Hamm v. City of Rock Hill Transcript of Record

    The State of South Carolina
IN THE SUPREME COURT

APPEAL FROM YORK COUNTY 
H onorable George T. Gregory, J r., J udge

CITY OF ROCK HILL, Respondent, 
against

ARTHUR HAMM, JR., Appellant

TRANSCRIPT OF RECORD

J e n k in s  & P erry,
Columbia, S. C.,

D onald J ames S ampson , 
W illie  T. S m it h , J r ., 

Greenville, S. C.,
Attorneys for Appellant. 

D a n iel  R . M cL eod,
Attorney General,

Columbia, S. C.,
George F. Colem an ,

Solicitor, Sixth Judicial Cir­
cuit,

Winnsboro, S. C.,
S pen cer  & S pen c er ,

Rock Hill, S. C.,
Attorneys for Respondent.



INDEX
P age

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

Warrant .................................................................  2

Transcript of Trial Proceedings, Dated June 29,
1960 .....................................................................  3

Section 19-12, Code of Laws of City of Rock Hill . 116

Order of Judge Gregory ........................................  117

Exceptions .............................................................. 179

Agreement .............................................................. 121



STATEMENT
Appellant, along with Rev. C. A. Ivory, now de- 

ceased, was arrested on June 7,1960, and charged with 
the offense of “Trespass.”

Rev. Ivory was tried in the Recorder’s Court of the 
City of Rock Hill on June 29, 1960. At the conclusion 
of all of the evidence, City Recorder Billy I). Hayes 
found Rev. Ivory guilty and sentenced him to pay a 
fine of One Hundred ($100.00) Dollars or serve thirty 
(30) days in prison.

Thereafter, it was stipulated that the testimony 
which had been adduced at the trial of Rev. Ivory 
would be applicable to the appellant, Arthur Hamm, 
Jr. At the conclusion of these proceedings, appellant 
Hamm was likewise found guilty by the City Recorder 
and sentenced to pay a fine of One Hundred ($100.00) 
Dollars or serve thirty (30) days in prison. Notice of 
Intention to Appeal as to both defendants was duly 
served upon the City Recorder.

Thereafter, the matter was argued before Honor­
able George T. Gregory, Jr., Resident Judge, Sixth 
Judicial Circuit.

Thereafter, Rev. C. A. Ivory died. 3
On December 29, 1961, Judge Gregory issued an 

Order, affirming the judgment of the City Recorder 
but noting the untimely death of Rev. Ivory.

Notice of Intention to Appeal was thereupon duly 
served upon the City Attorney.

4

( 1 )



2 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

CITY OF ROCK HILL
ARREST WARRANT 

THE STATE OF SOUTH CAROLINA,
C ounty  of Y ork.
Personally comes before me W. S. R hodes, and 

makes oath on information and belief that in said City 
of Rock Hill, in the county and State aforesaid, on the 
7th day of June, 1960, at or about 12:00 noon, one 
Arthur Hamm, Jr., did willfully and unlawfully tres­
pass upon privately owned property by remaining 
along with one Rev. C. A. Ivory at the lunch counter 
in McCrory’s variety store, which is customarily op­
erated upon a segregated basis, and refusing to leave 
said counter, after the Manager of said store, in the 
presence of City Police Capt. John M. Hunsucker, Jr., 
advised him he would not be served and specifically 
requested him to leave said lunch counter, and after 
the aforesaid police officer thereupon advised him that 
he would be arrested for trespass unless he left said 
premises as directed, which he nevertheless failed and 
refused to do, all of which was done at a time when 
racial tension was high due to numerous recent prior 
demonstrations against segregated lunch counters re­
fusing service to members of the Negro race of the 
defendant, both within the City and throughout the 
South generally, followed by numerous recent trials of 
demonstrators before this and other Courts on charges 
of breach of peace or trespass as a result of such 
demonstrations, and all of which resulted in and con­
stituted a trespass by the above-named defendant, con­
trary to the peace and dignity of the State of South 
Carolina, and in violation of the ordinances of the City 
of Rock Hill and that Capt. John M. Hunsucker, Jr.



SUPREME COURT 
Appeal from York County

3

and Harry S. Barnette, the arresting officer (s), to­
gether with others are witnesses for the City of Rock 
Hill, S. C.

W . S. R hodes.
Sworn to before me, this 7th 
day of June A. D., 1960.
B illy  D. H ayes (L. S.)

Recorder.

Arrest and bring before me the Defendant above 
named, Arthur Hamm, Jr., to answer the charge of 
Trespass and the witnesses for the City of Rock Hill, 
S. C., herein named.

Given under my hand and seal, this 7th day of June, 
1960.

B illy  D. H ayes (L.S.)
Recorder.

PROCEEDINGS
Mr. Spencer: If it please the Court, the City is ready 

to proceed in the case of the City of Roclt Hill against 
Reverend C. A. Ivory, charged with the offense of 
trespassing on June 7, 1960. Is the defense ready?

Mr. Sampson: We are ready, and we would like to 
renew a motion that we made earlier.

The Court: All right, let me do this first. I want to 
clear up the jury situation first.

Mr. Sampson: All right, sir.
The Court: I would now like to ask you gentlemen 

who are sitting in the jury box at the present time if 
any of you feel that you have a legal reason or justifi­
cation for not serving on this jury. If you do, if you 
would let me know now, so that we might discuss that 
matter first.

(No response.)



4 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

The Court: In that event, Mr. Morton, Mr. Harry R. 
Morton, Mr. James H. Jordan; we seem to have two 
James H. Jordans; they are two different people, I 
assume; we have got one on the jury, right? I see.

I might announce for Mr. Spencer’s concern that I 
told the newsreel cameramen they could take pictures 
for about five minutes, so if you want to look your 
prettiest for about five minutes, they are going to take 
some pictures.

Mr. Spencer: If it please the Court, I was just call­
ing to the attention of defense counsel the fact that 
one of the jurors, one of the Jordans to whom you re­
ferred, is a member of the City Eire Department, and 
as such is an employee of the City, and while that does 
not quite disqualify him, it might raise a question in 
the mind of the defendant as to whether or not he 
would be subject to any bias in favor of the City of 
Rock Hill. I therefore consented and agreed that we 
would pass that juror over, and call the next in order 
of the supernumeraries, and that is agreeable to de­
fense counsel, is that correct, Mr. Sampson?

Mr. Sampson: We will concur in that, Your Honor.
The Court: By consent of counsel, then, we will ex­

cuse juror James H. Jordan, Jr., from service on the 
jury. All right, Mr. Harry R. Morton seems to be the 
first supernumerary. Now, Mr. Morton, you heard the 
questions I propounded to the jurors a moment ago. 
Do you feel that you have a legal reason for not serv­
ing on this jury?

Mr. Morton: No, sir.
The Court: All right. Now, I am going to hear a 

legal matter, and I am going to swear the jury first, 
and then, if you will, as soon as I swear you, if you 
will, just go into this room right here, and while you 
are in there, please elect your foreman. When you



SUPREME COURT 
* Appeal from York County

5

come back, tell me who the foreman of the jury is, and 
I will ask the foreman of the jury to take this seat next 
to the filing cabinets, whichever one of you is elected 
by the remaining jurors; so if you will stand and hold 
up your right hands, please.

(Jury sworn.)
The Court: Thank you, gentlemen. Now, if you will 

go into this room right here and elect your foreman, 
so you can tell us who is foreman when you return.

How does the defendant plead?
Mr. Sampson: May it please the Court, if you would 

permit a plea by counsel, the plea is not guilty, and if 
you would like a plea by person, we will be glad to 
have him plead likewise.

The Court: I am sure that it is perfectly all right.
Mr. Spencer: Does the defendant waive formal pub­

lication of the warrant?
Mr. Sampson: The defendant does waive formal 

publication of the warrant.
The Court: All right, you say you have a motion.
Mr. Spencer: If it please the Court, before defense 

counsel proceeds on hearing the motion, I would like 
to state that as Your Honor knows, there was a pre­
liminary motion filed prior to the commencement of 
these proceedings this morning, a motion to quash the 
information and dismiss the warrant, on which Your 
Honor has already ruled, and refused to allow the 
motion. However, in an effort to meet some of the mat­
ters which defense counsel indicated they considered 
objectionable, the City has elected at this time to 
amend the warrant to eliminate the references therein 
to what we have referred to as the background situa­
tion, and I now pass the defense counsel a copy of the 
amended warrant.



6 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

Mr. Sampson: May it please the Court, after a sum­
mary look at this warrant, we agree that as submitted 
by the counsel for the City, we believe it meets the ob­
jections in our motion to quash the information and 
dismiss the warrant, which was originally filed on 
June 14th; however, we still have a further request to 
make in reference to the warrant.

The Court: In other words, you withdraw the origi­
nal motion?

Mr. Sampson: May it please the Court, we have a 
motion here, and as I understand it the City has a right 
to amend its warrant if they do it any time before trial, 
and the warrant which they now present to us is ac­
ceptable to us, and would not be subject to the reasons 
solicited in our original motion to quash the informa­
tion ; however, our position in summary is that in con­
nection with this warrant, we had an additional mat­
ter to request of the Court, which we raised on June 
14th. We would like to be informed, the defendant 
would like to be specifically informed if possible as to 
the exact statute or ordinance that this warrant is 
drawn under, or the common law. In fact we desire to 
be informed by the City exactly what law he is relying 
on; we would like to know all of the statutes involved.

Mr. Spencer: May it please the Court, as I am sure 
Your Honor will recall, at the hearing of the prelimi­
nary motion in this matter, the City of Rock Hill then 
took the position, and now renews the position, that it 
relies upon all of the available law that has a proper 
bearing upon a relationship to the offense charged.

It is the position of the City that we are not required 
to specify or spell out exactly what body or provision 
of law we rely upon, but that we are in fact to rely 
upon any law which the proof of the facts alleged in 
the warrant would bring into force, with reference to



SUPREME COURT 
Appeal from York County

7

the offense charged. I believe Your Honor has already 
ruled that we do not have to specify.

Mr. Sampson: May it please the Court, we don’t 
want to prolong this with an undue preliminary, but 
we think that as a matter of due process of law, in a 
criminal matter, there are several criminal statutes on 
the book, and we think that we are entitled to know if 
they are relying on any ordinance or statutes, specifi­
cally which one we are going to have to defend against.

We take the position that we will more fully point 
out later on, that one or two of the areas of the law 
which this warrant may be related to are unconstitu­
tional, and we would like to lay a proper groundwork 
for that. We don’t think that this is an unreasonable 
request; we assume that it is so elementary, really 
that there would not be any objection to it; because 
we are cognizant of the fact that this is the City of 
Rock Hill, and that there is a section of the ordinances 
of the City of Rock Hill that may or may not have 
some reference to this particular cognizance; and we 
have some idea, we hope, so far as the State laws, sev­
eral sections deal with trespass, and we have some idea 
about another law which was very recently passed, 
and we think that they vary in intent and background 
and so forth on the elements in the one being proven 
as a coercion of corpus delicti, and, therefore, we think 
it very reasonable to ask him which one he is proceed­
ing under. That’s all we want to know.

The Court: Can you give him any specific section 
which you are including without limiting yourself?

Mr. Spencer: Yes, Your Honor, I  was about to say 
this, that I am perfectly willing to point to the sec­
tions that we consider applicable, but I simply state 
that I do not believe that the defense counsel has the



City of Rock Hill v. Arthur Hamm, Jr.

right to require that we be limited to some one specific 
provision of law.

The Court: I would not limit you to any specific pro­
vision.

Mr. Spencer: Following through on that, I state that 
we rely upon, amongst other things, the following: the 
1960 State Act having to do with the mode of trespass, 
which was approved by the Governor, and became ef­
fective on May 16, 1960, which is identified as Ratifi­
cation No. 896, and introduced in the General Assem­
bly as House Bill No. 2135. I do not yet have the State 
Act number.

The Court: Well, are there any others!
Mr. Spencer: Just one moment. May it please the 

Court, the City also relies upon Section 16-386 of the 
1959 Cumulative Supplements to the Code of Laws of 
South Carolina for 1952, embodying the section as con­
tained in the original Code as amended in the year 
1954.

The City also relies upon the Code of the City of 
Rock Hill, 1948, Chapter 19, Section 12.

N owt, without waiving the right to rely upon any 
other sections, I would say that that constitutes the 
primary things to which the City looks at this time.

Mr. Sampson: May we hold that a minute! We ap­
preciate—

The Court: All right, tell the jury to come on in. Do 
you have another motion!

Mr. Sampson: In connection with the same one, may 
it please the Court that if you would indulge us just a 
moment, it is our position, having been informed of 
the exact statutes which apparently the City is rely­
ing on, that we feel that possibly the Court may, if it 
be in order, or should, if it be proper, request so as to 
really determine beforehand whether or not, under

8 SUPREME COURT



SUPREME COURT 
Appeal from York County

9

this particular warrant, whether or not the defendant 
could be charged under each one of them. We think 
that the procedure can be accelerated. Of course, our 
position now and later on, would be, in that connection, 
that the particular statutes as mentioned by the City, 
are unconstitutionally applied to this particular de­
fendant ; of course, that may be a question upon which 
the Court might like to reserve a ruling on, but if pos­
sible, we have the statutes here, and I quite frankly 
think that the Rock Hill statute which the defendant, 
excuse me, which Mr. Spencer for the City has men­
tioned, is very similar, if not the same, as the State 
Code Section 16-386, with the supplements thereto. I 
could be wrong on that, but we think that those two 
are connected. Really the City is adopting the State 
statute in its ordinance, and moreover, if that were 
true, why actually you would be having two statutes 
here instead of one. Now this particular one, may it 
please the Court, is rather new, and we would like to 
know whether or not we would be entitled to an elec­
tion if both of them are applicable; if one is not ap­
plicable and the other one is, then I think we can ac­
celerate this case a great deal if we knew exactly which 
statute we would have to defend against.

Now, we can probably concede for the purposes of 
argument that a citizen may violate more than one 
statute, and of course, the particular statute may hit 
more than one level of government, but so far as one 
warrant is concerned, that is the City of Rock Hill, if 
a municipality and so forth, as it stands apart from 
the State, and it is the position of the City that this 
is incorporated by some means, which we don’t agree 
with, that, of course, would be one thing. Now, on the 
other hand, if it is not their position that they are sep­
arate and distinct, we are in a position here that we



10 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

have got to worry about a corpus delicti and a prima 
facie case, the City ordinance, the State ordinance, and 
then a more recent ordinance, we would concede, of 
course, I am sure the Court will agree that this is 
slightly different phraseology and wording and every­
thing else, we don’t understand it either, and I am not 
saying that the Court doesn’t understand it, but the 
whole intent, we believe, may it please the Court, un­
der this ordinance of May, 1960, the elements involved 
in it are different from the others, even though we 
will concede that the language of this warrant appar­
ently incorporates some of the language that is incor­
porated in this statute, and moreover, we would like 
permission to let Mr. Perry more amply state this par­
ticular position.

Mr. Perry: I just wanted to state in addition to 
everything Mr. Sampson has stated on the motion, 
Your Honor, that if it appears that the warrant 
charges one offense, it charges that Reverend Ivory 
committed a certain act on June 7, 1960, it does not 
allege that he committed more than one act.

All three of the statutes involved, the two State 
statutes and the municipal ordinance that Mr. Spencer 
has cited, all have reference to trespass. They all, how­
ever, adopt slightly different phraseology, and we take 
the position that Reverend Ivory can be convicted, if 
at all, only once, on account of the activities of June 
7th; so to subject him to two State statutes and one 
municipal ordinance would be in effect to deny, we 
think, due process. We think that under the circum­
stances the City should be required to elect which stat­
ute or ordinance it is going proceed upon, then let its 
proof conform as nearly as possible to the statutes 
that they rely upon, let our defense be geared to one 
statute.



SUPREME COURT 
Appeal from York County

11

Now, don’t have us groping about in the dark as to 
which or what we are defending against and so forth.
I don’t know that there are any inconsistencies actu­
ally, but there is just slightly the possibility here, we 
feel that justice demands that this man be prosecuted, 
if at all, only under one offense, unless he has com­
mitted more than one offense, and that is all that the 
warrant charges. I don’t get the impression that it is 
the position of the City that he has committed more 
than one offense; that being the ease, we are to de­
fend against only one defense.

The Court: Do you have anything else you want to 
say ? 42

Mr. Spencer: May it please the Court, it is the po­
sition of the City that the matters now raised by coun­
sel have already been once presented to this court in 
a preliminary motion, and once decided adversely to 
the position of the defense counsel. The amendment 
to the warrant has not in any manner changed what 
law is or is not applicable, or what law does or does 
not establish an offense of trespass. Furthermore, as 
counsel for the defendant have indicated that they will 
understand, the City does not seek to convict the de- 48 
fendant of any more than one offense of trespass, 
based upon the circumstances presented in the war­
rant. The City simply takes the position that whatever, 
if any, law prohibits that which the defendant has done 
is properly applicable to him in the trial of this case, 
and that if the facts as proved make the offense out 
under any one of, or under all of, the particular sec­
tions to which reference has been made, that in such 
offense, and that in such event, the defendant is then 
properly to be found guilty of one offense of trespass 44 
and only one, and without reference necessarily to



12 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

what particular statute or ordinance he is charged 
under.

Now, Your Honor, Section 43-114 of the State Code 
provides that whenever a person he accused of com­
mitting an act which is susceptible of being designated 
as several different offenses, the Magistrate upon trial 
of the person shall he required to elect which charge 
to prefer, and a conviction or acquittal upon such 
elected charge shall be complete bar to further prose­
cution for such alleged act.

Now, as I know Your Honor will recall, we recently 
had another situation in this Court in which one or 
more defendants were charged on the one hand with 
breach of the peace, and on the other hand with tres­
pass, and in that case, the City made an election and 
went to trial on only one offense. Now, we submit that 
we are not seeking here to go to trial on hut one of­
fense, to wit, the offense of trespass, and that the 
whole body of the law of trespass is applicable to that 
one offense without the necessity of any election on 
the part of the City of Rock Hill.

Indulge me just one moment, Your Honor. May it 
please the Court, I do not find at the moment what I 
was looking for, although I believe that there is au­
thority, and I will simply state the position and Your 
Honor can consider it when ruling upon the matter.

It is my understanding of the law that actually on 
this question of amendment to the warrant, that it can 
be amended before trial, that in addition thereto that 
there can he an amendment during the process of the 
trial which does not change the basic nature of the of­
fense charged, and does not create any situation of 
surprise with reference to the defendant. Now, if that 
be the law, I submit to Your Honor that to require an 
election now would serve no purpose, because if there



SUPREME COURT 
Appeal from York County

13

became, if there arose any necessity thereupon, I could 
later move to amend then, and to conform proof, and 
to go along with any one of the three provisions that 
we have mentioned specifically that were being relied 
upon.

I offer that one further comment in support of the 
City’s position that the warrant as drawn is in proper 
status, and that we are not subject to requirement to 
make an election at this time.

The Court: Well, there is no rush about that; I think 
you will find it under Title 46, Section IS, somewhere 
in that neighborhood. I think the warrant informs the 
defendant of what he is charged with, and any addi­
tional attempt to try him on the same set of facts, I 
don’t think there would be any question about it, but 
that that would be double jeopardy, and during the 
course of the trial if there is anything brought out 
which would be in the nature of a surprise to you, if 
you will let us know at that time, we will hear you.

All right, bring the jury in, please.
All right, then, we will note that Mr. Mozingo has 

been elected foreman by the remaining jurors, and I 
will appoint him foreman of this jury.

Well, all right, are you ready to proceed, Mr. 
Spencer?

Mr. Spencer: May it please the Court, the City is 
ready to proceed. I believe we have not yet entered in 
the record what we have done in certain other cases, 
and that is to state that it has been agreed by defense 
counsel that the defendant is responsible for the cost 
of taking of the testimony and any copies sought 
thereof.

Mr. Perry: That is our position, sir.
The Court: All right. Do you want to swear all your 

witnesses at one time?



14 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

J o h ij M. H u n su ck er

5g Mr. Spencer: No, swear these right here that are 
sitting there, Mr. Hunsucker and Mr. Barnette.

The Court: (Witnesses sworn.)

Mr. J o h n  M. H u n su ck er , being first duly sworn, 
was examined and testified as follows:

Direct Examination
By Mr. Spencer:
Q. Mr. Hunsucker, will you, are you a member of 

the Police Department of the City of Rock Hill?
64 A. I am.

Q. And what is your present capacity with the De­
partment, sir!

A. Assistant Chief of Police, Captain.
Q. Did you hold this same status on June 7, 1960?
A. I  did.
Q. Mr. Hunsucker, how long have you been a mem­

ber of the Police Department?
A. Since February of 1948.
Q. I ask you, do you know the defendant, Reverend

65 C. A. Ivory, in this case?
A. I do.
Q. Mr. Hunsucker, did you on the 7th day of June, 

1960, have occasion to see the defendant, Reverend 
C. A. Ivory, at any time?

A. I did.
Q. Will you state when and where you saw him? 

On that date?
A. About eleven forty-five a. m. on Tuesday, I was 

at headquarters and received information that I should 
go to McCrory’s dime store to the lunch counter. I 
went to this lunch counter along with Detective Bar­
nette, and as I  arrived at the lunch counter, I  saw the



SUPREME COURT 
Appeal from York County

15

J o h n  M. H txnstjckeb

defendant, Reverend Ivory, at the corner of the lunch 
counter, pushed, that is, he was in his wheel chair, 
and the wheel chair itself was pushed right into the 
corner of the lunch counter between the stools at the 
lunch counter.

