McKinnie v. Tennessee Reply Brief

    I

IN THE

SUPREME COURT OF THE UNITED STATES.

LESTER G. McKINNIE, NATHAL WINTERS, JOHN R. 
LEWIS, HARRISON DEAN, FREDERICK LEONARD, 

ALLEN CASON, JR., JOHN JACKSON, JR., 
and FREDERICK HARGRAVES,

Petitioners,

v.
STATE OF TENNESSEE, 

Respondent,

REPLY BRIEF
For the State of Tennessee.

GEORGE F. McCANLESS, 
Attorney General,

State of Tennessee,

THOMAS E. FOX,
Assistant Attorney General, 

State of Tennessee,

St. Louis Law  F einting Co., Inc., 415 N. Eighth Street. CEntral 1-4477.



INDEX.

Page

Opinion below ............................................................. 1

Jurisdiction ......................................................................  2
Questions presented ........................................................  2
Statement of the evidence ............................................. 3

Argument ....................    5

Cases Cited.

American Tobacco Co. v. United States, 328 U. S. 780,
808, 66 S. Ct, 1125, 1139, 90 L. Ed. 1575, 1594 .........  9

Arthur Hamm, Jr. v. City of Eock Hill, and Frank 
James Lupper et al. v. State of Arkansas, 33 U. S. L. 
Week 4079, December 15, 1964 ...................................  5,7

Elizabethton v. Carter County, 204 Tenn. 452, 321 
S. W. 2d 822 .................................................................  13

Feiner v. People of State of New York, 340 U. S. 315,
71 S. Ct. 303, 95 L. Ed. 295 ......................................... 5, 6

Frazier v. Elmore, 180 Tenn. 232, 173 S. W. 2d 563 . . .  13
Garner v. State of Louisiana, 368 IT. S. 157, 82 S. Ct.

248, 7 L. Ed. 2d 207 .................................................. 10-11
Goldfinger v. Feintuch, 11 N. E. 2d 910, annotated 116

A. L. K. 477 ................................................................. 11
Green et al. v. United States, 19 F. 2d 850, 855 .........  15
Hormel v. Guy T. Helvering, 312 U. S. 551, 61 S. Ct.

719, 85 L. Ed. 1037 ....................................................  13
Ingram v. United States, 360 U. S. 672, 679-680, 79 

S. Ct. 1314, 1320, 3 L. Ed. 2d 1503, 1509 ..................  10
Kennedy v. State of Tennessee, 186 Tenn. 310, 210 

S. W. 2d 132 15



Lombard v. State of Louisiana, 373 U. S. 267, 83 S. Ct. 
1122, 10 L. Ed. 2d 339 ................................................. 12

Palmer v. Hoffman, 318 U. S. 109, 119-120, 63 S. Ct.
477, 483, 87 L. Ed. 645, 653 .....................................  14

Peterson v. City of Greeneville, 373 U. S. 244, 83 S. Ct. 
1119, 10 L. Ed. 2d 323 ................................................  12

Senn v. Tile Layers Union, 301 U. S. 468, 57 S. Ct.
857, 81 L. Ed. 1229 .....................................................  11

Thiel v. Southern Pac. Co., 328 U. S. 217, 66 S. Ct.
984, 90 L. Ed. 481........................................................... 16

Statutes Cited.

Sec. 39-1101, Tennessee Code Annotated .................1, 2,13
Sec. 62-710, Tennessee Code Annotated .................3,11,14
Sec. 62-177, Tennessee Code Annotated ......................  13
Title II, Sec. 207 (b), Civil Rights Act of 1964 .........  8

ii

Miscellaneous Cited.

IT. S. L. Week 4084, December 15, 1964 8



IN THE

SUPREME COURT OF THE UNITED STATES.

LESTER G. McKINNIE, NATHAL WINTERS, JOHN R. 
LEWIS, HARRISON DEAN, FREDERICK LEONARD, 

ALLEN CASON, JR., JOHN JACKSON, JR., 
and FREDERICK HARGRAVES,

Petitioners,

v.

STATE OF TENNESSEE,
Respondent.

REPLY BRIEF
For the State of Tennessee.

May It P lease the Court :

OPINION BELOW.

