State v. Brown Transcript of Record

    The State of South Carolina
IN THE SUPREME COURT
APPEAL FROM ORANGEBURG COUNTY 

Honorable J. B. Pruitt, Judge

THE STATE, Respondent, 
against

JOSEPH C. BROWN, MARGIA J. A. ALVIN, S. DeLORIS 
COOPER, ELIZABETH DeWITTE, LOUISE FOOTMAN, 
JIMMIE WILLIAMS, ROOSEVELT CASSIDY, GEORGE 
L. BLAIR, BOBBY WILLIAMS, GILBERT ZIMMERMAN, 
HERMAN KEITT, LEWIS ROBINSON, JOHNIE L. 
MIOUTT, BARBARA JEAN TILLY, LUCILLE HANNA, 
JOYCE WASHINGTON, ARISTEAD SALTERS, VIRGIL 
MOZART KELLY, LOUISE WILSON, LILLIAN BRADLEY, 
WILLIAM PERKINS, NATHANIEL WALLACE, GLENDA 
VERONICA SHAW, GEORGE KERSHAW, SHIRLEY 
SMALLS, ROSMOND WHIPPER, MARGARINE STEP­
HENS, THOMAS BROWN, ELEASE DRAYTON SMART, 
FRANCES JOHNSON, MARY ALICE WILLIAMS, LEROY 
GETTOES, FREDERICK MIDDLETON, FRED L. BRAD­
LEY, OSCAR W. RIVERS, JR., SHIRLEY COOPER, 
QUEEN ESTER JENKINS, CLARENCE E. WHITE, WIL­
LIAM DAVENPORT, MAXINE KINNEY, EUGENE C. 
WILLIAMS, JEANIE SNIPE, HOWARD MARTIN, HIRAM 
SPAIN, JR., MARVA L. BRAYBOY, BOBBY WOOD, W. M. 
GILLIAMS, ANNIE H. SAXON, ANNA L. ROYAL and. 
RICHARD GIBBS, Appellants.

TRANSCRIPT OF RECORD

Jenkins and Perry,
Columbia, South Carolina,

W. Newton Pough,
Orangeburg, South Carolina, 

Attorneys for Appellants.
Daniel R. McLeod,

Attorney General,
Columbia, South Carolina, 

Everett N. Brandon,
Assistant Attorney General, 

Columbia, South Carolina, 
Julian_ S. W olfe,

Solicitor,
Orangeburg, South Carolina, 

Attorneys for Respondent.



INDEX
P age

Statement ..................................................................  1

Warrant ........................   1

Transcript of Trial Proceedings, April 22, 1960 . . 3

Order of Judge P ru itt................................................ 7

Exceptions ..................................................................  8

Agreement ....................   10



STATEMENT
The fifty (50) appellants, all of whom are Negro 

college students, were arrested on March 15, 1960 as 
members of a larger group, consisting of 388 persons, 
and charged with the common law offense of breach 
of peace.

Appellants were tried before Magistrate D. Mar- 
chant Culler, sitting without a jury, on April 22, 1960. 
At the conclusion of all of the evidence, Magistrate 
Culler found each of the appellants “ guilty”  and sen­
tenced each of them to pay fines of Fifty ($50.00) Dol­
lars or serve thirty (30) days in prison.

Thereafter, the matter was argued before the Honor­
able J. B. Pruitt, Presiding Judge of the First Judicial 
Circuit.

On December 5, 1961, Judge Pruitt issued an Order 
affirming the judgment of the Court of Magistrate.

Notice of Intention to Appeal was thereupon duly 
served upon the Attorney General of the State of 
South Carolina.

AFFIDAVIT
THE STATE OF SOUTH CAROLINA,

C o u n ty  of Obangebubg .
Personally appeared before me D. Marchant Culler 

a Magistrate of said County and said State, C. H. Hall 
who being duly sworn, says: on information and belief 
on or about March 15th, 1960 one Joseph C. Brown, 
Margia J. A. Alvin, S. DeLoris Cooper, Elizabeth De- 
Witte, Louise Footman, Jimmie Williams, Roosevelt 
Cassidy, George L. Blair, Bobby Williams, Gilbert 
Zimmerman, Herman Keitt, Lewis Robinson, Johnie 
L. Mioutt, Barbara Jean Tilly, Lucille Hanna, Joyce 
Washington, Aristead Salters, Virgil Mozart Kelly, 
Louise Wilson, Lillian Bradley, William Perkins, Na­
thaniel Wallace, Glenda Veronica Shaw, George Ker-