Q. All right, sir, you state that from your observa­
tion, was he alone or was anyone with him!

A. He was with Arthur Hamm, who is a colored 
student at Friendship College.

Q. All right. Where was the man you refer to as 
Arthur Hamm?

A. Well, let me say this, there are three stools at 
the end of the lunch counter at McCrory’s, and Arthur 
Hamm was seated on the center stool, the center of 
those three stools. There was a vacant stool between 
Hamm and Reverend Ivory, who was on the corner of 
the lunch counter, or seated at the corner of the lunch 
counter.

Q. I will ask you to state whether or not he was 
seated between the last stool in running with the store, 
and the end stool running crossways in the counter, 
is that correct?

A. Reverend Ivory was seated at that position.
Q. All right, now, at the time you saw Reverend 

Ivory, I will ask you whether or not you also saw the 
manager of McCrory’s store?

A. I did.
Q. And can you identify him by name?
A. Mr. Whiteaker is manager.
Q. Where was he at the time you saw him?
A. He was behind the counter, facing Reverend 

Ivory and Arthur Hamm.



16
City of Rock Hill v. Arthur Hamm, Jr.

SUPREME COURT________

J o h n  M. H ttnsucker

Q. Did you observe whether or not any conversa­
tion took place between Mr. Whiteaker and Reverend 
Ivory?

A. I did. I heard the conversation.
Q. Will you state to the Court just what was said 

by each of them?
Mr. Perry: Tour Honor, we object to the question 

on the ground that it calls for hearsay testimony. The 
witness has already pointed out Mr. Whiteaker, who 
is present in the courtroom, and, of course, as Tour 
Honor knows, the defendant was present. As to mat­
ters of conversation between other persons, we feel 
that this witness would not be competent to testify.

Mr. Spencer: If it please the Court, it is the posi­
tion of the City that the conversation took place in the 
personal presence of the defendant, and is in the realm 
of an exception to the rule on hearsay.

The Court: It did take place in his presence, Mr. 
Spencer ?

Mr. Spencer: Tes, sir, this is a conversation between 
the defendant and the store manager.

The Court: Between the store manager and the de­
fendant. It is acceptable. Go ahead.

By Mr. Spencer:
Q. All right, Mr. Hunsucker, will you proceed to an­

swer the question.
A. Mr. Whiteaker told Reverend Ivory and Arthur 

Hamm that he was sorry that he could not serve them, 
he would have to ask them to leave the lunch counter. 
Reverend Ivory stated that he wanted a refund for 
some articles which he had in his possession, and Mr. 
Whiteaker told him that, told Reverend Ivory, that he 
would have to go to the check-out counter in order to 
get his refund. At this time I  told the Reverend Ivory



SUPREME COURT 
Appeal from York County

17

J o h n  M. H u n su ck er

that, “You have heard the request of Mr. Whiteaker, 
so I will ask you to leave the lunch counter, or else you 
will be arrested for trespassing.”

Then Reverend Ivory started talking about his re­
fund, and again he was advised by Mr. Whiteaker that 
he could get the refund at the check-out counter.

Q. Did he agree to go to the check-out counter to get 
his refund?

A. He did not. He made no effort to move from the 
lunch counter, and neither did Arthur Hamm. They 
both stayed in the same position that they were when 
I first arrived, neither had moved; so at this time, after 
neither one of them made any effort to move, I placed 
them both under arrest, and Detective Barnette took 
custody of Arthur Hamm; I took Reverend Ivory, who 
was in the wheel chair, I pushed him back to the check­
out counter, and gave him an opportunity there to get 
a refund.

Q. What, if anything, transpired with reference to 
the refund at that time and place?

A. I asked the lady at the check-out counter would 
she refund Reverend Ivory’s money for these items, 
and she stated that she would be glad to refund. By 
this time Mr. Whiteaker had also come up, and Rev­
erend Ivory said, “No, I don’t want a refund, I will 
sue McCrory’s and the City.” So he refused his refund, 
and I pushed him around then to be booked at the 
Police Department. I brought him to the booking win­
dow, removed his property, he had sufficient money on 
his person to post the $100.00 bond which was placed 
against him.

He stated that he did not want to post bond, that 
he wanted to go to jail. So that is where I was going 
to put him.



18
City of Rock Hill v. Arthur Hamm, Jr.
________ SUPREME COURT

J o h n  M. H u n su ck ee

Mr. Perry: Your Honor, may I interrupt, please. 
May I object to conversation between the defendant 
and the police after they arrived here at Police Head­
quarters. The warrant charges a trespass. It does not 
charge any offense which occurred at the Police Sta­
tion, and we take the position that it is irrelevant to 
the charge of trespassing.

Mr. Spencer: May it please the Court, it is the posi­
tion of the City that it is part of the circumstances of 
the arrest for which the defendant is being tried, and 
is therefore definitely relevant, and pertinent, and 
proper, and we are not seeking to make out any addi­
tional offense, but simply to give all of the circum­
stances with reference to the offense, which is now on 
trial.

Mr. Perry: Now, by way of reply, may I say, sir, 
that this jury is being asked by the City to convict 
this defendant of the crime of trespass. To allow evi­
dence of some conversation that occurred here at Po­
lice Headquarters after he was placed under arrest 
for the offense would be to prejudice them. We re­
spectfully submit that this evidence will deprive the 
defendant, we believe, of an impartial trial, in that 
these gentlemen of the jury would be called upon to 
consider what we think would be foreign matter.

Now, if somehow a conclusion is reached, which did 
not happen, it might very well be that the City can 
call upon Captain Hunsucker to state any attitude 
which might have existed after the arrest to Your 
Honor, and Your Honor could take it under consid­
eration before you took official action.

I hope that you see what I  am driving at, sir.
The Court: I do, but isn’t trespass a matter of in­

tent!



SUPREME COURT 
Appeal from York County

19

J o h n  M. HirastrcKER
Mr. Perry: I believe it is a matter of intent, but I 

also think that principally the jury should be allowed 
to consider only what he did at the time. Foreign mat­
ter should not be allowed to cloud up the issues.

The Court: Well, I won’t make a blanket ruling, but 
I will permit the present questioning and answers.

By Mr. Spencer:
Q. Mr. Hunsucker, other than the matter of refund, 

to which you have already referred, did Reverend 
Ivory state any cause or reason or excuse for his 
refusal to leave the premises on demand in your 
presence?

A. No, sir.
Q. Was he given ample opportunity to leave if he 

had been willing to do so?
A. Oh, yes.
Q. Was that opportunity afforded to him before he 

was placed under arrest?
A. It definitely was.
Q. Did he fail and refuse to take advantage of that 

opportunity ?
A. He did.
Q. Did that occur without the statement of any cause 

or excuse other than this reference to the refund?
A. I am sorry, I didn’t understand the question.
Q. I say, did that occur without a statement of any 

cause or excuse, other than the reference to the matter 
of the refund, was any other statement made?

A. No, sir, no other statement other than about the 
refund.

Q. Mr. Hunsucker, I will ask you to state whether 
or not the manager of McCrory’s store in your pres­
ence ordered the defendant to leave the premises?



20 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

J o h n  M. H tjnstjcker

Mr. Perry: Your Honor, that is repetitious. He has 
already testified.

Mr. Spencer: If counsel will agree that it is already 
in the record, I will be glad to withdraw the question. 
I just wanted to be sure.

Mr. Perry: Yes, sir, we do.
Mr. Spencer: If counsel so agrees, I withdraw the 

question. You may examine him.
The Court: He said the question was in there, but 

he didn’t say what the answer was.
Mr. Perry: Well, the truth of the matter is, the an­

swer is, sir.
The Court: All right. I  recall that the Captain did 

testify to the answer.
Cross Examination

By Mr. Perry:
Q. Captain Hunsucker, do I understand, sir, that 

you were here at Headquarters on the morning of June 
7th, and received information that you should go to 
McCrory’s?

A. That’s right.
Q. I see. May I ask you, sir, the source of your in­

formation!
A. I am not positive, I believe that the dispatcher 

is the one that gave me the information, but I am not 
certain. It could have been another officer.

I was in the Detective Department, and the infor­
mation was given to me from the doorway, to go to 
McCrory’s lunch counter.

Q. I see. Now, sir, the, did you learn from the source 
of your information wThat you would find when you 
went over to MeCrory’s?



SUPREME COURT 
Appeal from York County

21

J o h n  M. H unstjcker

A. I was asked to go to the lunch counter at Me- 
Crory’s dime store.

Q. I see. Now, when you went into McCrory’s, which 
entrance did you go into!

A. The rear entrance.
Q. The rear entrance, and as I  have discovered just 

this morning, I believe McCrory’s is just close by to 
the Police Station here, just across the parking lot?

A. Just across the lot, the rear entrance.
Q. And you went into the rear. Now, sir, when you 

went in the rear door, did you come upon a lunch coun­
ter there? 82

A. They had a small place there, I believe, where 
they sell hot dogs, and maybe drinks, actually I don’t 
think you could refer to it as a lunch counter, but hot 
dogs and drinks are sold there, I know that.

Q. I see. I believe that is a rather small area at the 
rear of the store, isn’t it?

A. That’s true.
Q. Was the defendant at this lunch counter?
A. No, he was at the front lunch counter.
Q. I see. McCrory then has two lunch counters, one ss 

at the rear back here near the Police Department, and 
the other over near the front on the street, which the 
store fronts on?

A. They have two places where food can be bought, 
yes. They have the counter in the front with the stools, 
and then this place at the back which we were refer­
ring to, which has no stools.

Q. I see. Then as I understand you, you do not refer 
to that one in the back as a lunch counter as such?

A. Well, you can buy lunch there.
Q. And I believe that you indicated that this was on 

a Tuesday morning at about 11:45?



22 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

J o h n  M. H ttnsucker

A. Approximately 11:45.
Q. Will you please describe McCrory’s business, is 

it generally a variety store, or a five and ten cent 
store ?

A. It is a variety store.
Q. I see. Do you have any idea about the size of this 

business concern?
A. Not much.
Q. In area is it rather large, a rather large business?
A. In area, yes.
Q. Do they sell numerous commodities in this place 

of business?
A. They do, sir.
Q. I see. Captain Hunsucker, have you on other oc­

casions frequently been in and out of McCrory’s?
A. I have.
A. Sir, do you know anything about the policies of 

McCrory’s Five and Ten Cent Store with reference to 
serving the public?

Mr. Spencer: May it please the Court, I submit that, 
that there is nothing in the record which, to which that 
question is properly responsive, and that there is noth­
ing in the offense charged which goes into that ques­
tion, and I therefore object to the question, and ask 
that the question be stricken, and that the witness not 
be required to answer it.

The Court: He asked him if it was the policy, if he 
knew the policy, didn’t he?

Mr. Spencer: Yes, sir, but the point I am making is 
that the question of policy of a nation-wide store, is, 
as I have said, not an element that is involved in any­
thing that is now before the Court in the trial of this 
case, in the record of this case.



SUPREME COURT 
Appeal from York County

23

J o h n  M. H xtnstjckbr

Mr. Perry: May Your Honor please, we take the po­
sition, of course, that it is quite relevant, and that were 
it not for the racial background in this case, that this 
defendant would not be in Court on this occasion.

Mr. Spencer: Furthermore, I question whether or 
not this witness is properly subject to examination on 
what somebody else’s policy is. I think you are putting 
the witness in an improper position, to eall upon him 
to try to testify on that sort of subject. That is pri­
marily—

The Court: Of course, if he knows of his own knowl­
edge, he has a right to answer.

Mr. Perry: He certainly is one of the most intelli­
gent officers I have ever had occasion to come in con­
tact with.

The Court: I don’t find anything wrong with the 
question.

A. I can’t say that I know anything about their 
policy.

Q. All right, sir.
A. Now, if you want, I can’t say about their policy, 

because I just definitely don’t know what the store’s 
policy is, what is customary.

Q. That is quite all right, sir, that is frankly all I 
wanted to know, whether you knew what the policy 
was. Now, sir, you also made reference just then about 
a custom which might affect this situation. Will you 
describe that custom?

A. Are you speaking in reference to races at the 
lunch counter?

Q. I am, sir.
A. I can only say that I have never known of any 

members of the Negro race being served at this lunch 
counter. I have never seen any served.



24 SUPREME COURT 
City of Rock Hill y. Arthur Hamm, Jr.

J o h n  M. H xtnsuckeb

Q. You have reference, of course, to the lunch coun­
ter that Reverend Ivory was seated at?

A. That’s right.
Q. And you do recognize Reverend Ivory as a 

Negro?
A. That is correct.
Q. I realize, sir, that we are involved in a rather 

touchy matter, and I have no desire nor intention to 
ask you any embarrassing question, and I hope that 
you will bear with me, sir. Now, sir, when you went in 
the store, I believe that you saw Reverend Ivory seated 
down at the counter, and I believe that you have stated 
that Mr. Whiteaker, the manager, was on the inside 
of the counter area, having a conversation with Rev­
erend Ivory?

A. Well, he had a conversation after I  arrived.
Q. I see.
A. At the time I walked up, actually I  don’t think 

they were actually engaged in conversation at that 
particular time, but as I did arrive, Mr. Whiteaker 
asked him what I have already stated.

Q. Now, was Reverend Ivory boisterous in any man­
ner as you observed the two men?

A. No, he was not boisterous.
Q. Was he orderly in every respect except for the 

refusal to leave?
A. As far as I know and could see, he was.
Q. Did he use any profanity or unseemly language?
A. No.
Q. Was he dressed neatly and was he generally in­

offensive in his presence?
A. He was.
Q. Are there, were there at that time other persons 

seated at the lunch counter?



SUPREME COURT 
Appeal from York County

25

J o h n  M. H unsttckek

A. There were.
Q. Other than these two persons?
A. There were.
Q. May I ask you, sir, where were they?
A. There was no other person at the end where they 

were, on the three stools which I have mentioned. 
There were other persons seated on the long row of 
stools, main row or front row or whatever you want to 
call it.

Q. I see, and were those people being served?
A. I guess they were, I  didn’t actually pay any at­

tention to whether they were being served. I feel sure 
they were.

Q. You feel sure they were? May I ask you to de­
scribe the racial identities of the other persons that 
you saw seated at the lunch counter?

A. White persons.
Q. I see. And as you stood there and heard the con­

versation between the store manager and Reverend 
Ivory, I believe that you indicated that the store man­
ager asked Reverend Ivory to leave, that he could not 
serve him, or words to that effect?

A. That’s right.
Q. I know you have already said that his conduct 

was inoffensive, and that his appearance was inof­
fensive. Do you know why the manager was asking 
him to leave?

A. You asked about his dress, asked if it was neat, 
and I stated yes. Do I know why he asked him to leave?

Q. Yes, sir.
A. He will have to answer that. He just asked him 

to leave, is all I can say.
Q. I see. Did I understand in your presence Mr. 

Whiteaker made the request to leave only once?



26
City of Rock Hill v. Arthur Hamm, Jr.
________ SUPREME COURT________

J o h n  M. H ttnsucker

A. I believe he requested him to leave twice, sir, in 
my presence.

Q. You believe, now, are you saying that definitely, 
sir, or—

A. Let me see. He made the request at first, when 
I first walked up, and then a second request was made, 
yes, it was, before Ivory was arrested.

He was asked to leave when he was going to the 
check-out counter to get a refund.

Q. I thought I understood your testimony a moment 
ago to be, sir, that when you arrived the manager told 
the defendant that he could not serve him? That he 
could not be served?

A. That’s right. He said, “I am sorry, I cannot serve 
you.”

Q. Yes, sir. And if I understand your testimony, sir, 
you quoted from the defendant as saying that, in that 
event, “I would like to have a refund for the articles 
which I have already purchased,” or words to that 
effect.

A. He did.
Q. And as I followed your testimony further, I be­

lieve that you stated that you said to the defendant, 
“You heard what the manager said, you will have 
to go.”

A. That’s right.
Q. Now, as we refer to that portion of your testi­

mony, sir, do you recall that one request was made or 
two requests were made ?

A. I still say that Mr. Whiteaker made two differ­
ent requests for Reverend Ivory to leave, and I made 
one request.

Q. I  see, all right.



SUPREME COURT 
Appeal from York County

27

J o h n  M. H unstjcker

At that time, was there any conversation between 
you and Mr. Whiteaker?

A. I  believe I asked Mr. Whiteaker could Reverend 
Ivory get his refund, or words to that effect, during 
this conversation, and he advised that he could get it 
at the check-out counter. I  believe that—

Q. I see. Now, is it your recollection that you asked 
Mr. Whiteaker this before you asked Reverend Ivory 
to move, or after you had asked him to move?

A. I am not certain. I  am certain it was said, but I 
am not certain whether it was before or after.

Q. I know that you want to be honest, sir, and I 
have no intention of trying to invoke you to be any­
thing but that way, but I will ask you to consider, if 
you can, and if possible we would like to get an an­
swer to that question.

A. Well, I certainly don’t want to answer it wrong.
Q. We certainly don’t want you to, and I apologize 

if I have been overbearing on that point. But in any 
event, your first conversation with Mr. Whiteaker was 
an inquiry as to whether Reverend Ivory could get a 
refund?

A. As well as I recall, that was our first conversa­
tion, yes, sir.

Q. I see. This being the case, of course, you at that 
point were actually volunteering your services as an 
officer of the City of Rock Hill in this situation?

A. After he had made no effort to leave, after be­
ing asked by the manager and myself to leave, I 
thought he was violating the law.

Q. May I ask you, sir, are you conscious, being the 
intelligent officer that you are, are you conscious of 
any statute in this state or in this city of which you 
are Chief of Police, are you aware of any statute which



28 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

J o h n  M. H ttnstxcker

would prevent McCrory’s from serving Reverend 
Ivory at its lunch counter?

A. No, I am not.
Q. And so, as you were present on the premises of 

McCrory’s at this time, you were not at that time en­
forcing any State law with reference to McCrory’s 
policy of service to Negroes, were you?

A. No, I was not.
Q. Yet you are aware of a custom, I believe you in­

dicated in your replies that you don’t know whose cus­
tom it is, but you are aware of a custom, the result of 
which does not permit Negroes to be served at these 
lunch counters?

A. Customarily they are not, no, sir.
Q. Well, now, sir, being aware, as you were, of that 

custom, was not your act at that moment made in full 
realization of the custom which you say exists ?

A. Well, let me say this. It is my duty to enforce 
the law and not the custom. After he refused, or made 
no effort to leave, I thought that he was violating the 
trespass law, and arrested him for such.

Q. I see.
And knowing, of course, I believe your testimony 

indicates that this defendant did have other packages 
which his conversation indicated that he had purchased 
in some other department of the store, did you know 
that?

A. I saw the packages.
Q. You saw the packages, and so you knew that he 

had been served in some other department in the store?
A. I did not. I didn’t see him served in any other 

department. I saw the packages, and I heard the con­
versation about the refund, but he did not buy them in 
my presence.



SUPREME COURT 
Appeal from York County

29

J o h n  M. H u n su ck er

Q. All right, sir. As I recall, after you left the lunch 
counter, and reached an area where someone offered 
him his money back, did I understand you to say that 
he didn’t leave the lunch counter very far behind, may 
I ask you to repeat your testimony, how far from the 
lunch counter was it that the conversation with refer­
ence to return of the money took place?

A. I don’t believe I stated before, but the check-out 
counter, as they tell me it is called, where he could re­
ceive the refund, in back toward s the rear of the store, 
and actually it is at the end, that is, if you would enter 
the back door of the store, it would be at the end of 
the first counter, that is, on the far end going toward 
the lunch counter.

Q. Captain Hunsucker, were you requested by Mr. 
Whiteaker to place Reverend Ivory under arrest?

A. I was not.
Mr. Perry: Thank you very much.
The Court: Do you have any other questions?
Mr. Spencer: Yes, Your Honor.

Re-direct Examination
By Mr. Spencer:
Q. Mr. Hunsucker, you were asked on cross exami­

nation whether you were aware of any statute which 
would prohibit McCrory’s store from affording lunch 
counter service to Reverend Ivory as a member of the 
Negro race, and you answered in the negative, and I 
now ask you if you are aware of any statute which 
would require McCrory’s to provide lunch counter 
service to Reverend Ivory, a member of the Negro 
race?

A. I am not.



City of Rock Hill v. Arthur Hamm, Jr.

J o h n  M. H unstjckek

Q. Mr. Hunsucker, I will ask yon also to state 
whether or not you have arrested and charged with 
trespass any member of the Negro race for sitting at 
this lunch counter or any other similar counter in this 
city in the case in which you have not first heard or 
observed an order to such person by the manager or 
person in charge to leave the premises?

Mr. Perry: Your Honor, I object to that, Your 
Honor.

The Court: On what basis?
Mr. Perry: If I understand the question correctly, 

I believe that it has something to do with other occa­
sions during which the witness may have been called 
upon to take official action.

The Court: He asked him if he had ever arrested 
anyone sitting at the lunch counter, if the store man­
ager had not asked him to leave prior thereto, isn’t 
that your question?

