Ford v. Tennessee Brief in Opposition to the Petition for the Writ of Certiorari

    IN THE

SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1962.

No. 397.

EVANDER FORD, ET AL.,
Petitioner,

v.
STATE OF TEN NESSEE, 

Respondent.

BRIEF
In Opposition to the Petition for the 

Writ of Certiorari.

GEORGE F. McCANLESS,
Attorney General,

State of Tennessee,
Supreme Court Building, 

Nashville, Tennessee, 
WALKER T. TIPTON,

Assistant Attorney General,
State of Tennessee,

Supreme Court Building, 
Nashville, Tennessee, 

Attorneys for Respondent.

S t . Loots L aw P rinting  Co., I nc ., 415 N. E ighth  S treet. C E ntral 1-4477.



INDEX.

Page
Opinion Below .............................................................  1
Jurisdiction .......................    2
Questions Presented ................................    2
Statement of the Case ................................................... 3
Argument ......................................................................  6
Conclusion ..................................................................... 15
Certificate of Service ....................................................  15

Cases Cited.
Beauharnais v. The People of the State of Illinois,

343 U. S. 250 .............................................................  11
Black v. Cutters Laboratories, 351 U. S. 292 ................ 12
Buchalter v. People of the State of New York, 319 

U. 8. 427 ....................................................................  10
Cantwell v. State of Connecticut, 310 IT. S. 296 ......... 11
Carter v. The People of the State of Illinois, 329 U. S.

173 .............................................................................  13
Chaplinskey v. State of New Hampshire, 315 IT. S.

568 .............................................................................  12
Dixon v. Duffy, 344 U. S. 143 ...................................... 12
Durley v. Mayo, 351 U. S. 277 ..................................  12
Ford et al. v. State of Tennessee, 355 S. W. 2d 102,

356 S. W. 2d 726 ................................................. 9,13,14
Garner v. Louisiana, 368 IT. S. 157................................  7
Lynch v. New York, 293 IT. S. 52 ...............................  12
McKane v. Druston, 152 U. S. 684 ............ .............. . 13



11

O’Brien v. State of Tennessee, 193 Tenn. 361 ........... 14
Phyle v. Duffy, 334 U. S. 431 ........................... ..........  12
Byall v. State of Tennessee, 204 Tenn. 422 ................  9
Scopes v. State of Tennessee, 152 Tenn. 424 ............ 14
State ex rel. Tines v. Bomar, 205 Tenn. 527 ............ 14
Suggs v. State, 195 Tenn. 170......................................14,15
Thompson v. City of Louisville, 362 U. S. 109 ...........7,11
United States ex rel. Bilokumiskv v. Tod, 263 U. S.

149 .............................................................................. 10
United States ex rel. Vajtauer v. The Commissioner of

Immigration at New York, 273 U. S. 103 ..............  10
Union Bank v. Lowe, 19 Tenn. 225 ...........................  13
Williams v. Oklahoma, 358 U. S. 576 .........................  7
Woods v. Nurstheiner, 328 U. S. 211 .........................  12

Statutes Cited.

28 U. S. C. A. 1257 (3) ................................................. 2
Tennessee Code Annotated, Section 39-1204 ............. 1,7
Tennessee Code Annotated, Section 27-111 ..............  13



IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1962,

No, 397,

EVANDER FORD, ET AL.,
Petitioner,

v,
STATE OF TENNESSEE, 

Respondent,

BRIEF
In Opposition to the Petition for the 

Writ of Certiorari.

The Respondent, State of Tennessee, for its statement in 
opposition to the petition for the writ of certiorari respect­
fully shows to the Court as follows:

OPINION BELOW.

Petitioners appealed to the Supreme Court of Tennessee 
from a conviction of willfully disturbing a religious as­
sembly (Section 39-1204, Tennessee Code Annotated) ren-



— 2 —

dered against them in. the Criminal Court of Shelby County, 
Tennessee. After hearing argument the Supreme Court 
unanimously affirmed the judgment of the lower court. 
The opinion of the Supreme Court of the State of Ten­
nessee is reported in 355 S. W. 2d 102, rehearing denied 
356 S. W. 2d 726.

