State of Louisiana v. Rev. B. Elton Cox Brief on Behalf of Defendant-Appellant and in Support of Application for Supervisory Writs

    SUPREME COURT OF LOUISIANA
Nos. 46,395 and 46,396

(CONSOLIDATED)

STATE OF LOUISIANA (46,395) 
versus

B. ELTON COX.

STATE OF LOUISIANA (46,396)
versus

B. ELTON COX.
ON WRITS OF CERTIORARI, MANDAMUS AND 

PROHIBITION.

Appeal from, and Application from, the Nineteenth 
Judicial District Court for the Parish of East 

Baton Rouge, State of Louisiana; Hon.
Fred A. Blanche, Judge.

ORIGINAL BRIEF
IN BEHALF OF DEFENDANT-APPELLANT AND IN 
SUPPORT OF APPLICATION FOR SUPERVISORY

WRITS.

COLLINS, DOUGLAS & ELIE,
2211 Dryades Street,
New Orleans 13, Louisiana; 

MURPHY W. BELL,
971 South 13th Street,
Baton Rouge, Louisiana,

Attorneys for Appellant-Relator.
Of Counsel:
CARL RACHLIN,

280 Broadway, N. Y., N. Y.

Montgomery & Co., “ The Brief Specialists” , 430 Chartres St., N. O., La.4



SUBJECT INDEX.

Page
STATEMENT OF JU RISD ICTIO N ................... 1

PRINCIPLES OF L A W ........................................ 3

STATEMENT OF F A C T S .................................... 5

SPECIFICATION OF E R R O R S .........................  8

ARGUMENT ........................................................... 9

CONCLUSION ......................................................... 62

CERTIFICATE OF SERVICE ...........................  63

INDEX OF AUTHORITIES CITED.

U. S. Constitution:

Sixth Amendment................................................ 17, 31 53
Fourteenth Amendment..........................................  3

Louisiana Constitution:

Art. 1, Sec. 1 0 ........................................................ 9, 31, 54

Art, 7, Sec. 2 ............................................................. 2

Art. 7, Sec. 10, paragraph 7 .................................  1

Statutes:

R. S. 14:100.1 ....................................................... 9,53,57

R. S. 14:103 ............................................................. 35,37



INDEX OF AUTHORITIES— (Continued)

Statutes:
Page

R. S. 14:103.1 ............................................8,35,36,37,
38, 39, 46, 49

R. S. 15:2 ................................................................ 53,54

R. S. 15:5 ....................................................... .. 53, 54

R- s. 15:227 ...................................................................9, 31,53,54

Cases:
Avery v. Georgia, 345 U. S. 559 (1953) ..........  25

Barrows v. Jackson, 346 U. S. 249 (1952 ) . . . .26, 27, 30

Bolling v. Sharpe, 347 U. S. 497 (1954) ..........  11
Brewer v. Hoxie School District, 238 F. (2d)

91 (8th Cir. 1956) ........................................  28

Brown v. Board of Education, 347 U. S. 483
(1954)   10, 15

Cantwell v. Conn., 310 U. S. 296 .......................  4

Carter v. Texas, 177 U. S. 442 ............  ............  26

Cassell v. Texas, 339 U. S. 282 .............................  26, 29

Chaplinsky v. New Hampshire, 315 U. S. 568 . . 51, 60

Cochran & Sayere v. U. S., 157 U. S. 286 ..........  57

Connally v. General Const. Co., 269 U. S. 385 . 46



Ul

Cases:

Cooper v. Aaron, 358 U. S. 1, 178 S. Ct. 1401,
3 L. Ed. (2d) 5 ............................................15, 19, 20

Dawson v. Mayor and City Council, 220 F. (2d)
386 (4th Cir. 1955) ........................................ 11

Dawson v. Mayor and City Council, 123 F. Supp.
193 (D. Md. 1954) ..........................................  11,12

Dawson v. Mayor and City Council, 350 U. S.
877 (1955) ......................................................  12

Dorsey v. State Athletic Commission, 359 U. S.
533 .....................................................................  18

Durham v. United States, 214 F. (2d) 862 (D. C.
Cir. 1954) ......................................................... 21

Edwards v. S. Carolina, -—-U. S. — , 23 U. S. Sp.
Ct. Bulletin 919, Feb. 25, 1963 ..................... 4, 45