Mr. Spencer: That is correct, and I submit that it 
is directly responsive to the line of cross examination 
in which I submit certain questions were asked, I as­
sume for the purpose of testing whether or not the 
witness was enforcing the law with bias, and I say 
that these questions are designed to bring out the 
City’s position, and I say that that was not the case.

Mr. Perry: Our position, sir, is that any other ar­
rest that the witness might have made at this or any 
other lunch counter could have no bearing upon the 
activities of June 7th, at which Reverend Ivory was 
arrested, and we take the position that the inquiry is 
irrelevant, and calls for an irrelevant answer.

The Court: I don’t think so, in view of the questions 
you asked him on cross examination. I will permit the 
question.

30_____________ SUPREME COURT



SUPREME COURT 
Appeal from York County

31

J o h n  M. H u n su ck er

A. Give me the question again, please.
The Court: He asked you in effect if you had ever 

arrested anybody else for sitting there, unless the man­
ager had asked them first to leave, isn’t that the ques­
tion?

Mr. Spencer: That is correct.
A. I personally have never arrested anyone else 

there, sitting at the lunch counter.
Q. I have no further questions. The witness will 

come down.
The Court: Do you have any further eross examina­

tion?
Mr. Perry: Nothing further.
The Court: Witness excused.
(The witness excused.)
The Court: All right, next witness.
Mr. Spencer: Mr. Harry S. Barnette.
Mr. Perry: May we inquire what is the preference 

of the Court with reference to the lunch hour?
The Court: All right. Mr. Foreman and gentlemen 

of the jury, I want to caution you that during lunch 
you will go and eat where you wish to eat. We are not 
going to keep you together, but I ask that you do not 
discuss this case with anybody, not even among your­
selves.

I don’t want you to read about it in the newspaper, 
and I don’t want you to listen to it on the radio, I don’t 
want you to listen to it on television, and be back at— 
I have about ten minutes after one; be back in your 
seats at two-fifteen.

(Off the record.)



32 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

H. S. B arnette

(Thereupon, at 1:10 p. m., a luncheon recess was 
taken until 2:15 p. m. this day.)

(Afternoon session.)
The Court: On the record.

Mr. H. S. B arnette being first duly sworn, was ex­
amined and testified as follows:

Direct Examination 
By Mr. Spencer:

126 Q. Mr. Barnette—
The Court: Does the defense waive polling of the 

jury?
Mr. Perry: Yes, sir.
The Court: Mr. Spencer, would you?
Mr. Spencer: Yes, Your Honor.
By Mr. Spencer:
Q. Your name is Harry S. Barnette?
A. Yes, sir, that is correct, sir.
Q. Mr. Barnette, you are a member of the Police De-

127 partment of the City of Rock Hill ?
A. I am.
Q. How long have you served as a member of the 

Police Department?
A. Since May 1,1947.
Q. In what capacity do you now serve?
A. Sergeant of Detective Division.
Q. Were you serving in that capacity on June 7, 

1960?
A. I was.
Q. Do you know the defendant, Reverend C. A. 

Ivory?
A. I do.

128



SUPREME COURT 
Appeal from York Comity

33

H. S. B arnette

Q. Did yon have occasion to see Mm at any time on 
June 7, 1960?

A. I did, sir.
Q. Will you indicate the time and the place?
A. About 11:45 a. m., we received a call, I believe the 

desk sergeant is the one that informed Captain Hun- 
sucker and myself in the Detective Division that we 
were needed at the McCrary’s dime store.

Q. All right, did you go to the store in response to 
that information ?

A. I  did.
Q. And when you reached there, did you see the de­

fendant, Reverend C. A. Ivory? ,
A. I did.
Q. At what point in the store was he when you first 

saw him?
A. He was seated in his wheel chair at the rear of the 

lunch counter at the front of the store.
Q. You say the rear of the lunch counter at the front 

of the store. I ask you, are there two counters, are 
there two places in the store where food service may 
be obtained?

A. There are.
Q. And is one at the front and one at the rear?
A. Yes, sir.
Q. And you say that this was at the forward coun­

ter?
A. That is correct.
Q. All right, now, will you describe the exact point 

or location at that particular counter?
A. Reverend Ivory was seated in his wheel chair at 

the counter, between the two vacant stools, Arthur 
Hamm was seated one stool, there was a vacant stool 
between Arthur Hamm and the Reverend Ivory.



34 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

II. S. B arnette

Q. Did you at or about the same time have occasion 
to see the manager of McCrary’s store?

A. I did.
Q. Can you identify him by name? And if so, what is 

his name?
A. Mr. Whiteaker.
Q. And where was Mr. Whiteaker at the time you 

saw him?
A. He was at the rear of the counter, or on the inside 

of the counter.
Q. Did you observe whether or not any conversation 

took place between Mr. Whiteaker and the defendant, 
Reverend C. A. Ivory?

A. After Captain Hunsueker and I, we got to the 
counter, Mr. Whiteaker asked Reverend Ivory to 
leave, that he could not serve him.

Q. And this occurred in your presence, did it?
A. That is correct.
Q. Were you able to hear exactly what was said?
A. Yes, I  did.
Q. ^All right, you have stated that Mr. Whiteaker 

asked Reverend Ivory to leave. What, if anything, did 
Reverend Ivory do or say responsive thereto?

A. Reverend Ivory nor Arthur Hamm, neither one, 
made any attempt to leave, and at that point Captain 
Hunsueker asked him if he understood what Mr. Whit­
eaker had told him, and then he repeated what Mr. 
Whiteaker said, and that was that he could not be 
served, that he would have to leave the counter.

Q. All right. Did he leave?
A. He did not.
Q. Did he make any statement or give any reason or 

explanation about the matter of leaving?



SUPREME COURT 
Appeal from York County

35

H. S. B arnette

A. No, he did not. At that time he did get a package 
that was on the floor, and put it on a stool between he 
and Arthur Hamm, and asked Mr. Whiteaker for a 
refund, if he could not be served, then he wTant,ed the 
refund.

Q. What, if anything, did Mr. Whiteaker say in re­
sponse thereto!

A. Mr. Whiteaker pointed out that the check-out 
counter at the rear of the store, asked him to go there 
and get the refund.

Q. All right, did Reverend Ivory agree to go there 
and get his refund, or did he refuse!

A. He made no attempt to move, either he or Hamm.
Q. What, if anything, transpired next thereafter?
A. At that point Captain Hunsueker pointed out the 

check-out counter also, and told him that he could re­
ceive his refund for his packages at that place.

Q. All right. Did Reverend Ivory continue to remain 
at the same location or not ?

A. He did.
Q. And what if anything occurred thereafter!
A- Captain Hunsueker told him if he would not 

leave the lunch counter, that he would be placed under 
arrest for trespassing.

Q. And after he was told that, did he leave or did 
he continue to stay there ?

A. He did not.
Q. Was he then placed under arrest!
A. At that point he was placed under arrest.
Q. All right, now, did you observe what occurred 

from that time forward with reference to this defend­
ant?

A. At that point I arrested Arthur Hamm, and came 
out the back door of the store onto the Police Station.



36 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

H. S. B arnette

Q. All right, what if anything did Captain Hun- 
sucker do?

A. The next time that I saw Captain Hunsucker and 
Reverend Ivory was in the Detective Division.

Q. All right, did you observe whether or not he 
placed Reverend Ivory under arrest before he left the 
store?

A. That is correct.
Q. And then you left?
A. And he was turned around in the direction to 

head out the rear of the store, and that is the last time 
that I saw him until I saw him here in the station.

Q. Then were you here in the station when Reverend 
Ivory was brought in by Captain Hunsucker ?

A- I was.
Q. Did you observe what, if anything, was done or 

said by Reverend Ivory at that time?
A. Reverend Ivory and Arthur Hamm were both 

taken to the Detective Division.
Mr. Perry: I would like to impose the same objec­

tion here, which was imposed to this line of testimony 
which Avas given by Captain Hunsucker, that is with 
reference to conduct of the prisoners after they ar­
rived here at the jail.

The Court: For the same reason I will overrule it.
By Mr. Spencer:
Q. All right, you may proceed. Answer the question.
A. The information was received from them on their 

arrest slips, and at that point they were brought to 
the Desk Sergeant, and hooked.

Q. All right.
A. And in checking their property in with the Desk 

Sergeant, they were adAdsed of the charge and the 
amount of the bond.



SUPREME COURT 
Appeal from York County

37

H. S. B arnette

Q. Were they then placed in confinement?
A. Arthur Hamm at that point was. Reverend Ivory 

at that point, I believe, was, he asked Captain Hun- 
sucker for the use of the telephone, which he was al­
lowed to use it.

Q. Now, other than the matter of the refund ques­
tion that was raised by Reverend Ivory, did he give any 
cause or excuse or did you see or observe any reason 
why he could not have left the store when directed by 
the manager to so do!

A. I did not. I couldn’t see any excuse, or he didn’t 
let us know if there was any.

Q. He appeared to be free to go, if he had been will­
ing to do so, did he?

A. In my opinion, yes.
Q. And did he or not give any reason for not going, 

other and aside from the question of the refund which 
he requested?

A. That is the only thing I heard.
Q. And I believe that you stated that he declined to 

go to the check-out counter for the purpose of getting 
a refund, or failed to do so, is that right?

(A. That is correct.
Q. I have no further questions. You may examine 

him.
Mr. Perry: Would you indulge us just one moment, 

please, sir?
The Court: Yes.

Cross Examination
By Mr. Perry:
Q. Mr. Barnette, just one or two questions, please. 

Do I understand that you had the same source of in­
formation which Captain Hunsucker testified earlier 
that you were to go over to McCrary’s?



City of Rock Hill v. Arthur Hamm, Jr.

H . S. B arnette

A. That is correct.
Q. All right, sir, the same person who told Captain 

Hunsueker also told you?
A. Correct. We were together at the time.
Q. I see. And did you know as you were proceeding 

toward McCrary’s what you would find when you ar­
rived there?

A. I did not know what we would find.
Q. I see, you were simply told that you should get 

over to McCrary’s?
A. That is correct.
Q. Now, Captain Hunsueker testified at length this 

morning, as you have, concerning the series of events 
as he discovered them there. Now, Captain Hunsueker, 
is, I  believe, Assistant Chief?

A. That is correct.
Q. There are, I believe, two chiefs, one of the police 

and one of detectives?
A. That is correct, sir.
Q. I see, and may I ask you agin, sir, what is your 

official position?
A. Sergeant of the Detective Division.
Q. Now, Captain Hunsueker stated in his testimony 

this morning, if I recall correctly, that he had heard 
the conversation between Mr. Whiteaker and Reverend 
Ivory, and that he heard Mr. Whiteaker tell Reverend 
Ivory that he could not serve him. I believe your testi­
mony substantially is the same on that point?

A. The same.
Q. Now, Captain Hunsueker later did not recall 

whether Mr. Whiteaker made this statement once or 
twice, so I made no point about it here. My question, 
sir, is this, as to your next item of testimony, you said 
that Captain Hunsueker then said to Reverend Ivory,

38 SUPREME COUBT



SUPREME COURT 
Appeal from York County

39

H . S. B arnette

“Did you understand what Mr. Whiteaker said?” as 
I  understood your testimony a moment ago.

A. I believe that’s what I said.
Q. Now, Mr. Barnette, Captain Hunsueker said on 

this morning that after Reverend Ivory refused to 
move for Mr. Whiteaker, that he, Captain Hunsueker, 
then told Reverend Ivory that he would have to leave. 
Now, sir, I would like to just briefly ask, how is it that 
two very able police officers such as you and Captain 
Hunsueker can vary on that little detail!

A. I don’t see any variation there, because I think, 
I believe that you came back more or less the way that 
I did.

Q. Yes, sir, as I  understood your testimony, it was 
that Captain Hunsueker asked him whether he under­
stood Mr. Whiteaker?

A. That is correct.
Q. Captain Hunsueker testified that he told the Rev­

erend Ivory, “You will have to go.”
A. If I  understand correctly, Captain Hunsucker’s 

statement there was that when we walked up to the 
counter, Mr. Whiteaker asked Reverend Ivory and 
Arthur Hamm to leave the counter, that he could not 
serve them. At that time Reverend Ivory nor Hamm 
made any attempt to leave, at that point is when he 
asked him if he understood what Mr. Whiteaker had 
said, and then repeated that.

Q. I see. All right, sir. Now, of course, you recog­
nized as Captain Hunsueker did, that, there were some 
other people, white people, sitting at the lunch counter?

A. That is correct.
Q. Were any of them asked to leave?
A. Not in my presence.



40 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

H. S. B arnette

Q, I see. Well, as between you two officers, are you 
able to say which of you was more or less in charge, if 
such was the case at that time?

A. At the time, Captain Hunsucker was in charge, 
because I had nothing to say whatsoever after he in­
structed him.

Mr. Spencer: Nothing further. Mr. Barnette, will 
you come down?

(Witness excused.)
Mr. Spencer: If it please the Court, the City has 

certain other witnesses under subpoena, but upon con­
sideration of the testimony which is already offered, 
we believe that upon the issues and the only issues 
which are directly involved, such testimony would be 
cumulative, and therefore the City will close at this 
time.

The Court: You may proceed.
Mr. Perry: Would Your Honor indulge us just a 

moment, please, a short recess?
The Court: Yes.
(Recess taken.)
The Court: On the record. Are you ready to proceed?
Mr. Perry: We have one or two motions at this time, 

Your Honor.
The Court: I would like to excuse the jury again 

while I hear the motions.
(Jury temporarily excused.)
The Court: All right, you may proceed, sir.
Mr. Sampson: May it please the Court, we would 

like to move the Court to make a motion for a directed 
verdict in two parts, one by myself and one by Mr. 
Perry, and we will try to be as brief as we can under 
the circumstances.



SUPREME COURT 
Appeal from York County

41

We would like at this time as one of the reasons for a 
motion for directed verdict to renew our motion that 
based on the evidence that the State has now put in, 
at the close of their case, we still do not know and we 
do not feel that the State has made out a corpus delicti 
or a prima facie case under either of the three statutes. 
We feel that the statute of the City of Rock Hill is sub­
stantially like the statute of the State, to wit, Section 
16-386, and the subsequent amendment shown in the 1959 
supplement, and therefore for the purposes of this mo­
tion we will talk about the statute of the City of Rock 
Hill, and 16-386, with the amendment, as if they were 
one, though in fact they are not one, and we would like 
to note at this point, however, that even if the City of 
Rock Hill were proceeding independently under its 
own statute, where it exercised by reason of its police 
power as a municipality as distinct from whether or 
not it may or may not have gotten it from the State, or 
by inference, or so forth, that our position would be 
that they still have not made out a prima facie case, or 
the elements of a corpus delicti have not been made out.

Moreover in that connection our position would be 
that those two stautes as well as the recent statute, 
recent law, rather, of May 16, 1960, would be uncon­
stitutional.

Addressing the Court to the offense of trespass, we 
are not going to try to take it on ourselves to carry the 
burden of explaining the fact of what is trespass, be­
cause that is really the responsibility of the Court, 
but we say with reference to it, that we have that in 
mind, generally speaking we take the position that 
trespass would be the unlawful invasion of property 
rights of another, a very general proposition, and we 
submit that technically the common law, except for 
very limited areas, that there was no criminal action of



42 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

trespass; and we take the position that the law in this 
State shows that except in very narrow areas, strictly, 
where the law will not take care of eases, but where 
about larceny and so forth, or had not properly been 
made out, and possibly in that area, and one or two 
others, that there was technically a trespass under the 
criminal law.

Now, as the Court knows, there is a tremendous 
amount of law on the books; on the civil side of the 
law of trespass there are sundry things, primarily 
common law, and even now a violation of the law of 
trespass is primarily a civil matter, as distinct from a 
criminal matter, and we note with some regret that 
even among people who write the encyclopedic law, as 
would be in Am. Juris, or Corpus Juris., that this is the 
latest work here, and we note that there are about four 
pages, not more, in summary, of the entire law, of 
criminal liability on the law of trespass, as distinct 
from almost a chapter on civil law; therefore we think 
that since this is a criminal matter, and because of 
the history of the law of trespass and so forth, that in 
order to properly make out a case of trespass under 
the criminal statutes, that it is an extremely narrow 
matter, and now, without being verbose about it, we 
think that where the law is, that where there has been 
a statutory attempt to make a trespass a criminal sanc­
tion as distinct from a civil sanction, our position is 
that the law is that without question usually the alleged 
trespass must be accompanied by the elements of will- 
fullness, force, or malice, or such conduct as may or 
may not create a breach of the peace.

Usually you have profanity, fighting, and that kind 
of thing. We state that that is what the law is. Now, 
in reference to that particular point in the State’s evi­
dence in this case, we think that the evidence does not



SUPREME COURT 
Appeal from York County

43

sustain any element of willfullness, force, or malice, or 
anything which would normally be disorderly conduct 
or which would even normally be breach of the peace.

We think that that testimony is clear, that there was 
no crowd, no disturbance, as I  understood their testi­
mony a number of people didn’t even know the incident 
was going on as such. We think that the testimony will 
show that the State’s evidence, that Mr. Barnette ad­
mitted that this package, and Captain Hunsueker tes­
tified also that the defendant in this particular case 
had items of merchandise on or about his person which 
indicated that he had at a moment or two before the 
alleged conversation, which led to his arrest, had ac­
tually purchased items as a vendee or as a business in­
vitee in this said store.

We think that it is important that this case be judged 
on the fact, that apparently it is a variety store, with a 
muliple number, apparently, of departments and coun­
ters; that this, that the place of this alleged incident 
had occurred within an aisle’s width, so to speak, from 
an area apparently which the alleged defendant there 
could easily have spent one dollar or a hundred dol­
lars or a thousand dollars in; and apparently from 
the testimony, that the State has put up, we have here 
a charge of trespass allegedly growing out of the de­
partment of the variety-type store, dedicated to the 
public, where the defendant is a business invitee, and 
where it is admitted that he could have spent any num­
ber of dollars at other departments in and about this 
particular area; that the defendant, that apparently 
one of the agents or owners of the store, whoever called 
the police here, assuming that they did it voluntarily, 
so far as State action we hope not, we will find that out 
later, that the defendant, the witness for the state who 
apparently sent this information in, had just gotten



44 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

through treating this particular defendant here as a 
business invitee, according him all of the courtesies that 
he may or may not have wanted in other departments 
of this store; that he advertises, that he had apparently 
from the State’s case as I understand it at this point, 
there is no question of any notice being given the de­
fendant, as I understand the testimony at this point, 
there was no posting of notices, there was no news­
paper advertisements at all here.

Now, Mr. Spencer for the City says that this action 
is barred under 16-386. I don’t want to prolong this, 
but the Court, I think, perhaps is familiar with the sec­
tion ; if not, I have it here; I  don’t want to read it, but 
I almost have to, because the legislative intent of this 
particular statute does not, would not, could not be 
properly used to make out a prima facie case or a case 
of corpus delicti trespass in this particular situation, 
under these circumstances.

Aside from the fact that the elements have not been 
made out of trespass here, out of the judgment, we 
don’t think that this fact could be used, it starts off, it 
says, “That every entry upon the lands of another after 
notice from the owner or tenant prohibiting such entry 
shall be a misdemeanor, and be punished by a fine not 
to exceed $1 0 0 . 0 0  or by imprisonment at hard labor 
on the public roads of the county for not exceeding 
thirty days.” Then it goes on to say that when any 
owner or tenant of any lands shall post a notice in four 
conspicuous places on the borders of such land prohibit­
ing entry thereon, and shall publish once a week for 
four consecutive weeks such notice in any newspaper 
circulating in the county in which such lands are situ­
ate, and proof of the publishing, and/or such notice, 
within 1 2  months prior to the entry, shall be deemed 
and taken as notice conclusive against the person mak-



SUPREME COURT 
Appeal from York County

45

ing entry as aforesaid for the purpose of hunting or 
fishing on such land.

Now, these are the words of 16-386, which is sub­
stantially the wording of the current Code for the City 
of Rock Hill. Moreover, may it please the Court, one 
of the annotations under this case in this particular 
section, giving the purpose of the section, this section 
was meant to furnish the owner or tenant in posses­
sion of land a legal means to prevent any intrusion 
thereon by another after notice prohibiting any entry 
on the same.

Now, if this is in fact the purpose of this section as 
stated in State v. Greene, 1892 case, which perhaps 178 

came about before we had variety stores, I can’t re­
member whether McCrary’s or Kress’ go back that far 
or not; it says to prevent any intrusion is the intent.
The intent here was they would either have to post 
these notices or advertise in order to meet, to properly 
cite someone for trespass after notice.

Now, I will readily concede that if this were a fish­
ing or hunting preserve, or something like that, which 
I think both of them are very fine sports, and a man 
posted four notices out there, or gave the newspaper m 
notices, all that sort of thing, if anyone went out there, 
they could be perfect^ right; but the City of Rock 
Hill, as I  understand, their position is, they say that 
this section, which was determined way back in 1892, 
is so good that it now can be applied to the modern-day, 
twentieth century variety stores, wherein a business in­
vitee can go in, in fifty or a hundred or more depart­
ments in the store, and spend all of his money, and be 
treated right by all of the clerks, but yet, if he goes to 
a particular counter in there, that alone, would give 
a business man, or would subtract from that business



46 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

invitee, all of the right, title and interest he had as a 
citizen as dne process or in protection of the law.

