Sumter v. Moore Transcript of Record

    The State of South Carolina
IN THE SUPREME COURT

APPEAL FROM SUMTER COUNTY 

H onorable J ames H ugh Me Faddin, J udge

CITY OF SUMTER, Respondent, 

against

IVOR 0. MOORE, Appellant

TRANSCRIPT OF RECORD

E rnest A. F inney, Jr., 
Sumter, South Carolina,

W illiam W . Bennett, 
Florence, South Carolina,

J enkins & P erry,
Columbia, South Carolina,

Attorneys for Appellant.

C. M. E dmunds,
Sumter, South Carolina, 

Attorney for Respondent.



P age

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

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

Transcript of Trial Proceedings............................... 3

Witness for the City of Sumter:
C. W. Lambert:

Direct Examination....................................  4
Cross Examination ....................................  6

Witness for Defendant:
Ivor G. Moore:

Direct Examination....................................  14
Cross Examination ....................................  15

Order of Judge McFaddin........................................  23

Exceptions .................................................................... 25

Agreement .................................................................... 27

INDEX



STATEMENT
The appellant, a Negro college student, was arrested 

on February 14,1961 and charged with the common-law 
offense of breach of peace. Appellant was tried before 
Sumter City Recorder Raymon Schwarz, Jr., sitting 
without a jury, on March 2, 1961. At the conclusion of 
all the evidence, Judge Schwarz found the appellant 
guilty and sentenced him to pay a fine of One Hun­
dred ($100.00) Dollars or serve thirty (30) days in 
prison. Notice of Intention to Appeal was duly served 
upon the City Recorder.

Thereafter, the matter was heard before Honorable 
James Hugh McFaddin, Resident Judge, Third Judi­
cial Circuit. On February 23, 1962, Judge McFaddin 
issued an order, affirming the judgment of the City 
Recorder. Notice of Intention to Appeal was thereupon 
duly served upon the City Attorney.

AFFIDAVIT
STATE OF SOUTH CAROLINA,

City and County of Sumter.
Personally came before me Raymon Schwarz, Jr., 

Recorder of the City of Sumter E. E. McIntosh who 
being duly sworn says: That he is informed and be­
lieves that at Sumter, S. C., on or about the 14th day 
of February 1961, one Ivor G. Moore did enter the
premises o f ......................................... in Sumter, S. C.
and did sit down for service in said premises and did 
fail and refuse to leave said premises when ordered to 
do so by the person in charge of said business and by 
said acts did breach the peace, in violation of an Or-



2 SUPREME COURT 
City of Sumter v. Moore

dinance of City of Sumter, and that deponent and 
others are material witness to prove the above allega­
tions.

E. E. McI ntosh / s/

Subscribed and sworn to before me this 14th 
day of February, 1961.

R aymon Schwarz, J r., / s/  (L. S.)
Recorder.

WARRANT
STATE OF SOUTH CAROLINA,

City and County of Sumter.
To the Sheriff of Sumter County or to any or either of 

the Policemen of the City of Sumter.
Whereas, complaint upon oath has been made before 

me as Recorder of the City of Sumter, by E. E. Mc­
Intosh That he is informed and believes that at Sum­
ter, S. C., on or about the 14th day of February, 1961,
one Ivor G. Moore did enter the premises o f .................
........... in Sumter, S. C. and did sit down for service in
said premises and did fail and refuse to leave said 
premises when ordered to do so by the person in 
charge of said business and by said acts did breach 
the peace, in violation of an Ordinance of City of Sum­
ter in such cases made and provided.

These are therefore to authorize and command you 
to arrest the witnesses above named and Ivor Gr. 
Moore and bring them before me at Recorder’s Court 
to be dealt with according to law.

Given under my hand and Seal this 14th day of Feb­
ruary, 1961.

R aymon Schwarz, Jr . , / s/  (L.S.)
Recorder.



SUPREME COURT 
Appeal from Sumter County

3

The above-entitled case came on for trial before His 
Honor, Raymon Schwarz, Judge of the Recorder’s 
Court, in the courtroom of the Recorder’s Court of 
the City of Sumter on the 2nd day of March, 1961.

Appearances:
For the City of Sumter:

C. M. Edmunds, City Attorney.
For the Defendants:

Ernest A. Finney, Jr., and William W. Bennett, 
Attorneys at Law.