The petitioners in this cause were convicted for a con­
spiracy to injure the business of the B & W Cafeteria, 
Nashville, Tennessee, by blocking the entrance to the 
restaurant in violation of Section 39-1101, Tennessee Code 
Annotated, which provides, inter alia, that the crime of 
conspiracy may be committed by two or more persons 
conspiring to commit an act injurious to trade or com­
merce for a violation of Section 62-711, Tennessee Code 
Annotated, which provides that any person found guilty



of turbulent or riotous conduct about a restaurant and 
other places of public accommodation may be punished 
by a fine of not less than $100.00 nor more than $500.00. 
A violation of Section 39-1101, Tennessee Code Annotated, 
constitutes a misdemeanor and is punishable by a fine of 
not more than $1000.00 and confinement in the county 
jail or workhouse for not more than one year. The 
punishment for the petitioners in this case was fixed at 
ninety days in the workhouse and a fine of $50.00.

The conviction was affirmed by the Supreme Court of 
Tennessee, and is reported as set out in petitioners’ brief,
. . . .  Tenn., ___ , 379 S. W. 2d 214, Petition to Rehear,
. . . .  Tenn., . . . . ,  379 S. W. 2d 221.

JURISDICTION.

Counsel for the Respondent, State of Tennessee, admits 
the jurisdiction of this Honorable Court to review the 
opinion of the Supreme Court of Tennessee under the 
writ of certiorari granted October 12, 1964.

QUESTIONS PRESENTED.

Counsel for the petitioners insist in their petition for 
writ of certiorari that the case requires the determination 
of six questions of law but in their brief they list seven 
questions to be determined. Counsel for the Respondent 
states the substance of these two sets of questions for de­
termination as follows:

(1) Whether or not the Civil Rights Act of 1964 in­
validated the State statutes under which the petitioners 
were convicted (Question 3, Brief and 1 and 2, Petition).

(2) Whether or not the evidence preponderates against 
the conviction for unlawful conspiracy and in favor of 
the innocence of the accused (Question 4, Brief and Ques­
tion 3, Petition).



(3) Whether or not the Supreme Court of Tennessee
sustained petitioners’ conviction upon a basis not liti­
gated in the trial court (Question 5, Brief and Question 
4, Petition). b

(4) Whether or not the trial judge’s erroneous instruc­
tion to the jury that they return a verdict of guilty if 
they found petitioners violated Section 62-710, Tennessee 
Code Annotated, which authorizes the owners of restau­
rants and other places of public accommodation to ex­
clude any person for any reason they desire materially 
affected the verdict of the jury (Question 5, Brief and 
Question 5, Petition).

(5) Whether or not the petitioners were tried before a 
fair and impartial jury in view of the fact that some on 
voir dire stated that owners of places of public accom­
modation should be allowed to exclude Negroes if they 
wished (Question 7, Brief and Question 6, Petition).

STATEMENT OF THE EVIDENCE.

In addition to the statement of the evidence contained 
in the petition and brief in support thereof, counsel for 
the Respondent insists that the following statement of evi­
dence also be considered (All page references are to the 
printed copy of the transcript).

The petitioners appeared at the entrance of the B & W 
Cafeteria, Sixth Avenue, Nashville, Tennessee, about 12:00 
p. m., Sunday, October 21, 1962 (Tr. 88-89) at a time when 
the entrance was crowded because of people arriving for 
lunch after being dismissed from church (Tr. 269-270). 
After being informed by Otis Williams, who was employed 
by the cafeteria as a doorman that the cafeteria did not 
serve colored people and that they could not enter, the 
petitioners insisted, “ We are coming in and going to eat 
when we git in”  (Tr. 270-272).



Petitioners were asked to move along and not to make 
any trouble for the restaurant, but they remained in the 
vestibule area, approximately 4 feet by 4 feet. The door­
man testified that the vestibule was 6 feet by 6 feet four 
inches (Tr. 270-271). Only a few people managed to 
squeeze through the vestibule (Tr. 91). The City Police­
men were called and they escorted the petitioners away 
from the entrance (Tr. 92), after they refused to leave 
otherwise (Tr. 248-249).

One of the State’s witnesses described the situation as 
follows:

“ Well, it was still blocked and people inside 
couldn’t get out. And you could see the crowd out­
side—wasn’t coming in. And it just seemed like an 
awfully long time till the—under the circumstances—• 
it wasn’t too long—while that state of confusion ex­
isted. And the police came and then they—it was a 
question of what to do then. I was talking to some 
of the policemen, and I was a lawyer, and they 
thought I knew everything and could solve the situa­
tion, and I must admit that I didn’t know what to do 
myself”  (Tr. 188).

