Bell v. Maryland Brief of Respondent

    In  T he

Supreme Court of the United States

October Term , 1963

N o. 12

ROBERT MACK BELL, et a l .,

v.
Petitioners.

STATE OF MARYLAND,
Respondent.

O n  W rit of Certiorari to th e  Court  of A ppeals  of the  
S tate o f  M aryland

BRIEF FOR RESPONDENT

T h o m a s  B. F in a n ,
A ttorney General,

R obert C. M u r ph y ,
D eputy A ttorney General,

L oring  E. H a w e s ,
A ssistant A ttorney General,

One Charles Center, 
Baltim ore 1, M aryland,

For Respondent.

The Daily Record Co., Baltimore 3, Md.



I N D E X

T able of Co ntents

page

O p in io n  B elow  ..........................................................................  1

J urisdictio n  .................................................................................... 1

Q u estio n s  P resented  .................................................................  2

Co n stitu tio n a l  P rovisions and  S tatute  Involved 2

S tatem ent  of F a c t s ..................................................................  2

A rg um ent  :
I. A S tate crim inal trespass conviction of Negroes 

protesting a racial segregation policy in a pri­
vate restau ran t does not constitute state action 
proscribed by the Fourteenth  A m endm ent in a 
m unicipality w here neither law  nor local cus­
tom require segregation.......................................... 4

II. Petitioners w ere not denied due process of law 
since the ir convictions under the M aryland 
Crim inal Trespass S tatu te w ere based upon evi­
dence of the proscribed conduct, or, in the  a lter­
native, because the statu te gave fair w arning of 
the prohibited conduct 10

Co n clusio n  14

Table of Cita tio n s  

Cases

Alford v. U nited States, 274 U.S. 264 12
A vent v. N orth Carolina, 373 U.S. 375 12
Barrows v. Jackson, 346 U.S. 249, 97 L. Ed. 1586, 73

S. Ct. 1031......................................................................  7
Bell v. State, 227 Md. 302, 176 A. 2d 771 1, 2, 5,12



ii

PAGE
B urton v. W ilmington Parking A uthority, 365 U.S.

715, 6 L. Ed. 2d 45, 81 S. Ct. 856................................ 8
Civil Rights Cases. 109 U.S. 3............................................ 9
Eastm an v. State, 131 Ohio St. 1, 1 N.E. 2d 140, appeal

dismissed 299 U.S. 505................................................  13
G ardner v. Vic Tanny Compton, 182 Cal. App. 2d 506,

87 A.L.R. 2d 113..........................................................  9
Gober v. Birmingham, 373 U.S. 374................................ 4
Greenfield v. M aryland Jockey Club, 190 Md. 96, 57

A. 2d 335...........................................................   8
Griffin v. Collins, 187 F. Supp. 149, 152 (D.C. Md.

1960) ............................................................................... 7
Griffin v. State, 225 Md. 422, 171 A. 2d 717................... 12
K rauss v. State, 216 Md. 369, 140 A. 2d 653.................... 11
Lom bard v. Louisiana, 373 U.S. 267.............................. 4
M adden v. Queens County Jockey Club, 296 N.Y.

249, 72 N.E. 2d 697; 1 A.L.R. 2d 1160, 332 U.S. 761 8
McGowan v. M aryland, 366 U.S. 420, 428...................  13
M arrone v. W ashington Jockey Club, 227 U.S. 633. 8
M artin v. S tru thers, 319 U.S. 141, 87 L. Ed. 1313.......  7
McKibbin v. Michigan Corp. & Securities Commis­

sion, 369 Mich. 69, 119 N.W. 2d 557.........................  8
Omaechevarria v. Idaho, 246 U.S. 343...........................  12
Peterson v. Greenville, 373 U.S. 244.............................  4
Reed v. Hollywood Professional School, 169 Cal. App.

2d 887, 338 P. 2d 633....................................................  9
Shelley v. Kraem er, 334 U.S. 1........................................ 7, 9
Slack v. A tlantic W hite Tower System, Inc., 181 F.