PROCEEDINGS
The Court: The defendant is charged with breach 

of the peace. Is the defense ready?
Mr. Finney: Yes, sir, ready, Your Honor.
The Court: The defendant is charged with breach of 

the peace. How does he plead?
Mr. Finney: May we have a stipulation as to the 

motions, or do you want me to make them again, sir ?
The Court: The same motions?
Mr. Edmunds: I am willing for the same motions to 

he shown.
Mr. Finney: We wish to have the record show that in 

the case between the defense and the City the same 
motions will be made as were made in the case of the 
City of Sumter v. Eddie Drummond and Herman 
Harris.

The Court: The stipulation is approved.
Mr. Finney: Your Honor, that goes throughout our 

trial, so we won’t have to make our motions at the 
end of the City’s case and in arrest of judgment?

The Court: I think in order to help our stenographer 
it would be well, at the proper point, to just make a 
motion that the same motions are made and renewed.



4 SUPREME COURT 
City of Sumter v. Moore

C. W . L ambert
I ’m not ruling on them now. The facts in this case may 
be different.

MOTION
The defendant moves to quash the warrant or, in the 

alternative, to dismiss the warrant on the ground that 
the facts as set forth in the warrant do not, under the 
statutes and laws of the State of South Carolina, con­
stitute the offense of breach of the peace.

Motion denied.

Mr. C. W . L ambert, called as a witness by the City, 
being first duly sworn, was examined and testified as 
follows:

Direct Examination
By Mr. Edmunds:
Q. Mr. Lambert, do you know Ivor Gerald Moore?
A. Yes, I do.
Q. How long have you been a police officer of the 

City of Sumter?
A. Seven and a half years, sir.
Q. Were you on duty as such on the 14th day of 

February, 1961?
A. Yes, sir.
Q. Did you have an occasion to be at Kress’ Ten 

Cent Store on that day,
A. Yes, sir.
Q. Was that in the morning part of the day or after­

noon part?
A. In the morning part of the day, sir.
Q. Is Kress’ Ten Cent Store within the limits of the 

City of Sumter?
A. Yes, sir.



SUPREME COURT 5

Appeal from Sumter County 

C. W . L ambebt
Q. And did you have any occasion to see or talk 

to the defendant, Gerald Moore, the defendant, on that 
occasion?

A. Yes, I did.
Mr. Finney: Has there been a plea in this case?
The Court: Just to he sure—I’m sure there was 

a plea—let’s enter the plea now.
How do you plead?
Mr. Finney: There is a plea of not guilty, after 

the motion.
The Court: Have the defendant stand up.
You are charged with breach of the peace. How do 

you plead?
Mr. Finney: Not guilty.
By Mr. Edmunds:
Q. Go ahead and tell us what happened and what 

was said, if it was said in the presence and hearing 
of the defendant.

A. Moore went into Kress’ Five and Dime and 
walked up to the counter, the lunch-counter, and 
ordered a Coke. He received the Coke in a paper cup 
with a top on it. He paid for it with a dollar bill, re­
ceived his change, and after he received his change 
he sat down at the counter.

Q. Did you see that?
A. Yes, sir, I did. He was told by Mrs. Rivers, who 

was at the lunch counter—
Q. Did you hear that?
A. Yes, sir—that he would have to leave, that he 

couldn’t sit at the counter. He didn’t say anything; he 
kept sitting there.

Q. What was the relationship of the lady behind the 
counter and the defendant when she told him what you 
said—I mean their respective positions?



6 SUPREME COURT 
City of Sumter v. Moore

C. W. L ambert
A. She was directly across the counter from him, 

sir, just the width of the counter between.
Q. And she told him what?
A. She told him he couldn’t sit there, he’d have to 

leave. He didn’t say anything and she told him the 
second time that, he could not sit at the counter and 
drink the drink, he’d have to take it out. He still didn’t 
say anything. I asked him if he heard the lady say 
that he’d have to leave, and he still didn’t bother to an­
swer me. I placed him under arrest and brought him 
out.

Mr. Edmunds: Your witness.
Cross Examination

By Mr. Finney:
Q. Officer, what type of store is Kress’ ?
A. It’s a five-and-ten-cent variety store.
Q. Did anyone ask you to arrest this defendant, sir; 

did anyone prefer a warrant, in other words ?
A. No.
Q. Did the manager request that you ask this young 

man to leave?
A. No.
Q. Did the waitress ask you to ask this young man 

to leave ?
A. No.
Q. Did you follow the young man in there?
A. I was in there, already inside the building, I be­

lieve, when he came in.
Q. You were inside the building when he came in?
A. That’s correct.
Q. Were there other people in the building?
A. There was.



