wharton’s Criminal Law, Sec. 853,



18

p. 721; Shields v. State, 184 Wis. 448, 204 N. W. 486, 
40 A. L. E. 945; Aron v. Wasau, 98 Wis. 592, 74 N. W. 
354 (E. A. 485-86; appendix, pp. IQa-lla).

and this definition of breach of the peace :
In general terms a breach of the peace is a violation 
of public order, a disturbance of the public tranquility, 
by any act or conduct inciting to violence or tending 
to provoke or excite others to break the peace. Shields 
v. State, supra. 8 [Am.] Jur. Sec. 3, p. 834 (E. A. 
486 ; appendix, infra, p. 11a).

It held that:
No specific intent to breach the peace is essential to 

a conviction for a breach of the peace. State v. Cant­
well, 126 Conn. 1, 8 A. 2d 533; Cantwell v. Connecticut, 
310 U. S. 296, 60 S. Ct. 900, 84 L. ed. 1213; 128 A. L. E. 
1352. Nor is it necessary to constitute the offense of a 
breach of the peace that the proof show the peace has 
actually been broken. People v. Kovalchuck, 68 N. T. S. 
2d 165; People v. Ripke, 115 N. Y. S. 2d 590 (E. A. 
486; appendix, infra, p. 11a).

Asserting that the lawfulness of an act may be deter­
mined by the circumstances surrounding it, the Court of 
Appeals concluded that “it could not conceivably be said 
that [petitioner] did not have knowledge that his conduct 
was calculated to incite a breach of the peace . . . Under 
the facts and circumstances adduced we think the question 
of whether the defendant’s conduct was reasonably cal­
culated to provoke a breach of the peace was one for the 
trier of fact” (E. A. 487; appendix, infra, p. 12a).

In each of the other cases, the Court of Appeals rendered 
no opinion but affirmed the convictions on the authority of



19

the Abernathy case (R. Ca. 34; R. Co. 36; R. J. 35 ; R. L. 
34; R. M. 35; R. N. 35; R. Sh. 34; R. Sm. 34; R. Sw. 35; 
R. W. 34). In all eleven cases, the Supreme Court of .Ala­
bama denied certiorari without opinion (R. A. 496).

Reasons for Granting the Writ

The decision below conflicts with applicable decisions of 
this Court on important constitutional issues.

I

The Decision Below Affirms Criminal Convictions 
Based on No Evidence of Guilt.

A. Breach of the Peace

Petitioners were convicted because, as the Solicitor’s 
Complaint alleges, they “did wilfully and intentionally seek 
or attempt to seek service at a public lunch counter with a 
racially mixed group.” It is not disputed that petitioners 
had every right to be in the bus terminal and to use the 
lunch counter on a desegregated basis. See 49 U. S. C. 
§316(d ); Boynton v. Virginia, 364 U. S. 454; Gayle v. Broiv- 
der, 352 U. S. 903; Morgan v. Virginia, 328 U. S. 373.7 Nor is 
there the slightest indication that any of the petitioners 
lost that right by engaging in conduct or language that 
could be characterized as violent, profane, indecent, offen­
sive or boisterous.

Nonetheless, it is the state’s theory that petitioners 
abused their rights by exercising them in the presence of

7 Following these arrests, in September, 1961, the Interstate 
Commerce Commission issued regulations barring racial segrega­
tion in all bus terminal facilities serving interstate commerce. 49 
C. F. R. §180(a)(1)-(10).



20

hostile observers who presented a threat of violence. Even 
this outlandish theory is unsupported by the record. The 
evidence of threatened violence consists merely of testi­
mony that a crowd was outside, that violence had occurred 
within the previous week, that the air was electric with 
excitement, that a few white toughs had poured coffee on 
the counter seats, that an “outburst” was heard when peti­
tioners sat down, and that military and civilian authorities 
believed that arrests were necessary to preserve the peace.

No one testified as to the behavior of the crowd. Not a 
single incident of violence or unruly conduct was cited. 
There is no evidence that any person in the crowd even 
said anything critical of the petitioners or toward incite­
ment of others in the crowd. Moreover, there was solid, 
undisputed evidence that over one hundred armed National 
Guardsmen were present on the scene, that they were well 
deployed to control the situation, and that order had been 
maintained since the military authorities had assumed 
control. It was also shown conclusively that under very 
similar circumstances this lunch counter had been desegre­
gated without incident on the day before, and that the 
petitioners were not even asked by the authorities to re­
frain from using the lunch counter.

Conviction on such a record violates due process of law 
under the rule of Thompson v. Louisville, 362 U. S. 199. 
The testimony was too speculative and remote to constitute 
any evidence of a probable disturbance that could not be 
handled with ease by the authorities on the scene. As in 
Garner v. Louisiana, 368 U. S. 157, and Taylor v. Louisiana, 
370 U. S. 154, the evidence established merely that petition­
ers were peacefully exercising their lawful rights in vio­
lation of a local custom of segregation. In the Taylor case 
there was evidence that onlookers became restless and some



21

climbed on chairs, but that could not ground a conviction 
for breach of the peace.

Assuming, however, that the state had amply proved its 
contention that petitioners were playing with dynamite by 
ordering a cup of coffee, these convictions still could not 
stand. The issue of threatened violence by those who op­
pose the constitutional rights of others is not properly in 
the case. As this Court said last term in Wright v. Georgia, 
373 U. S. 284, 293, “the possibility of disorder by others 
cannot justify exclusion of persons from a place if they 
otherwise have a constitutional right (founded upon the 
Equal Protection Clause) to be present.” [Citing Taylor 
v. Louisiana, supra, Garner v. Louisiana, supra, and 
Buchanan v. Warley, 245 U. S. 60], Numerous other de­
cisions of this Court and others squarely establish the prin­
ciple that the wrongful conduct of one person or group 
cannot be used as a pretext for denying the constitutional 
rights of others. Cooper v. Aaron, 358 U. S. 1, affirming, 
257 F. 2d 33, 38-39 (8th Cir. 1958); Watson v. City of Mem­
phis, 373 U. S. 526. As Judge Brown of the Fifth Circuit 
wrote recently,

. . . liberty is at an end if a police officer may without 
warrant arrest, not the persons threatening violence, 
but those who are its likely victims merely because 
the person arrested is engaging in conduct which, 
though peaceful and legally and constitutionally pro­
tected, is deemed offensive and provocative to settled 
social customs and practices. TV hen that day comes 
. . . the exercise of [First Amendment freedoms] must 
then conform to what the conscientious policeman 
regards the community’s threshold of intolerance to 
be. Nesmith v. Alford, 318 F. 2d 110, 121 (1963).

Without basing petitioners’ guilt on the threat of wrong­
ful action by others, the state has no case at all. Its evi-



22

dence shows only that petitioners peacefully sought service 
at a lunch counter, and this falls far short of establishing 
a breach of the peace.