Supp. 124, 126, 127 (D.C. Md., 1960), aff’d 284
F. 2d 746 (4th Cir., 1960).......................................... 5, 7

Spencer v. M aryland Jockey Club, 176 Md. 82, 4 A.
2d 124, app. dismissed 307 U.S. 612.......................  8

U nited States v. Harriss, 347 U.S. 612, 617...................  13
Williams v. H oward Johnson’s Restaurant, 268 F. 2d

845 ( 4th Cir., 1959).................................................... 7



Ill

Statutes
PAGE

A nnotated Code of M aryland (1957 E d itio n ):
A rticle 27—

Section 576 ..........................................................  bi­
section 577 (M aryland Crim inal Trespass 

S tatu te) ................................................ 2 ,3 ,10,12,14

A rticle 43—
Sections 200-203 ..................................................  8

A rticle 56—
Section 8 ..............................................................  8
Section 178 ............................... 8

Constitution of the  U nited States:
Fourteenth  Amendment, Section 1 2, 4, 9

Laws of M aryland, 1900:
C hapter 66 ............................................................  2

U nited States Code, Volume 28:
Section 1257(3) ..................................................  1

Miscellaneous

American Jurisprudence, Volume 4, Assault and Bat­
tery, Section 76, page 167 7

American Law  Reports:
Volume 1 (2d), page 1165 9
Volume 9, page 379 ?
Volume 30, page 651 9
Volume 33, page 421............................................  7
Volume 60, page 1089 9

Restatem ent of the Law  of Torts:
Section 77 ............................................................  7



I n  T he

Supreme Court of the United States

O ctober Te r m , 1963

N o. 12

ROBERT MACK BELL, et  a l .,
Petitioners.

v.

STATE OF MARYLAND,
Respondent.

O n  W rit  of  C ertiorari to' the  Court of A ppeals of th e  
S tate of M aryland

BRIEF FOR RESPONDENT

OPINION BELOW
The opinion of th e  Court of Appeals of M aryland (R. 10 ) 

is reported  in 227 Md. 302, 176 A. 2d 771 (January  9, 1962). 
The M emorandum Opinion of the Crim inal Court of Balti­
more, Byrnes, J., March 23, 1961 is unreported (R. 6).

JURISDICTION
The Petitioners allege th a t the Suprem e Court of the  

U nited S tates has jurisdiction pursuant to 28 U.S.C. 
1257(3).



2

QUESTIONS PRESENTED
1. Does a sta te  crim inal trespass conviction of Negroes 

protesting a racial segregation policy in  a private restau­
ran t constitute sta te  action proscribed by  the  Fourteenth  
A m endm ent in a m unicipality w here neither law  nor local 
custom requ ire  segregation?

2. W ere Petitioners denied due process of law because 
the ir convictions under the  M aryland Crim inal Trespass 
S ta tu te  w ere based upon no evidence of the  proscribed 
conduct, or because the sta tu te  gave no fair w arning of the  
prohibited conduct?

CONSTITUTIONAL PROVISIONS AND 
STATUTE INVOLVED

1. Section 1, Fourteenth  A m endm ent to the  Constitu­
tion of the U nited States.

2. Section 577, A rticle 27, A nnotated Code of M aryland 
(1957 E dition); C hapter 66, Law s of M aryland, 1900 (see 
Amended Brief for Petitioners, Pages 4 and 5).

STATEMENT OF FACTS
The facts in Bell v. M aryland  differ considerably from  

the  facts in  the  sit-in cases previously before this Court. 
Here, the  dem onstrators entered a private restau ran t in 
a privately-ow ned building in Baltim ore City (R. 30). 
N either the  m unicipality in w hich the restau ran t was 
located nor the S tate  had a restau ran t segregation law. 
Nor was there  any evidence of a local custom of segrega­
tion in the  community (R. 50). The dem onstrators, who 
passed through the street-level lobby of the  restaurant, 
w ere m et a t the  entrance to the private dining area of the 
restauran t by the  hostess, who norm ally seats customers