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Appeal from Sumter County

7

C. W. L ambert
Q. Making purchases at the various counters?
A. That’s right.
Q. Were some of those people, as far as you can 

remember, members of the Negro race?
A. There was both races in there, I believe.
Q. Did you arrest anyone who made a purchase at 

any other counter?
A. I did not.
Q. Did anyone come around and say anything to you 

concerning this young man’s presence?
A. No.
Q. Did you see anyone do anything which indicated 

hostility?
A. No.
Q. Did you hear anyone say anything which indi­

cated hostility?
(A. No.
Q. Could you swear that there was more than a nor­

mal amount of people in Kress’ for this day and this 
time and under those conditions?

A. No, I couldn’t.
Q. This young man was by himself?
A. No, he had another one with him.
Q. Did the other person that was with him sit down?
A. That I can’t say, can’t testify to, because I didn’t 

see I didn’t see him sit down.
Q. You didn’t see him sit down at that time?
A. No.
Q. As far as you know, only one person went in there 

and only one person sat down?
A. He was with another person. I did not see the 

other person sit down.



8 SUPREME COURT 
City of Sumter v. Moore

C. W . L ambeet
Q. I say, as far as you know, only one person sat 

down there!
A. As far as I saw, yes.
Q. And nobody said anything to you concerning this 

young man and nobody preferred any charges!
A. No.
Q. Did he do anything overtly to anyone in the

store!
A. Nothing except refusing to leave when he was 

asked to leave.
Q. Did he do anything overtly; did he shove anybody 

or touch anybody when he went in the store, sir !
A. Not that I know of.
Q. Did you hear him say anything to anybody that 

was inflammatory!
A. No.
Q. When you saw Mm sit down you came up immedi­

ately?
A. That’s correct. I was just a couple of feet away; 

I was almost at the lunch-counter then.
Q. Were you on duty at this time?
A. I was.
Q. Making your regular patrol through Kress’ ?
(A. That’s correct.
Q. And you just happened to see him at this particu­

lar time?
A. I did.
Q. And you heard the entire conversation between 

the waitress and this defendant?
A. I did.
Q. What did she say again, sir, now?
A. She told him that he could not sit at the counter, 

that he had to leave. He didn’t say anything and she



SUPREME COURT 
Appeal from Sumter County

9

C. W . L ambert
told him the second time that he couldn’t drink the 
drink at the seat, he would have to leave.

Q. He did not say anything to her, sir!
A. No.
Q. No one else in that store said anything or did 

anything, did they, sir!
A. No.
Q. This defendant is charged with what!
A. Breach of the peace.
Q. The only act that was committed in your presence 

which establishes the charge, in your opinion, is what!
A. His refusal to leave.
Q. Do you know of any law which would require him 

to leave, sir!
A. I believe there’s a law on the books that states 

that the person in charge, or the person in control, of a 
particular area of a store can reserve the right to con­
trol that store and may use whatever force is neces­
sary to get that person from the store when he asks 
them to leave.

Q. That law is called what, sir!
A. I ’m not certain on that, but I believe that is in the 

law. I couldn’t quote you the statute on it.
Q. I wouldn’t expect you to, sir. Does that involve 

the crime of trespass!
A. That I don’t know.
Q. You don’t know what it involves at all!
A. I believe it would be a breach of the peace.
Q. Of course, that’s what we are trying to find out, 

but the statute in this case you’re talking about, this 
law, does it mention breach of the peace!

A. That I don’t know.
Q. You don’t know what crime it actually mentions! 
A. No.



10 SUPREME COURT 
City of Sumter v. Moore

C. W . L ambert
Q. Of course, the Court would take judicial knowl­

edge of what that is. Let me summarize and see if I ’ve 
got your testimony correctly. Nobody said anything 
in your presence to this defendant and he did nothing 
other than to refuse to leave; is that correct, sir?

jA. That’s correct.
Q. Was the fact of his refusal to leave based upon 

any condition of this defendant?
A. I don’t believe I understand.
Q. In other words, was the fact that he refused to 

leave and you subsequently arrested him—did it have 
anything to do with anything that he did or is?