This same witness testified that after the vestibule of 
the restaurant was cleared, the crowd inside the restaurant 
went out and the crowd outside the restaurant entered (Tr. 
191-192).

—  4 —



ARGUMENT.

I.

This Honorable Court in Arthur Hamm, Jr. v. City of 
Rock Hill, and Frank James Lupper et al. v. State of 
Arkansas, 33 U. S. L. Week 4079, December 15, 1964, said : 

“ We hold that the convictions must be vacated 
and the prosecutions dismissed. The Civil Rights 
Act of 1964 forbids discrimination in places of public 
accommodation and removes peaceful attempts to be 
served on an equal basis from the category of pun­
ishable activities. Although the conduct in the pres­
ent cases occurred prior to enactment of the Act, 
the still pending convictions are abated by its pas­
sage.”

If the attempts made by the petitioners in this ease 
to obtain service in the B & W Cafeteria on equal basis 
Avith all other persons can be characterized as peaceful 
attempts, of course, these convictions must be abated. 
Counsel for the Respondent insists that the attempts 
made by the petitioners in this case to obtain ser\7ice 
at the restaurant in question Avere not peaceful attempts. 
The indictment alleges in effect that the petitioners con­
spired to block by use of physical force the entrance to 
the cafeteria in question and prevent patrons inside from 
leaving and those outside from entering the cafeteria 
(Tr. 4-5). The trial jury found the protest of the peti- \ 
tioners not to have been made in a peaceful manner. J  
This Avas also the conclusion of the trial judge and'the 
Supreme Court of Teunesee as evidenced by their ap­
proval of the jury verdict.

This Honorable Court in Feiner v. People of State of
New York, 340 TJ. S. 315, 71 S. Ct. 303, 95 L. Ed. 295, 
found very similar conduct not to be peaceful as indi­



cated by the following excerpt taken from 340 U. S. 320,
71 S. Ct. 306, 95 L. Ed. 300:

“ The language of Cantwell v. State of Connecticut, 
1940, 310 U. S. 296, 60 S. Ct. 900, 84 L. Ed. 1213, is 
appropriate here. ‘ The offense known as breach of 
the peace embraces a great variety of conduct de­
stroying or menacing public order and tranquility. 
It includes not only violent acts but acts and words 
likely to produce violence in others. No one would 
have the hardihood to suggest that the principle 
of freedom of speech sanctions incitement to riot 
or that religious liberty connotes the privilege to 
exhort others to physical attack upon those belong­
ing to another sect. When clear and present danger 
of riot, disorder, interference with traffic upon the 
public streets, or other immediate threat to public 
safety, peace, or order, appears, the power of the 
State to prevent or punish is obvious.’ 310 IT. S. at 
page 308, 60 S. Ct. at page 905. The findings of the 
New York courts as to the condition of the crowd 
and the refusal of petitioner to obey the police re­
quests, supported as they are by the record of this 
case, are persuasive that the conviction of petitioner 
for violation of public peace, order and authority 
does not exceed the bounds of proper state police 
action. This Court respects, as it must, the interest 
of the community in maintaining peace and order 
on its streets. Schneider v. State of New Jersey, 
Town of Irvington, 1939, 308 IT. S. 147, 160, 60 S. Ct. 
146, 150, 84 L. Ed. 155; Kovacs v. Cooper, 1949, 336 
IT. S. 77, 82, 69 S. Ct. 448, 451, 93 L. Ed. 513. We 
cannot say that the preservation of that interest here 
encroaches on the constitutional rights of this peti­
tioner.”