3

(R. 23). She was standing a t the  top of four steps (R. 23 ). 
Petitioners w ere barred  from  fu rth er en try  into the dining 
room by the hostess and the  A ssistant M anager on the  
sole ground tha t th e  ow ner of the  restau ran t feared a 
loss of clientele if Negroes w ere perm itted  to  ea t in  the 
private dining areas, of th e  restau ran t (R. 24, 32, 43). In 
spite of this notice not to  enter, the dem onstrators never­
theless pushed by the  hostess and took seats a t tables 
throughout the  dining room, one or tw o at a table, and 
in the  grille in the basem ent (R. 25, 47). M eanwhile a 
long conversation took place betw een the  leader of the 
group and the  m anager and owner of the  restau ran t (R. 
32). The Petitioners w ere requested to  leave but refused 
to  do so (R. 28). The police w ere summoned. W hen they 
arrived the m em bers of the  Negro group w ere the  only 
persons rem aining in the restau ran t (R. 39). The Trespass 
Statute, Section 577, A rticle 27, A nnotated Code of M ary­
land (1957 Edition) was read  to' the  group in the  presence 
of the police (R. 28, 39). Some of the group left, bu t the 
rem ainder refused (R. 39). Employees of the  restau ran t 
took down the  names and addresses of those rem aining 
(R. 39). Since the police refused to arrest the  Petitioners 
w ithout a w arrant, Mr. Hooper, the  owner, w ent to  the 
Central Police Station to obtain w arran ts (R. 39). The 
m agistrate spoke w ith the leader of the  group on the te le­
phone; and the  Petitioners agreed to come down to the 
police court on Monday morning and subm it to tria l (R. 
40). One and one-half hours after the ir initial entry, P eti­
tioners left the  restauran t (R. 41). The leader of the 
demonstrators: la te r testified tha t the  group rem ained on 
the premises even though they knew they w ere going to 
be arrested; and th a t being arrested was a part of their 
technique in dem onstrating against segregated facilities 
(R. 49).



4

ARGUMENT
I .

A STATE CRIMINAL TRESPASS CONVICTION OF NEGROES 
PROTESTING A RACIAL SEGREGATION POLICY IN A PRIVATE 
RESTAURANT DOES NOT CONSTITUTE STATE ACTION PRO­
SCRIBED BY THE FOURTEENTH AMENDMENT IN A MUNICIPAL­
ITY WHERE NEITHER LAW NOR LOCAL CUSTOM REQUIRE 
SEGREGATION.

Conspicuously absent from  the  facts in th is case is S tate 
action. In  order to  be constitutionally prohibitive, S tate 
action m ust “coerce,” “command”, and “m andate” the 
racial discrim inatory practice leading to conviction of the 
petitioners. Lombard v. Louisiana, 373 U.S. 267. There 
is neither such command, coercion, nor m andate here. The 
S ta te’s involvem ent is not to a degree tha t it m ay be held 
responsible for the  discrimination.

M aryland a t the  tim e of the arrest of the  Petitioners did 
not have a sta tu te  requiring segregation of restaurants and 
other places of public accommodation. Cf. Peterson v. 
Greenville, 373 U.S. 244. Nor did the  City of Baltimore, 
the situs of th e  subject restauran t, have an  ordinance pro­
hibiting equal access to restaurants. Ibid. The evidence 
adduced a t the  tria l did not reveal th a t the proprietor 
refused service on the basis of any express official S tate 
or municipal policy. Cf. Lombard v. Louisiana, supra. I t  
was not unlaw ful for the  restau ran t ow ner to serve the 
dem onstrators; nor was it unlaw ful for them  to eat in the 
restauran t if the ow ner had served them. Cf. Peterson v .; 
Greenville, supra; Gober v. Birm ingham , 373 U.S. 374.