A. His refusal to leave was the reason he was ar­
rested.

Q. You did not see him do anything, though, did you, 
sir?

A. Only the refusal to leave.
Q. You don’t know why he was asked to leave?
A. Certainly, I know why he was asked to leave.
Q. Why was he asked to leave, sir?
A. Because they don’t serve colored at that counter.
Q. They don’t serve colored at the stools?
A. No.
Q. You don’t know of any law that would require 

them not to serve colored at, those stools, do you?
A. No; I don’t know of any law that would require 

them to.
Q. Would you please just answer the question? I 

am not trying to involve you in any way, but just make 
your answer a bit more responsive.

Do you know of any law that would require them not 
to serve colored at that counter, sir?

A. I do not.



SUPREME COURT 
Appeal from Sumter County

11

C. W . L ambert
Q. Did you see any reason other than the fact that 

this defendant was colored that they would have asked 
him to leave?

A. I did not.
Q. You saw him pay for his soda?
A. I did.
Q. Was he orderly, as far as demeanor was con­

cerned?
A. He was.
Q. And reasonably well-attired?
A. He was.
Q. And you observed no overt act on the part of any­

body else ?
A. I did not.
Q. And you observed no overt act or words on the 

part of this defendant?
A. I did not.
Q. And yet you arrested him and charged him with 

breach of the peace?
A. I did.
Mr. Finney: Thank you, sir.
(Witness excused.)
Mr. Edmunds: That is the City’s case.
Mr. Finney: Your Honor, in view of the factual situ­

ation difference, we again renew our motions for dis­
missal and respectfully request that Your Honor con­
sideration, if you could.

The Court: Motions on each of the same grounds 
are denied. They are stipulated as being in the record 
as made in the previous case.

I believe it would be well, as these appeals will prob­
ably have to be handled separately, that, as the record 
is typed, rather than referring to the stipulation, the



12 SUPREME COURT 
City of Sumter v. Moore

motions actually be incorporated in the record at eacli 
place.

Mr. Edmunds: I imagine they would have to be that 
way, Your Honor.

MOTIONS
The defendant moves to quash the warrant or, in the 

alternative, to dismiss the warrant on the ground that 
the statutes and laws under which the same is brought 
are unconstitutional in that they constitute an infringe­
ment on the rights of this defendant in the exercise of 
his rights as guaranteed him by the Fourteenth and 
First Amendments to the United States Constitution, 
in that the said statutes and/or laws under which he 
said warrant is brought deprive the defendant of his 
constitutional rights as guaranteed by said provisions 
of the United States Constitution.

Motion denied.
The defendant moves to quash the warrant or, in the 

alternative, to dismiss the warrant on the ground that 
the statutes and/or laws under which the warrant 
charging him is brought is violative of the rights of the 
defendant as guaranteed him under Article I, Sections 
4 and/or 5 of the Constitution of the State of South 
Carolina.

Motion denied.
The defendant moves to dismiss or, in the alterna­

tive, for a directed verdict on the ground that the evi­
dence shows conclusively that the arresting officer acted 
for the purpose of assisting the management of S. H. 
Kress and Company Store in Sumter, South Carolina, 
to maintain a custom of discrimination against the de­
fendant, a Negro, in the operation of lunch-counter fa­
cilities solely on the basis of race or color, such con­
duct on the part of such police official, an agent of the



SUPREME COURT 
Appeal from Sumter County

13

State, being prohibited by the guarantees safeguarded 
to the defendant under the Due-Process and Equal- 
Protection Clauses of the Fourteenth Amendment to 
the United States Constitution.

Motion denied.
The defendant moves to dismiss or, in the alterna­

tive, for a directed verdict on the ground that the evi­
dence shows that by this prosecution this Court is 
being used in the furtherance of a policy or custom of 
racial distinction based upon race or color alone, in 
the operation of lunch-counter facilities in S. H. Kress 
and Company Store in Sumter, South Carolina, any 
such activity on the part of this Court, an instrumen­
tality of the State, being prohibited by the Due-Process 
and Equal-Protection Clauses of the Fourteenth 
Amendment to the United States Constitution.

Motion denied.
The defendant moves to dismiss or, in the alterna­

tive, for a directed verdict upon the ground that the 
City of Sumter has failed to establish by competent 
evidence the corpus delicti.