The relevant portion of Alabama’s statute condemns 
“any person who disturbs the peace of others . . .  by con­
duct calculated to provoke a breach of the peace.” Pre­
vious constructions of the statute shed no light on its 
meaning.8 A normal interpretation would limit its appli­
cability to situations in which 1) the peace of others was 
actually disturbed, and 2) the action of the accused was 
in some way offensive or wrongful, even if not calcu­
lated or intended to create a disturbance. Even the broad 
interpretations often given to the term breach of the peace, 
e.g. Cantwell v. Connecticut, 310 U. S. 296, Edwards v. 
South Carolina, 372 U. S. 229, do not eliminate the neces­
sity of some type of wrongful, offensive or incitatory con­
duct.

Unless injury to the delicate sensibilities of those who 
oppose integration can be considered an actual disturb­
ance of the peace, this record lacks any evidence of this 
essential element of the offense, and the rule of Thompson 
v. Louisville clearly applies. Likewise, there is no evidence 
of any wrongful conduct by petitioners. Here, as in Wright 
v. Georgia, 373 U. S. 284, 285, “The record is devoid of 
evidence of any activity which a breach of the peace stat­
ute might be thought to punish.”

8 The only Alabama case approaching a construction of the 
1959 statute (Tit. 14, §119(1)) is Mitchell v. State, 130 So. 2d 198 
(Ala. App. 1961), cert, denied, 130 So. 2d 204 (Ala. Sup. Ct.). In 
that case a conviction was reversed because the complaint, which 
alleged merely that the defendant engaged in “conduct calculated 
to provoke a breach of the peace”, was held to be too vague. It was 
further declared that the evidence, showing only that the defendant 
walked in front of complainants with his hands in his pockets and 
acted “strutty”, was insufficient to make out an offense, even if well 
pleaded.



23

Thus, whether or not the “evidence” of threatened vio­
lence is considered, this case is governed by Thompson v. 
Louisville, supra, Garner v. Louisiana, supra, and Taylor 
v. Louisiana, supra.

B. Unlawful Assem bly

Title 14, Section 407 makes it a crime when “two or more 
persons meet together to commit a breach of the peace, or 
to do any other unlawful act. . . . ” Clearly, there is no evi­
dence in this record of a breach of the peace as that term 
is normally understood. Nor is there any evidence what­
ever of the commission of any other unlawful act. Thus, 
the applicability of Thompson v. Louisville, supra, seems 
undeniable.

Conceivably, the state could reason that, notwithstand­
ing any normal or reasonable interpretation of “breach of 
the peace”, petitioners’ convictions under the breach of 
the peace statute conclusively establish that they committed 
a breach of the peace while assembled. This, of course, 
would give rise to the objection that the unlawful assembly 
statute is unconstitutionally vague (see Section II, infra).9 
Regardless of that, the argument in Section I-A above 
demonstrates that there was no evidence of breach of the 
peace, no matter how broadly the breach of the peace 
statute is construed.

The convictions under both the breach of the peace and 
the unlawful assembly laws share an additional infirmity 
which is related to the no evidence claim—e.g. that the peti­
tioners’ conduct, which is here attempted to be made crimi­
nal, was induced by state officers. The action of the military 
officials in escorting petitioners to the bus terminal and

9 Furthermore, as to petitioner Walker, he was not even 
charged with breach of the peace.



24

then arresting them for being there and nsing the public 
facilities was comparable to an entrapment. By escort­
ing petitioners, permitting them access to the “white” 
waiting room, and not warning them they should not use 
the lunch room or behave in any particular way, the mili­
tary authorities impliedly asserted that they had the 
situation in hand and that petitioners could exercise their 
rights without any restriction imposed because of the 
presence of a crowd outside the terminal. Thus petitioners’ 
alleged “crime” was the product of the “creative activity” 
of state officers in leading the petitioners to believe that 
they could freely use the terminal facilities. Cf. Sherman 
v. United States, 356 U. S. 369, 372. It “offends a sense 
of justice,” cf. Rochin v. California, 342 U. S. 165, 173, 
that state officers should be permitted to induce an act to 
be done and then punish it as criminal. Whether the crimi­
nal law rule as to entrapment need be made a due process 
matter generally is not necessary to decide. It is sufficient 
that here the state-induced activity is conceded to be an 
activity that is generally lawful. The only claim of illegality 
results from the alleged special circumstances pertaining 
to the crowd outside the terminal, which were known to 
the state authorities when they escorted petitioners to 
the terminal and did not warn them that any such extraor­
dinary limitations would be placed upon their actions.



25

II
The State Statutes, as Construed and Applied to Con­

vict Petitioners, Are So Vague, Indefinite and Uncertain 
as to Offend the Due Process Clause of the Fourteenth 
Amendment.

A. Breach o f the Peace

Conviction of petitioners under the provisions of a stat­
ute outlawing “conduct calculated to provoke a breach of 
the peace” is blatantly unfair. As construed and applied to 
petitioners, this vague statute violated due process of law.

It has been established that petitioners, under the protec­
tion of state authorities, peacefully entered a bus terminal, 
bought tickets to an out-of-state destination and ordered 
coffee at the lunch counter. They had every reason to be­
lieve that their actions would be protected (R. A. 186, 211). 
They were not refused service (R. A. 184). They were not 
asked to move away from the counter, nor were they wrnrned 
that their actions were considered dangerous (R. A. 96, 
139-140, 186, 211). Others had done precisely the same 
thing on the day before without being arrested (R. A. 95, 
135, 206, 223).

Under these circumstances, they were arrested under a 
broad, general, and vague statute. The Court of Appeals 
construed the statute to mean that no actual disturbance of 
the peace was necessary; that no specific intent to breach 
the peace was necessary; that violent, profane, indecent, 
offensive, or boisterous conduct was immaterial (R. A. 486; 
appendix, infra, p. 11a).

The court’s holding means that whenever a person or 
group performs an innocent and lawful act in the presence 
of others who might object to the doing of that act, they can



26

be convicted under this statute. It means that the exercise 
of constitutional rights in Alabama is subject to the irra­
tional and unlawful actions of others and to the unbridled 
discretion of the arresting officer to determine whether po­
tential lawbreakers present a threat of disorder which 
justifies suppression of inherently innocent conduct.