Now, we think that that is not correct, and that pri­
marily is why we want an election here to find out 
whether or not he is charged under this particular 
statute, and the Court will note that under this statute, 
and let us consider for a moment this particular stat­
ute, under this particular supplement.

Now, under 16-386 the language is slightly changed. 
I won’t read it all over again, but the language of it 
is a little bit different, and I think it is important that 
the record should show that an entry upon the lands 
of another where a horse, mule, cow, hog or any other 
livestock is pastured, or any lands, any other lands, 
any lands of another, rather, after notice from the 
owner or tenant prohibiting such entry shall be a 
misdemeanor and the fine shall not exceed $100.00, and 
so forth, and it goes on further to say that when an 
owner or tenant of any land shall post in four con­
spicuous places on the borders of such land, prohibiting 
entry and so forth, that proof of the posting shall 
be deemed and taken as notice conclusive against the 
person making entry as aforesaid for the purpose of 
trespassing.

Now, this particular change that put the animals in, 
and they substitute, one of the changes is, they say in 
an annotation that the effect of the amendment, this 
amendment eliminating the necessity for notice to be 
published in a newspaper, not the posting of the no­
tices, only in the newspaper, and the failure of the 
proof relating to the time of the posting, and substitu­
ted trespassing at the end of the section for hunting 
or fishing on lands of another, and I would say in 
retrospect that whoever designed this statute, I no­
tice they changed the word trespass at the end, but



SUPREME COURT 
Appeal from York County

47

yet when they sought to amend it at the beginning, 
they went further to indicate what we think is why 
they put in here “where any horse, mule, cow or hog or 
any other livestock is pastured,” perhaps they were 
taking into consideration between 1892 and now that 
perhaps on what would be known to be a hundred per 
cent hunting or fishing preserve is a question of live­
stock and so forth, it was getting to be a problem, and 
as the Court knows, this is in a section of law dealing 
with that kind of thing, which is a section, and now 
we think that without prolonging further argument on 
that particular point, we do not think that that statute 
is applicable here.

Now, may it please the Court, that with reference to 
the law of May 16th, 1960, which was approved by Gov­
ernor Hollings, and which I think under the rules 
would now be the law of the state, of course this has 
been passed and approved just prior, or shortly prior 
to this particular offense; now, as the Court is aware, 
I am sure that except for this one that I hold in my 
hand, this statute which has been interpreted back be­
fore 1892, that this State did not have for one reason or 
another something covering notice on the Trespass 
Statute as much as our sister state of North Carolina, 
and in that connection we would like to cite for the 
purposes of the record, to sustain the point of what 
would be proper in that case, the case of State of North 
Carolina v. Paul Tinder, which is annotated in 49 A. L. 
R. 597, and is noted in 135 S. E. 451 and is also in 
1926 case 29 N. C. 559, which is a case of forcible tres­
pass and forcible intent, where the intent there and so 
forth is to make a clear distinction between the civil 
and criminal law.

Now, in this particular case, the Chief Justice sus­
tains the proposition much as we have read to be the



48 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

law, where there is a trespass by statute, which is Sec­
tion 85 of Am. Juris, Volume 52, where without going 
into what actually happened here, Your Honor, some­
body got mad because the store proprietor had turned 
them into the law for having a whiskey still, and they 
went in there to get even, and in the process of discus­
sion they had some violent language, chasing each 
other around, and so forth, in other words, they had 
plenty of action, disorderly conduct and that sort of 
thing, and the Court of course declared and held that 
those elements would be proper in this case.

We don’t think that this has been overruled. We 
think that the annotation is important because it is very 
short, and it lists a number of cases giving the law of 
North Carolina, I am cognizant that this is South Car­
olina, but this point is not too clear in South Carolina 
out of judgment, and there is an 1886 case of the State 
v. Wilson where there were insults and demonstrations 
of violence, and a case in 1887, State v. Tolbert, where 
there was violent language, and in the State v. Gray, 
which was 1891 ease, they carried off personal prop­
erty of another, and it amounted to a breach of the 
peace.

A lot of these cases stated here in the statutory pro­
visions, if they would be traced out, I am not going 
to put in the record all that, deal with tenants and so 
forth, and notices and so forth, but in every case, as 
far as we have been able to find out, except possibly 
this case of Schramck v. Walker, which we are frank 
to say is not applicable to the law in this case, we 
think this is a strict case of where a business invitee 
went in, as a matter of fact this is a very interesting 
case, Your Honor, trespass, for this reason, as a busi­
ness invitee of this particular store, not only did this 
man invite him to buy, but he under the law of the



Appeal from York County
SUPREME COURT 49

duties owed by proprietor to business invitee, could 
have come in there and looked around alone; as we 
know, that is, properly go window-shopping, to go in 
a store and look around, and so forth; now, this de­
fendant, had he walked through all these departments, 
and just passed by this counter, this particular coun­
ter, maybe he would not have been arrested; but it is 
admitted here that this man is neatly dressed, and in­
cidentally he was in a wheel chair, he was not sitting 
at the counter, by the way, and as I  understand it, 
there is not too much testimony about this back coun­
ter, but I thought I heard the State say something about 
the fact that there was a bar back there where you 194 
could stand; I don’t know what they are basing this 
thing on.

We think that under the statute here, which he is 
trying to get this man for trespass, that technically— 
but in the criminal sense this is not a trespass, we don’t 
think. Now, if this were a case of an antique shop, fur 
salon, where a man has advertised, “No Indians come 
in here,” let’s take out the question of being a Negro 
or a white man and so forth; and a person came up 
whom he recognized as being an Indian, and he said, 195 

“I am sorry, Madame so-and-so, you cannot come in 
here,” why, that is perhaps a different problem, maybe 
the law in that case should not be so, but where a man 
is operating a store of this kind, with open counters, 
and open displays, and has just demonstrated five 
minutes before he will take all the money this man has, 
figuratively, legally, you know what I mean, just be­
cause he turns this way, may cause him to be arrested; 
but I am not too sure from what the City has put up 
here that, according to my notes here, whether the man m 
wanted him to leave the store, or leave the counter.



50 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

There is a counter where he could have bought mer­
chandise if he had turned his chair around two feet; he 
could have spent fifty dollars there, and talked to the 
clerk any number of times; but if he turns back this 
way, and says, “May I have a cup of coffee,” that alone 
is just a mere request, without any notice, and Captain 
Hunsucker says that he was not doing it under the law, 
if I remember his testimony correctly, assuming what 
he said is correct, he said that this man, that he wanted 
to arrest him by law, not by custom, of course we 
know that is not due process, and so forth.

Now, coming for a moment to this law here, which 
goes into more detail, the Court has a copy of this, is 
that right1? We don’t think this particular statute is 
constitutional for a number of reasons, but we are 
aware—I would like to address myself on the question 
right now as to whether or not he made himself out a 
prima facie case, or the elements of a corpus delicti, 
sufficiently to charge him under this Act. This is a 
new Act, and the Act, of course, is to provide for the 
offense of trespass after warning, and to provide fur­
ther for enforcement, and jurisdiction thereof.

We say first that the trespass after the warning in 
relation to this other statute; we don’t, apparently, 
from this statute here, somebody allegedly tried to 
shut the door before you came in, and shut the door 
after you got in, after he got you in there, during any 
act that the proprietor, the corporate proprietor or 
servant and so forth, did not like, he could call the po­
lice and get you arrested. Now, as to the first part, 
that any person who without legal cause or good ex­
cuse enters into a dwelling house or place of business 
on the premises of another person, firm or corpora­
tion after having been warned, within six months 
preceding, not to do so, we feel that that part would



SUPREME COURT 
Appeal from York County

51

not be applicable here, because obviously there is no 
warning. As a matter of fact, there is a current in­
vitation as of right now by the prosecuting witness, 
apparently, for the State, for all of us to go in there 
and spend our money this very minute, so there would 
not be any question about that.

Of course, they are going to say here that any per­
son who, having entered into the dwelling house or 
place of business, which is what the defendant did 
here, on the premises of another, without having been 
warned by him within six months not to do so, on 
the contrary, “Come on in, spend your money, and I 
will put you out when I want to,” and fails and re­
fuses, may it please the Court, without good cause 
or excuse, to leave immediately upon being ordered 
or requested to do so by the person in possession, his 
heir, or its agent or representative, shall on convic­
tion be fined not more than $100.00. Now, of course 
the Court is very learned, I am happy to say that we 
think it is, and that this is a legislative act, and this 
act would have to be reasonable, and it would have to 
have a good corpus, it would have to have a proper 
yardstick, it cannot be arbitrary or unreasonable.

One of the things that bothered us, quite frankly, 
in the citing of the particular classifications which we 
shall mention in a motion, is simple this, that we have 
been unable, and we hope we have not been totally 
stupid in not being able to find it, this question of 
“without good cause or good excuse.” Quite frankly, 
we don’t know what that means. Whether it is arbi­
trary; I appreciate it not as a yardstick, cannot cite 
one citizen, the good cause apparently in the defend­
ant’s case, it is apparently because, may or may not 
be because he is a Negro. Certainly it would not be 
constitutional to give a private citizen, aside from



52 SUPREME COURT
City of Rock Hill v. Arthur Hamm, Jr.

the fact of whether or not he can conduct his business 
like he wants to, an additional weapon, to say “without 
good cause or good excuse” ; now, who is going to judge 
this good cause or good excuse? The proprietor of a 
business, that is more power than a policeman has 
got, your officer at least has got to show probable 
cause, at least he has got a uniform on, and that kind 
of thing, and that kind of thing would go to his judg­
ment of the case. We don’t think that these particular 
criteria here is enough to require due process or equal 
protection of the law. Now, as I understand the tes­
timony here, which Captain Hunsucker gave, he said 
that he was not asked by the manager to arrest him, 
if I remember the testimony correctly. He is a prin­
cipal witness here. He testified that he was not asked 
by the manager to arrest him. Now, why did this man 
get arrested? Where is this good cause going to come 
from? Does this give the police officer, as we say, we 
don’t have any law, we are not going by custom, did 
he walk in there and just arbitrarily see an Indian 
sitting down at that counter, and say, “Uh-oli, he does­
n’t look like he is the right kind of a nationality, and 
therefore it is good cause,” and arrest him? Even 
where the manager doesn’t ask him to arrest him, and 
even if the manager did ask him to arrest him, I think 
that the police officer of the State is still under a duty 
to be careful in his judgment, and of course he can 
exercise his judgment as he wants to, as to whether 
or not he is going to arrest that man when he knows, 
when he is there, standing there, the man is not using 
any violent language, and the defendant is a preacher, 
and that alone, in this particular type situation—now, 
we would like to say this, that we think that we should 
now elaborate on another constitutional aspect of it, 
we think this particular statute right here in my hand



SUPREME COURT 
Appeal from York County

53

not only violates the Fourteenth Amendment of the 
U. S. Constitution, which Mr. Perry will talk about, 
but I would like for the record to show, and address 
the Court, at this point, that this in our judgment, 
this particular thing, violates the Constitution of 
South Carolina, to wit, Article 1, Section 5, which says 
that the privileges and immunities of citizens of this 
State and of the United States under this Constitu­
tion shall not be abridged, nor shall any person be 
deprived of lawfully held property without due process 
of law, nor shall any person be denied equal protec­
tion of the laws. This is our South Carolina Consti­
tution, talking to the legislative, executive and judi­
cial; and, of course, fortunately we think that it is 
up to the Judiciary to determine whether or not this 
Act would be constitutional. We think that this is the 
law of this State. This matter of due process and equal 
protection is so thickly intertwined and so forth that 
it is kind of hard to separate one from the other, but 
assuming for the purposes of arguing this matter, 
which we ask you to, we submit has to be interpreted 
with due process, and under the equal protection clause 
of Article 1, Section 5, of the South Carolina Consti­
tution, now Am. Juris, has a lot to say about this, 
about the constitutional law, I am sure the Court is 
familiar with it, but one of the things that it did say, 
I think this is in Volume 12, Section 472, page 133, 
I believe, it is either Volume 10 or 11, it says that 
the relationship between due process and equal pro­
tection of law, talking about the phases, says that if 
the law under consideration operated equally, talking 
about this statute which I hold in my hand, talking 
about the 2nd section now, because we are obviously 
not within the first section, if the law under considera­
tion operated equally under all who came within the



54 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr,

class to be affected, embracing all persons who were 
or might be in like situation and circumstance, and 
the designation of the class was reasonable, not unjust, 
capricious, or arbitrary, but based upon a real distinc­
tion, and the law operated uniformly, all the rest, all 
the law, I am not talking about just this law here, I 
am talking about all the law, but here it talks of de­
privation of his liberty, which is the most precious 
thing that America has, and that, if, added to this, 
the law was enforced by usual and appropriate 
methods, enforced by usual and appropriate methods, 
the requirement of due process of law could not be 
said to be denied, and we think that this apparently, 
we think that the, in view of the Article 1, Section 5, 
that the Legislature is trying to impose by what we 
call the law of libel, innuendo, they are almost like 
electricity, you can feel it, you can’t see it, but you 
can feel i t ; you see a class of legislation affecting per­
sons and giving power to a class of individuals.

We think that, of course, that this is not proper. 
We don’t think the classification is reasonable, and 
even if the classification is reasonable, we don’t think 
that this yardstick, assuming the good cause or good 
excuse, whether or not the landlord or his agent, or 
manager, says he is exercising good faith or good 
cause, a good excuse, what makes good cause or makes 
a good excuse, is it going to be color? Is it going to 
be disorderly conduct? Is it going to be language? 
Is it going to be the way you have your hat on or off? 
What is it going to be? Certainly the State is not 
saying openly that this law will only affect Indians 
and Chinese. We think that if it were good in all other 
regards, which we don’t think it is, that that particular 
matter in there is wrong, where with this thing it 
says to leave immediately upon the order to do so,



SUPREME COURT 
Appeal from York County

55

or request to do so, by the person in possession, his 
agent or representative, we think quite frankly, Your 
Honor, that a great deal of strife could arise out of 
this. This thing is subject to be interpreted; that some 
clerk at the safety pin counter, apart from the lunch 
counter, suppose a stanger, or it could be either the 
defendant, went in there, he went in and asked her 
for change or something, and she said the defendant 
was at the lunch counter, and the policemen came in 
there and arrested him, came in there and asked him 
to leave, why, without even knowing him. The power 
is stretched out too much.

We know, of course, what the levels are of owner­
ship, of property, who is going to do it, the manager, 
his assistant, his cashier, his clerk? Anybody in there? 
Who is going to have the power of arrest? Well, I 
would say that that is unreasonable and oppressive in 
this case. They could do things even Captain Hun- 
sucker cannot do. We say this is not a valid part. We 
think this is a very important thing.

The Court: A good cause or excuse does not have 
anything to do with why he is asked to leave, it has 
got to do with whether he can stay.

Mr. Spencer: To show good cause or excuse for 
staying.

Mr. Sampson: May it please the Court, we take 
this position on that, that’s why it is going to affect 
a class of persons, because suppose that interpretation 
is in effect, they ask him to leave, the asking him to 
leave business, and this lunch counter business, where 
there is no law, they can all operate by custom, and 
just ask him to leave the lunch counter, is he asking 
him to say that “You can go back around these fifty 
departments I have in the store, and spend yourself 
another hundred dollars as a business invitee, but you



56 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

can’t come back here and ask the clerk to give yon
Jgl change or a cup of coffee.” You see, in other words, 

if it is the law that a businessman can have all these 
privileges and so forth, it would seem to me highly 
unreasonable to now amend the statute so he of his 
own motion can say, “Okay, come right in, I will take 
all the money you have got if you go in 98 per cent, 
of the place, 98 per cent, of the store, and so forth, 
but you can’t go to the lunch counter here, now, go 
to some other eating place.”

This is a Law of Sale and of vendor and vendee. I 
don’t think that to permit that kind of situation, he

222 is asldng him to come and at the same time he is 
telling him he cannot use the lunch counter, well, “I 
am asking you, I  am withdrawing your invitation,” 
he is only withdrawing that part of the invitation 
which is infinitesimally small in relation to the money 
that was spent there, it is only put there for con­
venience anyway, some people use it for lunch. I think 
that is too much power, I think that if you are going 
to interpret good cause or good excuse, because you 
can’t use a particular department, that is carrying it

223 a little bit too far.
The Court: Will you read the section again, is that 

exactly what the section says? Read the section again.
Mr. Sampson: Fails and refuses without good cause 

or excuse to leave.
The Court: Right.
Mr. Sampson: The question becomes this, really, 

can a business simply refuse to allow a business in­
vitee to use a normal area of a store of this type, 
dedicated to the public, where he has all of these 
other privileges, and so forth?

The Court: It doesn’t say that the owner of the store 
has to have any cause or excuse, it says that he has



SUPREME COURT 
Appeal from York County

57

got to have a good cause or excuse to stay, or else 
he would he guilty under that section of the law.

Mr. Sampson: Well, what he is saying is, the rea­
sons he says, “I am staying here, I am responding to 
your invitation to spend my money, I have just spent 
my money over here, and this is a service over here, 
and no notice of anything else—”

The Court: Wouldn’t that be a question of fact for 
the jury to determine, whether he had good cause or 
excuse not to leave? I am not trying to cut you off, 
but the section doesn’t state that the store owners 
have to have good cause or excuse to ask him to leave, 
it says if they ask him to leave, that he has got to 
leave unless he has got good cause or excuse to stay, 
as I read it, I just glanced at it.

Mr. Sampson: That is true, under the capitalistic 
system of taking his money, it sounds like to me, “Put 
your hand in his pocket this way, but if you put it in 
this way, you can’t do it.” I would like for the Court, 
I am sorry I took so much time—

The Court: That is all right, do you have anything 
else you wish to say at this time?

Mr. Sampson: I would like for you to listen to Mr. 
Perry on the second part of the motion in regard to 
the Constitution.

Mr. Perry: I beg your pardon. Perhaps Mr. Spencer 
wanted to reply to this argument.

The Court: Well, unless he wants to do it—
Mr. Spencer: I  will not break in on the presentation. 
The Court: All right, go ahead.
Mr. Perry: All right. May it please the Court, I 

would simply like to state first of all that on behalf 
of my associate we would like to renew his, or to 
make a motion for judgment of acquittal on the same



58 SUPREME COURT
City of Rock Hill v. Arthur Hamm, Jr.

ground that he just made a motion for a directed 
verdict.

I believe at the conclusion of this stage of evidence 
we would want to make motions for a judgment of 
acquittal.

Now, at this time, we make motion for judgment of 
acquittal on the ground that the evidence shows that 
the defendant, who is a Negro, was charged here with 
an offense as the result of his being on the premises 
of the McCrory’s Five and Ten Cent Store, at its 
lunch counter, which store follows a custom of either 
excluding or segregating Negroes at its lunch counter. 
The effect of our motion is that the charge of trespass, 
which was preferred against Mm by reason of the fact 
that he was upon the premises at the lunch counter, 
and being a member of a race which is either excluded 
or required to be segregated at the lunch counter serv­
ices of the McCrory Five and Ten Cent Store, we 
take the position then that the application of the tres­
pass statute of South Carolina to the defendant in 
this case is in violation of his rights under the equal 
protection and due process clauses of the Fourteenth 
Amendment to the United States Constitution.

Your Honor, without being very long, I would sim­
ply like to state that we rely here upon the United 
States Supreme Court ease of Shelley v. Cramer, de­
cided in 1948. I am sorry, I do not have the citation 
present in Court with me, but I believe Your Honor 
is well familiar with that ease. There certain private 
individuals, white persons, in the state of Missouri, 
followed a private plan of excluding Negroes out of 
certain housing developments by placing in their deeds 
certain restrictive, racially restrictive, covenants.

These were agreements between two or more prop­
erty owners to not sell or lease to any person or per-



SUPREME COURT 
Appeal from York County

59

sons of African descent. The Supreme Court of the 
United States, first of all, I will show you the violation. 
Some white person apparently sold a piece of property 
to a Negro. The Negro was subjected to court action 
by some white neighbors of his, and resulted in the 
carrying of the case to the United States Supreme 
Court. Chief Justice Vinson said in that case, Your 
Honor will recall, that the Fourteenth Amendment 
does not condemn purely private action, no matter 
how discriminatory in nature, but that the State could 
not aid the carrying out of this private discriminatory 
policy, either through its legislative, its judicial, nor 
its executive branches. There was, the minute one of 
the branches of the State Government, whether it be 
legislative, judicial or executive, entered into it, the 
commands of the Fourteenth Amendment entered the 
case. We therefore take the position that when Captain 
Hunsucker went into the McCrory store, and exercised 
the police power of the City of Rock Hill, the part 
of the executive branch of the city of Rock Hill in 
the enforcement of the McCrory Five and Ten Cent 
Store’s racial discriminatory policies, that the State 
of South Carolina entered into McCrory’s operations, 
and that it gave legal effect to an otherwise completely 
private policy of racial segregation.

Under the doctrine of Shelley v. Cramer, then, we 
take the position that the defendant here is entitled to 
an acquittal by reason of the fact that the State has 
exercised its power to enforce a private policy of racial 
segregation.

Mr. Spencer: May it please the Court, for the in­
formation of counsel for the defendant, the case he 
just cited will be found at 334 U. S. 168, Supreme Court 
386, 92 Law Edition 1161, I refer to Shelley against 
Cramer.