—  6 —

It must be remembered, as I know that this Honorable 
Court will remember, that it is the conduct of the peti­



tioners in question here rather than the conduct of the 
owner of the cafeteria involved, and the suggestion in 
argument of counsel for the petitioners to the effect that 
if the conduct of the restaurant owner was made unlawful, 
if not before, by the enactment of the Federal Civil Eights 
Act of 1964, the petitioners’ conviction should be reversed 
or abated without regard to whether or not they sought 
to obtain rights to which they were entitled by unlawful 
means or acts contrary to constitutional penal statutes of 
this State, should be disregarded. It is noted in the ma­
jority opinion of Arthur Hamm, Jr., and Frank James 
Lupper, supra, that the legislative history of the Civil 
Eights Act indicates that the Act would be a defense to 
criminal trespass, breach of the peace, and similar prosecu­
tions, citing Senator Humphrey in the Congressional Eec- 
ord, May 1, 1964, pages 9162-9163 (IT. S. L. Week 4080, 
December 15, 1964). After noting the legislative history 
of the Act, it was said that the Act prohibits the applica­
tion of State laws in a manner that would deprive per­
sons of rights granted under the Act. The case does not 
hold that it was the intent of the Act for individuals or 
groups of individuals to take the law in their own hands 
when rights to which they were entitled were denied. As 
a matter of fact, one of the significant secondary purposes 
of the Act was to remove conflicts resulting from the de­
nial of civil rights to people because of race or color from 
the streets into the courtrooms.

Mr. Justice Black in his dissenting opinion had this to 
say on the subject:

‘ ‘ I do not understand from what the Court says that 
it interprets those provisions of the Civil Eights Act 
which give a right to be served without discrimina­
tion in an establishment which the Act covers as also 
authorizing persons who are unlawfully refused serv­
ice a ‘ right’ to take the law into their own hands by 
sitting down and occupying the premises for as long 
as they choose to stay. I think one of the chief pur­



— 8

poses of the 1964 Civil Rights Act was to take such 
disputes out of the streets and restaurants and into 
the courts, which Congress has granted power to pro­
vide an adequate and orderly judicial remedy.”

U. S. L. Week 4084, December 15, 1964.
Title II, Section 207 (b), Civil Rights Act of 1964, is as 
follows:

“ The remedies provided in this title shall be the 
exclusive means of enforcing the rights based on this 
title, but nothing in this title shall preclude any in­
dividual or any State or local agency from asserting 
any right based on any other Federal or State law 
not inconsistent with this title, including any statute 
or ordinance requiring nondiscrimination in public es­
tablishments or accommodations, or from pursuing 
any remedy, civil or criminal, which may be available 
for the vindication or enforcement of such right.”

Thus, it appears that in order for a person to obtain 
his rights declared by the Civil Rights Act that he is 
limited in his remedies to those provided for in the Act. 
It certainly does not make these rights dependent upon 
a particular individual or a group of individuals’ superior 
physical strength or the superiority of weapons available 
to him or them as the case may be, and it is submitted 
that the petitioners would not wish their rights to be 
dependent upon such factors.

II.
It is insisted by counsel for the petitioners that there 

is no evidence in the record to support the conviction for 
conspiracy. This insistence as understood by counsel for 
the Respondent is predicated upon the theories that (1) 
petitioners may have been found guilty of seeking service 
in a “white only” cafeteria or for obstructing the entrance 
to the cafeteria, the first of which was held to be uncon­
stitutional by the State Supreme Court and it might be



that the jury based their conclusion of guilt upon the 
former since it cannot be determined from their verdict 
which of the two acts their findings were bottomed; (2) 
there was no evidence the petitioners were disorderly, 
that violence was threatened or occurred; (3) there was 
no evidence of an agreement among the petitioners to ob­
struct the entrance to the cafeteria; and (4) the conduct 
of the petitioners in this case was not constitutionally 
different from their protesting the denial of their rights 
by sitting quietly on a lunch stool inside the restaurant.

A conspiracy as defined by the Supreme Court of Ten­
nessee in the case in question and other eases is not ma­
terially different from the definition adopted by other 
jurisdictions. In order to constitute a conspiracy, there 
must be an agreement between two or more persons to do 
an unlawful act or a lawful act in an unlawful manner, 
coupled with an overt act in furtherance of the agreement.

In the case of American Tobacco Co, v. United States,
328 U. S. 780, 808, 66 S. Ct. 1125, 1139, 90 L. Ed. 1575, 
1594, the following language was used regarding a con­
spiracy:

“It is not the form of the combination or the par­
ticular means used but the result to be achieved that 
the statute condemns. It is not of importance whether 
the means used to accomplish the unlawful objective 
are in themselves lawful or unlawful. Acts done to 
give effect to the conspiracy may be in themselves 
wholly innocent acts. Yet, if they are part, of the 
sum of the acts which are relied upon to effecuate 
the conspiracy which the statute forbids, they come 
within its prohibition. No formal agreement is neces­
sary to constitute an unlawful conspiracy. Often 
crimes are a matter of inference deduced from the 
acts of the person accused and done in pursuance of 
a criminal purpose.”