Eubanks v. Louisiana, 356 U. S. 584 ................... 26
Ex Parte Yarbrough, 110 U. S. 651 (1884) . . . .  29
Flemming v. South Carolina Elec. & Gas Co., 224 

F. (2d) 752 (4th Cir. 1955), appeal dis­
missed 351 U. S. 901 (1956) .........................  13

Farnsworth v. United States, 232 F. (2d) 59
(D. C. Cir. 1956) ............................................  22

Garner v. Louisiana, 368 U. S. 157, 82 S. Ct.
248 ......................................................  37, 39, 47

INDEX OF AUTHORITIES— (Continued)

Page



iv

Cases: Page
Gibson v. Mississippi, 162 U. S. 565 ................... 44
Great No. Ry. v. Sunburst Oil & Ref. Co., 287

U. S. 358 (1932) ............................................... 21

Griffin v. Illinois, 351 U. S. 12 (1956) ..............  22

Hagner v. U. S., 285 U. S. 427 ...........................  57
Hill v. Texas, 316 U. S. 400 ...............................  26

Hirabayashi v. U. S., 320 U. S. 81 (1943) ..........  25

Holmes v. City of Atlanta, 350 U. S. 879 (1961) 12
Holmes v. City of Atlanta, 124 P. Supp. 290

(N. D. Ga. 1955) ............................................  12

International Harvester Co. v. Kentucky, 234
u - S. 216 ........................................................... 51, 60

Lanzetta v. New Jersey, 306 U. S. 451 ..............  46

Martin v. Struthers, 318 U. S. 1 4 1 ....................... 38

Morrison v. Davis, 252 P. (2d) 102 (5th Cir.),
cert, denied, 356 U. S. 968 (1958) ..............  14

Muir v. Louisville Park Theatrical Assn., 347
U. S. 971 (1954) ............................................  H

Musser v. Utah, 333 U. S. 9 5 ...............................  46

N.A.A.C.P. v. Alabama, 357 U. S. 449 (1958) . . 27

Pierce v. Society of Sisters, 268 U. S. 510 (1925)

INDEX OF AUTHORITIES— (Continued)

29



V

Cases:

Plessy v. Ferguson, 163 U. S. 537 (1896) .. 10,20

Rosen v. U. S., 161 U. S. 29 ....................... 57

Schenck v. U. S., 249 U. S. 4 7 ...............................  41
Schneider v. State, 308 U. S. 147 ....................... 4

Sharp v. Lucky, 252 F. (2d) 910 (5th Cir. 1958) 13

Shelly v. Kraemer, 334 U. S. 1 (1948) ...... 26

Smith v. California, 361 U. S. 1 4 7 .......................  51, 59
State v. Christine, 239 La. 259, 118 So. (2d)

403 (1960) .................................................... 47, 52, 59

State v. Clemmons, 243 La. 264, 142 S. (2d) 794 8

State v. Kraft, 214 La. 351, 37 So. (2d) 815
(1948) ...............................................................  52,59

State v. McQueen, 230 La. 55, 87 So. (2d) 757
(1955)   56

State v. Robertson, 241 La. 249, 128 So. (2d)
646 (1961) ......................................................... 34

State v. Sanford, 203 La. 961, 14 So. (2d)
778 ..................................................... 38,50,51,52,59

State v. Vanicor, 239 La. 357, 118 So. (2d) 438
(I960)   34

INDEX OF AUTHORITIES— (Continued)

Page



vi

Cases:

State v. Varnado, 208 La. 319, 23 So. (2d) 106
11!! 141 ...............................................................  33, 56

Strauder v. West Virginia, 100 U. S. 303
(1879) ............................................................15,24,25

Sweatt v. Painter, 339 U. S. 629 (1950) ............  10
Takahashi v. Fish and Game Comm., 334 U. S.

100 (1948) ....................................................... 25
Taylor v. Louisiana, 82 S. Ct. 1188 .............. 34,36,62
Thornhill v. Alabama, 310 U. S. 88 ................... 4, 39
Traux v. Raich, 239 U. S. 33 (1915) ..............  29
U. S. v. Capital Traction Co., 34 App, D. C. 592,

19 Ann. Cas. 6 6 ................................................  48
U. S. v. Cruishank, 97 U. S. 542, 23 L. Ed. 588 . . 32, 55
U. S. v. Reese, 92 U. S. 214, 23 L. Ed. 563 ..........  49
Warring v. Colpays, 122 F. (2d) 642 (D. C. Cir.),

cert, denied, 314 U. S. 678 (1941) ............... 22
Winters v. New York, 333 U. S. 507 .............. 46, 51, 59