60 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

Mr. Perry: Thank you, sir.
Mr. Spencer: I am relying on it, too. Counsel for 

the City would not deny that under the common law 
there is a basis for the claim that criminal trespass is 
not made out without some accompanying act of dis­
order or violence or in creating of an aspect of terror 
of some sort, or fear. We submit that this is not true 
of a criminal trespass under statute, and that the 
criminal trespass statutes were enacted by many states 
for the purpose of bridging that gap, and closing what 
might otherwise have been a gap under the old com­
mon law. Therefore the position taken by counsel for 
the defendant would give them no benefit in this cause, 
which is tied entirely to the statutory remedies.

Now, reference has been made to the publication and 
posting of notices. I  submit that a careful examination 
of both the State section referred to, that is 16-386, 
and the City ordinance of the Code of the City of Rock 
Hill, Chapter 19, Section 12, will reflect that the lan­
guage of both spell out clearly that the entry on the 
lands of another after notice prohibiting the same 
makes out a case of trespass, and that the matter of 
how the notice was given, whether by publication or 
by posting, is an aid to proof, and not a required form 
of notice.

Unquestionably those provisions of the 1954 amend­
ment to Section 386, correction, Section 16-386, of 
the Code, which deal with the matter of lands used for 
the pasturing of horses, mules, cows, hogs, or other 
livestock, have no proper application in this case, and 
certainly counsel for the City have not asserted at any 
time, I have not thought it necessary, that the defense 
counsel argue that point, but apparently they did, and 
I want to make the record clear that they have not 
asserted that they are applicable in this case.



SUPREME COURT 
Appeal from York County

61

The Section in question read, without reference to 
those words, said, “Every entry on the lands of an­
other,” then it has those words about the pasturing of 
any livestock, “Or any other lands of another after 
notice,” so that without reference to those words which 
were added in ’54, the State Section is complete, and 
refers to all types of trespass after notice.

The City Code says, and I quote: “Every entry upon 
lands of another after notice from the owner or tenant 
prohibiting the same shall be a misdemeanor,” and 
then it goes ahead and explains the means by which 
you may give notice and establish prima facie proof. 
That notice has been given, or conclusive proof as it 
says in the ordinance.

Now, Your Honor, we submit that under the South 
Carolina case of Schramek against Walker, 152 South 
Carolina 89, 149 South Carolina, that is, 149 South­
eastern 331, the withdrawal of an invitation, whether 
expressed or implied, upon the premises of another, 
and that the direction to leave, followed by failure so 
to do, responsive to the demand, converts the initial 
entry into a trespass ah initio, and that the act of de­
manding departure under the Rule laid down in 
Schramek against Walker becomes tantamount and 
equivalent to notice not to have entered in the first 
place, once those facts are proven and those circum­
stances are made out.

Now, Your Honor, under the case of Williams v. 
Howard Johnson’s Restaurant, 269 Federal (2d) 845, 
the Court holds that the customs of the people are not 
State action within the prohibition of the Fourteenth 
Amendment, and it goes on to point out that a restau­
rant is not engaged in interstate commerce merely be­
cause in the course of its business it happens to serve 
people, maybe traveling from one state to another, and



62 SUPREME COURT
City of Rock Hill v. Arthur Hamm, Jr.

in the ease of Alpaugh against Wilbert on., 184 Virginia 
943, 36 S. E. (2d) 906, the Court holds that a propri­
etor of a restaurant is under no common law duty to 
serve everyone who applies to him. It goes on to point 
out that in the absence of statute, he may accept some 
customers and reject some others on a purely personal 
ground.

We submit that those rules are generally recognized 
as law, and would have proper bearing in this state, 
even though from Courts beyond the jurisdiction of 
this state.

The defense counsel in presenting the motion just 
heard complained that on the matter of good cause or 
good excuse, this statute invests some arbitrary, un­
reasonable power of decision within the police officer. 
The City asks him to point out that under the statute 
the power of the decision as to whether or not the per­
son charged is guilty or not guilty is left in the Court, 
and not in the arresting officer. He can do no more 
than make the arrest and bring the defendant before 
the Court for trial. I think that there is no question 
but that actually the question is one for determination 
by a jury, in a case tried by jury, and otherwise by the 
Court if the Court be the tryer of the facts; but in the 
final analysis it is a question of fact for determination 
by the Court, and not a matter for decision by the ar­
resting officer.

I would point out further that under the evidence 
in this case this arrest was not made until in the pres­
ence of a law enforcement officer the defendant had 
been requested and ordered to leave the premises of 
another on whose premises he was then, or had been 
entered, and on his refusal to do so, responsive to such 
order, there is no showing that the City arrested or 
sought to arrest anyone who was not first ordered and



SUPREME COURT 63
Appeal from York County

refused to leave, nor is there any showing that the mat­
ter of race was in any way involved in the action of 
the city. The only testimony in the record is that this 
defendant was ordered to leave. He didn’t leave, and 
he was arrested. Now, we have gotten into a lot of 
assumptions about what he might have bought before 
all of this occurred, but I submit that, if Your Honor 
will recall, that there is no testimony in the record 
other than that he sought a refund for certain articles, 
but that there is nothing in the record to show when 
he bought them, whether he had had them a year or 
ten years, or a day, or an hour.

Now, if the defendant’s counsel wants that informa­
tion in the record for consideration by the Court, I  will 
submit that they will have to go ahead and put it in by 
their own witnesses, because the City’s officers were 
not there when any purchases were made, and did not 
know when the purchases were made, and actually I 
don’t even know whether the store manager would 
know exactly when the purchases were made, certainly 
not of his own knowledge, probably.

It is therefore the position of the City that there is 
nothing in this record to indicate that the action of the 
City was in any way whatsoever based on the question 
of racial discrimination, and that had the order to 
leave not been given, this defendant would have been 
permitted to sit right there just as long as he wanted 
to, and as long as the management did not order him 
to leave; but when he was once given the order to 
leave, that then constituted a violation of law when 
committed in the presence of the police officers, which 
placed upon the officer a duty to act to prevent further 
or continued violation of law, and that, in that connec­
tion, I point out particularly, Your Honor, that the 
1960 Act, approved May 12, 1960, as Ratification No.



64 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

896, imposes the specific duty that “all police officers 
of this State and its subdivisions are hereby authorized 
and directed to enforce the provisions hereof within 
their respective jurisdiction,” and that was just what 
was being done, Your Honor.

Finally, we submit, Your Honor, that there was an 
entry responsive to an invitation either expressed or 
implied; next, that there was a withdrawal of such an 
invitation, and a demand for the defendant to leave; 
next, there was a refusal to leave responsive to such 
demand; and finally, that there is a lack of any good 
legal cause or good legal excuse, and we submit it must

254 come up to the level of legal cause or legal excuse, and 
not be any question, for refusal of the defendant to 
leave, and that that makes out a completed offense, 
and on that basis the motion should be denied.

The Court: I think that is a question of fact for the 
jury to determine.

Mr. Perry: Then there is no further reply.
The Court: All right. Off the record.
(Recess taken.)
The Court: On the record. Let’s come to order.

255 Mr. Sampson: May it please the Court, we would like 
to move the Court to call the manager of McCrory’s 
as a hostile witness.

The Court: Wait a minute, I had better wTait until 
Mr. Spencer comes back.

Mr. Spencer: If it please the Court, I  am entitled to 
inquire as to the full consideration of this request is 
to the issue now pending before this Court.

Your Honor has already stated to defense counsel 
during the course of defense counsel’s argument on the 
motion that any question having to do with cause or 
excuse for not leaving upon demand of management 
is a matter to be proven by defense witnesses, or by



SUPREME COURT 
Appeal from York County

65

the defendant. Certainly I do not see how they can 
seek to elicit from this witness testimony as to whether 
or not the defendant had just cause or excuse for any 
failure to leave upon demand, and furthermore, I  do 
not believe that they have in mind to try to disprove 
the fact that the man demand to leave was made, and 
I therefore do not follow just what basis or necessity 
there is for them to call this witness and particularly 
to call him as a hostile witness. I  will object to it for 
the reasons stated, and I ask that the right be denied 
unless defense counsel can show some proper legal 
basis upon which such request is made.

The Court: I cannot remember what this section 
does say about calling a hostile witness. I know you 
have got to declare him hostile, but I have forgotten 
how you do it.

Mr. Dunlap: You have got to lay the foundation 
there, Your Honor.

The Court: Got to lay the foundation, I know that, 
look in your Circuit Court Rules. Can you tell me off­
hand, I don’t remember, I just went into it recently, 
when can you call a hostile witness 1

Mr. Sampson: We think that the rule, and of course, 
as Mr. Dunlap said, you have got to lay a foundation, 
we believe ordinarily that a party may call a witness 
and because of something he testifies to or says, that 
he did not have any knowledge of, or so forth, that—

The Court: You can do that any time.
Mr. Sampson: But, anyhow, we take this particular 

position on this particular case, that the defendant is 
entitled to present his defense, and he can call whom­
ever he pleases, whether or not the witness is hostile 
or not, in this particular case we think that it is ger­
mane to this particular charge, since he has charged 
him under this Act here, that we show the circum-



66 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

stances and so forth for his being a business invitee,
m and how he got in there, and so forth; now, of course, 

if the City wants to take the position, which I don’t 
think he does, that this was State action, and purely 
on Captain Hunsucker’s part, that it was his own judg­
ment and everything else, that he went in there and 
yanked the man out, then we might take the position—

Mr. Perry: By reason of the very nature of the case, 
all the testimony has surrounded Mr. Whiteaker, he is 
presumed to be hostile.

The Court: I think that is right, but I can’t remem­
ber what the law says.

262 Mr. Spencer: If it please the Court, I do not think 
that they can pick somebody out and say, “This man 
is hostile, I want to call him as a hostile witness.”

Mr. Sampson: We are not picking anybody out. This 
man is germane to the arrest of this defendant.

Mr. Spencer: I think that has got to be demonstrated 
by his attitude and demeanor on the witness stand, 
if he becomes hostile then they can by proper showing, 
show that he is a hostile witness.

The Court: There is a code section that you can call
263 a person as a hostile witness for the purpose of cross 

examination. You have got to have some right to do 
it, and I want to know what the right is. I know I tried 
to do it here a while back, and the Judge said I didn’t 
have the right to do it. Of course, I thought I had the 
right to do it, but he said I didn’t.

Mr. Dunlap: I have not found it, Your Honor, but 
if you will permit me, I think the whole purpose of 
calling a person a hostile witness is to permit them to 
ask questions that they ordinarily would be only per­
mitted to ask on cross examination.

2C4
Mr. Sampson: That is right.
The Court: And not be bound by the testimony?



SUPREME COURT 
Appeal from York County

67

Mr. Dunlap: That is right. Therefore, I think that 
they have a perfect right to call the witness, but not 
call him a hostile witness in advance of testimony, and 
if in the course of the testimony it develops that he is 
hostile, then I think that they have a perfect right to 
ask Your Honor to move to permit them the right of 
cross examination.

The Court: Well—
Mr. Sampson: We thought that under the facts of 

this case, the facts that have been mentioned so many 
times, by the testimony of the State’s officers, they 
have already mentioned him and the circumstances and 
so forth, and laid a proper foundation, therefore, we 
can start out in very good faith that he is very hostile 
to us, and therefore that would allow us to ask him 
more or less what we wanted to ask him, as if he were 
under cross examination.

The Court: I recall that the section did say that you 
declare to the Court that the witness is hostile by na­
ture, that you have a right to call him as a hostile wit­
ness and ask him cross examination questions on 
direct examination. I think that is the law.

Mr. Dunlap: But they are already anticipating his 
answers. He might be, we don’t know what his answers 
are going to be.

The Court: I understand that the law gives them the 
right to call the witness. They say he is hostile by 
nature. The fact is that there is a test of it, I can’t 
remember what it is.

Mr. Sampson: We think that under the facts of this 
case so far developed, that he would be hostile by na­
ture because we have reason to believe it was because 
of the difference in race, and I am not taking the po­
sition that I believe that that alone would make him 
hostile, quite frankly I don’t say so, but in this par-



68 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

ticular case, so far as the arrest is concerned, I would 
not have it in the record anywhere that I  would say 
that a man was hostile purely because he happened to 
be of another race, we don’t believe that, that is not 
our position.

The Court: I understand that.
Mr. Sampson: Yes.
The Court: Did you find it, Mr. Spencer?
Mr. Perry: Pardon me, sir—
Mr. Spencer: We are trying to find it, Your Honor, 

if you will indulge us just a moment.
Your Honor, this is all we can find on it.
The Court: This is not the section that I referred 

to at all. Suppose we go on and call the witness.
Mr. Spencer: I would like for Your Honor to spell 

out what the procedure would be, if Your Honor is 
going to rule on the matter, if you would care to do so.

The Court: Well, I am going to permit them to ex­
amine him in the nature of cross examination at least. 
That would not preclude you from cross examining the 
witness.

Mr. Spencer: I understand that he would not be my 
witness, and I assume that I  could examine him on 
cross examination.

The Court: That is right. Possibly they may be able 
to lead him for the purpose of cross examination.

Mr. Spencer: Well, Your Honor, does that mean that 
they are entitled to examine him as to matters which 
are necessary to the issues now before this Court, that 
is the question I want to know, what our status is on 
that.

The Court: I am not going to let them go on fishing 
expeditions, if that is what you are talking about, Mr. 
Spencer.



SUPREME COURT 
Appeal from York County

69

H. C. Whiteaker
Mr. Spencer: That is exactly what I  am talking 

about, Your Honor.
The Court: Let’s stick to the issues.
Mr. Sampson: We call Mr. Whiteaker.
The Court: All right, come up and he sworn. 
(Witness sworn.)

Mr. H. C. W h itea k er , b e in g  f irs t d u ly  sw orn , w as ex­
am in ed  a n d  te s tified  as fo llo w s :

Direct Examination 
By Mr. Sampson:
Q. Your name is H. C. Whiteaker, sir?
A. Yes, sir.
Q. Where do you live, Mr. Whiteaker?
A. 552 Ascot Ridge.
Q. That is in the city of Rock Hill?
A. That is correct.
Q. How long have you been a citizen and resident of 

the city of Rock Hill?
A. About 21 y e a rs .
Q. About 21 years? And where are you currently 

employed, sir?
A. McCrory’s, J. D. McCrory’s Five and Ten Cent 

Store.
Q. Is that a part of an established chain?
A. Yes, it is.
Q. Variety chain?
A. Yes, it is.
Q. What is your position there, sir?
A. Manager.
Q. Is there anyone over you in power in Rock Hill ? 
A. No, sir.



70 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

H. C. W h itea k er

Q. Is it true, then, that what you would say as to 
the policy of that store would control the store so far 
as the citizens of Rock Hill are concerned, is that right, 
just generally!

A. Generally.
Q. All right. Now, how many departments do you 

have in your store ?
A. Around twenty.
Q. Around twenty departments!
A. Yes, sir.
Q. All right, sir, is one of these departments consid- 

s78 ered a lunch counter or establishment where food is 
served!

A. Yes, sir. That is a separate department.
Q. Oh, that is a separate department? I see. And 

how much space divides this particular department 
from another department?

A. Just an aisle.
Q. Just an aisle?
A. Yes.
Q. I see. How many departments or counters not 

279 concerned with the lunch counter, are immediately 
lined up beside the lunch counter, I assume that this 
is a lunch counter on the side of your store, how many 
counters or aisles would be along that side?

A. There are two.
Q. Two all the way up and down?
A. Yes, that’s right, beside of it.
Q. Two of them?
A. Yes, there are two of them.
Q. Now, of course, when you say twenty depart­

ments, you are including all of the counters from which 
merchandise is sold, is that right?

A. Yes, sir.



SUPREME COURT 
Appeal from York County

71

H. C. W h itea k er

Q. How many counters do you have in your store!
A. Well, I would have to count them.
Q. Well, are there 50 or 75!
A. Counters!
Q. Yes, sir, upon which merchandise is displayed!
A. I would say twenty to twenty-five.
Q. 20 to 25!
A. Yes, sir.
Q. Now, how many different items of merchandise 

do you sell in your store!
A. I have no idea.
Q. Would you estimate it to he 2,000 or 3,000 or

1,000!
A. It would be more than 3,000.
Q. More than 3,000! Is that right?
A. Yes.
Q. I see. 3,000 items, and most of these 3,000 items 

can be bought from an open display counter arrange­
ment, is that right?

A. Yes, sir.
Q. You have no partitions in your store in the walls? 

Is that right?
A. That’s right.
Q. Now, I believe, is it true that you invite mem­

bers of the public to come into your store?
A. Yes, it is for the public.
Q. And is it true, too, that the public to you means 

everybody, various races, religions, nationalities?
A. Yes, sir.
Q. The policy of your store as manager is not to 

exclude anybody from coming in and buying these 
three thousand items on account of race, nationality 
or religion, is that right?



City of Eock Hill v. Arthur Hamm, Jr.

H. C. W h itea k er

285 A. The only place where there has been exception, 
where there is an exception, is at onr lunch counter.

Q. Oh, I see. Is that a written policy you get from 
headquarters in New York?

A. No, sir.
Q. It is not. You don’t have any memorandum in 

your store that says that is a policy?
A. No, sir.
Q. Do you have any memorandum from the police 

department of the City of Eock Hill?
A. No, sir.

286 Q. I see. Now, sir, if I may ask you, what is the basis 
of ths policy as to the lunch counter; first, I want to 
know as to race, religion and nationality.

What is the basis of it?
A. Since I have been here, which is, the restaurant 

has been open nine years, we have not served a Negro 
seated at the lunch counter.

Q. You have not served a Negro seated at the lunch 
counter? All right. Of course, you don’t have any ques­
tions about religion of anybody sitting down there, do

1st you?
A. No, sir.
Q. No question about the nationality? Of the people 

sitting down there?
A. No.
Q. And is this an American Negro you are talking 

about, or anybody of a dark hue, how do you tell? 
What is your criteria for determining that somebody 
is a Negro that sits down at the lunch counter?

A. I would say by color.
m  Q. By color? All right, suppose Mr. Smith went in 

there, would you say that he is a Negro?
A. Yes, sir.

72 SUPREME COURT



SUPREME COURT 73
Appeal from York County 

H. C. W h it e a k e r

Q. Of course, you arrested the defendant, is that 
right ?

A. I did not arrest the defendant.
Q. Excuse me, I  withdraw that question. All right. 

So there is no dscrimination on raee, nationality or 
color; is there any discrimination on political belief? 
In your store?

A. Not that I ever had any occasion to know of, 
none.

Q. Is it true, then, that if, that, well, even if a man 
was quiet enough, and a Communist, that he could sit 
at your lunch counter and eat, according to the policy 
of your store right now? Whether you knew he was a 
Communist or not, so his political beliefs would not 
have anything to do with it, is that right?

A. No.
Q. Now, sir, you said that there was a policy there 

as to Negroes sitting. Am I to understand that you do 
serve Negroes or Americans who are Negroes, stand­
ing up ?

A. To take out, at the end of the counter, we serve 
take-outs, yes, sir.

Q. In other words, you have a lunch counter at the 
end of your store?

A. No, I said at the end, they can wait and get a 
package or a meal or order a coke or hamburger and 
take it out.

Q. Oh, to take out. They don’t normally eat it on the 
premises ?

A. They might, hut usually it is to take out.
Q. Did you see any of them eat food on the premises 

bought from that counter in the nine years you have 
been there?



74
City of Rock Hill v. Arthur Hamm, Jr.
________ SU PREME COURT

H. C. W hiteaker
A. I can’t recall that I have. I can’t recall that I 

have.
Q. Of course, you probably have some Negro em­

ployees in your store, in some capacity, don’t you?
A. Yes, sir.
Q. They eat on the premises, is that right?
A. Yes, sir.
Q. But not at the lunch counter?
A. No, sir.
Q. Incidentally, do you have a Negro American em­

ployed at the lunch counter? As a waitress or some­
thing of that sort? Cook?

A. I  have a cook.
Q. A cook, all right, sir, and you allow her to cook 

the meals, is that right?
A. Just cook the meals at the lunch counter.
Q. Within the premises, very much as you would 

hire a servant, Japanese or Chinese or Negro?
A. Yes.
Q. All right, now, do you ordinarily, your policy is 

to treat Negroes, say a man like Mr. Ivory here, it 
is okay to buy at the 24, no, 25 departments, selling 
3,000 items, are you counting the lunch counter items 
in that particular 3,000? You are not counting them, 
are you?

A. Well, you asked me how many items we sold, and 
I said we sold around over 3,000 items.

Q. Oh, I see, but generally speaking, you consider 
the American Negro as part of the general public, is 
that right, just generally speaking?

A. Yes, sir.
Q. You don’t have any objections for him spending 

any amount of money he wants to on these 3,000 items, 
do you?



SUPREME COURT 
Appeal from York County

75

H. C. W h itea k eb

A. That’s up to him to spend if he wants to spend,
Q. This is a custom, as I understand it, this is a cus­

tom instead of a law that causes you not to want him 
to ask for service at the lunch counter?

A. There is no law to my knowledge, it is merely a 
custom in this community.

Q. Oh, I see. By the way, is it a custom, do you ever 
cause a policeman to come into your store and arrest 
somebody in furtherance of that custom, is that a cus­
tom, too?

A. I don’t understand your question.
Q. Well, let me ask you this. Well, on this particu­

lar day of June 7, 1960, there were several Negroes in 
your store, as would normally be at twelve o’clock, 
is that right?