The neutra lity  of the S tate here is im plicit in the acts 
of its officers. The police, when summoned by the pro­
prietor refused to a rrest the Petitioners (R. 40). The 
police insisted tha t the ow ner sw ear out w arran ts before 
a Police M agistrate. The arrests w ere never made by



5

the police even though one and one half hours after their 
initial entry, the Petitioners w ere still in the restauran t 
refusing to leave. The proprietor, nevertheless, had ad­
vised the Petitioners th a t they would be arrested  if they 
failed to leave and he read the trespass sta tu te  to them. 
(R. 29, 48). The Petitioners w ere not placed in custody. 
In  fact, they made arrangem ents w ith  the M agistrate by 
telephone to come to the court the following Monday, 
voluntarily, to subm it to tria l (R. 40, 50).

Comm unity custom did not dictate the resu lt in the 
Bell case. No evidence was produced before the tria l 
court to show the existence of an overriding custom or 
“clim ate” of segregation in the community causing un­
equal enforcem ent of otherwise innocuous State laws 
solely to exclude Negroes on the basis of their race. In 
fact the evidence reveals exactly the opposite conclusion. 
Quarles, leader of the  dem onstrators, testified tha t in a 
num ber of other restaurants w here the dem onstrators had 
sought service, they sat, w ere served and ate (R. 50). In 
such a fluid situation in the im mediate community, it could 
hardly  be concluded now by the m ere recitation of em pty 
statu tes not even before the tria l court (Bell brief, p. 31, 
n. 13), th a t Jim  Crow ruled the roost. Furtherm ore, over 
th ree years ago, a considerable period considering the 
rapid  evolution of race relations, Chief Judge Thomsen 
of the U nited States D istrict Court of M aryland found, 
as a m atter of fact, th a t in February  of 1980 there was no 
“custom, practice, and usage of segregating the races in 
restaurants in M aryland.” Slack v. A tlantic W hite Tower 
System , Inc., 181 F. Supp. 124, 126, 127, aff’d Fourth  Cir., 
284 F. 2d 746. In  th a t decision, after reviewing facts pre­
sented by both sides on the question of custom and usage, 
Chief Judge Thomsen stated:

“Such segregation of the races as persists in restau­
ran ts  in Baltim ore is not required  by  any statu te or



6

decisional law  of M aryland, nor by any general custom 
or practice of segregation in Baltim ore City, bu t is 
the  resu lt of the  business choice of the  individual 
proprietors, catering to the desires or prejudices of 
th e ir custom ers.” Ibid, pages 127, 128.

The reason given by th e  ow ner of th e  restau ran t for re­
fusing service to Petitioners was th a t in  his opinion his 
particu lar clientele did not w ish to eat w ith  Negroes.*

“I tried  to reason w ith these leaders, told them  th a t 
as long as m y custom ers w ere deciding who they  
w ant to eat w ith, I ’m  a t the  m ercy of m y customers. 
I ’m try ing to  do w hat they want. If they fail to 
come in, these people are not paying m y expenses, 
and m y bills. They didn’t  w ant to go back and ta lk  to  
m y colored employees because every one of them  are  
in sym pathy w ith  me and th a t is w e’re  in  sym pathy 
w ith w hat the ir objectives are, w ith w hat they  are 
try ing to abolish, bu t w e disapprove of their methods 
of force and pushed th e ir w ay in” (R. 32, 33).

This statem ent was corroborated by  Petitioner Q uarles’ 
own statem ent:

“I was asking him, well, w hy w asn’t it  these Negroes 
he thought so m uch of w eren’t  capable of sitting a t 
his tables to eat? He said, well, i t’s because my cus­
tom ers don’t  w ant to eat w ith  Negroes” (R. 43).

Petitioners’ argum ent tha t the  S tate  of M aryland has 
denied to Petitioners equal protection of its laws is based 
upon the  erroneous theory th a t the  S tate  of M aryland 
has caused the  Petitioners’ convictions of a crime from  
which persons other than  Negroes would be immune. In 
the absence of legislation to the contrary, the  State is not

* Although the nominal owner of the restaurant is a corporation, 
of which Mr. Hooper is President, he is referred to herein as the 
owner of the restaurant in the same manner as he is referred to as 
the owner in the testimony (R. 30, 31).