JURISDICTION.

Jurisdiction is sought under 28 U. S. C. A., Section 
1257 (3).

QUESTIONS PRESENTED.

1. Whether the conviction of the petitioners is so lack­
ing in evidentiary support that it amounts to denial of 
due process of law under the Fourteenth Amendment to the 
Constitution of the United States.

2. Does the Constitution of the United States grant to 
the petitioners immunity from the legal consequences of 
their acts which are in violation of a valid criminal statute.

3. Whether conviction of the petitioner, Katie Jean Rob­
ertson, was affirmed on the basis of adequate non-federal 
grounds.



— 3 —

STATEMENT OF THE CASE.

On August 30’, 1960 the Assembly of God Church in the 
City of Memphis had leased the Memphis Open Air Theater, 
a publicly owned facility, for the purpose of conducting a 
youth rally (Tr. pp. 70, 71). The meeting had as its pur­
pose the inspiring of those who would attend into a “ de­
cision for Christ” (Tr. p. 72).

The meeting commenced at approximately 7:30 o’clock, 
P. M., at which time there were several hundred persons 
in attendance. After the meeting had been under way for 
approximately fifteen minutes a group of fourteen or fifteen 
Negro youths, of which the petitioners were a part, ap­
peared at one of the entrances (Tr. p. 99). The usher sta­
tioned at this entrance courteously approached the peti­
tioners and told them it would be better if they did not 
come in. When the petitioners refused to leave, the usher, 
attempting to avoid difficulty, offered them seats where 
the entire group could be seated. The petitioners refused 
this tender by the usher and the petitioner Ford, the ap­
parent leader of the group, at this time commanded the 
group to scatter out (Tr. p. 91).

When this command was given the usher asked the peti­
tioners to please be seated, but the petitioners neverthe­
less pushed past the usher and simultaneously dispersed, 
themselves throughout the congregation stepping over 
those worshippers already seated in order to take seats at 
the center of the rows (Tr. p. 92). Even though there 
were available seats at the ends of the rows, the peti­
tioners undertook to simultaneously take different seats 
in the center of different rows and as they moved through 
the rows they caused those people who were already 
seated to move over and slide away in order to allow 
them to enter. This sudden invasion of the meeting and



the dispersing of themselves throughout the congrega­
tion, coupled with the movement which necessarily fol­
lowed their action caused a general undercurrent to go 
up throughout the congregation, thus completely disrupt­
ing the services (Tr. p. 101),

At this point Reverend Scruggs, the official in charge 
of the meeting, decided to call the police because these 
petitioners were disrupting his service. Shortly after 
being called by Reverend Scruggs the police arrived at 
the amphitheater. The police then placed the petitioners 
under arrest and they were conducted out of the theater 
in an orderly manner.

The petitioners were jointly indicted for violation of 
Section 39-1204, Tennessee Code Annotated (wilfully dis­
turbing a religious assembly). All of the petitioners ex­
cept the petitioner Robertson were jointly put to trial 
before a judge and jury and were found guilty as charged 
in the indictment and sentenced to serve sixty days in 
the County Workhouse, plus a line of $200.00. The peti­
tioner Robertson did not appear at the time of this trial 
and, therefore, was tried separately at a later date wherein 
she was convicted of the same offense and sentenced to 
serve sixty days in the County Workhouse, along with 
a fine of $175.00.

Each petitioner appealed their conviction to the Su­
preme Court of Tennessee. Prior to the hearing of the 
cause the Supreme Court of Tennessee granted a motion 
on behalf of the petitioners allowing the cases to be 
jointly heard upon appeal and allowing the petitioner 
Robertson to adopt the brief and argument of the other- 
petitioners. The Supreme Court of Tennessee, after hear­
ing argument and considering the case, affirmed the con­
viction as to all the petitioners but in so doing noted that 
the bill of exceptions in the ease of Katie Jean Robertson

— 4 —



had not been filed in the time allowed by law, and that 
under the State practice it became no part of the record 
in her case and conld not be looked to for any purpose, 
and that the decision as to her was affirmed upon that 
basis. 355 S. W. 2d 102.