Surely the statute never warned petitioners that such was 
the case. No previous construction of Alabama courts gave 
the statute such a broad interpretation.10 In this case the 
Court of Appeals relied completely on out-of-state authori­
ties for its construction of the statute (R. A. 486; appendix, 
infra, p. 11a). Moreover, it misconstrued those authorities 
by accepting the proposition that completely innocent acts 
are punishable as breaches of the peace when such was 
never intended to be the law despite broad definitions of 
breach of the peace.11

It is clear that a hypothetical precise law providing “it 
shall be unlawful for any person or group to violate ac­
cepted customs of racial segregation at bus terminal lunch 
counters when in the opinion of law enforcement officers on 
the scene such violation would tend to excite unruly crowds 
in the vicinity” could not (because of the equal protection 
clause) reach petitioners’ conduct. Cf. Cooper v. Aaron, 
358 U. S. 1. But even if this proposition were doubtful, it is 
manifest that a vague statute cannot provide the basis for 
such a criminal prosecution. Wright v. Georgia, 373 U. S. 
284; Edwards v. South Carolina, 372 U. S. 229; Garner v. 
Louisiana, 368 U. S. 157,198 (concurring opinion); Cantwell 
v. Connecticut, 310 XL S. 296.

10 See note 6, supra.
11 Citing- 8 Am. Jur., Breach of the Peace, §3, p. 834, the Court 

of Appeals quoted broad language, but omitted to mention that in 
the same paragraph that authority assumes that actionable conduct 
must be “unjustifiable or unlawful” or “wicked.”



27

This Court has often held that criminal laws must define 
crimes sought to be punished with sufficient particularity 
to give fair notice as to what acts are forbidden. As was 
held in Lametta v. New Jersey, 306 TJ. S. 451, 453, “no one 
may be required at peril of life, liberty or property to spec­
ulate as to the meaning of penal statutes. All are entitled 
to be informed as to what crimes are forbidden.” See also, 
United States v. L. Cohen Grocery, 255 U. S. 81, 89; Con- 
nally v. General Const. Co., 269 U. S. 385; Raley v. Ohio, 360 
U. S. 423. The statutory provision applied to convict peti­
tioners in this case is so vague that it offends the basic 
notions of fair play in the administration of criminal justice 
that are embodied in the due process clause of the Four­
teenth Amendment.

Moreover, the statute punished petitioners’ protest 
against racial segregation practices and customs in the 
community; for this reason the vagueness is even more 
invidious. When freedom of expression is involved the 
principle that penal laws may not be vague must, if any­
thing, be enforced even more stringently. Cantwell v. Con­
necticut, 310 U. S. 296, 308-311; Scull v. Virginia, 359 U. S. 
344; Watkins v. United States, 354 U. S. 178; Herndon v. 
Lowry, 301 IT. S. 242, 261-264.

B. Unlawful Assem bly

The same reasoning and authorities apply to the con­
victions for unlawful assembly. Title 14, Section 407 is 
hopelessly vague, condemning as it does not only a meeting 
of two or more persons “to commit a breach of the peace”, 
but also a meeting to do “any other unlawful act.”

“Breach of the peace” normally refers to some type of 
boisterous, violent or otherwise blameworthy conduct; but 
there was no evidence of any such actions by petitioners. 
No prior construction of this law by the Alabama courts



28

warned that the law applied to purely innocent activity 
which might provoke others to unlawful acts of opposition, 
and surely the text of the law gives no hint that it is sub­
ject to such a construction. Thus, the law fails to pro­
vide any standard of criminality to guide a judge or jury 
in applying it, and is patently subject to capricious enforce­
ment.

The second clause of the law punishing a meeting “to 
commit any other unlawful act” might have almost limit­
less applicability. But except for the breach of peace 
charges, the record in this case indicates no contention by 
the state that petitioners’ action was unlawful. It is evi­
dent that this clause, like the others discussed above, fails 
to provide any warning that a legally and constitutionally 
protected activity—sitting in an integrated group at a bus 
station lunch counter formerly reserved for whites only— 
can be punished as unlawful.

Moreover, as petitioners were charged under the alter­
native words of the statute, to this day they cannot know 
whether the state claims that they met to commit a breach 
of the peace or met to commit some other unlawful act. 
If either of the statutory clauses is unconstitutionally 
vague, the conviction under this law must be reversed for 
it cannot be known which part was relied upon by the trial 
or appellate courts, Stromberg v. California, 283 U. S. 
359; Thomas v. Collins, 323 U. S. 516; Williams v. North 
Carolina, 317 U. S. 387.



29

III
The Arrests and Convictions of Petitioners on Charges 

of Breach of the Peace and Unlawful Assembly Consti­
tute Enforcement by the State of the Practice of Racial 
Segregation in Bus Terminal Facilities Serving Interstate 
Commerce, in Violation of the Equal Protection Clause 
of the. Fourteenth Amendment, the Commerce Clause of 
the Constitution, and 49 U. S. C, §316(d ).

This is an uncomplicated case of state enforcement of 
segregation. Unlike several trespass cases brought before 
this Court, there is no problem of private property rights 
or private judgment, for the lunch counter operator here 
was under a statutory duty to serve petitioners, Boynton 
v. Virginia, 364 U. S. 454, and he acknowledged that duty 
by serving them (R, A. 184). The arrests were ordered 
and executed by agents of the state who made no pretense 
of responding to private choice.

Petitioners contend that no amount of evidence could 
justify the state’s action on the ground that innocent and 
protected conduct could lead to violence by others (see 
Section I, supra). However, that issue need not be faced, 
because petitioners were arrested for the purpose of en­
forcing segregation in the terminal facilities. Judge John­
son so found in Lewis v. Greyhound Corp., 199 P. Snpp. 210 
(M. D. Ala, 1961), supra p. 7, and the record here is clear.

A large force of military and civilian law enforcement 
officers was posted both inside and outside the terminal 
(R. A. 77, 111, 121-23, 132). The crowd outside was under 
control (R. A. 121-23), and the persons who poured coffee 
on the counter seats were swiftly apprehended (R. A. 133). 
Col. Poarch testified that dispersing the crowd was not 
considered (R. A. 135). It had been allowed to form al-



30

though petitioners gave the military command advance 
notice of their departure plans (R. A. 129). G-en. Graham 
admitted his anger at the actions of petitioners (R. A. 
208), which could well explain his failure to warn them 
of the peril they supposedly created by sitting down. No 
effort was made to offer petitioners protection if they 
would leave the terminal and delay their trip until a 
quieter time.

The authorities of the State of Alabama chose none of 
these alternatives, but summarily arrested the racially 
integrated group that was violating its customs. This, 
of course, was in direct contrast to the failure to arrest the 
persons who poured coffee on the seats.

When a state enforces the practice of racial segregation 
in facilities serving interstate commerce by its adminis­
tration of the criminal law, it denies equal protection of 
the laws. Bailey v. Patterson, 369 U. S. 41; Turner v. 
Memphis, 369 U. S. 350; Gayle v. Browder, 352 TJ. S. 903, 
affirming, 142 F. Supp. 707 (M. D. Ala. 1956); Baldwin v. 
Morgan, 287 F. 2d 750 (5th Cir. 1961) ; Boman v. Bir­
mingham Transit Co., 280 F. 2d 531 (5th Cir. 1960); cf. 
Shelley v. Kraemer, 334 U. S. 1; Yich Wo v. Hopkins, 118 
U. S. 356.