7

charged w ith  the positive duty  of prohibiting unreason­
able discrim ination in the  use and enjoym ent of facilities 
licensed for public accommodation. W illiams v. Howard 
Johnson’s Restaurant, (4th Cir.) 268 F. 2d 845; Slack v. 
Atlantic W hite Tower System , Inc., 181 F. Supp. 124, a il’d, 
(4th C ir.) 284 F. 2d 746. The ow ner of a restaurant, having 
the  legal righ t to select the  clientele he w ill serve, may, to 
enforce this right, use reasonable force to repel or eject 
from  his place of business any person whom he does not 
w ish to serve for w hatever reason. See cases collected in 
9 A.L.R. 379 and 33 A.L.R. 421; also 4 Am. Jur., Assault 
and Battery, Section 76, page 167; Restatem ent of the Law  
of Torts, Section 77; M artin v. Struthers, 319 U.S. 141.

So long as such righ t of the proprietor exists, to leave, 
as his sole remedy, the  application by him  of force would 
surely offend the principles of an ordered society. Cf. 
Griffin v. Collins, 187 F. Supp. 152. However, in calling 
upon a peace officer of the S tate to eject any person, the 
owner m ay employ only such means involving the S tate 
as do not single out and enforce sanctions against a par­
ticular racial class of persons. This is the gist of the S tate 
action argum ent.

Petitioners’ theory is incorrect because w here the appli­
cation of the crim inal trespass sta tu te  operates equally 
against all persons whom the proprietor wishes to exclude 
or eject, and the S tate is not significantly involved in the 
ow ner’s selection, then the neutra l use of the State law 
enforcem ent process to enforce the proprietor’s selection 
of clientele is not prohibited by the Fourteenth  Amend­
ment. Cf. Shelley v. Kraemer, 334 U.S. 1; Barrows v. Jack- 
son, 346 U.S. 249.

Petitioners fu rther contend tha t licensing of restaurants 
by the S tate  is a significant factor. However, S tate  action 
w ith respect to licensed facilities depends upon w hether



8

interdependence betw een S tate  and its licensees is to an 
ex ten t tha t the  S tate  participates in  and can regulate deci­
sions of its licensees relating to private discrim ination on 
the  basis of race or color. Burton v. W ilm ington Parking  
A uthority, 365 U.S. 715; M cK ibU n v. Michigan Corpora­
tion & Securities Commission, 369 Mich. 69, 119 N.W. 2d 
557 (1963). W here the  statu to ry  fee, imposed by  the  State 
upon a business enterprise operated for a profit, is a m ere 
tax  on the  business and not a regulatory  license, there  can 
be no S ta te  involvement in  the decisions of the  internal 
m anagem ent of the business, Spencer v. M aryland Jockey  
Club, 176 Md. 82, 4 A. 2d 124, app. dismissed, 307 U.S. 612. 
W here the licensing is regulatory  in  th e  exercise of the  
police power, however, the  Legislature m ay prescribe rea­
sonable rules w ith in  the scope of the regulation. Any 
restau ran t operated for profit in M aryland m ust obtain a 
license w hether it operates as an exclusive club or is open 
to the  public generally. M aryland Code (1957 Edition), 
A rticle 56, Section 178. This license is a sta tu tory  fee or 
tax. The distinction betw een those food service facilities 
th a t m ust pay the  statu tory  fee and those tha t are exem pt 
therefrom , is w hether or not the  business operates for 
profit. Ibid, Sec. 8. There is no statu to ry  exem ption for 
facilities tha t operate as exclusive clubs or place restric­
tions upon clientele. The police and health  statutes apply 
to  all establishm ents regardless of profit or selection of 
clientele. M aryland Code, A rticle 43, Secs. 200-203.