Other Authorities:
Desegregation and the Law (1957), by Blaustein

and Ferguson ..................................................  44

Segregation and Public Recreation (1954), 40 
Va. L. Rev. 697

INDEX OF AUTHORITIES— (Continued)

Page

11



SUPREME COURT OF LOUISIANA
Nos. 46,395 and 46,396

(CONSOLIDATED)

STATE OF LOUISIANA (46,395) 
versus

B. ELTON COX.

STATE OF LOUISIANA (46,396)
versus

B. ELTON COX.
ON WRITS OF CERTIORARI, MANDAMUS AND 

PROHIBITION.

Appeal from, and Application from, the Nineteenth 
Judicial District Court for the Parish of East 

Baton Rouge, State of Louisiana; Hon.
Fred A. Blanche, Judge.

ORIGINAL BRIEF
IN BEHALF OF DEFENDANT-APPELLANT AND IN 
SUPPORT OF APPLICATION FOR SUPERVISORY

WRITS.

STATEMENT OF JURISDICTION.

This Honorable Court has jurisdiction of this 
matter by virtue of Article VII, Section 10, paragraph



2

seven, of the Louisiana Constitution, wherein it is pro­
vided :

“ The Appellate jurisdiction of the Supreme Court 
shall also extend to criminal cases on questions 
of law alone, wherever the penalty of death, or 
imprisonment at hard labor, may be imposed; or 
where a fine exceeding three hundred dollars or 
imprisonment exceeding six months has been ac­
tually imposed.”

The Criminal District Court for the Parish of 
East Baton Rouge in matter Number 42,200 (Supreme 
Court Number 46,395) appellant was sentenced to pay a 
fine of $500.00 and to serve five months in the parish 
prison and in default of payment of the fine an addi­
tional five months.

This Honorable Court has jurisdiction of this 
matter by virtue of Article VII, Section 2, of the Lou­
isiana Constitution, wherein it is provided:

“ The Supreme Court, the Court of Appeal, and 
each of the judges thereof, subject to review by 
the court of which he is a member, and each Dis­
trict Judge throughout the state including Judges 
of the Civil and Criminal District Courts in the 
Parish of Orleans, may issue Writs of Habeas 
Corpus in behalf of any person in actual cus­
tody in cases within their respective jurisdic­
tions; and may also, in aid of their respective



3

jurisdictions, original, appellate or Supervisory 
issue writs of Mandamus, Certiorari, Prohibi­
tion, Quo Warranto, and process, and where any 
of said writs are refused, the Appellate Courts 
shall indicate the reasons therefor.”

The District Court for the Parish of East Baton 
Rouge, Louisiana, in matter Number 42,202 (Supreme 
Court Number 46,396) sentenced defendant to pay a 
fine of $200.00 and to serve four months in the parish 
prison and in default of payment of the fine to impris­
onment for four months additional.

PRINCIPLES OF LAW.

All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens 
of the United States and of the state wherein they 
reside. No state shall make or enforce any law 
which shall abridge the privileges or immunities of 
citizens of the United States; nor shall any state 
deprive any person of life, liberty or property 
without due process of law; nor deny to any per­
son within its jurisdiction the equal protection of 
the laws.

Section 1, Fourteenth Amendment, U. S.
Constitution.

Freedom of speech, which is guaranteed by the First 
Amendment against abridgment by the Federal



4

Government, is also within the liberty safeguarded 
by the clue process clause of the Fourteenth Amend­
ment from invasion by the state action.

Cantwell v. Conn., 310 U. S. 296.

The streets are the natural and proper places for the 
dissemination of information and opinion; and one 
is not to have the exercise of his liberty of expres­
sion in appropriate places abridged on the plea that 
it may be exercised in some other place.

Schneider v. State, 308 U. S. H7.

It is the duty of municipal authorities, as trustees for 
the public, to keep the streets open and available 
for movement of people and property, the primary 
purpose to which the streets are dedicated; and to 
this end the conduct of those who use them may 
be regulated; but such regulation must not abridge 
the constitutional liberty of those who are right­
fully upon the streets to impart information 
through speech and picketing.

Schneider v. State, 308 U. S. 1J+1.

Freedom of speech guaranteed by the Constitution em­
braces at the least the liberty to discuss publicly 
and truthfully all matters of public concern with­
out previous restraint or fear of subsequent pun­
ishment.