This use of the state’s machinery also conflicts with the 
statute forbidding discrimination in facilities operated by 
interstate motor carriers, 49 TJ. S. C. §316(d ); Boynton v. 
Virginia, 364 TJ. S. 454, and constitutes an unlawful burden 
on commerce in violation of Article I, Section 8 of the Con­
stitution, Morgan v. Virginia, 328 TJ. S. 373.

The reasoning in this Section is equally applicable to the 
convictions for breach of the peace and for unlawful as­
sembly.



31

IV
The Decision Below Conflicts With Decisions of This 

Court Securing the Fourteenth Amendment Right to 
Freedom of Expression, Assembly and Religion.

By taking seats at the lunch counter in the Trailways Bus 
Depot, petitioners were exercising not only their right to 
use interstate transportation facilities unfettered by racial 
restrictions, but also the rights guaranteed by the First 
Amendment. Freedom of expression is not limited to ver­
bal utterances. It covers picketing, Thornhill v. Alabama, 
310 U. S. 88; free distribution of handbills, Martin v. Struth- 
ers, 319 U. S. 141; display of motion pictures, Burstyn v. 
Wilson, 343 IT. S. 495; joining of associations, NAACP v. 
Alabama, 357 IT. S. 449; the display of a flag or symbol, 
Stromberg v. California, 283 IT. S. 359. More in point, Jus­
tice Harlan recognized that sitting in at a segregated lunch 
counter in a southern state is a non-verbal form of expres­
sion protected by the Fourteenth Amendment. Garner v. 
Louisiana, 368 U. S. 157, 185 (concurring opinion). Several 
of the petitioners were ministers, professors of religion and 
students of theology, and all considered racial segregation 
as contrary to their religious beliefs.

Because the petitioners’ right to be in the terminal and 
to use the lunch counter is unquestioned, no issue is pre­
sented as to the propriety of engaging in public expression 
in a place where one is not invited. Garner v. Louisiana, 
368 U. S. 157, 185 (concurring opinion).

Petitioners had the right to express their views unless 
their conduct was “likely to produce a clear and present 
danger of a serious substantive evil that rises far above 
public inconvenience, annoyance, or arrest.” Terminiello v. 
Chicago, 337 U. S. 1, 4. “A state may not unduly suppress



32

free communication of views, religious or other, in the guise 
of conserving desirable conditions,” Cantwell v. Connecti­
cut, 310 U. S. 296, 308.

In the Cantwell case, where the defendant was expressing 
unpopular views that angered his listeners to the point of 
specific threats of violence, this Court reversed the convic­
tion for common law breach of the peace. Justice Roberts 
wrote, “We have a situation analogous to a conviction under 
a statute sweeping in a great variety of conduct under a gen­
eral and indefinite characterization, and leaving to the ex­
ecutive and judicial branches too wide a discretion in its 
application.” Id. at 308. Therefore, . . in the absence of 
a statute narrowly drawn to define and punish specific con­
duct as constituting a clear and present danger to a 
substantial interest of the State, the petitioners’ communica­
tion, considered in the light of the constitutional guaranties, 
raised no such clear and present menace to public peace 
and order as to render him liable to conviction of the com­
mon law offense in question.” Id. at 311. See also, Garner 
v. Louisiana, 368 U. S. 157, 185, 199-204 (Harlan, J ., con­
curring).

In Edwards v. South Carolina, supra, a large crowd had 
gathered to observe the marching of almost two hundred 
Negro students protesting to the Legislature against racial 
discrimination and segregation. The Court, through Jus­
tice Stewart, relied heavily on the fact that “there was no 
evidence to suggest that onlookers were anything but cour­
teous and no evidence at all of any threatening remarks, 
hostile gestures or offensive language on the part of any 
member of the crowd.” 372 U. S. at 231. This record, of 
course, is identical in these respects.

With respect to the actions of the demonstrators, in 
Edwards a huge group of demonstrators were present.



33

They sang and chanted after refusing to disperse upon 
command by the city officials who had allowed them to dem­
onstrate unmolested for forty-five minutes. Here, petition­
ers merely sat down at a lunch counter. The Court’s 
reasoning in Edwards is applicable here:

“We did not review in this case criminal convictions re­
sulting from the even-handed application of a precise 
and finely drawn regulatory statute defining a legisla­
tive judgment that certain specific conduct be limited 
or proscribed. . . . These petitioners were convicted of 
an offense so generalized as to be . . . ‘not susceptible of 
an exact definition.’ And they were convicted upon 
evidence which showed no more than that the opinions 
which they were peaceably expressing were sufficiently 
opposed to the views of the majority of the community 
to attract a crowd and necessitate police protection.” 372 
U. S. at 236-37.

This case is not to be compared with Chaplinsky v. New 
Hampshire, 315 U. 8. 568, where the speaker used fighting 
words, nor Feiner v. New York, 340 U. S. 315, where the 
evidence showed that the crowd was pushing, shoving, and 
milling around and that the speaker passed the bounds of 
argument or persuasion. This is a clear case of state inter­
ference with First Amendment freedoms in violation of the 
Fourteenth Amendment. Gitlow v. New York, 268 U. 8. 652; 
Whitney v. California, 274 U. S. 357; Stromberg v. Cali­
fornia, 283 TJ. S. 359.

The reasoning in this Section is equally applicable to the 
convictions for breach of the peace and for unlawful 
assembly.



34

V
The Courts Below Deprived Petitioners of Due Process 

and Violated the Supremacy Clause by Refusing to Ac­
cept the Federal District Court Finding That Petitioners 
Were Arrested to Enforce Racial Segregation.

The trial court erroneously excluded appellants’ exhibit 
which contained the findings in the Lewis case that the 
arrests of appellants were solely to enforce segregation 
(R. A. 9,12-13). If this character of the arrests were estab­
lished in this case it would be a complete defense to the 
state’s charges of disorderly conduct and unlawful as­
sembly, Boynton v. Virginia, supra.

The federal district court rendered a determination 
that petitioners, in the exact circumstances which form the 
basis of the state’s prosecution, were in the exercise of 
a federal right granted by statute, and that the arrests by 
the state were unconstitutionally designed to enforce 
segregation. To refuse to give conclusive effect to the 
declaration of federal rights both statutory and constitu­
tional by a competent federal court is to nullify those 
rights in violation of the supremacy clause (Article VI) 
of the United States Constitution.