I t is settled law  in M aryland and in other jurisdictions 
th a t the licensing of a place of public am usem ent does not 
constitute a franchise requiring the owner to furnish en­
terta inm ent to the public or adm it everyone who applies. 
Greenfield v. M aryland Jockey Club, 190 Md. 96, 57 A. 2d 
335; Marrone v. W ashington Jockey Club, 227 U.S. 633; 
Madden v. Queens County Jockey Club, 296 N.Y. 249, 72 
N.E. 2d 697; 1 A.L.R. 2d 1160, cert. den. 332 U.S. 761; cases



9

collected in 1 A.L.R. 2d 1165, 60 A.L.R. 1089, 30 A.L.R. 651. 
Nor does the refusal to contract, based solely upon the 
race of the p arty  seeking the bargain, offend the guaran­
tees of the Fourteenth  Amendment. Reed v. Hollywood 
Professional School, 169 Cal. App. 2d 887, 338 P. 2d 633; 
Gardner v. Vic Tanny Compton, 182 Cal. App. 2d 506, 87 
A.L.R. 2d 113.

Shelley v. Kraemer, supra, has no application here. In 
tha t case the constitutional righ t violated by the S tate’s 
enforcem ent of restrictive covenants was a property right—■ 
the righ t to the use and enjoym ent of property already 
purchased. In  the case before this Court, Petitioners w ere 
denied no rights or property. U nder the present status of 
the law they had none. Civil Rights Cases, 109 U.S. 3. This 
C ourt’s holding th a t each person in the community has 
a righ t to rem ain on private premises of another operated 
as a business, licensed or otherwise, w ithout the permis­
sion of the owner, would be tantam ount to conferring 
upon ever person an inchoate property righ t in the busi­
ness premises, becoming vested at the mom ent of entry. 
In  the absence of legislation creating or taking away prop­
erty  rights involved here, such a holding would not be 
proper exercise of the judicial function.

In  conclusion, in order to m ake Shelley v. Kraemer 
logically consistent w ith the resu lt in the case a t bar urged 
by these Petitioners, this Court m ust hold th a t these 
Negroes had an inalienable righ t to enter and receive food 
service in Hooper’s Restaurant, which righ t could not be 
denied them  by Mr. Hooper on the basis of their race 
alone. A nything short of such a holding would be begging 
the question; for if this Court holds tha t Petitioners’ 
rights w ere m erely dependent on the existence of notices 
posted upon the door, the basic civil rights issue will 
m erely be shifted to the street.



10

II.
PETITIONERS WERE NOT DENIED DUE PROCESS OF LAW SINCE 

THEIR CONVICTIONS UNDER THE MARYLAND CRIMINAL TRES­
PASS STATUTE WERE BASED UPON EVIDENCE OF THE PRO­
SCRIBED CONDUCT, OR, IN THE ALTERNATIVE, BECAUSE THE 
STATUTE GAVE FAIR WARNING OF THE PROHIBITED CONDUCT.

There are am ple facts in the record showing violation 
of the M aryland trespass statute. Petitioners entered the  
lobby of Hooper’s R estaurant through a revolving door. 
Petitioners w ere notified by  the  hostess; (R. 24, 42) and 
A ssistant M anager (R. 43, 47) of the restau ran t th a t they 
would not be perm itted  to en ter and be seated in th e  
private dining areas of the  restaurant. Nevertheless, p a rt 
of the  group of dem onstrators ascended the  four steps 
separating the lobby from  the dining room and pushed by 
the hostess to gain en try  to the dining room. P a rt of the 
group, also ignoring the m anagem ent’s w arning, descended 
the  steps from  th e  lobby to  the  grille on the  low er floor 
(R. 43, 47).

Clearly, under the  facts of this case, Petitioners, a fte r 
notification by the ow ner’s agent not to do so, entered and 
crossed over the  prem ises and private property  of another 
in  violation of the  M aryland Crim inal Trespass S tatute. 
That Petitioners w ere so notified was adm itted by Quarles, 
leader of the group, in his testim ony (R. 42, 43). As to the 
dem onstrators who w ent to the  grille downstairs, Quarles 
stated:

“Q. W hy did some of the  students go downstairs? 
D idn’t  you say they  w ent downstairs because they  
couldn’t  be seated upstairs? A. A fter they w ere 
blocked forcibly by  the  m anager and hostess, they pro­
ceeded downstairs to seek service” (R. 46, 47).