Each Petitioner in due course filed a petition to rehear 
which was denied by the Court. 356 S. W. 2d 726.



— 6 —

ARGUMENT,

The conviction of the petitioners was based upon evi­
dence of their guilt and does not amount to a denial of 
due process of law.

At the outset it must be pointed out that the petitioner 
Robertson was tried separately from the remainder of the1 
petitioners even though they were jointly indicted. There­
fore, there is before the Court upon this petition two 
separate and distinct proceedings but the petitioners have 
undertaken to use the evidence interchangeably. Clearly 
each case must stand or fall upon its own record.

It must be noted that in the petitioner Robertson’s case 
the Supreme Court of Tennessee held that the bill of ex­
ceptions in her case was not filed within the time pre­
scribed by State law, and under the State appellate pro­
cedure that bill of exceptions did not become part of the 
record and could not be looked to for any purpose. The 
State’s highest court affirmed her conviction because there 
was nothing before them from which they could determine 
the questions presented. (Such is the uniform practice 
under Tennessee procedure which is fully discussed in 
part III of this reply.) Thus, the opinion of the Supreme 
Court of Tennessee in this cause is not based upon any 
portion of the testimony adduced at the trial of Katie 
Jean Robertson, but rather its opinion is based upon the 
evidence developed at the trial of the remainder of the 
petitioners which is contained in the first 128 pages of the 
record. Therefore, the consideration of this petition must 
be in the light of the fact that only the first 128 pages of 
the record formed a basis of the State Court’s opinion. 
Now to the merits.

The petition asserts that the record before the Court is 
comparable to the record which confronted this Court in



the case of Thompson v. City of Louisville, 382 IT. S. 109, 
in that it is alleged that the conviction of the petitioners 
for a violation of Section 39-1204, Tennessee Code Anno­
tated, is so devoid of evidence of their guilt as to amount 
to a denial of due process of law. However, the respond­
ent must respectfully take issue with this contention.

It is well settled that when such an attack is made upon 
a State conviction the Supreme Court of the United States 
does not determine whether the evidence is sufficient to 
convict, but views the record only for the purpose of 
establishing whether there was any evidence of a viola­
tion of the particular criminal statute involved. Thomp­
son v. City of Louisville, supra; Garner v. Louisiana, 368 
U. S. 157. In order to determine whether there was any 
evidence of guilt it must first be determined what conduct 
is prescribed by the statute in question and the State 
Court’s construction as to the type of conduct prescribed 
thereby is binding here. Garner v. Louisiana, supra; 
Williams v. Oklahoma, 358 IT. S. 578.

The portions of the State statute pertinent to our dis­
cussion here reads as follows:

“ If any person willfully disturb or disquiet any as­
semblage of persons met for religions worship, . . . 
by noise, profane discourse, rude or indecent behavior, 
or any other act, at or near the place of meeting, he 
shall be fined not less than twenty dollars ($20.00) 
nor more than two hundred dollars ($200), and may 
also be imprisoned not exceeding six (6) months in 
the county jail.”

The State Supreme Court in the case at bar construed 
this statute, thus defining the scope and the intent of the 
statute. That Court specifically found that the statute is 
not a breach of the peace statute “ but rather it is a stat­
ute which is designed to protect to the citizens of [that |



— 8 —

State the right to worship their God according to the dic­
tates of their conscious without interruption.” The State 
Court further held that the statute made it unlawful for 
anyone, by the use of any act, to willfully disturb a re­
ligious assembly and that such assembly was disturbed 
so long as the particular act attracted the attention of any 
part or parts of the assembly.