Thornhill v. Alabama, 310 U. S. 88.



5

The Fourteenth Amendment does not permit a state 
to make criminal the peaceful expression of un­
popular views.

Edwards v. South Carolina., —  U. S. — , 23 
U. S. Sup. Ct. Bulletin 919 (Feb. 25, 
1963).

STATEMENT OF FACTS.

On December 14, 1961, twenty-three Negro col­
lege students were arrested while picketing several 
downtown Baton Rouge retail stores in protest of racial 
segregation.

On December 15, 1961, some one thousand five 
hundred or more (Tr. pp. 51, 77, 269, 282, 313, 316, 
355) Negro college students protested the previous day’s 
arrest of the twenty-three students. At about 12 o’clock 
noon, these students assembled at the old state capital 
and, while walking in pairs, circled the square until 
most of them had arrived. From there they went on 
North Boulevard up the west side of St. Louis Street up 
to the 200 block (Tr. p. 372), i. e., between Louisiana 
Avenue and America Streets (Tr. p. 33), opposite the 
courthouse building. At the intersection of America 
and St, Louis Streets, Rev. B. Elton Cox (Tr. pp. 99, 
100, 101) informed Chief of Police Wingate White:

“ We are here to demonstrate the cause of . . . the 
people who you have in jail who were arrested 
for picketing . . .  we are going to sing some songs, 
patriotic songs, say some prayers . . .”



6

Rev. B. Elton Cox further said his speech would 
take seven minutes, and the whole program would take 
between seventeen and twenty-five minutes. (Tr. p. 
471.) To this Chief W. White said (Tr. p. 101) “ all 
right you got seven minutes but no more.”  After tak­
ing some ten minutes (Tr. p. 104) to assemble, the 
group pledged allegiance to the flag, recited the Lord’s 
Prayer, sang a couple of songs and Rev. B. Elton Cox 
made a non-violent speech (Tr. pp. 29, 37, 44, 63, 124, 
158, 268, 302, all testimony of state’s witnesses). No 
violence occurred (Tr. pp. 20, 67, 127, 262, state’s wit­
nesses) ; the only violence was the confusion which re­
sulted from the tear gas being thrown by the police 
and the use of police dogs (Tr. pp. 93, 165). There 
were no physical acts of violence towards anyone (Tr. 
pp. 127, 262, state’s witness) ; in fact no arrests were 
made (Tr. pp. 79, 89, 96, 329). Among other things, 
Rev. B. Elton Cox said in his speech (Tr. pp. 518, 519) :

“ . . . all right. It’s lunch time. Let’s go eat. 
There are twelve stores we are protesting. A 
number of these stores have twenty counters, 
they accept your money from nineteen. They 
won’t accept it from the twentieth counter. This 
is an act of racial discrimination. These stores 
are open to the public. You are members of the 
public. We pay taxes to the Federal Govern­
ment and you who live here pay taxes to the 
state.”

And at Tr. p. 19, “ . . . so go to the designated places 
and sit until you are waited on . . .” (For a summary



7

of the speech, see Tr. pp. 272, 273, state’s witness Wil­
liam H. Daniels.) While this orderly demonstration 
(Tr. pp. 23, 44, 90, 117, 119, 124, 140, 169, 205, 237, 
319, 354, 376) was going on some 150 to 200 persons of 
the white race (Tr. pp. 36, 166) gathered on the court­
house steps on the east side of St. Louis Street. This 
was not a hostile group. (Tr. pp. 27, 28, 167.) There 
were also present some 80 or 90 policemen (Tr. pp. 
254, 312, 316, 355) who could handle any situation 
which would have arisen (Tr. pp. 327, 329, state’s wit­
ness) .

Sometime immediately before the tear gas was 
thrown, the prisoners in jail started to sing. The stu­
dents quickly responded with a jubilant cheer or yell. 
(Tr. pp. 54, 120.) The testimony is conflicting as to 
whether the speech came first on the spontaneous yell 
of the students. However, Rev. B. Elton Cox had com­
plete control over the students at all times. (Tr. pp. 35, 
38, 107, 119, 123, 124, 257, 313, 355.) Finally, Sher­
iff Bryan Clemmons said, “ . . . you have been allowed 
to demonstrate. Up until now your demonstration has 
been more or less peaceful, but what you are doing now 
is a direct violation of the law, a disturbance of the 
peace, and it has got to be broken up immediately.”  (Tr. 
p. 354.) Immediately thereupon the tear gas bombs 
were shot, and the students dispersed in confusion.