A. I imagine so, yes, sir.
Q. Do you know of your own knowledge whether or 

not; first, now, I believe that on this particular occa­
sion you had occasion to talk to one Reverend Ivory?

A. Yes.
Q. Do you know of your own knowledge whether or 

not he had immediately or just prior thereto made cer­
tain purchases in your store of some of these other 
3,000 items?

A. Yes, sir.
Q. So there is no doubt in your mind that he was a 

business invitee, properly within your store at this 
time and occasion, is that right?

A. He was buying in the store at that time, he had 
bought at least three items.

Q. At least three items, I  see. Now, I would like to 
ask you, Mr. Whiteaker, I think that your testimony 
indicates that Reverend Ivory was arrested on this



76 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

H. C. W hitea k er

particular day and time about when you talked to him, 
is that right?

A. What particular day?
Q. On June 7th, about 11:30, 1960.
A. Yes.
Q. Let me ask you this. Who called the police, if 

anybody, to your knowledge?
A. To my knowledge, I noticed Reverend Ivory and 

Arthur Hamm in the store, and as I said they made a 
couple of purchases, and on several previous occasions 
Arthur Hamm has sat down at the lunch counter, and 
when I saw him, at the lunch counter, I—

Mr. Sampson: May it please the Court, I realize how 
we called him, but in case of any prejudice and misun­
derstanding in this case, we want to move to strike the 
testimony as far as Arthur Hamm is concerned, as far 
as other occasions.

Mr. Spencer: If it please the Court, the witness is 
testifying as to their question, and I don’t think they 
can ask him a question and want to strike the answer.

The Court: Go ahead and let’s see.
Mr. Sampson: We will withdraw it. Go ahead and 

tell me who called the policeman on this day.
A. They had sat down at the lunch counter, and 

were sitting at the lunch counter, and we have come 
very near having disturbances on these occasions, so 
I asked for a police officer to come into the store when­
ever that takes place, and when I saw them place them­
selves at the lunch counter, I sent for a police officer.

By Mr. Sampson:
Q. Oh, I see. As I understand, you asked the City to 

send you policemen, any time you see Negroes in your 
store?



SUPEEME COUET 
Appeal from York County

77

H, C. W h itea k er

A. I did not say that, I said that when they sat at 
my lunch counter.

Q. Yes, sir, oh, I  see. Well, now, did you observe 
whether, did you observe Eeverend Ivory at the lunch 
counter?

A. Yes, sir.
Q. Did you see him go to the lunch counter, or get 

in the vicinity between two stools?
A. Yes, sir.
Q. Now, tell me exactly what did you do as manager 

when you saw him in this area ?
A. I  went to the lunch counter, and went behind the 

lunch counter to where they had seated themselves.
Q. Yes, sir, and what else, did you start talking to 

him?
A. I came up to where they were, and Eeverend 

Ivory asked me for two cups of coffee, and I told him 
that I was sorry, but we could not serve them. He said, 
“Why can’t you serve us?” “Is it because we are un­
clean or dirty,” I believe, and I told him that I was 
sorry, that we couldn’t serve him.

Q. Did you request him to leave?
A. No, sir, not at that time.
Q. You did not request him to leave at that time?
A. I did not.
Q. Did you request him to leave at any other time?
A. I requested him to leave after Captain Hun- 

sucker and Detective Barnette were at the lunch 
counter.

Q. You requested him to leave at that time?
A. Yes, sir.
Q. Did they request you to request them to leave in 

their presence?



78
City of Rock Hill v. Arthur Hamm, Jr.
________ SUPREME COURT________

H. C. W hiteakeb
A. They did not. I asked them in their presence. We 

could not serve them.
Q. Let me ask you this quite to the point. You didn’t 

ask them to leave because of any offensive conduct on 
their part?

A. None other than if you would call it offensive 
when he seated himself at the lunch counter, knowing 
that Negroes or colored are not served there. I asked 
him to leave for that reason.

Q. So his mere coming in between the stools and 
asking you for a cup of coffee—

A. He did not come, he was placed in between two.
Q. He is in a wheel chair, much as he is now, come 

around here, Reverend Ivory, let’s see whether this 
is right. This is the defendant, right?

A. Yes.
Q. He was in this wheel chair he is in now, right?
A. Yes.
Q. So he never did sit at the counter, right?
A. He was as close to the counter as Hamm could 

place him to the counter.
Q. Did you or did you not, ask him to leave merely 

because of his race, that is why you asked him to leave, 
isn’t it?

A. I asked him to leave because we do not serve 
Negroes at the lunch counter.

Q. But that is based on his color and his race, is it 
based on his religion?

A. I didn’t say it was religion.
Q. Is it based on his nationality?
A. I did not say nationality.
Mr. Spencer: If it please the Court, I submit coun­

sel is going beyond the reasonable limits. The witness



SUPREME COURT 
Appeal from York County

79

H. C. W h itea k er

has given him a direct answer to his question, and he 
is rehashing the same thing over and over again.

The Court: He said he asked him to leave because 
they didn’t serve Negroes at the counter.

Mr. Sampson: May it please the Court, we don’t 
want to stretch it out, but I would like to get the, 
America has a large number of religions, nationalities, 
and races—

The Court: I understand that, but he has already 
answered the question.

By Mr. Sampson:
Q. Otherwise his conduct was all right!
A. Yes.
Q. As a matter of fact, he is perhaps, as you know, 

perhaps, he speaks very intelligently, doesn’t he!
A. I have only talked to him on the one occasion 

there.
Q. That one occasion!
A. Yes, one occasion.
Q. By the way, Mr. Whiteaker, to your knowledge, 

do you know whether or not this custom you speak of 
about not serving Negroes in other stores in this com­
munity, do you know anything about that! What is the 
custom or practice so far as serving Negroes at lunch 
Counters in other stores in this area, do you have any 
knowledge of that!

Mr. Spencer: If it please the Court, I can’t see the 
relevancy of what goes on in other stores with refer­
ence to this case now before this Court. I also think 
that it is not proper and that it is not relevant to the 
issues.

Mr. Sampson: Your Honor, as I understand, he is 
a hostile witness, of course, we don’t want to go too 
far in stretching on cross examination, but we think



80 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

H. C. WHITEAKER
that his testimony is that there is no law, all of the 
testimony here is that there is no law—

The Court: What was the question you asked him?
Mr. Sampson: I asked him whether or not he is 

familiar with the customs in any of the other stores 
in this city, that is all, we have talked about equal pro­
tection of the law, and so forth, we think that would 
be, in this particular business invitee—

The Court: He has already advanced that. Let’s try 
to get on with this.

By Mr. Sampson:
Q. Let me ask you one other thing, sir. You are part 

of a chain store, is that right?
A. Yes, sir, McCrory’s is a chain.
Q. Beg your pardon ?
A. McCrory’s is a chain store.
Q. How many members are there in the chain, do 

you know, in the south?
Mr. Spencer: If it please the Court, he has already 

been into that in the very front end of the argument, 
let the record be read back to so demonstrate.

The Court: I don’t see any need to go any further 
into that, Mr. Sampson.

Mr. Spencer: May it please the Court, I believe I 
inadvertently referred to counsel’s, the front end of 
his argument which should have been the front end 
of his examination, and I would like for the record to 
be corrected accordingly.

Mr. Sampson: All right, sir.
By Mr. Sampson:
Q. Let me ask you one thing. I think it will be 

proper. Is McCrory’s not one of the largest variety 
stores in the country?



SUPREME COURT 
Appeal from York County

81

H. C. W hiteakek  
R ev. C. A. I vory

A. It is not one of the largest variety stores, but it 
is rather small compared to some of the other variety 
stores.

Q. I see. Sixth place, something like that!
A. I would say about sixth place.
Mr. Sampson: That is all, Your Honor.
The Court: Do you have any questions!
Mr. Spencer: Just one moment, Your Honor. May 

it please the Court, the City has no questions. Come 
down, Mr. Whiteaker.

(The witness excused.)
The Court: Next witness.
Mr. Perry: The defense calls Reverend C. A. Ivory.
The Court: All right.
(Witness sworn.) > ' 1

R ev. C. A. I vory, being first duly sworn, was exam­
ined and testified as follows:

Direct Examination
By Mr. Perry:
Q. Reverend Ivory, I have a few questions, please, 

and will you speak distinctly so that the Court and the 
Jury can hear you!

Your name is Reverend C. A. Ivory! j
A. That is correct. , |
Q. You are a minister of the Gospel! I
A. That’s right.
Q. What is your denominational faith?
A. Presbyterian, United Presbyterian of the U. S. 

A. Church.
Q. Do you have a pastorate in Rock Hill, South 

Carolina?



82 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

R ev. C. A. I vory
A. I do have.
Q. What is your church?
A. Herman Presbyterian Church.
Q. Herman Presbyterian Church?
A. That’s right.
Q. Do you also live in Rock Hill?
A. I do.
Q. How old are you, sir?
A. 39.
Q. How long have you been living in Rock Hill, sir?
A. Approximately 12 years, since ’48.
Q. I see. Are you married, and do you have chil­

dren?
A. I am, and I do.
Q. On June 7, 1960, did you have occasion to go into 

the McCrory Five and Ten Cent Store?
A. Yes.
Q. I believe, sir, that you are a cripple?
A. That’s right.
Q. Is that correct?
A. Yes.
Q. You are confined permanently to a wheel chair?
A. I am.
Q. Did you go into McCrory’s Five and Ten Cent 

Store by yourself, that is, did you operate your wheel 
chair into McCrory’s yourself, or did you go in in the 
company of some other person?

A. Someone else assisted me.
Q. I see. Now, why did you enter McCrory’s on that 

occasion ?
A. To make some purchases of some articles that I 

needed in my work.
Q. Did you make the purchases that you went in to 

make?



SUPEEME COURT 
Appeal from York County

83

R ev. C. A. I vory
A. I did.
Q. What were those articles, please!
A. I purchased a trash can, and three packs of note­

book paper.
Q. Did you pay for them?
A. I did.
Q. Did you understand that you were welcome to do 

business in the McCrory Five and Ten Cent Store! 
Before you went in?

A. I did.
Q. Now, sir, I show you some articles and I will ask 

you whether you can identify them as the articles you 
purchased on that occasion? First of all, this article 
which I identify as a trash receptacle, and ask you if 
you can identify it?

A. Yes, I can. This is the trash can that I purchased 
at McCrory’s on the said date.

Q. Your Honor, we introduce it in evidence and ask 
leave to withdraw it at the conclusion of this trial.

The Court: All right, suppose I submit everything, 
is this all you are going to have?

Mr. Perry: Very well.
Mr. Smith: Will you hand it over and let them 

see it?
By Mr. Perry:
Q. I show you these items, and ask you whether you 

can identify them ?
A. Yes, these are the packs of paper that I bought 

on the same date.
Q. And did you pay for them?
A. Yes.
Q. Your Honor, we introduce them into evidence, 

and ask leave to withdraw them at the conclusion of 
this proceeding.



84 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

R ev . C. A. I vory

Q. I ask you, sir, what do you do with notebook 
paper of that size?

A. That is the type of paper that I use in the little 
book that I jot down notes preparatory to making out 
my sermons each week.

Q. You prepare your sermons on that paper?
A. That’s right.
Q. Reverend Ivory, when you purchased these items, 

did you receive from the sales clerk a sales slip or 
any evidence of having paid for your purchases ?

A. I did.
Q. I show you these two pieces of paper and ask you 

whether or not they are the sales slips which you re­
ceived ?

A. They are, sir.
Mr. Perry: May it please the Court, we offer them 

in evidence, and we do not ask to withdraw those.
The Court: Mr. Spencer, do you want to see these? 

Is that all? Now, we will accept the trash can and the 
three packages of notebook paper subject to with­
drawal as Defendant’s Exhibit No. 1, and a portion of 
a sales slip, one in the amount of 31  ̂ and one in the 
amount of 82  ̂ total, marked as Defendant’s Exhibit 2.

(Thereupon the items as described above were 
marked Defendant’s Exhibits 1 and 2 for identifica­
tion and received into evidence.)

By Mr. Perry:
Q. Now, Reverend Ivory, after you had made the 

purchases which you have just now described, what, 
if anything, did you then do?

A. After I had made the purchases, as I have de­
scribed them, the young fellow that was with me in the 
store, I suggested to him that we go over to the lunch



SUPBEME COUBT 
Appeal from York County

85

Bev. C. A. I vory

counter and get a cup of coffee, and a sandwich, since 
it was drawing near to the lunch hour.

Q. And you said you made that suggestion, and 
what, if anything, did you do ?

A. Well, after he agreed that we would do it, after 
he said that it would be nice, we went over to the lunch 
counter, and asked for a cup of coffee.

Q. To whom did you direct the request for service 
at the lunch counter!

A. To Mr. Whiteaker, I believe, I learned later that 
he was Mr. Whiteaker.

Q. I see. Was Mr. Whiteaker already behind the 
lunch counter when you first approached it?

A. I don’t recall, I  don’t believe he was.
Q. How long did you sit there waiting for someone 

to contact you before Mr. Whiteaker showed up!
A. Well, it was a very brief period.
Q. I see. So that no waitress came over to offer you 

service ?
A. No.
Q. And the first person who came to you was Mr. 

Whiteaker ?
A. Yes.
Q. Will you describe the conversation which ensued 

between you and Mr. Whiteaker?
A. Well, when Mr. Whiteaker came over, I asked 

him could we have a cup of coffee, please, and he stated 
that he couldn’t serve us, so I asked him why, and he 
said he didn’t care to go into that, and I asked him then 
who was he, and he said he was the manager, that he 
was Mr. Whiteaker, and I introduced myself to him, 
and he replied, “Well, yes, I know you,” something to 
that effect, so then I asked him, “Mr. Whiteaker, why 
is it that you can’t serve us, is it because that we are



86 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

R ev. C. A. I vory

dirty, because we are repugnant, or because we are 
disorderly, or is it because of the color of our skin 9”

And he said he didn’t care to discuss it, that he just 
couldn’t serve us.

Q. Now, were either of the police officers there dur­
ing this conversation?

A. They were not.
Q. When did they arrive?
A. Shortly after, during the time of our conversa­

tion, the two officers came over to the area where we 
were.

Q. I see. And when the officers arrived, did you rec­
ognize them?

A. Yes, I did. I recognized Captain Hunsucker. I 
recognized the face of the other officer, but I did not 
know his name.

Q. I see. Now, what conversation ensued between 
you and Mr. Whiteaker after Captain Hunsucker and 
the other gentleman arrived?

A. As I recall it, when these officers arrived, they 
said to me, or to us, that they were going to ask the 
manager to ask us to leave in their presence.

Q. And what, if anything, did you do or say?
A. Well, I believe, now, my memory isn’t too clear 

on this, that the request was made, I know what my 
reply was to the situation, that I asked them what had 
I done, and immediately when I asked that, Captain 
Hunsucker said, “Now, we didn’t come in here for any 
talk. Are you going to leave? If you are not going to 
leave, we are going to arrest you.”

So I said, “I would like to know, Captain, what I 
have done, so that I will know why I was asked to 
leave,” so he said, “If you are going to talk, we are 
going to put you under arrest.” So then I said to Mr.



SUPREME COURT 
Appeal from York County

87

R ev. C. A. I vory

Whiteaker, “If you will give us a refund, then we will 
leave.”

He said that they didn’t have a refund there at that 
counter, that I could get the refund at another counter 
in the store, and I asked him where was the counter, 
and before he could reply, Captain Hunsueker said 
again, “You just want to talk, you are under arrest.” 
The other officer immediately grabbed my companion 
and booted him on out of the door.

Q. Now, let me ask you this, sir, during the, first of 
all, were you dressed neatly!

A. Incidentally, I have on the same clothing that I 
had on then.

Q. Do you consider that you were clean on this oc­
casion !

A. I would like to think that I was.
Q. Do you consider that your, that you were inof­

fensive? In terms of body odor or demeanor!
A. I hope so.
Q. Was your conduct orderly?
A. I intended it to be.
Q. And was it?
A. Yes, I would say so.
Q. Were you at any time discourteous in any man­

ner to Mr. Whiteaker or to any clerk or employee in 
the McCrory Five and Ten Cent Store?

A. No, if I may just go a little beyond, I enjoyed the 
conversation I had with Mr. Whiteaker, and he gave 
no indication whatsoever that he was dissatisfied with 
my presence or the conversation that we carried on.

Q. Did you have any altercation with any customer 
who was likewise on the premises ?

A. No, I did not.



City of Rock Hill v. Arthur Hamm, Jr.

R ev. C. A. I vory

Q. I would just like to know this one further thing. 
I believe that you have already covered the fact that 
you are a minister of the Gospel. What training did 
you have for your profession?

A. Four years of college, two years in a theological 
seminary.

Q. I see.
Mr. Perry: I think that’s all, Tour Honor.
The Court: Any cross examination?
Mr. Perry: You may examine the witness.
The Court: Any cross examination?

Cross Examination
By Mr. Spencer:
Q. Mr. Ivory, you are Chairman of the local chapter 

of the National Association for the Advancement of 
Colored People, is that right?

A. That is correct.
Q. Is it not a fact that some time prior to this oc­

currence that a meeting was held at which you were 
present, in which certain arrangements were made 
with reference to boycotting this particular store in 
which you said you made these purchases?

Mr. Perry: Now, Tour Honor, objection, we object 
to that question, because it has to do with some prior 
occurrence or some public meeting which is totally un­
related to the affairs of June 7th. I think the evidence 
is quite clear as to what happened on June 7th. This 
being a criminal proceeding, we do not feel that any 
irrelevant inquiry as to any public meeting prior to 
June 7th would have any relevance on the issues in 
this case.

Mr. Spencer: May it please the Court, the witness 
has testified as to what his reasons were, why he went

88 ___________SUPREME COURT_______________



SUPREME COURT 
Appeal from York County

89

R ev. C. A. I vory

in this store on this particular date, and I am explor­
ing under cross examination the veracity of the wit­
ness in that regard, and I submit that the question I 
asked is relevant and pertinent, and will be con­
nected up.

The Court: Well, I  think it is pertinent, because of 
the nature of the defense, as preceded, as to what was 
the intent. I don’t know whether it is otherwise perti­
nent, but I will accept it for that reason.

By Mr. Spencer:
Q. Will you answer the question1?
A. What was the question?
Q. I asked you, were you not present at a meeting 

at which boycott arrangements or proceedings of some 
sort were had with reference to this McCrory store?

A. I would like for you to be more specific as to 
what arrangements took place, please.

Q. I wasn”t there, and I am asking you to be spe­
cific and tell me what the arrangements were. If I was 
there I wouldn’t need to ask you.

A. Well, the only arrangements that I can remem­
ber were some discussions as to not boycotting, but 
protesting by economic withdrawal at intervals from 
stores which segregated.

Q. And this store was one of those stores which was 
to be subjected to such economic pressure, was it not?

A. I believe that you would find that true.
Q. I am asking you, was it true, not do you believe 

it was true?
A. I state again, I believe that you will find it true.
Q. I repeat the question, and I ask you, was the eco­

nomic pressure of this group at this meeting to which 
we referred directed toward this store?



90
City of Rock Hill v. Arthur Hamm, Jr.
________ SUPREME COURT

R ev. C. A. I vory

A. I state again, unless Your Honor would say that 
I would have to give a definite answer, that I believe 
that you will find that true.

Q. May it please the Court, I am seeking to find out 
by interrogating this witness, he submits that he be­
lieves that I would find out some other way by asking, 
I ask that he be required to answer.

Mr. Sampson: Your Honor, this man is a minister, 
a Presbyterian minister, a very intelligent man, he 
says I believe you will find it so, I think he is answer­
ing it yes, whether it fits Mr. Spencer’s definition of 
how you should go and come in and out of a door, I 
don’t know, but that is intelligent answers that he is 
giving, so I don’t see any use to make an issue out 
of it.

The Court: Well, it is equivalent to a “yes” answer, 
isn’t it?

Mr. Spencer: All I  am asking is, if he says it is a 
“yes” answer, that is all I want to know, and I am try­
ing to keep him from answering by telling me I can 
find out some other way. I am trying to find out from 
him. I believe I am entitled to an answer.

The Court: Do you know of your own knowledge, 
Reverend Ivory? Please answer the question.

The Witness: May I ask you a question, Your 
Honor? The mere statement that I believe that you 
will find it so, that it was printed in the papers, the 
action that we took there, it was not secretive, I think 
that you will find some other matters pertaining to it, 
that is the only reason for giving that type of an an­
swer, and I still say that unless you order me to give 
a direct yes or no, I still contend that I am within my 
rights to say that Mr. Spencer would find, I believe 
that he would find, that that is true.



SUPREME COURT 
Appeal from York County

91

R ev. C. A. I vory

The Court: Do you want a yes or no answer, Mr. 
Spencer ?

Mr. Spencer: No, Your Honor, I don’t think it is sig­
nificant enough, if he wants to hold back that much, 
I am going to let him get away with it. The jury can 
determine what effect it is to have on this proceeding.

The Court: All right.
By Mr. Spencer:
Q. All right, Reverend Ivory, what was the period 

during which the economic boycott was to he enforced 
on McCrory’s?