The record quite clearly shows that the Assembly of 
God Church of the City of Memphis was conducting a re­
ligious rally in a municipally owned amphitheater and 
that the obvious purpose of this meeting was to attract 
converts to their cause. After this meeting had been un­
der way for approximately fifteen to twenty minutes the 
petitioners, a group of Negro youths, appeared upon the 
scene. The petitioners were met by an usher who cour­
teously asked them not to remain, but the petitioners re­
fused his request and the usher at that time tendered them 
seats where they could have been seated in a group. In­
stead of taking these seats the petitioner Ford commanded 
the group to scatter out. The record quite clearly indicates 
that when this command was given the usher asked the 
petitioners to please be seated but they, nevertheless, 
pushed past him, breaking into groups of two and simul­
taneously dispersed themselves throughout the audience. 
It is evident from the record that there were seats avail­
able at the ends of the rows where these petitioners could 
have been seated. However, each group took a different 
row throughout the congregation and proceeded to step 
over the worshippers already seated and take seats in the 
center of the rows. As the rows of this amphitheater are 
close together, when the petitioners moved into the rows 
the people who were already seated had to move and shuf­
fle about to let them in. This commotion that was trig­
gered by the petitioners’ conduct went up throughout the 
audience instantaneously and caused a complete disruption 
of the services.



-— 9

Unquestionably under these facts herein set out the acts 
of these petitioners unduly attracted the attention of the 
congregation and that is all that is necessary to constitute 
a disturbance under the State Court’s interpretation of 
this Statute.

The Tennessee Supreme Court pointed out that the true 
gravamen of the offense is the willfulness of the act. 
(See opinion of the Supreme Court on Petition to Rehear 
in the case of Ford et al. v. State, . . .  Term. . . . ,  356 S. W. 
2d 726).

Under the State Court’s prior decisions the term willful 
has been construed to mean intentional or by design. 
Ryall v. State, 204 Tenn. 422. Therefore, the essential 
ingredient of this offense is the intent or design that moti­
vates the perpetrator of the act which creates the disturb­
ance.

The petition contends that there is no evidence of the 
intent of the petitioners. Very seldom, if ever, in a 
criminal proceeding is there available to the Court direct 
proof of the intent that motivates an accused to commit a 
particular act. Generally, the intent necessary to be 
proven must be inferred from the acts of the parties and 
the attending circumstances of the case.

Looking to the evidence in the record that depicts the 
acts of the petitioners on this occasion, it is apparent that 
it warrants an inference of the petitioners’ unlawful 
intent. The act of the petitioner Ford in commanding 
his group to “ scatter out” , coupled with the precise 
manner in which his command was executed, is clearly in­
dicative of advance planning. The simultaneous disperse- 
ment of these petitioners in groups of two throughout the 
congregation and stepping over the worshippers already 
seated in order to seat themselves in the center of the 
rows when seats were available at the ends could serve



— 10 —

no purpose other than to disturb the worshippers. There 
was no necessity for these petitioners to simultaneously 
move to the center of the rows in the light of the avail­
able seats at the end of the rows unless their intent was 
to disturb those already seated. This conduct is so 
opposed to the accepted demeanor of religious assemblies 
that to infer that the petitioners’ intent was other than to 
disturb this meeting would be a stultification.

This Court has held that conduct which forms a basis 
of inference is evidence. United States ex rel. Bilo- 
kumisky v. Tod, 263 U. S. 149. Therefore, since the record 
reveals conduct upon the part of the petitioners which 
forms a valid basis for the inference of their guilt under 
this statute, there is some evidence which supports their 
conviction and in view of this there is no denial of due 
process of law. United States ex rel. Vajtauer v. The 
Commissioner of Immigration at New York, 273 U. S. 103.

The Constitution of the United States does not grant to 
the petitioners the right to violate a valid criminal statute.

Part II of the petitioners’ argument calls to mind the 
Court’s admonition “ that the burden of showing essential 
unfairness be sustained by him who seeks to have the 
results set aside and that it be sustained not as a matter 
of speculation but as a demonstrable reality.” Buchalter 
V. People of New York, 319 U. S. 427.

In considering this portion of the argument in behalf 
of the petitioners it is first necessary to determine what 
this case is and what it is not. First, the case is an action 
under a valid criminal statute which prohibits the willful 
disturbing of a religions assembly and the only true ques­
tion before the Court is whether the record is devoid 
of evidence of its violation. Second, the case at hand 
does not involve a segregation statute or its enforcement. 
The petitioners have undertaken to inject segregation



—  11 —

into this case by asserting that the basis of the conviction 
was the petitioners “ mere presence as negroes in a white 
assembly was in itself a disturbance” . The Supreme Court 
of the State of Tennessee made no such holding but based 
its opinion upon the conduct of the petitioners only. In 
actuality the petitioners by raising this question seek to 
entice the Court to weigh the sufficiency of the evidence 
which it will not do. Thompson v. City of Louisville, 
supra.