This state court action violates the due process clause of 
the Fourteenth Amendment. The Restatement of Judg­
ments, Section 68(1) states, with regard to collateral 
estoppel, that “ . . . where a question of fact essential to 
the judgment is actually litigated and determined by a 
valid and final judgment, the determination is conclusive 
between the parties in a subsequent action on a different 
cause of action.” The rule has been applied in criminal 
cases, United States v. Oppenheimer, 242 U. S. 85; Sealfon 
v. United States, 332 U. S. 575, and was designed to elimi-



35

nate harassment of defendants and the inconsistent results 
of duplicatory litigation as in this case. The “doctrine of 
collateral estoppel is not made inapplicable by the fact 
that this is a criminal case, whereas the prior proceedings 
were civil in character.” Yates v. United States, 354 U. S. 
298, 335. For the court below to decline to apply a doc­
trine grounded in consideration of basic fairness, deprives 
the appellants of due process of law.

Wolfe v. North Carolina, 364 U. S. 177, presented a situa­
tion paralleling that here. In that case, however, the court 
did not reach the constitutional issue because the petitioners 
had failed to present the issue to the state court on appeal. 
Petitioners here have made the necessary proffer of the 
federal proceedings and duly excepted to their being struck 
from the evidence (R. A. 161-164). Hoag v. New Jersey, 
356 U. S. 464, is also no bar to appellants’ claim of denial 
of due process of law, for there the issues and parties were 
not the same. Hoag and other defendants were acquitted in 
their first trial of robbing three persons in a tavern. It 
was held valid to try them a second time on a charge of 
having robbed a fourth person, present in the tavern, who 
had not been named in the first indictment. In the instant 
case there was substantial identity of parties. The criminal 
case was prosecuted in the name of the state by the Circuit 
Solicitor who was a defendant in the federal court case 
along with the State Attorney General. The issue of 
whether the arrests were designed to enforce segregation 
is common to both proceedings.



36

CONCLUSION

Review by this Court is particularly appropriate in a 
case such as this where a federal court has once deferred 
to the state courts despite a clear finding that the arrests 
were to enforce segregation. This it is submitted is a com­
pelling case for review, not only because the error below 
is so manifest, but also because the entire federal system 
is jeopardized if a state can successfully defeat the plain 
rights of citizens under the Constitution by such a gross 
distortion of its criminal laws.

It is respectfully submitted that the petition should be 
granted.

Respectfully submitted,

J ack Greenberg
Constance Baker Motley
J ames M. Nabrit, III 

Suite 2030 
10 Columbus Circle 
New York 19, N. Y.

F red D. Gray
34 North Perry Street 
Montgomery, Alabama

Louis H. P ollak 
127 Wall Street 
New Haven, Connecticut

Attorneys for Petitioners

L eroy D. Clark 
Charles S. Conley 
F rank H. H eeeron 
Solomon S. Seay, J r. 

Of Counsel



APPENDIX



APPENDIX

Opinion of Court of Appeals in the Abernathy Case

T he State oe Alabama—J udicial Department 

THE ALABAMA COURT OF APPEALS 
October Term, 1962-63

3 Div. 101

R alph D. Abernathy 

State

APPEAL PROM MONTGOMERY CIRCUIT COURT

P rice, Presiding Judge:
The appellant and ten other persons were convicted in the 

court of common pleas of Montgomery County. In the cir­
cuit court, by agreement, the cases were considered as being 
tried separately, but evidence was introduced only in the 
Abernathy case and was considered as introduced in all the 
cases. There was a separate judgment of conviction as to 
each defendant.

On appeal to this court it is stipulated that the transcript 
of the testimony be copied into the record in this case only, 
and be considered a part of the record in each of the other 
cases, without the necessity of copying it into the record 
of each of said cases.

The statutes under which the defendant was charged pro­
vide:



2a

Opinion of Court of Appeals in the Abernathy Case

“Title 14, Sec. 407: If two or more persons meet 
together to commit a breach of the peace, or to do any 
other unlawful act, each of them shall, on conviction, 
be punished, at the discretion of the jury, by fine and 
imprisonment in the county jail, or hard labor for the 
county for not more than six months.”

“Title 14, Section 119(1): Any person who disturbs 
the peace of others by violent, profane, indecent, offen­
sive or boisterous conduct or language or by conduct 
calculated to provoke a breach of the peace, shall be 
guilty of a misdemeanor, and upon conviction shall be 
fined not more than five hundred ($500.00) or be sen­
tenced to hard labor for the county for not more than 
twelve (12) months, or both, in the discretion of the 
court.”

The evidence shows the eleven appellants involved in 
these appeals are four white men and seven Negroes. On 
May 24, 1961, the City of Montgomery was under martial 
law as the result of riots following the arrival at the Grey­
hound Bus Station on Saturday, May 20th, of three groups 
of so-called “Freedom Eiders.” A race riot occurred on 
Sunday night in the vicinity of the church of which the 
appellant Abernathy was the pastor, in which riot several 
thousand persons participated. Some of these appellants, 
including Abernathy, were at the church during the riot. 
The racial situation in the city was extremely tense. Some 
fourteen hundred national guardsmen were on duty. The 
stores were being patrolled by armed convoys.

The first groups of Freedom Riders had been given a 
police escort to the Mississippi state line on the morning of 
the day this additional group, composed of seven of these 
appellants, arrived at the Greyhound Bus Station. The ex-



3a

Opinion of Court of Appeals in the Abernathy Case

plosive atmosphere was heightened by their arrival, at a 
time when it was considered the city had passed its crisis. 
This group was met at the station by a hostile crowd of 
some two thousand persons. The crowd was unruly and 
bricks and stones were hurled at the automobile in which 
these persons were driven from the bus station.

The next morning a military convoy, under the command 
of Colonel Poarch of the Alabama National Guard, escorted 
the appellants from the home of appellant Abernathy to the 
Trailways Bus Terminal. This escort had been arranged by 
General Graham, who had asked appellants to contact his 
office when they desired to travel. The convoy proceeded 
directly from Abernathy’s house to the bus station. Upon 
entering the station they went directly to the ticket window 
and some of them bought tickets to Jackson, Mississippi. 
From there they went to the lunch counter in the front 
portion of the room and began to occupy the seats at the 
counter.

The State’s testimony tended to show that at this time 
some thirty persons were milling around inside the station, 
eighteen or more besides the appellants and the law en­
forcement officers, four or five hundred people were out­
side in the immediate vicinity of the station; and over a 
hundred law enforcement officers were stationed outside. 
In the front part of the station there were large plate glass 
windows and it wras possible for the crowd outside to see 
inside the station; that when the appellants sat down at the 
lunch counter an outburst of noise was heard from the 
crowd outside. At this time Colonel Poarch directed the 
Sheriff of Montgomery County to arrest the defendants. 
Colonel Poarch testified he gave the arrest order because the 
air was electric with excitement and tension; that the crowd 
outside was hostile to these persons; that there was also a



4a

Opinion of Court of Appeals in the Abernathy Case

number of people in the station that could have caused 
trouble or injury, not only to the defendants themselves, 
but also to innocent passersby or people who had no connec­
tion with either side of the trouble, as well as to the Na­
tional Guardsmen, and it was his opinion the conduct of the 
defendants under the circumstances was calculated to pro­
voke a breach of the peace.