9 SUPREME COURT 
The State v. Brown et al.

shaw, Shirley Smalls, Rosmond Whipper, Margarine 
Stephens, Thomas Brown, Elease Drayton Smart, 
Frances Johnson, Mary Alice Williams, Leroy Bettors, 
Frederick Middleton, Fred L. Bradley, Oscar W. 
Rivers, Jr., Shirley Cooper, Queen Ester Jenkins, 
Clarence E. White, William Davenport, Maxine Kin­
ney, Eugene C. Williams, Jeanie Snipe, Howard Mar­
tin, Hiram Spain, Jr., Marvia L. Brayboy, Bobby 
Wood, W. M. Gilliams, Annie H. Saxon, Anna L. 
Royal and Richard Gibbs did commit breach of the 
peace by unlawfully and willfully congregating and 
marching in the City of Orangeburg, said County, and 
did approach what is known as the business section of 
the City of Orangeburg, the groups being headed by 
a number of parties who refused to stop and return 
to the colleges upon the request of Chief of Police Hall 
and other officers in the City of Orangeburg, thereby 
disturbing the peace and tranquility of the normal 
traffic on the sidewalks as well as the streets in the 
City of Orangeburg, which caused fear and tending to 
incite a riot or other disorderly conduct or cause ser­
ious trouble, thereby committing breach of the peace, 
against the form of the statute in such case made and 
provided, and against the peace and dignity of the 
State.

C. H. H a ll , Affiant.
Sworn to before me this the 
15th day of March, 1960.
D. M arc h a n t  C u ller , Magistrate.



SUPREME COURT 
Appeal from Orangeburg County

3

PROCEEDINGS
The Court: Is the State ready to proceed?
Mr. Wolfe: Yes, Your Honor, as far as I know.
The Court: The defense?
Mr. Jenkins: The defense is ready, Your Honor.
The Court: I think the proper procedure, of course, 

is to read the indictment.
Mr. W olfe: I think, if Your Honor please, the record 

should show that the State is represented by Mr. Hugo 
S. Sims, City Attorney, and myself, Julian S. Wolfe, as 
Solicitor; and that the defendants appear and are rep­
resented by Attorneys Newton Pough and Lincoln 
Jenkins, so that that phase of the record will be com­
plete.

The Court: Now, the defendants, I will have to call 
their names: (The named defendants called by the 
Court, all being present with the exception of Herman 
Keitt, Johnie L. Mioutt, Aristead Salters, and Clar­
ence E. White).

Mr. Pough: Your Honor, in previous cases we have 
considered the absent persons as being present and 
represented by counsel, and that the judgment of this 
Court will be binding upon them.

The Court; Thank you, if that’s agreeable with the 
State.

Mr. W olfe: That is agreeable. I think, if Your Honor 
pleases, there ought to be some arrangement made to 
come in. Of course, I know that in a felony no waiver 
can be had. I ’m a little bit dubious. I don’t want to in 
any way affect the rights of the State or of the defend­
ants. I think counsel should have these parties come in 
and report to the Court at the proper time.

The Court: Well, that is being done; that has been 
agreed by counsel. Is that correct?



4 SUPREME COURT 
The State v. Brown et al.

Mr. Pough: Yes, sir.
Mr. Jenkins: I may say in those other cases those 

persons were convicted, and we are assuming in this 
that they are going to he found guilty, but—

The Court: Well, that’s correct.
Mr. Wolfe: If Your Honor pleases, in order to pro­

tect the record, since the list of parties has been called 
and noted by counsel for the defendants, we would like 
to offer our amended affidavit to the warrant, so that 
the record will he complete, as in the other cases.

Mr. Jenkins: We have no objection, if Your Honor 
please.

The Court: That being the case, I will read the af­
fidavit, the warrant.

The names that I have just read out, you are charged 
with the following misdemeanor: that on or about 
March the 15th, 1960, that you—and I have named you 
—did commit breach of the peace by unlawfully and 
willfully congregating and marching in the City of 
Orangeburg, said County, and did approach what is 
known as the business section of the City of Orange­
burg, the groups being headed by a number of parties 
who refused to stop and return to the colleges upon 
request of Chief of Police Hall and other officers in 
the City of Orangeburg, thereby disturbing the peace 
and tranquility of the normal traffic on the sidewalks 
as well as the streets in the City of Orangeburg, which 
caused fear and tending to incite a riot or other dis­
orderly conduct or cause serious trouble, thereby com­
mitting breach of the peace, against the form of the 
statute in such case made and provided and against 
the peace and dignity of the State, the affidavit being 
signed by C. H. Hall.