Motion denied.
The defendant moves to dismiss or, in the alterna­

tive, for a directed verdict upon the ground that the 
City of Sumter has failed to establish by competent 
evidence a prima facie case.

Motion denied.
Mr. Finney: The defense will call Ivor Moore.



14 SUPREME COURT 
City of Sumter v. Moore

I vor G. Moore
63 Ivor G. Moore, the defendant, being first duly sworn, 

was examined and testified as follows:
Direct Examination

By Mr. Finney:
Q. What is your name?
A. Ivor Moore.
Q. Are you a student at Morris College!
A. Yes, sir.
Q. On or about February 14, 1961, did you have 

occasion to go into Kress’ Dime Store in the city of
64 Sumter!

A. Yes, I did.
Q. When you went into Kress’ did you buy anything!
A. Yes, sir, I bought a Coke.
Q. You paid for it!
A. Yes, sir, I did.
Q. Did you go in the store with anybody else!
A. No, I went in alone.
Q. Did you do anything to anybody while you were 

in there, overtly; did you commit any act to anyone!
65 A. No.

Q. Did you say anything to anyone other than the 
waitress!

A. No, I didn’t.
Q. Did the waitress say anything to you!
A. Yes, she told me that I wasn’t supposed to sit 

there, and later on when I asked her for my change— 
no, that’s all that was said. The officer spoke after 
than. Later the officer, when I asked for my change 
from the dollar I gave her, the officer told her to give 
me my change.

Q. That was all that was said to you!
A. Yes.



SUPREME COURT 
Appeal from Sumter County

15

Ivor G. Moore
Q. Did you see anybody coming into the store, any 

crowd of people?
A. No, I didn’t.
Q. Did you know that there had been some students 

arrested for requesting service at Kress’ prior to this 
time?

A. No, I didn’t.
Q. Had you heard that there had been some students 

arrested—when I say “prior” I don’t mean on this day, 
but before this time?

A. Arrested in Kress’ ?
Q. In Kress’ or around Kress’, or in the city of 

Sumter ?
A. I had heard that last year there was an incident 

of pupils being arrested, but I don’t remember whether 
it was in Kress’ or where it was at.

Q. Did you know, when you sat down in Kress’, that 
you were going to be arrested?

A. No, I didn’t.
Q. Did the lady serve you your soda?
A. Yes, she did.
Q. Then, after you were served your soda, she told 

you that you couldn’t sit there ?
A. Yes, sir.
Mr. Finney: That’s all.

Cross Examination
By Mr. Edmunds:
Q. What do they call you by your first name—Ivor?
A. Yes, sir.
Q. Ivor, how old are you?
A. Nineteen.
Q. You go to Morris College?
A. Yes, sir.



16 SUPREME COURT 
City of Sumter v. Moore

Ivor G. Moore
Q. What grade are you in?
A. Freshman.
Q. Where did you come from?
A. New York; The Bronx, New York.
Q. You started school here in September?
A. Yes, sir.
Q. So you’ve been here only since September, or you 

were here before that?
A. Only since September.
Q. Now you had heard, of course, of a good many 

arrests for sit-ins here in Sumter since September, 
hadn’t you?

A. Not exactly sit-ins; I had heard of arrests.
Q. Well, what had you heard about?
A. I had heard of that incident last year, but this 

year the only other incident was a bus, that I know of.
Q. You hadn’t heard about members of your race 

being arrested for demanding food at lunch-counters?
A. I had heard of members of my race being ar­

rested for demanding food. I thought you meant right 
here in Sumter.

Q. Prior to this time, since September, have you 
been permitted to seat yourself at a lunch-counter, 
either at Kress’ or any of the drug stores here in 
Sumter, and be served?

A. I ’ve never gone there to the counter before to 
be served, to sit at a counter.

Q. Well, how did you happen to do so on this par­
ticular morning?

A. I wanted to get a Coke that morning.
Q. You didn’t sit down first, did you?
A. No, I didn’t.
Q. You stood up where, at the counter or some little 

distance away from the stools?