For the defendants, William S. Coffin, Jr., Chaplain of 
Yale University, testified he first learned of racial violence 
in Montgomery from appellant MacGuire on May 21, 1961. 
As a result of such information and a sermon he had 
preached, he along with four other appellants, MacGuire, 
Noyce, Smith and Swift, three of whom are white men and 
one a Negro decided to come to Montgomery. They flew to 
Atlanta and were joined there for the bus trip to Mont­
gomery by appellants Carter and Jones, who are Negroes. 
They spent the night in Montgomery and the seven 
travelers decided to proceed to Jackson, Mississippi. Appel­
lants Shuttlesworth, Lee, Abernathy and Walker, Negroes, 
accompanied them to the bus terminal. They were pro­
vided heavy military escort to the terminal. Upon arrival 
at the station they were ushered into the white waiting room 
and they went directly to the ticket window and seven of the 
appellants purchased tickets to Jackson, Mississippi. 
Shortly after leaving the ticket window they seated them­
selves at the lunch counter and ordered and were served 
coffee. At this point they were placed under arrest by the 
Sheriff. They were given no warning that they were not 
to sit at the counter. That it was not possible to see per­
sons in the lunchroom from outside through the tinted 
glass windows; that when he left Abernathy’s house it was 
his intention to seek service at the terminal on a racially 
integrated basis.



5a

Opinion of Court of Appeals in the Abernathy Case

Donald Martin, Alabama News Manager, United Press 
International, testified that on the day previous to appel­
lant’s arrest a racially mixed group used the facilities of the 
white waiting room at the Trailways Bus Terminal. There 
were no incidents and they were not arrested. At that time 
there was a crowd of approximately two hundred fifty to 
three hundred fifty persons on streets surrounding the bus 
terminal; that it was not possible to discern the race of per­
sons at the lunch counter when looking through the glass 
from outside; that he was not in the terminal on the day 
appellants were arrested.

General Henry Graham, Adjutant General of Alabama, 
was called as a witness by the defendants. He testified he 
was present when the defendants were arrested. He was 
asked if he had occasion to make public comment on the 
arrests shortly after they were made. The court sustained 
the State’s objection to any statement he may have made 
after the arrest, on the ground the defendant could not be 
allowed to impeach his own witness.

The witness testified that on May 24th, he was in charge 
of the military situation in Montgomery; that on that day 
two bus loads of passengers elected to leave for Jackson, 
Mississippi, and military escort was provided for the buses 
to the Mississippi State line; that he read in the newspapers 
that the passengers ate in racially mixed groups at the 
lunch counter before boarding their buses, but that he was 
not in the bus station at the time and he accompanied the 
first bus load; that no traveler had been arrested until these 
defendants were arrested; that he first heard these defen­
dants were enroute to Montgomery from Atlanta when he 
was at the Mississippi line and he turned the military party 
back to Montgomery rather rapidly and some of the force 
reached Montgomery at the same time these seven travelers 
arrived there from Atlanta; that he was present in the bus



6a

Opinion of Court of Appeals in the Abernathy Case

terminal the nest morning when these defendants were 
arrested; that he was provoked, was irritated and was 
angry because of the danger in which this incident had 
placed his men and the people of the community, but they 
were not arrested because he was angry, and it was not 
anger that led to his changing his method of dealing with 
the Freedom Riders; that whether he would have ordered 
the arrest of the first travelers who ate as a racially mixed 
group if he had been present would have depended upon the 
situation at that particular time; that he had made the 
statement that these defendants wanted to be arrested and 
“we have accomodated [sic] them.”

The prosecutions were begun in the Common Pleas Court 
by affidavit. The affidavit charged that this defendant, on 
or about May 25, 1961, “did disturb the peace of others by 
violent, profane, indecent, offensive or boisterous conduct 
or language or by conduct calculated to provoke a breach of 
the peace in that he did come into Montgomery, Alabama, 
which was subject to martial rule and did wilfully and in­
tentionally attempt to test segregation laws and customs 
by seeking service at a public lunch counter with a racially 
mixed group, during a period when it was necessary for his 
own safety for him to be protected by military and police 
personnel and when the said lunch counter building was sur­
rounded by a large number of hostile citizens of Mont­
gomery.

Count II
“Ralph D. Abernathy did meet with two or more persons 

to commit a breach of the peace or to do an unlawful act, 
against the peace and dignity of the State of Alabama.”

In the circuit court Count 1 of the complaint filed by the 
solicitor charged that defendant, “did disturb the peace of



7a

Opinion of Court of Appeals in the Abernathy Case

others in Montgomery, Alabama, at a time when said city 
and county were under martial rule as a result of the out­
break of racial mob action, by conduct calculated to provoke 
a breach of the peace, in that he did wilfully and intention­
ally seek or attempt to seek service at a public lunch counter 
with a racially mixed group, at which time and place the 
building housing said lunch counter was surrounded by a 
large number of hostile citizens of Montgomery, Alabama, 
and it was necessary for his own safety for him to be 
protected by military and civil police personnel ; * * * . ”

Count II of said compaint charged that defendant “did 
meet with two or more persons to commit a breach of the 
peace or to do an unlawful act, in that he did meet with two 
or more persons in Montgomery, Alabama, at a time when 
said city and county were under martial rule as a result of 
the outbreak of racial mob action, for the purpose of wil­
fully and intentionally seeking or attempting to seek service 
at a public lunch counter with a racially mixed group at 
which time and place the building housing said lunch 
counter was surrounded by a large number of hostile citi­
zens of Montgomery, Alabama, and it was necessary for his 
own safety for him to be protected by military and police 
personnel # * *

The defendant filed a motion to quash the affidavit, war­
rant and complaint on the grounds that by the issuance of 
the affidavit and complaint the defendant was denied the 
rights guaranteed to him by the Fourteenth Amendment to 
the Constitution of the United States, and Article 1 Section 
6 of the Constitution of Alabama 1901, in that he was 
deprived of freedom of speech, religion, travel and associa­
tion ; his arrest was designed to perpetrate racial segrega­
tion and was thus a denial of equal protection of law and 
that the charges against him were so vague as to amount to



Opinion of Court of Appeals in the Abernathy Case

a denial of dne process of law. The defendant further al­
leged that he was deprived of the right of unsegregated use 
of travel facilities guaranteed by the Interstate Commerce 
Act (part II, Sec. 216 (d), Title 49, U. S. C. A., Sec. 316 (d)) 
and that an imposition of racial segregation on interstate 
travelers is an undue burden on interstate commerce in vio­
lation of Article I, pp. 8 of the Constitution of the United 
States. The court overruled the motion to quash.