That is the charge. What is the plea?



SUPREME COURT 
Appeal from Orangeburg County

5

Mr. Jenkins: If Your Honor please, prior to making 
a plea, on behalf of the defendants, and each of them, 
I make the following motion:

That the information and warrant be dismissed for 
the reason that, on its face, it does not plainly and sub­
stantially set forth the offense charged and fails to 
provide the defendants with sufficient information to 
meet the charges against them and, therefore, is a 
deprivation of the defendants’ liberty without due 
process of law, as secured to them by the Fourteenth 
Amendment to the United States Constitution.

The Court: The motion is denied.
Mr. Jenkins: If Your Honor please, the defendants, 

and each of them, plead not guilty.
Mr. Sims: May it please the Court, attorneys for the 

State and attorneys for the defense have agreed to 
stipulate in this case that, rather than putting up tes­
timony, we will agree to use the transcript of proceed­
ings in the case of State of South Carolina v. Alvin 
Heatley, et al., dated April 8, 1960, as they begin on the 
next to the last line on page 6 thereof, being the be­
ginning of the testimony of the State, and through and 
including the entire record of proceedings of the said 
case, and that such, together with the proceedings thus 
far in the present case, shall constitute the record of 
proceedings in this present case.

Is that substantially correct, Mr. Jenkins?
Mr. Jenkins: I think we are in agreement. I just 

want to see if this is what we agree to : that beginning 
with the last two lines on page 6, everything contained 
in the transcript of proceedings of April 8, 1960, will 
apply to these defendants presently before the Court, 
and that wherever any reference is made to the named 
defendants on April 8, 1960, such reference shall be 
understood to apply to the named defendants in this



6 SUPREME COURT 
The State v. Brown et al.

present ease; and, further, that the testimony of the 
two defendants who testified in the trial of April 8, 
1960, shall be taken and considered as testimony of 
witnesses for the defendants in this present case.

The said record of proceedings of April 8, 1960, 
above referred to, is not physically incorporated in 
this record of the present proceedings, but is incorpor­
ated herein by reference to the said proceedings of 
State of South Carolina v. Alvin Heatley, et al., heard 
in the Magistrate’s Court of Orangeburg County, 
South Carolina, before Hon. D. Marchant Culler, Ma­
gistrate, on April 8, 1960, as set out in the court re­
porters Transcript of Proceedings, dated April 8, 1960.

The Court: I think that I should review the record 
and impose the sentence. I don’t know whether you 
could agree to imposition of a sentence or imposition 
of a fine, and I think I ought to make the findings.

Mr. Wolfe: By agreement, Your Plonor, if counsel 
makes no objection to the findings in this case, as set 
out in the record.

Mr. Jenkins: Certainly we have agreed to everything 
down to the findings of the Court.

I don’t know whether we can agree to the sentence, 
and so forth, but, if it is possible that we can, and un­
less the Court decides to lower the fines and sentences, 
then we would also agree to what this previous record 
says about that.

The Court: I think I had better work it this way: 
make my findings, based on the record in the previous 
case—and that finding is as follows. I find each and 
every one of the defendants charged before me this 
morning guilty of breach of the peace, and each and 
every one of these defendants is fined fifty dollars or 
is to serve thirty days.



SUPREME COURT 
Appeal from Orangeburg County

7

Mr. Jenkins: It is understood and agreed by coun­
sel for the State as well as for the defense that motions 
made by the defense on ,April 8, 1960, prior to the sen­
tencing by the Court, will apply in the instant case.

It is further agreed by counsel for the State as well 
as for the defense that the identical motions made by 
the defense subsequent to the sentencing by the Court 
on April 8, 1960, will apply to these proceedings today, 
April 22,1960.