SUPREME COURT 
Appeal from Sumter County

17

Ivor Gf. Moore
A. At the counter.
Q. And they gave you a soft drink in a paper cup 

and put the top on it; is that right?
A. Yes, sir.
Q. And you gave them a dollar bill?
A. Yes, sir.
Q. Then you sat down at a stool, after you got the 

drink?
A. Yes, sir.
Q. Why didn’t you sit down before you got the 

drink?
A. I wasn’t sure that I would be served.
Q. You weren’t sure that it would be sold to you?
A. I wasn’t sure that I would be served at all.
Q. So you thought you’d get the drink first and get 

it in your hand and then sit down; is that right?
A. Yes, sir.
Q. Were you instructed to do that by anybody out 

at Morris College?
A. No, sir.
Q. How did you get off from classes that day?
A. I didn’t have a class on Tuesday except ten to 

eleven, my last class during the morning.
Q. What time did you have classes on this particular 

day?
A. Ten to eleven.
Q. Were you not arrested at 11:05 a. m.?
A. I don’t know what time it was.
Q. Isn’t that about right.
(Discussion off the record.)
Q. So you say that you won’t deny it was 11:05 

when you got down there?
A. No, I won’t.



18 SUPREME COURT 
City of Sumter v. Moore

I vor G. Moore
Q. Then you don’t remember whether you cut the 

class or not?
A. Yes, I do remember.
Q. You did cut it?
A. Yes, sir.
0. Did you Ret credit for it anyhow?
A. No, I didn’t.
Q. How did you come to town on this particular 

morning?
A. By car.
Q. With whom?

™ A. With Mr. Harris, Mr. Drummond and Pollard.
Q. Who drove the car?
A. Pollard was driving, Mr. Pollard.
Q. Is he a professor?
A. No, he isn’t; he’s a student there.
Q. Where did you get out of the car; did they let 

you out at Kress’ or down by Lawson’s?
A. No, I was let out on Liberty Street.
Q. And then you walked right straight down to 

Kress’ ?
71 A. First I went by the Post Office.

Q. Then you went in there and ordered this drink; 
is that right?

A. In Kress’, yes, sir.
Q. And didn’t the lady ask you twice, or tell you 

you couldn’t sit there and ask you to leave?
A. No, she didn’t ask me to leave.
Q. Didn’t Officer Lambert, the officer who arrested 

you, didn’t he say to you “ Didn’t you hear the lady 
ask you to leave” , and you would not answer?

A. I don’t recall him saying that.
Q. Do you deny that he said that?
A. I don’t remember him saying that.

72



SUPREME COURT 
Appeal from Sumter County

19

Ivob G. Moore
Q. You say you didn’t think you would be served if 

you sat down first; is that what you said?
A. Yes, sir.
Q. So you expected that you would be ordered out 

and you knew you were not going to comply with their 
wishes; is that right?

A. I didn’t know what to expect.
Q. You were not at all surprised when you were ar­

rested, were you? You were not surprised at being 
arrested?

A. Yes, I was.
Q. You were?
A. I didn’t expect to he arrested.
Q. I thought you just told me you didn’t know if 

you would be arrested or not?
(A. You also added something else to that, didn’t 

you?
Q. You’ve got the advantage of me; you can hear me 

and I can’t hear you, boy.
A. I said I thought you asked something else with 

that question; it wasn’t just about—
Q. Are you telling the Court that you did not expect 

to be arrested on that occasion when you refused to 
leave ?

A. No, I didn’t.
Mr. Edmunds: I think that’s all.
The Court: Let me ask him one or two questions.
You say you came to town with Drummond and Har­

ris and someone else; is that right?
The Witness: That’s right.
The Court: Drummond and Harris were the same 

two defendants who were tried just before you?
The Witness: Yes, sir.



20 SUPREME COURT 
City of Sumter v. Moore

Ivor G-. Moore
The Court: What did you come to town for f
The Witness: What did I come to town for !
The Court: Yes.
The Witness: I came to town to go to Kress’.
The Court: For what ?
The Witness: To get a soda.
The Court: Did you know what Drummond and Har- 

his came to town for?
The Witness: No, I didn’t.
The Court: Did they know what you were coming to

town for?
The Witness: They may have known.
The Court: You all split up; all of you were ap­

parently after sodas and they went up North Main 
Street and you went down to Kress’ ; is that what you 
did?

(Answer unintelligible to reporter.)
The Court: Where were you going to meet them to 

go back to school?
The Witness: I probably would have walked back; 

probably would see them on the way back.
The Court: Are they your friends ?
The Witness: Well, I know them.
The Court: Why didn’t you stay with them?
The Witness: They were going somewhere else.
The Court: To get a Coke?
The Witness: I didn’t know.
The Court: You had heard about all this thing that 

happened back last fall too, hadn’t you; you’d heard 
about people being arrested for going into different 
stores in Sumter and asking for service, colored peo­
ple, hadn’t you?