Judge Byrnes, who presided a t the trial, in his Memo­
randum  Opinion (R. 6, 7) found as a m atter of fact th a t



11

th e  testim ony disclosed th a t the defendants entered the 
restau ran t and requested the hostess to assign, them  seats; 
bu t she refused, inform ing Petitioners tha t it was not the 
policy of the  restau ran t to serve Negroes. She said she 
was following the instructions of the owner of the  restau­
rant. Commenting on th e  evidence, Judge Byrnes stated:

“Despite this refusal, defendants persisted in the ir 
dem ands and, brushing by  the  hostess, took seats a t 
various tables on the m ain floor and at the counter in 
the  basem ent” (R. 7).

I t  is subm itted th a t the  evidence before the  tria l judge 
in th is case goes fa r  beyond the  m ere refusal to leave after 
law ful entry, the basis of the attack on the application of 
th e  M aryland statute. On the  basis of the foregoing refer­
ences to the  testimony, and Judge Byrnes’ comments 
thereon, it is clear th a t there was evidence of notice to 
the  Petitioners by the owner; and th a t such evidence was 
considered by the  tria l judge. Cf. Krauss v. State, 216 Md. 
369, 140 A. 2d 653 (1958).

I t should be noted th a t the M aryland sta tu te  refers both 
to “entry  upon” and “crossing over” such premises. The 
Petitioners in this instance w ere notified by the ow ner’s 
agent not to enter the dining areas of the premises. If the 
Court should construe the statu te to require notification 
of entry, as to those portions of the premises, such notifi­
cation was given. B ut here, under the M aryland statute, 
it is unnecessary to go th a t far. The M aryland statu te 
m erely requires tha t the owner notify the potential tres­
passer not to “cross over” his property. Implicit in  such a 
w arning is the command to halt and advance no fu rther 
on the ow ner’s premises, when so notified.

The construction of the statu te advanced here is con­
sistent w ith  the  fact th a t M aryland has tw o crim inal tres­
pass statutes. The second count of the indictm ent was 
draw n pursuant to  Section 576 of A rticle 27 of the  Mary-



12

land Code (1957 E d .). This Section of the crim inal trespass 
act prohibits the en try  of “posted” premises. Clearly, such 
statu te  pertains to notification by means of posting signs 
a t the  boundary of such property. However, by  the  addi­
tion of the  words “crossing over”, Section 577 surely refers 
to the  failure of the trespasser to continue beyond the 
point where, upon discovery, the  ow ner had notified him  
to halt. The words of the  sta tu te  are clear and a reasonable 
construction is called for. I t  should be noted th a t the  
sta tu te  proscribes either en try  upon or crossing over.

However, even if the Suprem e Court, in reviewing the 
record before it, finds no evidence tha t the Petitioners w ere 
duly notified not to enter or cross over the  dining areas 
of the  restaurant, it has before it am ple evidence tha t P eti­
tioners refused to leave the  premises w hen so requested. 
The M aryland Court of Appeals, in construing the M ary­
land Trespass Statute, has stated  th a t sta tu to ry  references 
to  “en try  upon or crossing over”, cover th e  case of rem ain­
ing upon land after notice to leave. Bell v. State, 227 Md. 
302, 176 A, 2d 771 (R. 11); Griffin v. State, 225 Md. 422, 
171 A. 2d 717 (1961). See also, State v. A ven t, 253 N.C. 
580, 118 S.E. 2d 47, vacated and rem anded on other grounds, 
A ve n t v. North Carolina, 373 U.S. 375.