—  9 —



10 —

Also pertinent is the following excerpt from Ingram v. 
United States, 360 IT. S. 672, 679-680, 79 S. Ct, 1314, 1320,
3 L. Ed, 2d 1503, 1509:

“ A conspiracy, to be sure, may have multiple ob­
jectives, United States v. Rabinowich, 238 U. S. 78, 
86, 35 S. Ct. 682, 684, 59 L. Ed. 1211, and if one of 
its objectives, even a minor one, be the evasion of 
federal taxes, the offense is made out, though the 
primary objective may be concealment of another 
crime. ’ ’

The foregoing excerpts considered with the circum­
stances recited above in this case appear to be an ade­
quate reply to the first and third contentions made that 
a conspiracy was not proven. The second contention to j 
the effect that there was no evidence of violence, disorder, I 
etc., was answered in the reply to the first assignment of 1 
error.

The fourth contention to the effect that the conduct of. 
the petitioners in this case is identical in principle to 
their sitting quietly on a lunch stool inside the restaurant 
for the. purpose of protesting a denial of their rights 
raises perhaps the ultimate issue in this case. The State 
submits there is a big difference between the two types 
of acts. For these eight petitioners to sit quietly in the 
restaurant and refuse to remove themselves therefrom 
after being informed they would not be served, would not 
materially obstruct the management’s effort to carry on 
the business, whereas their blocking the entrance to the 
building to the extent it was blocked tended to paralyze 
the operation of the restaurant except for a few customers 
who were willing to push their way through the petition­
ers’ blockade. As stated above, the petitioners’ conduct 
was not peaceful.

The inference to be drawn from the case of Garner v. 
State of Louisiana, 368 U. S. 157, 82 S. Ct. 248, 7 L. Ed.



11 —

2d 207, is that if the petitioners in that case had been 
disturbing the peace, their conduct would have been un­
lawful. Peaceful protesting in a case of this type is very 
analogous to peaceful picketing. Peaceful picketing has 
been defined in Goldfinger v. Feintuch, 11 N. E. 2d 910, 
annotated 116 A. L. It. 477, and Senn v. Tile Layers Union, 
301 IT. S. 468, 57 S. Ct, 857, 81 L. Ed. 1229. It does not 
include any form of physical obstruction or interference 
with business.

III.

The indictment recited that the B & W Cafeteria was 
operating a restaurant not open to Negroes by authority 
of Section 62-710, Tennessee Code Annotated. When the 
case was decided bv the Tennessee Supreme Court, it was 
found unnecessary to determine the validity of this section 
of the Code and assumed for the purpose of the appeal 
that it was unconstitutional. Now it is insisted that this 
amounts to affirming the conviction on a basis not liti­
gated in the trial court. Counsel for the Respondent, State 
of Tennessee, insists that the Tennessee Supreme Court 
only found it unnecessary to determine the validity of 
Section 62-710, Tennessee Code Annotated. This is a prac­
tice that is almost universal. In Garner v. State of Louisi­
ana, supra, it was found by this Honorable Court that 
there was no necessity for determining the constitution­
ality of the Louisiana statute involved because the facts 
did not bring the case within the purview of the statute.

The recitation in the indictment relative to the policy of 
the cafeteria, while perhaps not necessary in the indict­
ment, did serve to help show that the petitioners knew 
they would not be admitted into the cafeteria when they 
arrived, and is another circumstance tending to show their 
prior agreement either formal or tacit to commit the 
conspiracy.