Several hours after the demonstration Rev. Cox 
was arrested at a church in Scotlandville, La., and 
charged with disturbing the peace, obstructing the side­
walk, obstructing justice and criminal conspiracy. The



8

defendant was tried in the Nineteenth Judicial District 
Court and found guilty of obstructing justice, obstruct­
ing the sidewalk and disturbing the peace. The de­
fendant was acquitted of criminal conspiracy. Two of 
these cases have previously been up to this Court on a 
writ of habeas corpus (see Nos. 46,078, 46,079), State 
v. Clemmons, 243 La. 264, 142 So. (2d) 794, wherein the 
sentences were annulled and the cases remanded to allow 
defendant the opportunity to take any procedural steps 
necessary to protect his rights. The defendant has now 
been resentenced and the two cases are here, one by 
way of appeal and the other by way of writs.

SPECIFICATION OF ERRORS.

1. The trial judge committed prejudicial error when 
he failed to declare the application of the statutes 
unconstitutional in that here the statutes were ap­
plied to deprive defendant of freedom of speech 
and expression guaranteed by the First Amend­
ment to the United States Constitution and of the 
due process and equal protection guaranteed by 
the Fourteenth Amendment to the United States 
Constitution. (Bill of Exception No. 1.)

2. The trial judge committed prejudicial error when 
he refused the motion to desegregate the courtroom. 
( Bills of Exception Nos. 2, 8 and 4. )

3. The trial judge committed prejudicial error when 
he did not hold that both L. S. A.-R. S. 14:103.1 and



9

14:100.1 were unconstitutionally vague. (Bills of 
Exception Nos. 2 and 3.)

4. The trial judge committed prejudicial error when 
he did not hold that both bills of information were 
fatally defective in violation of the Sixth Amend­
ment to the Constitution of the United States and 
in violation of Article 1, Section 10, of the Consti­
tution of the State of Louisiana, 1921, and in vio­
lation of L. S. A.-R. S. 15:227, Article 227, of the 
Code of Criminal Procedure. (Bills of Exception 
Nos. 1, 2 and 3.)

5. The trial judge committed prejudicial error in 
the disturbing the peace case, because in finding 
the defendant guilty he applied the wrong standard.

6. The trial judge committed prejudicial error when 
he refused the application for a bill of particulars, 
and when he refused the motion to quash, the mo­
tion for a new trial and the motion in arrest of 
judgment. (Bills of Exception Nos. 1, 2, 3 and 4.)

ARGUMENT.

I.
Racial Segregation in the Court Where Relator 
W as Tried and Convicted Denied Him of a Fair 
Trial in Violation of the Due Process and Equal 
Protection Clauses of the Fourteenth Amendment.

We submit that the Court must recognize that
the equal protection cases of recent years indicate that



10

it is no longer constitutional for states to require that 
members of different races use separate state facilities. 
Such practices for many years had been sustained under 
the separate but equal doctrine of Ples-sy v. Ferguson, 
163 U. S. 537 (1896). However, beginning in 1954 
with Brown v. Bd. of Education, 3k7 U. S. k83 (195k.), 
and continuing in an unbroken line of decisions, the 
Court has held that state-imposed segregation is a vio­
lation of the equal protection of the laws as guaran­
teed by the Fourteenth Amendment. The school segre­
gation cases held that in the field of public education 
the doctrine of separate but equal has no place as sep­
arate facilities are inherently unequal. In Brown the 
Court noted an earlier case decided under the old doc­
trine which held that a Negro law school was unequal 
partly on the basis of “ those qualities which are incapa­
ble of objective measurement but which make for great­
ness in a law school.” Siveatt v. Painter, 339 U. S. 629, 
63k (1950). The Court elaborated on this line of rea­
soning when it took judicial notice of modern psycho­
logical knowledge and concluded that state-imposed seg­
regation on the basis of race generated a feeling of in­
feriority and was thus harmful to the petitioning Negro 
children. In the companion case to Brown, the Court 
held segregation in the public schools of the District of 
Columbia violated the due process of law protection of 
the Fifth Amendment and spelled out the general ap­
proach that it was to take in cases involving state- 
imposed segregation when it said:



11

“ Classifications based solely upon race 
must be scrutinized with particular care, since 
they are contrary to our traditions and hence 
constitutionally suspect.”  Bolling v. Sharpe, 347 
U. S. 497, 499 (1954).