A. I don’t remember any one setting a definite pe­
riod, Mr. Spencer, I don’t recall.

Q. Well, was it in effect on June 71
A. I state again that I  don’t recall the period, 

whether or not it was to he permanent or temporary.
Q. I didn’t ask you that. I  asked you was it in effect 

on June 7 f
A. I still say that I don’t think you will find any 

definite date.
Mr. Perry: May it please the Court, I respectfully 

submit that the direct testimony shows that on June 
7th that this defendant bought certain items, and he 
could not have been withholding patronage on June 
7th.

Mr. Spencer: Unless he was violating the boycott, 
Your Honor.

Mr. Perry: In which event the boycott would have 
no relevance to this proceeding.

The Court: Well, let’s see if we can’t make a little 
more speed. Do you know whether the boycott was in 
effect on June 7!

The Witness: Do I know whether it was in effect?
The Court: Yes.



92 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

R ev. C. A. I voey

og5 The Witness: No, I do not know whether it was in 
effect on that date or not.

By Mr. Spencer:
Q. All right, now, you say that on June 7th you 

went to this store for what purpose?
A. To make some purchases.
Q. And what were the purchases you went there to 

make!
A. I purchased a trash can and some notebook 

paper.
Q. And did you not go there to purchase some 

366 coffeee?
A. I didn’t go there specifically with that purpose in 

mind, no.
Q. Do you deny that you had in mind to seek serv­

ice by making a purchase at the lunch counter? When 
you entered the store?

A. I do deny that.
Q. You mean you didn’t think that up until after 

you got in there?
A. That’s right.

?67 Q. Now, is it not a fact that protests against segre­
gated lunch counter service in that store by persons 
in this area had been in progress since February 12, 
1960?

A. I believe so.
Q. And you had been familiar with those protests, 

had you not?
A. To some degree.
Q. But you are saying that on this particular oc­

casion, you did not propose to seek lunch counter serv- 
g6g ice when you went into the store ?

A. That was not my original purpose for entering 
the store.



SUPREME COURT 
Appeal from York County

93

R ev. C. A. I vory

Q. I see. Well, if it wasn’t your original purpose, 
was it any kind of purpose that you had in mind to 
do that at some time before you left the store?

A. Well, evidently, I made the purchase, I attempted 
to make the purchase before I left the store, hut it 
was not a preconceived purpose.

Q. You mean, you are telling the jury that when you 
went into the store, the only purpose you had was to 
buy this trash can and these papers, and you did not 
have any, you did not have in mind to seek lunch coun­
ter service before you came out of there f

A. That’s right.
Q. You deny that you intended to seek any service 

from the lunch counter at the time you first entered 
the premises, is that right?

A. State your question again.
Q. Do you deny that you intended to seek any serv­

ice at the lunch counter at the time that you first en­
tered the premises?

A. I had no preconceived idea, the lunch counter had 
not entered my mind when I entered the store.

Q. You never had been, never had received coffee 
there before, had you?

A. I don’t believe so.
Q. You don’t believe so, do you not know?
A. No, I never had received coffee there.
Q. All right. Had anything occurred to cause you to 

think that you would be served on this date ?
A. Well, that depends on what you mean. I had 

never been given a reason, or no one had ever told me 
directly that I wouldn’t be served coffee there, so I 
had every reason to believe that I could be served.

Q. In other words, you did believe you would get 
service by asking for it?



94
City of Rock Hill v. Arthur Hamm, Jr.
________ SUPREME COURT

R ev . C. A. I vory
A. Yes. 1 * ! ■ i
Q. I  see. And did yon know of anyone else of yonr 

race that had received service there by asking for it?
A. At the lunch counter?
Q. At that counter?
A. I had heard of one or two that had gotten some 

type of service, I don’t know what phase of it.
Q. Now, Reverend Ivory, you made some statement 

about something that the officers said to you. I ask you 
if you will repeat that, I want to be sure that I un­
derstood you correctly. When they first came up to the 
store?

A. When the officers first came up, I don’t remem­
ber, I will do the best I can. When the officers first 
came into the store, as I recall, Captain Hunsucker 
said that he was going to request the manager to ask 
us to leave in his presence.

Q. All right, now where was the manager when that 
occurred?

A. Standing behind the counter.
Q. And weren’t you engaged in a conversation with 

the manager when the officers came in, according to 
what you have already testified to ?

A. We had previously been engaged in a conver­
sation.

Q. And he was still out there?
A. He was still out there.
Q. At the time that the conversation you say took 

place, the manager was already there, wasn’t he?
A. Yes, sir, he was.
Q. Then what was, you say that the officer told you 

that he was going to ask the manager to ask you to 
leave?

A. To leave the store, in his presence.



SUPREME COURT 
Appeal from York County

95

R ev. C. A. I vory

Q. Now, had not the manager already told you that 
he would not serve you?

A. He had already told me that he would not serve 
me, that he could not serve me.

Q. And did not the manager in the presence of the 
officers ask you to leave the store?

A. In the presence of the officers, after the officer 
had requested him to do so.

Q. And now I believe when you testified to that be­
fore, you said that you believed that that was what 
happened, is that your testimony now, or are you tak­
ing direct oath that there is no doubt about it?

A. I don’t remember, and I still say I believe.
Q. You say you don’t remember?
A. I say I still believe that that was the circum­

stance surrounding it. I want to be fair about it.
Q. I want you to be fair, and I don’t want to leave 

something in the record that you don’t think belongs 
in there, and I am asking you if you are certain that 
that is what happened?

A. I still say that I believe that is what happened.
Mr. Spencer: Your Honor, I  ask that that testimony 

be stricken from the record on the grounds that this 
witness does not know and cannot testify under oath 
whether that is true or not, according to his own state­
ment.

The Court: The witness can testify that he believes 
that this is the way the situation happened. Different 
people talk different ways, and say things in different 
ways, and whereas one person might say, “I know 
this is the way it happened,” another man might say, 
“I believe this is the way it happened.” I don’t think 
that there is any—



96 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

R ev. C. A. I vory

Mr. Spencer: He said he didn’t know. Then he said, 
“I don’t know”, and then he said, ” 1  believe.”

The Court: He qualified it as not definitely known, 
by saying “I believe.”

Mr. Spencer: May it please the Court, I  will ask 
the Jury to weigh and determine it.

By Mr. Spencer:
Q. Reverend Ivory, were you not offered an oppor­

tunity to obtain a refund for your purchases at the 
quick service counter at the rear of the store before 
you were taken to the Police Station?

A. I requested, after the insistence and the seem­
ingly impatience of the officers, I requested a refund 
for the articles that I had purchased, and told Mr. 
Whiteaker that if I  would get, that if he would give 
me the refund, that I would leave the store.

Q. And didn’t he tell you that the other place at 
which they were equipped to, or could give you a re­
fund, was at the quick service counter?

A. "Well, no, he didn’t, he was not explicit, and I 
was in the process of finding out where the refund 
counter was, when the officer placed me under arrest.

Q. Were you offered an opportunity to receive a 
refund? As you were taken from the store?

A. As I reached the counter in the back of the store, 
where, incidentally, there was a cash register, Captain 
Hunsucker, who was escorting me out of the store, 
slowed down at the counter, and asked me if I still 
wanted a refund, and I replied, “No,” that I was un­
der arrest, and that I would prefer keeping the ar­
ticles as evidence of the fact that I had been served 
in the store.

Q. How much time elapsed between, you say you 
had finished your conversation with Mr. Whiteaker



SUPREME COURT 
Appeal from York County

97

R ev. C. A. I vory

before the officers arrived, how much time arrived, 
elapsed, that is, after he told you you could not be 
served, and he could not serve you, until the officers 
arrived on the scene?

A. I don’t recall, Mr. Spencer, we had a brief, and 
as I said an amicable conversation. I  was not specif­
ically keeping track of the time. I really was not cog­
nizant of how much time.

Q. Well, there was some elapsed time before the 
officers arrived?

A. There was a lapse of some time.
Q. And during that elapsed time, you had ample 

opportunity to leave the store, if you so desired? Did 
you not?

A. Well, yes, I suppose so, yes, I had time to leave.
Q. But you did not want to leave, and you did not 

leave, is that right?
A. Well, I had no reason at that particular time to 

leave. No one had voiced any displeasure at my being 
there. I was quite comfortable in the store.

Q. But you knew that you could not receive service 
and you were nevertheless remaining at the counter, 
where you could not be served, according to what you 
had been told, is that right?

A. Yes, that’s true.
Mr. Spencer: I have no further questions.
The Court: Anything further?
Mr. Perry: Nothing further, sir.
The Court: All right, next witness.
(Witness excused.)
Mr. Perry: That concludes the defendant’s case. 

Your Honor, we would ask that, we would like to raise 
some legal questions, and we would like to request a 
short recess.



98
City of Rock Hill v. Arthur Hamm, Jr.
________ SUPREME COURT

The Court: All right, let’s take a short recess. Off’
So9 the record.

(Short recess.)
The Court: On the record. Now, Mrs. Pressley, you 

don’t have to take down everything he says. Just get 
down the basic issues.

Mr. Perry: That’s quite true. I was really prompted 
to make that remark during our first motion.

The Court: Well, I didn’t know whether you wanted 
it in writing or not.

Mr. Perry: At this time, sir, we would like to move 
for a direction of verdict of not guilty for the defend-

390 ant on the same grounds which were advanced to the 
Court at the completion of the City’s case, namely 
that there has not been established by competent evi­
dence on the part of the City the corpus delicti. We 
would like a ruling on that motion at this time.

The Court: I will overrule the motion.
Mr. Perry: All right. At this time, sir, we move for 

a motion for directed verdict on the ground that the 
City had not proved a prima facie case of trespass 
against the defendant.

391 The Court: I will overrule that motion.
Mr. Perry: We now move for a directed verdict on 

the ground that the evidence shows that the, please 
indulge me for a second; this is a motion for direction 
of verdict on the ground that the evidence against the 
defendant, who is a Negro, in support of the warrant 
which charges him -with trespass under the various 
statutes and municipal ordinances which have been re­
cited to the Court, indicates that the defendant at the 
time of his arrest had accepted an invitation to enter 
and purchase articles in the store premises of Me- 
Crory’s Five and Ten Cent Store, a store open to the 
public, but that he had not been allowed to obtain



SUPREME COURT 
Appeal from York County

99

food service on the same basis as that offered white 
persons on account of his race or color, and that in 
furtherance of this racially discriminatory practice of 
the McCrorv Five and Ten Cent Store, the defendant 
was arrested on the basis of race or color, under cover 
of law, to enforce the McCrory Five and Ten Cent 
Company’s discriminatory racial policy, thereby de­
priving the defendant of his rights under the equal 
protection and due process clauses of the Fourteenth 
Amendment to the United States Constitution. That 
is the motion.

The Court: Well, I will overrule this motion also.
Mr. Perry: All right, sir. At this time the defendant 

moves for a directed verdict on the ground that the 
evidence against the defendant establishes that at the 
time of his arrest and at all times covered in the 
warrant in this matter, he was a member of the public, 
attempting to use a facility, to wit, a lunch counter at 
the McCrory Five and Ten Cent Store, which is open 
to the public, and which facility was denied to him 
solely on the ground of his race or color, that the Mc­
Crory Five and Ten Cent Company’s store was and 
is offering for a price to serve all members of the 
public with food; that with this public facility the Mc­
Crory Five and Ten Cent Store is, along with others 
of a similar nature, performing a necessary service 
for the public, which, in fact, would have to be pro­
vided by the State if McCrory’s Five and Ten Cent 
Store and other like stores were all to withdraw from 
food service.

That having determined to offer said valuable serv­
ice to the public, McCrory’s Five and Ten Cent store 
is required to provide such service in the manner of 
State-operated facilities of a like nature, to wit, that 
the McCrory Five and Ten Cent Store may not segre-



100 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

gate or exclude this defendant on the ground of his 
race or color, or in violation of his rights under the 
Fourteenth Amendment to the United States Consti­
tution.

The Court: I will overrule that motion also.
Mr. Perry: Very good, sir. Those are all our motions 

for a directed verdict.
The Court: How many arguments for the defense?
Mr. Sampson: Two, Tour Honor, one five minutes 

and one not more than twenty.
Mr. Spencer: Five and twenty, I still haven’t heard—
Mr. Sampson: Well—
Mr. Smith: Better make that ten and twenty, Your 

Honor.
Mr. Spencer: That will be time enough, we will op­

erate within those limits.
The Court: Do you want to open?
Mr. Spencer: Yes, sir, and I will also close, and 

have nothing in reply.
Mr. Perry: Isn’t that something? Do you hear that?
The Court: All right, let’s have the jury, then.
Mr. Spencer, do you have anything in reply?
Mr. Spencer: Nothing in reply.
The Court: Proceed to argue to the jury, then.
(Arguments made to the jury.)

CHARGE
The Court: Mr. Foreman and Gentlemen, you are 

the sole judges of the facts in this case, and nothing 
I might say to you now, and nothing that I may say 
during the course of the trial and the ruling that I 
might have made has anything to do with how I feel 
about the facts, because I have no legal opinion or 
opinion of my own to express to you in that regard.



Appeal from York County
SUPREM E COURT 1 0 1

You were selected yesterday after a number of 
names of registered voters in this City were pulled 
from a box, and after a process of elimination by the 
City and by the counsel for this defendant, as being 
the six men that they felt could best decide the issue 
being presented here this afternoon on this date.

Now, you don’t have any friends to reward, you 
don’t have any interest, you are interested in only 
one thing, and that is the truth of the issue being 
presented. The word “verdict” itself is derived from 
a Latin word, “veredicto”, meaning “the truth”, and 
that is what you are interested in. Now, in addition 
to being the sole judges of the facts in the ease, you 
are also the sole judges of the credibility of the wit­
nesses. By that we mean that it is up to you to say 
which witness or which witnesses or what part of the 
various witnesses’ testimony that has been conveyed 
to you with truth of this issue.

Now, just as you are the sole judges of the credi­
bility of the witnesses and the sole judges of the facts, 
the law makes me the sole judge of the law. There­
fore, you have to take the law as I give it to you, and 
apply the facts as you fmd them from this witness 
stand. You don’t have to have any specific yardstick 
to measure this credibility to determine what is the 
truth. You may take the witnesses’ demeanor on the 
witness stand. You may take his prejudice or his lack 
of prejudice, or anything that you wish to use as a 
yardstick to judge which witnesses have conveyed this 
truth to you.

Now, I am saying that the law makes me the sole 
judge of the law, and if I give you the law incorrectly, 
then someone else can correct that law, but you see 
we work in sort of a dual capacity, and yet we work 
together. I  give you the law, and you take the law as



1 0 2 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

I give it to you, and not as you think it might or ought 
to be, not as you might wish it were, but as I give it 
to you, then you apply the facts as you find them.

Now, this defendant is charged under a warrant is­
sued by the City of Rock Hill will the offense of tres­
pass. I am not going to read this warrant to you. It 
has been read to you and it has been discussed, and 
you know what is in the warrant. If you want to know 
then what is meant by trespass, what does trespass 
mean, I am going to read to you a portion of an Act 
of the General Assembly which became law on the 16th 
day of May, 1960, reading you only a portion of it, 
and that portion which applies in this particular case.

“Any person who, having entered into a place of 
business or on the premises of another person, firm, 
or corporation, and fails and refuses without good 
cause or good excuse to leave immediately upon being 
ordered or requested to do so by the person in pos­
session, or his agents or representatives, shall on con­
viction be fined not more than $1 0 0 . 0 0  or be imprisoned 
for not more than thirty days.”

Now, I have several requests to charge, several 
things that I will charge you in regard to trespass. I 
charge you in connection with trespass, or in connec­
tion with this case in general, that there is no South 
Carolina law, State or Municipal, pertaining to the 
segregation of the races at lunch counters and variety 
stores such as the one involved in this case, and that 
the policy of excluding Negroes or segregating them 
from white persons is a private custom only, without 
legal approval or disapproval.

I charge you further that a trespass is the doing of 
unlawful act, or of lawful acts in an unlawful manner, 
to the injury of another’s person or property, an un­
lawful act committed with violence, actual or implied,



SUPREME COURT
Appeal from York County

103

causing injury to the person, property, or relative 
rights of another, and an injury or misfeasance to 
the person, property or rights of another, done with 
force and violence, either actual or implied in law.

It comprehends not only forcible wrongs, but also 
acts the consequences of which make them tortious, of 
actual violence; an assault and battery is an instance; 
of implied, a peaceable but wrongful entry upon a per­
son’s land, or the wrongful remaining upon one’s prop­
erty after ordered to leave. Trespass to property is a 
crime at common law when it is accompanied by or 
tends to create a breach of the peace. When a trespass 
is attended by circumstances constituting breach of the 
peace it becomes a public offense, subject to criminal 
prosecution.

l  charge you further that any person who, having 
entered into the place of business or on the premises 
of another person, firm or corporation, fails and re­
fuses without good cause or good excuse to leave im­
mediately upon being ordered to do so by the person 
in possession or their agent or representative, is guilty 
of trespass. That is somewhat of a repetition of what 
I charged you earlier.

I charge you that the occupant of any house, store, 
or other building has the legal right to control it, and 
to admit whom he pleases to enter and remain there, 
and that while the entry by one person on the premises 
of another may be lawful by reason of express or im­
plied invitation to enter, his failure to depart on the 
request of the owner will make him guilty of trespass.

I charge you that the words “without good cause or 
without good excuse”, as used in reference to the re­
fusal of one person to leave the premises of another 
when ordered by the other in charge thereof to do so, 
are denned to mean “without good legal cause or good



104 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

legal excuse,” or in other words, the cause or excuse 
4i8 must he one valid in the eyes of the law, and under 

existing circumstances, not merely a personal cause 
or excuse of insufficient stature to have any legal force; 
and that determination of good cause or good excuse 
is a question of fact for you, gentlemen of the jury.

Now, this defendant came into this courtroom and 
entered a plea of not guilty. Therefore, the City must 
satisfy you of his guilt beyond a reasonable doubt. 
That presumption of innocence, so to speak, remains 
with him throughout the deliberations of this trial and 
throughout your deliberations in the Jury Room, and 

414 until and unless that presumption has been removed 
from your minds beyond a reasonable doubt.

Now, by reasonable doubt we mean exactly what the 
word says, not just a plain or a fanciful or an imagi­
nary doubt which you might have about anything, 
but a doubt for which you can give a reason. If you 
have a doubt for which you can give a reason as to 
the guilt or innocence of this person, then you would 
find the defendant not guilty. When you have deter­
mined the facts, and all of you must agree upon your 

4ib verdict, when you have determined the facts as you 
see them, you have applied the law as I have given 
it to you to those facts; I am going to ask you, Mr. 
Foreman and gentlemen, to take the arrest warrant 
and on the reverse side thereof, you will find down 
towards the bottom the printed words, “Jury Verdict.” 
Now, Mr. Foreman, if this jury finds this defendant 
guilty, upon the line indicated you will write the word, 
“Guilty”, and today’s date, and sign your name as 
foreman. If you find this defendant not guilty, write 
the words, “Not Guilty”, and sign your name as fore­
man, and add the date.

416



SUPREME COURT 105
Appeal from York County

And on the exhibits, the only exhibits that we have 
are these that are here in this trash can, you may 
take them with you if you wish, or you may leave them 
here, at your pleasure.

All right, Mr. Foreman, if you will, then, take the 
warrant and the exhibits, and they will show you where 
you will go, and bring us back the exhibits.

(End of Charge.)
(Jury retired to consider their verdict.)
The Court: I would like for the counsel to give me 

their attention one moment, please. Under the law of 
the State of South Carolina it is my duty at this time 
to ask if either the counsel for the City or the counsel 
for the defendant has additional requests to charge 
which they would like to pass up, or to say at this time.

Mr. Spencer: Nothing from the City, Your Honor.
Mr. Perry: Your Honor, could we have our request 

for charges Nos. 2, 3 and 4, entered into the record? 
Shall I read them out, or can we have the Court order 
them written into the record?

The Court: Well, I certainly think you have the 
right to put in the record those charges you asked 
me to charge, but I refused.

Mr. Perry: That is what I mean.
The Court: I would say that I did refuse them, be­

cause I didn’t think they went quite far enough.
Mr. Perry: I understand, sir.
The Court: In other words, I don’t necessarily find 

anything wrong with the charge as written, if you had 
added a little bit more to it.

Mr. Perry: I see.
The Court: You don’t—
Mr. Spencer: It was my view that the City would ob­

ject to Charges 2, 3, and 4 as requested by the defend­
ant.



106 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

The Court: All right.
m Mr. Perry: We anticipated that.

The Court: But I think they have the right to put 
them in the record.

Mr. Spencer: Oh, yes, no objection to them being in­
corporated in the record.

The Court: Then I take it that is agreed.
(Following are Defendant’s Requests for Charge, 

Nos. 2, 3, and 4, as referred to above.)
2. I charge you that the State of South Carolina can­

not use its power, whether it be the legislative, execu­
tive or judicial, for the purpose of aiding or furthering

422 a private plan or custom of excluding or segregating 
Negroes at lunch counters in variety stores.

3. I charge you that if you find that by arresting the 
defendant in this case, the police officers of the City 
of Rock Hill, South Carolina, were aiding or acting 
in furtherance of the store management in refusing 
service to the defendant on account of his race or color, 
you must find for the defendant.