At any rate, the Tennessee Supreme Court found that 
the conduct of the petitioners under the circumstances 
was unlawful without regard to whether or not the policy 
of the cafeteria could legally be supported. On this sub­
ject, the Tennessee Supreme Court said in its opinion 
(Tr. 324), comparing the circumstances with those in the 
cases of Peterson v. City of Greeneville, 373 II. S. 244, 83 
S. Ct. 1119, 10 L. Ed. 2d 323; and Lombard v. State of 
Louisiana, 373 IT. S. 267, 83 S. Ct. 1122, 10 L. Ed. 2d 339:

“ These two cases are distinguishable from the 
instant case. The trespass complained of in the Peter­
son and Lombard cases was the act of.sitting on a
stool at a lunch counter. This is basically an inno­
cent and unoffensive act. It was only unlawful, in 
the eyes~of the city and state concerned, because of a 
city ordinance in the Peterson ease and an executive 
directive in the Lombard case, both of which required 
segregation of the races in public facilities. But 
absent the governmental mandate and the color of the 
defendants’ skin in those two cases, and the act is 
basically unoffensive and innocent. This is not so in 
the instant case. Stripped of any question of race and 
discrimination, the act complained of is still unlawful. 
In the instant case, if these eight defendants had been 
white boys, their acts would still have been unlawful. 
We cannot escape from the fact that these eight de­
fendants were blocking the entrance to the doorway 
of the B & W Cafeteria. Regardless of who they were 
and why they were blocking the doorway, their con­
duct is still basically unlawful”  (Tr. 324).

Because of the foregoing, it is insisted that the Su­
preme Court of Tennessee did not consider a matter not 
litigated at the trial level but even if such had been the 
case, there are many instances where cases are decided by 
appellate courts on issues not discussed or determined at



the trial level. Elizabethton v. Carter County, 204 Term. 
452, 321 S. W. 2d 822; and Frazier v. Elmore, 180 Tenn. 
232, 173 S. W. 2d 563. See also Hormel v. Guy T. Helver­
ing, 312 U. S. 551, 61 S. Ct. 719, 85 L. Ed. 1037, to the 
effect that the rule should not be applied where an injus­
tice might be caused.

IV.

The trial judge, after reading the indictment to the 
jury setting out that the petitioners were charged with 
a conspiracy to commit acts injurious to the trade of the 
B & W Cafeteria in violation of Sections 39-1101 and 62-711, 
Tennessee Code Annotated, made reference to a violation 
of Section 62-710, Tennessee Code Annotated, along with 
the first two mentioned in the indictment even though the 
latter was a civil statute relative to the conduct of the 
business by the owner and a section of the Code which 
could not have been violated by the petitioners.

The Supreme Court of Tennessee in its opinion said:
“ A careful reading of the indictment and the whole 

charge shows that the only purpose in referring to this 
statute was to indicate that this restaurant was being 
operated for white people only by authority of this 
section. There were no questions raised following the 
charge about the propriety of reading it and we do 
not see how the reference to a civil statute such as 
this, although error, could affect the jury’s verdict, 
since there was ample evidence to convict the defend­
ants of the offense defined in the other sections of 
the code charged”  Tr. 321.

The trial judge on each of the three occasions in his 
charge when he referred to the civil section of the Code 
(Section 62-710, Tennessee Code Annotated), in conjunc­
tion with the two criminal sections of the Code indicated 
that the three sections prohibited acts injurious to the 
business of the restaurant. The error was, therefore, in



14 —

the nature of a typographical or clerical error as obvious 
to the jury as to counsel for the petitioners. The only 
thing confusing about the instruction was the use of the 
number of the Code section, Section 62-710, along with 
the number of the two sections of the Code defining the 
offense, a. circumstance overcome by the accompanying 
statement of the essential elements of the offense in each 
instance.
I No objection was made by counsel for the petitioners 
/ to this part of the instruction. Because of the nature of 
the error as revealed by the circumstances cited above, 
counsel for the Respondent insists that the following rule 
laid down by this Honorable Court in Palmer v. Hoffman, 
.318 U. S. 109, 119-120, 63 S. Ct. 477, 483, 87 L. Ed. 645, 
653, is applicable:

“ Under these facts a general exception is not suf­
ficient. In fairness to the trial court and to the par­
ties, objections to a charge must be sufficiently spe­
cific to bring into focus the precise nature of the 
alleged error. Where a party might have obtained 
the correct charge by speeificially calling the atten­
tion of the trial court to the error and where part of 
the charge was correct, he may not through a general 
exception obtain a new trial. See Lincoln v. Claflin, 
7 Wall. (U. S.) 132, 139, 19 L. ed. 106, 109; Beaver v. 
Taylor, 93 IT. S. 46, 54, 55, 23 L. ed 797, 798; Mobile & 
M. R. Co. v. Jurey, 111 U. S. 584, 596, 28 L. ed. 527, 
431, 202 U. S. 600, 611, 50 L. ed. 1162, 1168, 26 S. Ct. 
709; Norfolk & W. R. Co. v. Earnest, 229 U. S. 114, 
122, 57 L. ed. 1096, 1101, 33 S. Ct. 654, Ann. Cas. 1914C 
172; Pennsylvania R. Co. v. Minds, 250 U. S. 368, 375, 
63 L. ed. 1039, 1041, 30 S. Ct. 531.”