This line of reasoning which regards segregated 
facilities as inherently inferior has not been confined 
to the field of education. Since Brown the Court has 
vacated judgment in a case involving segregation in a 
theatre and remanded the case “ for consideration in 
light of the School Segregation Cases . . .” Muir v. Louis­
ville Park Theatrical Ass’n, 347 U. S. 971 (1954). This 
“ inferiority” rationale of Brown has led commentators 
to argue that all racial classification of state facilities 
is unconstitutional. See Blaustein and Ferguson, De­
segregation and the Law (1957); McKay, Segregation 
and Public Recreation, 40 Va. L. Rev. 697 (1954).

The rationale that racial distinctions are inher­
ently unequal, as contained in the Brown case, has been 
applied to other areas of state activity. In the field of 
public recreational facilities it is now law that segre­
gated facilities, despite any physical equality, violate 
the equal protection of the laws. This issue was 
squarely faced when the Courts o f Appeals reversed a 
District Court refusal to order integration of public 
beach facilities which had been grounded on the separate 
but equal doctrine. Dawson v. Mayor and City Council, 
220 F. (2d) 386 (4th Cir. 1955), rev’g 123 F. Supp. 193



12

(D. Mel. 1954.). The intermediate court based its deci­
sion on the theory that the Brown case had overruled 
the separate but equal doctrine and held:

“ It is now obvious, however, that segregation 
cannot be justified as a means to preserve the 
public peace merely because the tangible facilities 
furnished to one race are equal to those furnished 
to the other.”  {Id. at 887.)

The Court reasoned that the same inequality inherent 
in separate schools applied with equal force in the field 
of public recreation and that any separate public facili­
ties are inherently unequal. The very fact of separa­
tion on the basis of race was deemed to be violative of 
the Fourteenth Amendment.

Faced with the two conflicting theories of con­
stitutional law, the Supreme Court affirmed per curiam 
the Court of Appeals’ holding of the unconstitutionality 
of the segregated facilities. Dawson v. Mayor and City 
Council, 350 U. S. 877 (1955).

When a Federal District Court sustained a Ne­
gro’s petition for use of municipal golf courses apply­
ing the separate but equal doctrine of Plessy, the Su­
preme Court remanded with an order to modify the 
decree to make it conform to the principles enunciated 
in Broivn and Dawson. Holmes v. City of Atlanta, 350 
U. S. 879 (1961) modifying 124 F. Supp. 290 (N. D. 
Ga. 1955). The sequence of these cases clearly evidences



13

that the Court is not willing to allow the use of the 
separate but equal rationale in place of the inherently 
unequal doctrine of Brown even when the same result 
would be obtained. Similarly, the required use by Negro 
voters of separate registration offices has been held to 
be a violation of equal protection under the Fourteenth 
Amendment. Sharp v. Lucky, 252 F. (2d) 910 (5th Cir. 
1958). It clearly appears, therefore, that in cases 
closely analogous to the instant case it has been held 
unconstitutional for the state to provide separate facili­
ties to members of different races. It is illogical to say 
that the same rationale should not be applied when the 
state requires its halls of justice to be segregated. When 
segregation in other public facilities is held to violate 
the principle of equal protection only an irrational dis­
tinction could exclude public courtrooms from the scope 
of the Fourteenth Amendment.

It has also been held unconstitutional for the 
state to require segregation by race on public trans­
portation facilities. In reversing a district Court ruling 
denying jurisdiction in a suit for damages against a bus 
driver for making Negro plaintiff change his seat in 
conformity to the law on grounds that there was no 
diversity and a valid state statute, the Fourth Circuit 
construed the Brown decision as invalidating the sepa­
rate but equal doctrine by implication in the field of 
public transportation. Flemming v. South Carolina Elec, 
and Gas Co., 22h F. (2d) 752 (ith  Cir. 1955), appeal 
dismissed, 351 U. S. 901 (1956). A later suit for in­



14

junction and declaratory judgment produced the same 
result on the theory that Flemming “ plainly and fully 
disposed . . of the substantive issue of the unconsti­
tutionality of segregated transportation facilities. Mor­
rison v. Davis, 252 F. (2d) 102 (5th Cir.), cert denied, 
356 U. S. 968 (1958).