But even so the constitutional theory which the peti­
tioners press upon the Court in this part of their petition, 
ingenuous as it may be, is wholly fallacious. If the re­
spondent correctly understands the petitioners’ argument, 
it is their insistence that even though the statute is valid 
and there is evidence in the record upon which this con­
viction may be rested, the State is without power to en­
force the same against them. If this argument is extended 
to its logical end the petitioners, under these circum­
stances, could commit any act of violence, even including 
murder, and the State would be helpless to inflict any 
punishment upon them. This very obviously cannot be 
for if the petitioners’ contention be correct a State of 
anarchy would reign.

It is true the Constitution affords protection to the 
exercise of those rights granted thereunder but only to 
a point. Cantwell v. Connecticut, 310 U. S, 296; Beau- 
harnais v. The People of the State of Illinois, 343 U. S. 
250. The line of demarcation which severs the constitu­
tional protection from the exercise of those rights is the 
public welfare, the security of which is entrusted to the 
policy power of the State. Cantwell v. Connecticut, supra. 
As noted before, the petitioners do not attack the validity 
of the statute and unquestionably it is a permissive exer­
cise of the police power of the State. Thus, are not the 
acts in violation of that statute beyond the protection



—  12 —

of the Constitution ? This Court gave a very succinct 
answer to the foregoing inquiry in the case of Chaplin- 
skey v. State of New Hampshire, 315 U. S. 568, when it 
said:

“ [E]ven though the acts of the appellant which 
preceded the incident could be viewed as . . . entitled 
to the protection of the Fourteenth Amendment they 
would not cloak him with immunity from the legal 
consequences for concomitant acts committed in vio­
lation of a valid criminal statute” (315 IT. S. 571).

The opinion of the State Court insofar as it applies to 
the Petitioner Katie Jean Robertson rests upon adequate 
and independent non-federal grounds.

In consideration of the foregoing proposition it is well 
settled that the Supreme Court of the United States will 
not review the judgment of a State Court where such 
judgment is based upon adequate state grounds. Black 
v. Cutters Laboratories, 351 U. S. 292; Durley v. Mayo, 
351 U. S. 277.

The Supreme Court of the United States will not disturb 
the decision of the State’s highest court when such deci­
sion is based upon adequate non-federal grounds even 
though a Federal question may be involved. Dixon v. 
Duffy, 344 U. S. 143; Woods v. Nurstheiner, 328 U. S. 211; 
Phyle v. Duffy, 334 U. S. 431.

Further, it is well settled that the Supreme Court of 
the United States will not take jurisdiction to review a 
final decision of a State Court unless it explicitly appears 
from the record that a Federal question was presented to 
the highest court of the State and it was necessary to 
decide the Federal question in making its determination 
of the cause. Lynch v. New York, 293 U. S. 52; Durley 
v. Mayo, supra.



It becomes apparent from reading the Petition for Certi­
orari that the record before the Court contains what pur­
ports to be a transcript of the evidence adduced at the 
trial of the petitioner Katie Jean Robertson who was tried 
separately from the remainder of the petitioners. How­
ever, the Supreme Court of Tennessee specifically held that 
the bill of exceptions (the transcript of the testimony) in 
the petitioner Robertson’s case was not filed within the 
time prescribed by law and, therefore, became no part of 
the record in her case. Ford, et al. v. State, . . .  Term.. . . ,  
355 S. W. 2d 102. This being true it becomes obvious that 
the certification of the purported transcript of the evi­
dence as part of the record in her case was erroneous.

The Tennessee Supreme Court, based its decision as to 
the petitioner Robertson upon the State’s procedural law 
and, therefore, it is necessary here to note that appellate 
review of the criminal conviction is not a necessary ele­
ment of due process and if a State sees fit to grant such 
review it may place upon the appeal such limitations and 
conditions as it sees fit. McKane v. Druston, 153 U. S. 
684; Carter v. The People of the State of Illinois, 329 
U. S. 173.