The M aryland Trespass S tatu te is neither void for vague­
ness nor unconstitutionally applied because the term s used 
are clear and have well-settled meanings. In Alford v. 
United States, 274 U.S. 264, this Court upheld the convic­
tion of a person under a sta tu te  penalizing the building of 
a fire “near” any forest in the public domain. The Court 
said th a t the word “near” taken in connection w ith the 
danger to be prevented, laid down a plain enough rule of 
conduct for anyone who seeks to obey the law. Sim ilarly 
in Omaechevarria v. Idaho, 246 U.S. 343, this Court held 
th a t men fam iliar w ith range conditions and desirous of



13

observing the law  would have little  difficulty in knowing 
w hat was prohibited by a statu te forbidding the herding 
of sheep on any cattle “range,” “usually” occupied by any 
cattle grower. I t  has been held fu rther tha t a crim inal 
sta tu te  penalizing a bank employee for receiving money, 
checks, or other property as a deposit in the bank when 
he has knowledge th a t it is insolvent, is not unconstitu­
tionally vague although “insolvent,” which has several 
meanings, was not denned in  the statute. Eastman v. State, 
131 Ohio S tate 1, 1 N.E. 2d 140, appeal dismissed 299 
U.S. 505.

This Court has said in effect th a t persons of ordinary 
intelligence engaged in an activity  coming w ithin the pu r­
view of a crim inal sta tu te  are in a position to know w hat 
th a t sta tu te  proscribes. McGowan v. Maryland, 366 U.S. 
420, 428; United States v. Harriss, 347 U.S. 612, 617. The 
Petitioners here fall w ithin this rule. Petitioners were en­
gaged in an  activity — namely, dem onstrating against 
segregation in private establishm ents — which was, to say 
the  least, risky. One of the  risks of which they w ere aw are 
was a rrest (R. 49). I t  was testified tha t one or two of the 
group had been arrested  previously for dem onstrating in 
Hooper’s R estaurant (R. 35, 56, 57); and the Trespass 
S ta tu te  was read to them  at th a t tim e (R. 58). On tha t 
occasion the owner had to use physical force to keep 
dem onstrators from  entering the outside door (R. 59). 
Additionally in the present case the Petitioners arrived at 
the restau ran t carrying picket signs which some of the 
group proceeded to display outside the door after P eti­
tioners w ere refused service (R. 44). Under these cir­
cumstances, it could hardly  be said Petitioners w ere mis­
lead by the application of the M aryland Trespass S tatu te 
here. In fact, it is quite apparent tha t they knew, prior 
to entering, tha t they w ere not welcome in Hooper’s Res-



14

tau ran t; and the ir arrest, trial, and attendant publicity 
thereof, w ere an intrinsic p a rt of the ir m ethod of express­
ing protest (R. 49). Furtherm ore, if Petitioners had really  
been ingenuously ignorant of the proscriptions of the  M ary­
land statute, they  would certainly have raised the issue 
a t their tria l in  their defense. The record does not show 
th a t Petitioners did not know they  would subject them ­
selves to crim inal penalties for rem aining on the private 
premises of another after having been w arned to leave.

In  conclusion, Petitioners w ere not denied due process of 
law  because the ir convictions under the M aryland Crimi­
nal Trespass S ta tu te  w ere based upon some evidence tha t 
(1) they entered the  dining areas of the restau ran t after 
w arning not to do so; (2) they crossed over a portion of the 
premises after w arning not to do so; or (3) they had actual 
notice prior to en try  th a t they would be in violation of the 
M aryland Crim inal Trespass S ta tu te  if they sought food 
service in Hooper’s Restaurant. Further, the M aryland 
Crim inal Trespass S ta tu te  gave fair w arning, and they 
had actual knowledge, th a t to rem ain on the  private prem ­
ises of another after w arning was proscribed by the statute.

CONCLUSION
I t  is respectfully  subm itted, for the  reasons set forth  

herein, th a t the  judgm ents below should be affirmed.

Respectfully submitted,

T h o m a s  B. F in a n ,
A ttorney General,

R obert C. M u r ph y ,
D eputy A ttorney General,

L oring E. H a w e s ,
A ssistant A ttorney General, 

For Respondent.