The Witness: Yes, sir, I knew they had been ar­
rested.



SUPREME COURT 
Appeal from Sumter County

2 1

I vor G. Moore
The Court: Why did you think you would not be ar­

rested if you did the same thing they had done!
The Witness: Well, Kress’ is a chain store and I 

believe the Fourteenth Amendment would allow me to 
sit there, wouldn’t it!

The Court: Don’t answer a question with a ques­
tion.

The Witness: I believed it was my right, as a citizen 
of the United States.

The Court: But you knew that people had gone into 
chain stores in Sumter prior to that time and had 
been arrested for it, didn’t you?

The Witness: No, I didn’t.
The Court: You knew they had gone into stores in 

Sumter, sat down at counters, sat down in booths, 
colored people, and had been arrested for doing that, 
didn’t you?

The Witness: No. I knew that they had been arrested 
but exactly what I didn’t know.

The Court: It wasn’t just to get a Coke that you 
went in, then; it was just to show that you had a right 
to get the Coke; is that it?

The Witness: Yes, sir.
(Witness excused.)
Mr. Finney: Your Honor, we would again make the 

motions we made at the end of the defense case in the 
previous trial, and we would call to your attention 
again that the charge in this case is breach of the 
peace and there is no evidence that there has been any 
breach of the peace at all. The officer himself testified 
that there were no disorders, no words spoken, no 
crowds. In this particular case there was only one ver­
sion and no breach of the peace at all was shown, in



22 SUPREME COURT 
City of Sumter v. Moore

my opinion, and we respectfully request the Court to 
consider that in making its ruling.

The Court: The Court again points out that it feels 
that anything which might tend to bring about a breach 
of the peace, under the case law of this State, amounts 
to a breach of the peace; and, in view of the inflamma­
tory situation that exists, that the defendant could only 
have gone into the store realizing—or, whether he real­
ized it or not, the normal results of his acts could have 
tended to bring about such breach of the peace.

Each of the motions is individually denied.
Mr. Finney: May I point out here, Your Honor, that 

there has been no evidence introduced in this trial, I 
don’t believe, to show that there was a previous con­
dition which was inflammatory in this community, 
which I think might tend to obviate part of—

The Court: I think it is sufficient in the record and 
the examination as to what he knew about other of­
fenses, other arrests having been made and, even if not, 
the Court feels that it could almost take judicial notice 
of it.

Motions denied.
MOTIONS

The defendant moves to dismiss or, in the alterna­
tive, for a directed verdict on each and all of the 
grounds set forth in the motions heretofore made at 
the close of the City’s evidence.

The motions are each denied.
The Court: In view of the circumstances as have 

been presented to this Court, this Court feels that with 
the existing situation, as is evidenced by the testimony 
in this case, the defendant has breached the peace by 
his act of doing something which might tend to bring 
about a breach of the peace. The defendant is therefore



SUPEEME COUET 
Appeal from Sumter County

23

found guilty and a fine of one hundred dollars or thirty 
days is imposed.

MOTIONS
The defendant moves for arrest of judgment or, in 

the alternative, for a new trial upon each and all of the 
grounds set forth in the motion to quash, entered prior 
to the plea, and in the motions to dismiss, or, in the al­
ternative, for a new trial, at the close of the City’s ease 
and at the close of all the evidence.

Each of said motions is denied.
Mr. Finney: We give oral notice of intention to ap­

peal.
(Thereupon, the trial was concluded.)

OEDEE
This defendant was convicted by the Eecorder of 

the City of Sumter for breach of the peace under a 
warrant setting forth that he did enter the store of S. 
H. Kress, a private mercantile establishment, and he 
sat down at the lunch counter and was requested to 
leave by the manager or an agent thereof, and that he 
refused to leave, for which he was subsequently ar­
rested and found guilty of breach of the peace.