Mr. Wolfe: We have no objection.
The Court: Appeal bond is fixed at one hundred dol­

lars for each defendant in this case.
(Thereupon, the trial of the above-entitled case was 

concluded.)
ORDER

The appeals herein are from convictions in the Court 
of Magistrate, Honorable D. Marchant Culler, Orange­
burg County Magistrate, presiding, upon a charge of 
the common law crime of breach of the peace. The de­
fendants herein were tried jointly, and the trial was 
one of eight such trials, wherein various groups were 
tried for the offense stated after certain incidents 
which arose in the City of Orangeburg on March 15, 
1960. Approximately 350 persons were arrested as a 
result of the incident referred to, and, for the sake of 
convenience, they were divided into eight groups for 
trial.

All exceptions have been duly considered. The issues 
raised have been disposed of by the Orders of this 
Court in the cases of State v. Irene Brown, et al., State 
v. James Fields, et al., State v. Bobby J. Gilchrist, 
et al., and State v. Marie Graham, et al., which Orders 
are herewith incorporated as a part of this Order.



8 SUPREME COURT 
The State v. Brown et al.

All exceptions of the Appellants are overrnled and 
the convictions and sentences are affirmed.

December 5, 1961.

s / J am es B. P r u it t , 
P residing  J udge,

First Judicial Circuit.

EXCEPTIONS
1. The Court erred in refusing to quash the informa­

tion and dismiss the warrant on the ground that it was 
vague, indefinite and uncertain and did not fully, fairly 
and substantially inform the appellants of the nature 
of the offense charge against them, in violation of 
their right to due process of law, protected by the 
Fourteenth Amendment to the United States Constitu­
tion, and in violation of Article I, Section 18, Constitu­
tion of the State of South Carolina.

2. The Court erred in refusing to hold that the State 
failed to establish the corpus delicti, in that:

a. It was not shown that any person engaged in 
conduct which was unlawful.

b. It was not shown that any person engaged in 
conduct which directly tended to breach the peace.

c. It was not shown that any person engaged in 
conduct which incited other persons to violence.

d. It was not shown that any person engaged in 
violent conduct.

e. It was not shown that any person engaged in 
obscene conduct.

f. It was not shown that any person uttered pro­
fane language.

g. It was not shown that any person conducted 
himself in disorderly fashion.



SUPREME COURT 
Appeal from Orangeburg County

9

3. The Court erred in refusing to hold that the State 
failed to prove a prima facie case, in that:

a. It was not shown that appellants engaged in 
any conduct which was unlawful.

b. It was not shown that appellants engaged in 
any conduct which directly tended to breach the 
peace.

c. It was not shown that appellants engaged in 
any conduct which incited other persons to vio­
lence.

d. It was not shown that appellants engaged in 
any violent conduct.

e. It was not shown that appellants engaged in 
any obscene conduct.

f. It was not shown that appellants uttered pro­
fane language.

4. The court erred in refusing to hold that appel­
lants were convicted upon a record devoid of any evi­
dence of the commission of any of the essential ele­
ments of the crime charged, in violation of appellants’ 
right to due process of law, guaranteed by the Four­
teenth Amendment to the United States Constitution, 
and by Article I, Section 5 of the South Carolina Con­
stitution.

5. The Court erred in refusing to hold that the evi­
dence shows conclusively that by the arrest and con­
viction of appellants, the police powers of the State 
of South Carolina were used to deprive appellants of 
the right of freedom of speech, and the right peace­
ably to assemble and to petition the Government for 
a redress of grievance, guaranteed them by Article I, 
Section 4 of the Constitution of South Carolina.

6. The Court erred in refusing to hold that the evi­
dence shows conclusively that by the arrest and con-



10 SUPREME COURT 
The State v. Brown et al.

vietion of appellants, the State of Sonth Carolina 
used its police powers to deprive appellants of the 
right of freedom of assembly and the right of freedom 
of speech, guaranteed them by the First Amendment 
to the United States Constitution, and further secured 
to them under the equal protection and due process 
clauses of the Fourteenth Amendment to the Consti­
tution of the United States.

AGREEMENT
It is hereby stipulated and agreed by and between 

counsel for the appellants and respondent that the 
foregoing, when printed, shall constitute the Tran­
script of Record herein and that printed copies there­
of may be filed with the Clerk of the Supreme Court 
and shall constitute the Return herein.

D an ie l  R. M cL eod,
Attorney General,

Columbia, South Carolina, 
E vekett N. B randon ,

Assistant Attorney General, 
Columbia, South Carolina, 

J u l ia n  S. W olfe,
Solicitor,

Orangeburg, S. C.,
Attorneys for Respondent.

W . N ew to n  P ou gh ,
Orangeburg, S. C.,

Attorneys for Appellants.

40