The defendant then interposed a demurrer to the affidavit, 
warrant and complaint. The demurrer raised all the objec­
tions made under the motion to quash and further averred 
that the allegations of the affidavit, warrant and complaint, 
and the statutes upon which they are based, are so vague, 
indefinite and uncertain as not to apprise the defendant of 
the nature and cause of the accusation against him; that no 
offense is alleged; that the complaint was drawn in the al­
ternative and that there was a fatal variance between the 
affidavit and complaint. The demurrer was overruled.

After the presentation of the state’s case, and before put­
ting on his defense, the defendant moved to exclude the 
state’s evidence on the grounds that to convict him under 
the evidence adduced would deprive Mm of his constitu­
tional rights of due process of law. The motion to exclude 
was denied.

Sections 232 and 236 of Title 15, Code of Alabama 1940, 
provide:

“232. The indictment must state the facts constitut­
ing the offense in ordinary and concise language, with­
out prolixity or repetition, in such a manner as to enable 
a person of common understanding to know what 
is intended, and with that degree of certainty which will 
enable the court, on conviction to pronounce the proper 
judgment ; * * * . ”



9a

Opinion of Court of Appeals in the Abernathy Case

“236, Where a statute creating or defining an offense 
uses special or particular terms, an indictment on it 
may use the general term which, in common language, 
embraces the general term.”

In Nailer v. State, 18 Ala. App. 127, 90 So. 131, the court 
said:

“This complaint when filed becomes the charge against 
the defendant, based, of course, upon the original affi­
davit. * * * The plea or demurrer of defendant is to 
the complaint as filed by the solicitor, and not to the 
original affidavit, unless the original affidavit is void 
and charges no offense in which event the motion should 
be to quash.”

The solicitor’s complaint was framed in the language of 
Sections 119(1) and 407 of Title 14, Code, the statutes which 
define the offenses, and specifies the particular conduct al­
leged as constituting the offense with sufficient clearness to 
apprise the defendant of the charge against him and to 
enable the court to pronounce the proper judgment. See 
Mitchell v. State, —-— Ala. App.---- , 130 So. 2d 198.

We are of the opinion the affidavit here was not void, but 
that it was sufficient to authorize the issuance of the war­
rant and furnished sufficient foundation for a prosecution to 
conviction upon the solicitor’s complaint. Miles v. State, 
94 Ala. 106, 11 So. 403.

It is provided by Section 247, Title 15, Code 1940 that, 
“when the offense may be committed by different means 
# # * such means * * * may be alleged in the same count in 
the alternative.”

We find no merit in the defendant’s contention that there 
was a fatal variance between the affidavit and the complaint



10a

Opinion of Court of Appeals in the Abernathy Case

in that the affidavit alleged in the alternative that defendant 
disturbed the peace of others “by violent, profane, indecent, 
offensive or boisterous conduct or language or conduct cal­
culated to provoke a breach of the peace”, while the com­
plaint only charged a disturbance of the peace “by conduct 
calculated to provoke a breach of the peace.”

We are further of the opinion that the statutes creating 
the offenses of unlawful assembly, Sec. 407, Title 14, and 
breach of the peace, Sec. 119(1), Title 14, Code, supra do 
not, either in themselves or as construed and applied to 
this defendant, abridge the right of free speech and as­
sembly guaranteed by the First Amendment to the Con­
stitution of the United States, nor has he been denied the 
equal protection of the law guaranteed by the Fourteenth 
Amendment to the Constitution of the United States and 
Article 1, Section 6, Constitution of Alabama.

The motion to quash the demurrer, and the motion to 
exclude the evidence were properly overruled.

There was no error in the court’s refusal to allow the 
defendant to cross-examine General Graham, or in refus­
ing to allow the introduction of a transcript of his testi­
mony in a previous case in another court. A party cannot 
impeach or discredit his own witness by introducing proof 
of prior inconsistent statements. Woods v. State, 38 Ala. 
App. 582, 90 So. 2d 92; Ruffin v. State, 30 Ala. App. 344, 6 
So. 2d 455; Duncan v. State, 20 Ala. App. 209, 101 So. 472.

“An unlawful assembly is an assembly of three or 
more persons, (Our statute has reduced the minimum 
number of participants to two.) who, with intent to 
carry out any common purpose, assemble in such a 
manner, or so conduct themselves when assembled, as 
to cause persons in the neighborhood of such assembly



11a

Opinion of Court of Appeals in the Abernathy Case

to fear on reasonable grounds that the persons so as­
sembled would commit a breach of the peace or provoke 
others to do so.” 2 Wharton’s Criminal Law, Sec. 853, 
p. 721; Shields v. State, 184 Wis. 448, 204 N. W. 486, 
40 ALE 945; Aron v. Wasau, 98 Wis. 592, 74 N. W. 354.

“ In general terms a breach of the peace is a viola­
tion of public order, a disturbance of the public tran­
quility, by any act or conduct inciting to violence or 
tending to provoke or excite others to break the peace. ” 
Shields v. State, supra. 8 Jr. Sec. 3 p. 834.

The appellant urges that the evidence was insufficient to 
support a conviction for the failure of the state to prove 
criminal intent; to prove that appellant’s conduct did in 
fact provoke or threaten to provoke a breach of the peace; 
to prove that appellant’s conduct was “violent, profane, in­
decent, offensive or boisterous” ; to prove that appellants 
had knowledge their acts would or might provoke others to 
a breach of the peace.

No specific intent to breach the peace is essential to a 
conviction for a breach of the peace. State v. Cantwell, 126 
Conn. 1, 8A 2d 533; Cantwell v. Connecticut, 310 U. S. 296, 
60 S. Ct. 900, 84 L. Ed. 1213; 128 ALE 1352. Nor is it neces­
sary to constitute the offense of a breach of the peace that 
the proof show the peace has actually been broken. People 
v. Kovalchuck, 68 N. T. S. 2d 165; People v. Bipke, 115 
N. Y. S. 2d 590.

The solicitor’s complaint became the charge in the cir­
cuit court. There was no averment that the conduct of 
appellant was “violent, profane, indecent, offensive, or 
boisterous,” and without such averment proof of such fact 
was not required.



12a

Opinion of Court of Appeals in the Abernathy Case

The question of whether certain conduct constitutes a 
breach of the peace depends largely upon the facts of each 
particular case and the circumstances surrounding the in­
cident. An act which would be lawful in some circum­
stances may amount to a breach of the peace if done under 
other circumstances.

The incident occurred during a period of great public 
excitement. The evidence shows that this defendant was 
aware of the tenseness of the situation and the temper of 
the crowd. We think it could not conceivably be said that 
he did not have knowledge that his conduct was calculated 
to incite a breach of the peace.

The judgment of the court in an action tried without a 
jury is entitled to the same weight as the verdict of a jury, 
and will not be disturbed on appeal unless plainly contrary 
to the great weight of the evidence. 6 Ala. Dig. Criminal 
Law 260(11). Under the facts and circumstances adduced 
we think the question of whether the defendant’s conduct 
was reasonably calculated to provoke a breach of the peace 
was one for the trier of fact. The evidence was sufficient to 
sustain the judgment of the trial court.