Under Tennessee practice there is no method to bring 
the evidence heard in the trial court before an appellate 
court except by way of a bill of exceptions. Union Bank 
v. Lowe, 19 Tenn. 225.

The State’s procedural law requires that one who is 
seeking appellate review must file his bill of exceptions 
within the specified period of time set forth in Section 
27-111, Tennessee Code Annotated, which reads as follows:

“ In all cases tried in the circuit, criminal, county, 
chancery, or any other court of record, either party 
may file a bill of exceptions or wayside bill of excep­
tions either within or after the expiration of the



14 —

term without any special order of court, provided the 
bill of exceptions or wayside bill of exceptions is 
approved by the court and filed within thirty (30) 
days from the entry of the order or action of the 
court which occasioned the filing of said bills of ex­
ceptions. The judge or chancellor may within the 
aforesaid thirty (30) day period, either within or 
after the expiration of the term, extend the time for 
filing said bills of exceptions for not exceeding an 
additional sixty (60) days. The maximum period of 
ninety (90) days shall be computed, in case of a bill 
of exceptions, from the date of final judgment, and 
in the case of a wayside bill of exceptions, from the 
date of the action which occasioned the taking of 
such wayside bill of exceptions. The period of pend­
ency of any motion or other matter, having the effect 
of suspending such final judgment or action, shall be 
excluded in the computation of the period.”

The Supreme Court of Tennessee has held that a bill of 
exceptions must be filed within the time provided by law 
in order for it to become part of the record. Scopes v. 
State, 152 Term. 424; Suggs v. State, 195 Tenn. 170. Like­
wise, the Tennessee high court has ruled that a bill of 
exceptions which is not timely filed may not be looked 
to for any purpose and the Court may not go beyond the 
record to determine the merits of a case on appeal. O’Brien 
v. State, 193 Tenn. 361; Suggs v. State, supra; State ex rel. 
Tines v. Bomar, 205 Tenn. 527.

In the case of the petitioner Robertson the Tennessee 
Supreme Court specifically found that the bill of excep­
tions had not been filed within the time prescribed by law 
and that it formed no part of the record before it. Ford 
et al. v. State, . .. Tenn. . . . ,  355 S. W. 2d 102, 103. All 
the points relied upon by the petitioner Robertson turned 
upon matters of fact which could only be brought before 
the Court in the form of a bill of exceptions. However,



due to this Petitioner’s dilatoriness no hill of exceptions 
was provided as shown above and the State Court could 
not go beyond the record and determine the merits of the 
appeal. Suggs v. State, supra. Thus, the State Court 
rested its decision as to the petitioner Robertson upon ade­
quate non-federal grounds.

CONCLUSION.

It is the most respectful insistence of the respondent 
that for the foregoing reasons the decision of the Supreme 
Court of Tennessee in affirming the conviction of the peti­
tioners should in all things be affirmed by this Honorable 
Court, and the application for writ of certiorari be accord­
ingly denied.

Respectfully submitted,

GEORGE F. McCANLESS, 
Attorney General,

State of Tennessee,

WALKER T. TIPTON,
Assistant Attorney General, 

State of Tennessee, 
Attorneys for Respondent.

Certificate of Service.

I, Walker T. Tipton, Assistant Attorney General of the 
State of Tennessee, one of the attorneys for the respond­
ent and a member of the bar of the Supreme Court of the 
United States, hereby certify that on the . . . .  day of 
October, 1962, I served copies of the within brief for the



—  16 —

respondent on Evander Ford, Jr., Alfred O’Neil Gross, 
James Harrington Smith, Ernestine Hill, Johnnie Mae 
Rogers, Charles Edward Patterson, Edgar Lee James and 
Katie Jean Robertson, Petitioners, by mailing said copies 
in duly addressed envelopes, postage dnly paid, to the 
connsel of record, namely, Jack Greenberg, James M. 
Nabrit, III, and Derrick A. Bell, Jr., Suite 1790, 10 Colum­
bus Circle, New York 19, New York.

Walker T. Tipton,
Assistant Attorney General, 

State of Tennessee.