Y .

Complaint is made that the petitioners were tried before 
a jury of white persons who “ admitted a firm and life-



long practice, custom, philosophy, and belief in racial seg­
regation”  which rendered them disqualified to sit on the 
case. The record shows that those who were accepted 
stated that they could disregard their attitude on social 
questions and perform their duties as jurors on the basis 
of the evidence and the law (Tr. 32-39, 44-46, 67-68, 74-80, 
and 81-86).

The first reply to this insistence is that the matter 
\ of whether or not the owner of the B & W Cafeteria could 
1 constitutionally keep it segregated was not an issue before 

the jury. It was not made that by the indictment nor the 
instruction of the trial judge. It was alleged in the in­
dictment as previously stated in this brief to help show 
the existence of the conspiracy. So, it was never shown 
that the jurors had formed an opinion on the issue to be 
tried and consequently, there is no factual basis for this 
contention.

But on the other hand since the jurors testified they 
could determine the guilt or innocence of the petitioners 
fairly on the law and the evidence rather than precon­
ceived opinions, they were qualified. Kennedy v. State of 
Tennessee, 186 Tenn. 310, 210 S. W. 2d 132. See also the 
following excerpt from Green et al. v. United States, 19 
F. 2d 850, 855:

“ Error is assigned to the denial of the defendants’ 
challenge of certain of the jurors for actual bias. 
While it was shown that they had heard about the 
case, and some of them had formed an opinion as to 
the guilt or innocence of the defendants, all admitted 
in substance that it was not a fixed opinion, that 
it could be disregarded, and that they would endeavor 
to render a verdict according to the evidence, under 
the instructions of the court. We think there was 
no error. Section 331, Washington Compiled Statutes 
(Remington), provides: ‘Although it should appear



that the juror challenged has formed or expressed an 
opinion upon what he may have heard or read, such 
opinion shall not of itself be sufficient to sustain the 
challenge, but the court must be satisfied, from all 
the circumstances, that the juror cannot disregard 
such opinion and try the issue impartially.’ We are 
not convinced that there was abuse of discretion in 
denying the challenge. Spies v. Illinois, 123 U. S. 131, 
8 S. Ct. 22, 31 L. Ed 80.”

The rule of Thiel v.. Southern Pac. Co., 328 U. S. 217, 
66 S. Ct. 984, 90 L. Ed. 481, and two other cases cited 
by counsel for the petitioners to the effect that in both 
criminal and civil proceedings litigants are entitled to 
an impartial jury drawn from a cross-section of the 
community, is not shown to be violated in this case. 
It is not even insisted that all the members of the jury 
expressed an opinion that restaurant owners had a right 
to exclude any person, including Negroes, from their 
place of business. It is not shown that they were preju­
dicial at all. The most that is shown is that these jurors 
were mistaken about the law, or what the law ought to 
be, which is not unusual among people generally or even 
among lawyers.

In view of the foregoing, counsel for the Respondent, 
State of Tennessee, earnestly insists that the judgment 
of the Supreme Court, State of Tennessee, in this case 
be affirmed.

Respectfully submitted,
GEORGE F. McCANLESS, 

Attorney General,
State of Tennessee,

By THOMAS E. POX, 
Assistant Attorney General, 

State of Tennessee.

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I certify that I forwarded a copy of this Reply Brief 
for the State of Tennessee to the Honorable Jack Green­
berg and the Honorable James M. Nabrit, III, Attorneys 
at Law, 10 Columbus Circle, New York, New York 10019, 
and to the Honorable Avon N. Williams and the Honor­
able Z. Alexander Looby, Attorneys at Law, McClellan- 
Looby Building, Charlotte at Fourth, Nashville, Ten­
nessee, on this the . . . .  day of ........................ , 1965.

Thomas E. Fox,
Assistant Attorney General, 

State of Tennessee.

—  17 —