A ffirmed.

Cates, J. (dissenting):
I must respectfully dissent because, to me, at the trial 

below, the State did not prove beyond a reasonable doubt 
that there was a clear and imminent danger of a breach of 
the peace.

These defendants came to the bus station in protective 
custody of the militia, i.e., voluntarily escorted for their 
own safety. To say that as interstate travelers they had a 
“right” to eat black and white side by side at the bus sta-



13a

Opinion of Court of Appeals in the Abernathy Case

tion lunch, counter, may not be a precise statement. Under 
Boynton v. Virginia, 364 IT. S. 454, the federal courts call 
it “unjust discrimination” not to let them so eat.

Has a state a duty to protect a person in the doing of an 
act which it may not restrain ?

As I read the evidence1 there was not proof beyond a 
reasonable doubt that the sitting down at the lunch counter 
caused the crowd to gather at the bus station. Nor was 
there any evidence of even so much as an assault (in legal 
parlance) at a militiaman. See EUis v. Pratt City, 113 Ala. 
541, 21 So. 206.

Holmes said no one has a right to yell “Fire” in a 
crowded theatre. I fail to see that what the defendants did 
here was that reckless. There may have been a lighted 
match, but was there—beyond a reasonable doubt—an open 
powder keg?

1 I am not unmindful of the various witnesses testifying as to 
“tension,” “electric atmosphere” and “noise” from the crowd. These 
to me are subjective expressions under the elements of the offense 
charged. The evidence shows no overt act manifesting the potenti­
ality of the crowd nor the capability of the militia for force and 
arms.



14a

Order o f  Affirm ance o f  the Court o f  A ppeals 
in  the A bern a th y  Case

T he State oe Alabama—J udicial Department 

THE ALABAMA COURT OF APPEALS 
October Term, 1962-63

3 Div. 101

R alph D. Abernathy 

—v.—

State

APPEAL FROM MONTGOMERY CIRCUIT COURT

February 14,1962 
Transcript filed.

May 10, 1962
Come the parties by attorneys, and argue and submit this 

cause for decision.

October 23, 1962
Come the parties by attorneys, and the record and mat­

ters therein assigned for errors being submitted on briefs 
and duly examined and understood by the court, it is con­
sidered that in the record and proceedings of the Circuit 
Court there is no error. It is therefore considered that the 
judgment of the Circuit Court be in all things affirmed. It 
is also considered that the appellant pay the costs of appeal 
of this court and of the Circuit Court.



15a

Order of Affirmance of the Court of Appeals 
in the Carter Case*

T he State oe Alabama—J udicial Department 

THE ALABAMA COURT OF APPEALS 
October Term, 1962-63

3 Div. 102

Clyde Carter 

— v . —  

State

APPEAL FROM MONTGOMERY CIRCUIT COURT

February 14,1962 
Transcript filed.

May 10,1962
Come the parties by attorneys, and argue and submit this 

cause for decision.
October 23,1962

Come the parties by attorneys, and the record and mat­
ters therein assigned for errors being submitted on briefs 
and duly examined and understood by the court, it is con­
sidered that in the record and proceedings of the Circuit 
Court there is no error. It is therefore considered that the 
judgment of the Circuit Court be in all things affirmed, on 
authority of Abernathy v. State, 3 Div. 101, Ala. App. Ms., 
this day decided. It is also considered that the appellant 
pay the costs of appeal of this court and of the Circuit 
Court.

(No Opinion)

# The order of affirmance is identical in all other cases except 
Abernathy.



16a

O rder o f  the Court o f  A ppeals D enying R ehearing*

November 6, 1962

Application eor R ehearing

To the Honorable Judges of the Court of Appeals:
Now comes the Appellant, by and through his Attorneys 

of Record, and moves this Honorable Court to grant him a 
rehearing in his cause, and to revise, reverse and hold for 
naught the Judgment of this Court rendered therein on the 
23rd day of October, 1962, affirming the Judgment of the 
Circuit Court of Montgomery County, Alabama; and Appel­
lant further moves this Honorable Court to withdraw the 
execution of its Certificate of Judgment rendered therein, 
pending a ruling on this, his motion for rehearing.

Respectfully submitted,

F red D. Gray 
Solomon S. Seay, J r. 
J ack Greenberg 
L ouis H. P ollak

November 20,1962
It is ordered that the application for rehearing be and the 

same is hereby overruled.
Per Curiam.

* This order is identical in all cases.



17a

O rder o f  the Suprem e Court o f Alabama 
D enying Certiorari

T he State of Alabama—T hursday, July 25,1963
The Court met in Special Session pursuant to adjourn­

ment.
P resent : All the Justices.

P etitions for W rits of Certiorari to the 
Court of Appeals

3 Div. 41
Ex parte: Ralph D. Abernathy, Petitioner 
(Re: Ralph D. Abernathy v. State of Alabama)

3 Div. 42
Ex parte: Clyde Carter, Petitioner 
(Re: Clyde Carter v. State of Alabama)

3 Div. 43
Ex parte: William S. Coffin, Jr., Petitioner 
(Re: William S. Coffin, Jr. v. State of Alabama)

3 Div. 44
Ex parte: Joseph Charles Jones, Petitioner 
(Re: Joseph Charles Jones v. State of Alabama)

3 Div. 45
Ex parte: Bernard S. Lee, Petitioner 
(Re: Bernard S. Lee v. State of Alabama)

3 Div. 46
Ex parte: John David MaGuire, Petitioner 
(Re: John David MaGuire v. State of Alabama)

3 Div. 47
Ex parte: Gaylord B. Noyce, Petitioner 
(Re: Gaylord B. Noyce v. State of Alabama)



18a

Order of the Supreme Court of Alabama Denying Certiorari 

3 Div. 48
Ex parte: Fred L. Shuttlesworth, Petitioner 
(Re: Fred L. Shuttlesworth v. State of Alabama)

3 Div. 49
Ex parte: George Smith, Petitioner 
(Re: George Smith v. State of Alabama)

3 Div. 50
Ex parte: David E. Swift, Petitioner 
(Re: David E. Swift v. State of Alabama)

3 Div. 51
Ex parte: Wyatt Tee Walker, Petitioner 
(Re: Wyatt Tee Walker v. State of Alabama)

Montgomery Circuit Court

Come the Petitioners in the above styled causes and the 
Petitions for Writs of Certiorari to the Court of Appeals 
being submitted on briefs and duly examined and under­
stood by the Court,

I t is ordered that the Writs of Certiorari be and each is 
hereby denied and the petitions dismissed at the cost of the 
petitioners for which costs let execution issue.

(No Opinions)



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