4. I charge you that, if you find from the evidence 
the defendant was peacefully upon the premises of

425 McCrory’s 5 & 10 cent store by invitation of the man­
agement, unaccompanied by any disorderly or offen­
sive conduct, and that the management withdrew the 
invitation when the defendant entered the lunch coun­
ter area solely on the basis of the defendant’s race or 
color, that this would not be a trespass under the laws 
of the State of South Carolina, and you must find for 
the defendant.

(End of Request for Charge.)
The Court: Then I take it that there is nothing fur­

ther.
Mr. Sampson: May it please the Court, if you will in­

dulge us, we would like to make a request here based

424



SUPREME COURT 
Appeal from York County

107

on your interpretation. Under this new statute, as I 
understand the cut, you said that the defendant had 425 

the duty of showing good cause or good excuse. I 
might say in that connection that first of all, and I 
didn’t recall, the first thing, may it please the Court, 
as to this part of good excuse and so forth, that is a 
defense. I am not saying that the Court did not say 
so, but as I recall, I don’t recall any instruction that 
the burden is on the defendant to show this, but he 
doesn’t have to show it beyond a reasonable doubt, but 
rather by contrast of the evidence; in other words, it is 
the duty upon the City to show beyond a reasonable 
doubt, in this particular defense that burden is not 426 

beyond a reasonable doubt, that is normally charged; 
and another thing I would like to ask is simply this, 
sir.

This matter of arrest, if the burden is on the defend­
ant to show good cause or good excuse, I would think 
that this testimony as to him not being served, and 
“If you didn’t leave I am going to arrest you,” and 
so forth, would possibly warrant an instruction com­
monly given in arrest cases along this line, that a pri­
vate citizen has a right to inquire of an officer as to 427 

why he is being arrested. I am not totally sure on 
that, but as I understand the evidence here, the bur­
den here is on him, he is talking to this man about this, 
and the officer came up and arrested him.

Now, I think that the Court is well versed on the 
question of whether his burden, as to whether the pri­
vate citizen has a right to inquire of the officers as to 
why he is being arrested; and correspondingly, the 
police officer has a duty, and moreover it is an affirma­
tive duty, to explain or inform as to why he is being 
arrested.



108 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

Now, as I understand it, that was not done in this 
case. I am not talking about the charge, I am talking 
about when the inquiry was made by the defendant.

The Court: Yes, I think that was proper.
Mr. Sampson: Just one moment before you reply 

to that, there is one other thing that bothers me in the 
question of charge, and that is this. I don’t have the ci­
tation for this, but I  think it is general law, I wrote 
it down like this, that an arrest or an arrest or conver­
sion of the liberty of a person based purely on the color 
of the defendant, in and of itself, is in and of itself 
purely on his color, unlawful under the law in South 

480 Carolina.
Where you arrest a defendant purely because of his 

color, and no other circumstance or anything else, it 
would he unlawful, and I have in mind where segrega­
tion is stated, where you have got a policy and a reason 
given by the State to arrest this man, to say if he goes 
onto a bus, or in the case of the park, I  believe, Mr. 
Perry, where the statute clearly says that this City has 
$50,000.00, or if it would say this is required by law 
and so forth, that would be another matter, but here 

42i where it is already conceded by counsel for the City 
and quite ably by the Court, and part of this question, 
that it would be proper since the color is a matter in 
here, if it is the law, then to charge that arrest based 
purely on color in and of itself without anything else 
would he unlawful and illegal in this State, and if it 
be in order we would like to get a charge to that effect.

Mr. Spencer: If it please the Court, responsive to 
the further request to charge by defense counsel, I 
don’t know that I would take any particular issue with 
his last statement that an arrest made purely on color 
alone would not be supported, hut I submit that the 
record in this case does not warrant such a charge,



SUPREME COURT 
Appeal from York County

109

and the facts show that the arrest was made based on 
violation of the law against trespass, and that there ^  
is no, he is presupposing that race is the only reason 
involved, and I would submit that that would not be 
properly warranted or sustained by the testimony, and 
the other thing is that on the testimony as to the de­
fendant being advised, I submit that defense counsel 
is taking the version of the defendant only as to what 
occurred, and the record will clearly show that Officer 
Hunsucker affirmatively testified that he positively ad­
vised the defendant that he was arresting him for 
trespass, and would do so if he did not leave the prem­
ises. That is my clear recollection; that is what the 484 

record shows.
The Court: Well, I think the request is in the nature 

of 2, 3, and 4 of your requests, and I don’t believe I 
will charge that. However, I will charge those other 
two items if you want me to.

Mr. Sampson: I will ask you that you do so, thank 
you, Your Honor.

The Court: Ask the jury to come in.
(Jury brought in.)

435

FURTHER CHARGE
The Court: Mr. Foreman and gentlemen, I hate to 

call you back so quickly, but there are two things that 
I wanted to tell you in connection with my charge which 
I overlooked, and it was brought to my attention by 
counsel.

In charging you these two items, you are not to at­
tach any more significance to this than anything else 
I have said during the course of the charge as previous­
ly made, they are just out of order because I did not 436 

charge you; but one thing I want to charge you is that



City of Rock Hill y. Arthur Hamm, Jr.

if any person is placed under arrest, he is entitled to 
have notice of that arrest.

Now, by implication, an officer may show his war­
rant, or if he is known to the defendant, then that gives 
him notice; but simply to restrain a man who is neither 
told nor suspects the reason, is not correct.

One arresting, whether he is an officer or whether he 
might be a private individual, under those circum­
stances in which you and I as private individuals can 
make an arrest, must make it known to the defendant 
the purpose of the arrest.

Now, the particular circumstances may render it 
plain; if they do, and if in the event the defendant were 
to resist, for example, following that, the resistance 
would be—in other words, it can be rendered as though 
stated in words. However, the defendant is entitled to 
know what he is being arrested for. It is the duty of 
the officer to inform the person what he is being ar­
rested for.

Now, one other thing that I overlooked is, in reading 
this section to you, I  read you this portion which says, 
“If a person fails and refuses to leave after having 
been asked to leave, and fails and refuses to do so with­
out good cause and good excuse,” in other words it 
sort of becomes what you might say an affirmative de­
fense, it is up to the defendant to show this good cause,

However, he is not subjected to the test of showing 
that beyond a reasonable doubt, as the State is in show­
ing the elements of the crime and then making out the 
crime.

In other words, he doesn’t have to show that beyond 
a reasonable doubt, he doesn’t have to go that far.

All right, thank you, gentlemen.
(Jury retired again to consider their verdict.)

110 SUPREME COURT



SUPREME COURT 
Appeal from York County

1 1 1

The Court: You don’t have to he seated, just come 
back in for just a moment. The Foreman of the jury 
has indicated to me that there might be a question that 
he might want to ask the Court. I  would like to say to 
you, Mr. Foreman, that if it is a question of law, a 
question involving the law of the case, I  will be glad to 
help you with it, but if it is a question involving facts, 
I can’t answer the question for you. You may ask the 
question, and I will answer it if I can. If I can’t, I will 
just tell you so.

The Foreman: Well, it is a question involving the 
testimony.

The Court: Well, that would be a question of fact, 
and I couldn’t comment on that.

You might want to propound the question, and then 
I will let you go on back to your room and we will see 
if maybe then between counsel we can work it out.

The Foreman: Was the defendant, when notified that 
he would be placed under arrest, if he failed to leave, 
notified that he would be arrested for what offense?

The Court: All right. You go ahead. That is a ques­
tion of fact which I can’t comment on, but you gentle­
men go on back to the jury room, and we will come up 
with some answer and call you back.

(Jury retired to consider their verdict.)
(Jury recalled to the Courtroom.)
The Court: Mr. Foreman and gentlemen, we have 

tried to answer your question that was asked a few 
minutes ago. I want to say that there is testimony from 
the City that the defendant was informed that he was 
being charged wih trespass at the time of the arrest, 
and there is testimony from the defendant that he was 
not informed of what he was charged with when he 
was arrested, and therefore it leaves to you the ques-



1 1 2 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

tion of fact, a question that you will have to judge from 
the witnesses’ testimony.

(Jury retired again to consider their verdict.)
(Jury recalled to courtroom.)
The Court: The Court will come to order. The City 

of Bock Hill v. Reverend C. A. Ivory, offense trespass. 
The jury verdict: “We find the defendant guilty. 
George W. Mozingo, Jr., Foreman,” dated today.

Mr. Foreman and gentlemen, is this your verdict, so 
say you all?

Answer: (By the Jury) Yes.
The Court: On behalf of the City of Rock Hill and 

this defendant, I  want to thank you for your attend­
ance on this trial, and I appreciate your kind considera­
tion which you have given to this Court, and Counsel 
for the City and Counsel for the Defendant and the 
various witnesses who have testified. You have been 
very patient. There isn’t any pay attached to this job, 
and as I often tell jurors, as taxpayers you would end 
up paying it anyway, so I don’t guess it makes much 
difference.

You may stay as long as you wish, or you may leave 
any time you so wish.

Mr. Perry: May it please the Court, I  am awfully 
sorry, I didn’t intend to interfere with your departure.

The Foreman: That’s all right.
Mr. Perry: May it please the Court, the defendant at 

this time moves for arrested judgment, or in the al­
ternative, for a new trial.

Now, I would like to indicate here that this motion 
for arrest of judgment, or in the alternative, for a new 
trial, is based upon all motions and all grounds for 
direction of verdict which were urged to the Court at 
the conclusion of the defense case. I  would like to re­
quest that they be repeated in the record verbatim as



SUPREME COURT 
Appeal from York County

113

they were made at that time. This time, however, un­
der the guise of a motion for arrested judgment, or in 
the alternative, for a new trial. I think that I will save 
some time by doing it that way, rather than at this 
time myself repeating them in the record.

The Court: All right, sir.
Mr. Perry: At this time, sir, we would like to move 

for arrest of judgment, or, in the alternative, for a 
new trial on the same grounds that were advanced to 
the Court at the completion of the City’s case, namely, 
that there has not been established by competent evi­
dence on the part of the City the corpus delicti.

We move for arrest of judgment, or in the alterna­
tive, for a new trial on the ground that the City had 
not proved a prima facie case of trespass against the 
defendant.

We now move for arrest of judgment, or, in the al­
ternative, for a new trial, on the ground that the evi­
dence shows that, the evidence against the defendant, 
who is a Negro, in support of the warrant which 
charges him with trespass under the various statutes 
and municipal ordinances which have been recited to 
the Court, indicates that the defendant at the time of 
his arrest had accepted an invitation to enter and pur­
chase articles in the store premises of McCrary’s Five 
and Ten Cent Store, a store open to the public, but 
that he had not been allowed to obtain food service on 
the same basis as that offered white persons on ac­
count of his race or color, and that in furtherance of 
this racially discriminatory practice of the McCrary 
Five and Ten Cent Store, the defendant was arrested 
on the basis of race or color, under cover of law, to 
enforce the McCrary Five and Ten Cent Company’s 
discriminatory racial policy, thereby depriving the de­
fendant of his rights under the equal protection and



114 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

due process clauses of the Fourteenth Amendment to 
the United States Constitution.

At this time the defendant moves for arrest of judg­
ment, or in the alternative, a new trial, on the ground 
that the evidence against the defendant establishes that 
at the time of his arrest and at all times covered in the 
warrant in this matter, he was a member of the public, 
attempting to use a facility, to wit, a lunch counter at 
the McCrary Five and Ten Cent Store, which is open 
to the public, and which facility was denied to bim 
solely on the ground of his race or color, that the Mc­
Crary Five and Ten Cent Company’s store was and is 
offering for a price to serve all members of the pub­
lic with food; that with this public facility the Mc­
Crary Five and Ten Cent Store is, along with others of 
a similar nature, performing a necessary service for 
the public, which, in fact, would have to be provided 
by the State if McCrary’s Five and Ten Cent Store 
and other like stores were all to withdraw from food 
service.

That having determined to offer said valuable serv­
ice to the public, McCrary’s Five and Ten Cent Store 
is required to provide such service in the manner of 
State-operated facilities, of a like nature, to wit, that 
the McCrary Five and Ten Cent Store may not segre­
gate or exclude this defendant on the ground of his 
race or color, or in violation of his rights under the 
Fourteenth Amendment to the United States Constitu­
tion.

The Court: All right, I will overrule the motions.
Mr. Perry: All right, sir.
I would also like to move for an arrest of judgment, 

or in the alternative, for a new trial, on the ground that 
the Court erred in refusing to charge the jury in ac­
cordance with the defendant’s requests for charges



SUPREME COURT 
Appeal from York County

115

Nos. 2, 3, and 4, all of which charges have been ordered 
reproduced in the record by the Court.

The Court: Okay. I  overrule that motion also. Is 
there anything further?

Mr. Perry: At this time, may it please the Court, the 
defendant notes a Notice of Intention to Appeal ver­
bally, and we state to the Court that we will tender 
written notice of intention to appeal, together with 
exceptions, within the statutory period. We ask that 
the Court set an appeal bond.

The Court: According to our arrangements before, 
you would have until, of course you can have until 
eight o’clock tomorrow night anyway. 461

Mr. Spencer: To mail it.
The Court: Well, yes, to mail it, to get it in the mail.
Mr. Perry: Very good, sir.
The Court: Is that fair enough, sir?
Mr. Perry: That’s fair enough, sir.
The Court: Is there anything you want to say, any­

thing further in connection with this before sentencing 
of the defendant?

Mr. Perry: I can think of nothing further, sir, but 
Your Honor is able to observe that he is a paralytic, m 
and he is a minister of the Gospel, and most ministers 
are not very well paid, and I hope that Your Honor will 
take into consideration these factors in passing sen­
tence upon him.

Mr. Spencer: May it please the Court, I feel that it 
is incumbent upon me to point out on the part of the 
City, that it is the view of the City that the defendant 
has been found guilty by this jury of willfully and 
unlawfully committing a trespass, which means that 
he has done so knowingly and with purpose and intent, 
and I submit, Your Honor, that he, in view of every­
thing that has gone on, that I feel sure that this defend-



116
City of Rock Hill v. Arthur Hamm, Jr.
________ SUPREME COURT_______

ant well knew what would he the consequences of his 
act, and that as was just stated by defense counsel in 
argument to the jury, that if they found this defend­
ant guilty, that that doesn’t mean he is going to stop, 
that he is going to keep on again, I submit that that 
sort of attitude does not warrant mitigation, and ask 
the Court to impose maximum fine.

The Court: All right, I fine the defendant, Reverend 
C. A. Ivory, $100.00, or be confined in the City Jail or 
in the public works for such works as he may be able 
to perform for York County, South Carolina, for a 
term of thirty (30) days.

Your appeal bond will be $200.00.
Mr. Perry: All right, sir.
(Whereupon, at eight o’clock p. m. on June 29, 1960, 

the trial in the above-entitled matter was closed.)

SECTION 19-12 CODE OF LAWS OF CITY 
OF ROCK HILL

Chapter 19. Section 12. Entry on lands of another 
after notice prohibiting same.

Every entry upon the lands of another, after notice 
from the owner or tenant prohibiting the same, shall 
be a misdemeanor. Whenever any owner or tenant of 
any lands shall post a notice in four conspicuous places 
on the border of any land prohibiting entry thereon, 
and shall publish once a week for four consecutive 
weeks such notice in any newspaper circulating in the 
county where such lands situate, a proof of the posting 
and publishing of such notice within twelve months 
prior to the entry shall be deemed and taken as notice 
conclusive against the person making entry as afore­
said for hunting and fishing.



SUPREME COURT 
Appeal from York County

117

ORDER AFFIRMING CONVICTIONS
466

This Court now has before it for consideration a 
total of seventy-one cases which were heard by the Re­
corder’s Court for the City of Rock Hill. The convic­
tions of all defendants were in due time appealed to 
this Court and heard together by this Court on an 
agreed Transcript of Record. By occurrence and 
charge the eases are grouped as follows:

1. Sixty-five breach of peace charges, upon the pub­
lic streets at City Hall, on March 15, 1960.

2. Three breach of peace charges, upon the public 
streets at Tollison-Neal Drug Store, on February 23, 466 
1961.

3. One Trespass charge within McCrory’s variety 
store, on April 1, 1960, before enactment of the 1960 
Trespass Act (No. 743).

4. Two Trespass charges, within McCrory’s variety 
store on June 7,1960, after enactment of the 1960 Tres­
pass Act.

An examination of the Transcript of Record on Ap­
peal discloses no real distinction between the first 
sixty breach of peace cases at City Hall, the next five 467 
on the same day at the same place only a short time 
later, and the three breach of peace cases on the pub­
lic streets at Tollison-Neal Drug Store. In all of these 
cases it appears from the record that the public peace 
was endangered, that the defendants were properly 
forewarned by a police officer to cease and desist from 
further demonstrations at that time and place, and 
move on, which they failed and refused to do, despite 
allowance of ample time within which to have com­
plied with the order, and that thereafter they were ar­
rested and charged with breach of peace as contin­
uance of their activities under the circumstances then



118 SUPREME COURT 
City of Rock Hill v. Arthur Hamm, Jr.

existing, as shown by the record, constituted open de­
fiance of proper and reasonable orders of a police of­
ficer and tended with sufficient directness to breach the 
public peace.

The offense charged in each of the sixty-eight breach 
of peace cases is clearly made out under the facts 
shown by the Transcript of Record and the law of 
force in this state, particularly as the law is shown by 
the recent decision of the South Carolina Supreme 
Court in the case of State v. Edwards et al., Opinion 
No. 17853, filed December 5, 1961.

In like manner this Court finds no distinguishing 
features between the one trespass case, which occurred 
at one time and place and the two later trespass cases 
at the same place. In all three cases each defendant was 
asked to leave the premises by the Manager of the 
store, this occurred in the presence of a City police 
officer, who then himself requested each defendant to 
leave and explained that arrest would follow upon 
failure to leave. After each defendant failed to leave 
the private premises involved, following allowance of 
a reasonable opportunity after request so to do, first 
by the Manager and then by the police officer, each de­
fendant was arrested and charged with trespass. Here 
again, under the facts disclosed in the record and the 
law of force in this state, the charge of trespass is 
properly made out as to each defendant. See City of 
Greenville v. Peterson et al, S. C. Supreme Court 
Opinion No. 17845, filed November 10, 1961, and City 
of Charleston v. Mitchell et al., S. C. Supreme Court 
Opinion No. 17856, filed December 13, 1961.

A number of specific legal questions were raised by 
the Defendants, including particularly a question as to 
adequacy and sufficiency of the warrants and whether 
or not the Defendants were properly advised of the



SUPREME COURT 
Appeal from York County

119

charges pending against them. An examination of the 
warrants discloses that in each case the facts constitut­
ing the offense charged were stated with reasonable 
and sufficient particularity. It is the opinion of this 
Court that the various legal objections raised in the 
Court below, which are not set forth in detail herein, 
were properly overruled. See State v. Randolph et al., 
239 S. C. 79, 121 S. E. (2d) 349, filed August 23, 1961, 
other authorities cited herein, and other applicable de­
cisions of our Courts referred to in the cited authori­
ties.

Accordingly, it is hereby ordered and decreed that 
the convictions by the Recorder’s Court of the City of 
Rock Hill in all of the seventy-one cases under appeal 
are hereby affirmed, and each of the cases is remanded 
for execution of sentence as originally imposed.

This Court takes note, from published reports, of the 
untimely death of the Defendant, Rev. C. A. Ivory, 
since hearing of the appeals herein and before render­
ing judgment thereon.

All of which is duly ordered.
George T. Gregory, J r.,

Residing Judge, Sixth Judicial 
Circuit.

Chester, S. C.,
December 29, 1961.

EXCEPTIONS
1. The Court erred in refusing to require the City 

of Rock Hill to make the warrant more definite and 
certain by specifically setting forth and alleging which 
statute or ordiance it was claimed appellant had vio­
lated, in violation of Article I, Section 18, Constitution 
of the State of South Carolina and in violation of ap-



City of Rock Hill v. Arthur Hamm, Jr.

pellant’s right to due process of law, guaranteed by the 
Fourteenth Amendment to the United States Constitu­
tion.

2. The Court erred in refusing to require the City of 
Rock Hill to elect whether it would proceed under Sec­
tion 16-386, Code of Laws of South Carolina for 1952, 
Section 16-388, Code of Laws of South Carolina for 
1952, or Section 19-12, Code of Laws of the City of 
Rock Hill, in violation of Section 15-902, Code of Laws 
of South Carolina for 1952.

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 of the South Carolina Constitution.

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 
management of McCrory’s Five and Ten Cent Store 
in maintaining their policies of segregating or exclud­
ing service 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 
evidence offered against appellant, a Negro, estab­
lishes that at the time of his arrest, he was attempting 
to use a facility, the lunch counter of McCrory’s Five 
and Ten Cent Store, 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

120 SUPREME COURT



SUPREME COURT 
Appeal from York County

1 2 1

Fourteenth. Amendment to the United States Con­
stitution.

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.

D a n iel  R. M cL eod,
Attorney General,

Columbia, South Carolina, 
George F. C oleman ,

Solicitor, Sixth Judicial Circuit, 
Winnsboro, South Carolina, 

S pen cer  & S pen c er ,
Rock Hill, South Carolina, 

Attorneys for Respondent.
J e n k in s  & P erry,
Columbia, South Carolina,

By: M a tth ew  J. P erry,
D onald J ames S ampson ,
W ill is  T . S m it h , J r .,

Greenville, South Carolina, 
Attorneys for Appellant.

484