The exceptions raise the issue that the Eecorder 
erred in refusing the motion to quash the warrant upon 
the grounds that the facts therein stated did not con­
stitute a breach of the peace, that the arrest of the 
officer constituted state action, that the statutes and 
ordinances under which the warrant was issued, which 
are unconstitutional in that they infringe upon the 
rights of the defendant as guaranteed by the first and 
fourteenth amendments of the Constitution of the 
United States, and article one, sections four and five 
of the Constitution of South Carolina; and that the de-



24 SUPREME COURT 
City of Sumter v. Moore

fendant has been denied the right of freedom of speech 
and assembly as guaranteed by the first amendment of 
the Constitution of the United States; and that the 
evidence fails to make out a prima facie case against 
the defendants; and motion for direction of verdict 
should have been granted. These same questions are 
presented as errors for motion of arrest of judgment 
and of a new trial.

The facts are undisputed and briefly stated, the de­
fendant is colored and went into a private store, made 
a purchase and sat down at the lunch counter and was 
requested by the manager or his agent to leave and that 
they refused to leave. Trial and prosecution for breach 
of the peace followed.

It may now be said to be the settled law of this state 
that one who enters a private establishment and re­
fuses to leave at the request of the management or 
agent is guilty of trespass and breach of peace and that 
no constitutional rights guaranteed by either the 
United States Constitution or South Carolina Constitu­
tion have been violated. (State v. Bouie, Feb. 13,1962.)

The exceptions are, therefore, without merit and the 
conviction of the Court below is affirmed, and

It is so ordered.
J ames H ugh McF addist,

Judge Third Judicial Circuit.
Manning, S. C.,
February 23, 1962.



SUPREME COURT 
Appeal from Sumter County

25

EXCEPTIONS
1. The Court erred in overruling appellant’s motion 

to quash the information and dismiss the warrant, 
made upon the ground that the warrant does not set 
forth or allege facts sufficient to constitute a breach 
of the peace.

2. The Court erred in refusing to hold that the City 
of Sumter failed to establish the corpus delicti or prove 
a prima facie case, in that:

a) It was not shown that appellant engaged in 
conduct which was unlawful.

b) It was not shown that appellant committed 
acts which directly tended to breach the peace.

c) It was not shown that appellant committed 
acts or engaged in conduct which incited others to 
violence.

d) It was not shown that appellant committed 
acts of violence.

e) It was not shown that appellant engaged in 
obscene conduct.

f) It was not shown that appellant uttered pro­
fane language.

g) It was not shown that appellant conducted 
himself in disorderly fashion.

3. The Court erred in refusing to hold that appellant 
was convicted upon a record devoid of any evidence of 
the commission of any of the essential elements of the 
crime charged, in violation of appellant’s right to due 
process of law, guaranteed by the Fourteenth Amend­
ment to the United States Constitution and by Article 
I, Section 5, Constitution of the State of South Caro­
lina.



26 SUPREME COURT 
City of Sumter y. Moore

4. The Court erred in refusing to hold that the evi­
dence shows conclusively that by arresting appellant, 
the officers were aiding and assisting the owners and 
managers of S. H. Kress in maintaining their policies 
of segregating or excluding services to Negroes at 
their lunch counters on the ground of race or color, in 
violation of appellant’s right to due process of law and 
equal protection of the law, secured by the Fourteenth 
Amendment to the United States Constitution.

5. The Court erred in refusing to hold that the evi­
dence shows that by arresting appellant, the officers de­
prived him of his rights to freedom of expression and 
freedom of speech, protected by the First and Four­
teenth Amendments to the United States Constitution.

6. The Court erred in refusing to hold that the evi­
dence offered against appellant, a Negro, establishes 
that at the time of his arrest, he was attempting to use 
a facility, the lunch counter of S. H. Kress, open to 
the public, which was denied him solely because of race 
and color, in violation of the due process and equal 
protection clauses of the Fourteenth Amendment to 
the United States Constitution.

104



SUPREME COURT 
Appeal from Sumter County

27

AGREEMENT
It is hereby stipulated and agreed by and between 

counsel for the appellant and respondent that the fore­
going, when printed, shall constitute the Transcript of 
Record herein and that printed copies thereof may be 
filed with the Clerk of the Supreme Court and shall 
constitute the Return herein.

C. M. E dmunds,
Sumter, South Carolina, 

Attorney for Respondent.

E rnest A. F inney, Jr.,
Sumter, South Carolina,

W illiam W . B ennett,
Florence, South Carolina,

Jenkins & P erry,
Columbia, South Carolina 

Attorneys for Appellants.

107

108