The trend and meaning of the decisions seem 
clear. The state may no longer provide separate facili­
ties to be segregated on the basis of race. The Court 
has held such racially separated facilities to be inher­
ently unequal and thus violative of the Fourteenth 
Amendment. In the case at bar the state is attempting 
to do the same thing. Here the Court is attempting 
to segregate the races in a public courtroom. Cer­
tainly the facts here of racial segregation in the public 
facility of a state courtroom are no different than the 
segregation which has already been condemned in other 
public facilities. The rationale applicable to these other 
areas applies here with even greater force, since in the 
instant case the equal protection that is being denied 
occurs within the halls of justice itself. It strikes peti­
tioners as incongruous that they may claim their right 
to ride on unsegregated transportation facilities, or to 
send their children to unsegregated schools, or to spend 
their time on unsegregated golf courses— but that they 
are denied the right to a trial free from a state-imposed 
barrier established in a courtroom.

We submit that the Court need hardly be re­
minded of the inscription which graces the structure



15

housing the Supreme Court of the land. To deny peti­
tioners their right to “ equal justice under law” would 
indeed be anomalous when the federal courts have al­
ready acted to secure the equal protection of the laws 
under the Fourteenth Amendment to members of all 
races in other areas of public facilities.

The Supreme Court from Strauder v. West Vir­
ginia, 100 U. S. 303 (1879), through Cooper v. Aaron, 
358 U. S. 1, 178 S. Ct. U01, 3 L. Ed. (2d) 5, and there­
after has recognized that segregation of the races im­
poses a status of inferiority upon Negroes. In the case 
at bar the segregation of the courtroom, under the aegis 
of the judiciary itself, was a continuing testimonial 
by the state that the two races were unequal. As was 
noted in Brown v. Board of Education, 31p7 U. S. h.83 
(1951+), the impact of segregation is greater when it is 
officially sanctioned by law. The aura of inferiority 
cast by the courtroom segregation is particularly sus­
pect in a case like the instant case where the defendant 
and all defense witnesses are Negroes. The stigma 
is critical when the defendant is a militant civil rights 
leader and was at the time o f his arrest speaking out 
against segregation.

The whole atmosphere of a courtroom and the 
procedure of a trial is designed to emphasize the neces­
sity for laying aside personal convictions and to judge 
each case on its merits. The solemn, orderly and for­
mal procedure followed in the courtroom, the respect



16

paid to the robed judge, and the basic dignity conveyed 
by the entire proceeding all aspire to this goal. Yet 
this prospect is inevitably shattered once the court is 
segregated— a situation condoned, if not directed, by 
the judge upon whom laymen rely specifically for guid­
ance. Certainly a segregated courtroom has neither 
the appearance nor substance of impartiality.

The relator herein was prejudiced by the refusal 
to desegregate the courtroom because the effect was to 
say you are not entitled, you have no right to have per­
sons of your race sit where they choose in this court. 
If this be true, then how can it be said, especially in 
criminal cases, that your relator had all of his rights 
secured to him? How can it be said objectively that he 
received the benefit of the presumption of innocence; 
that the state proved beyond a reasonable doubt the 
guilt of the accused; that the statute in question was 
strictly construed; that the white persons who testified 
for the state were not given more credence than the 
Negroes who testified for the defense, and this simply 
because they were white? The answer is that there 
must exist a reasonable doubt that when the forms of 
justice are not met, then the substance of justice can­
not be met, for the one precedes the other. The rights 
of any defendant are theoretically secured to him be­
cause of his dignity as a human being. If this dignity 
is besmirched by requiring his trial in a segregated 
courtroom, the denial of a lesser right, how can it be 
said truthfully that his greater rights were secured?



17

This question becomes profound when the defendant was 
arrested while actively speaking out against racial seg­
regation. Segregation in the courtroom cannot stand, 
because justice, like Caesar’s wife, must be above sus­
picion.

It is the basic position of relator that segregation 
in any public facility is inherently unequal and in vio­
lation of the XIY Amendment, thus when exercised in a 
court of justice is for a stronger reason violative of the 
XIV Amendment, It is further the position of relator 
that the original Brown decision has been extended not 
only to mean that segregation in public schools violates 
the equal protection clause of the XIV Amendment but 
to also mean that segregation in any public facility is a 
violation of due process. Thus appellant in being forced 
to trial in a segregated courtroom was denied a basic 
civil liberty amounting to a deprivation of due process 
of law.

We maintain that the Brown case, supra, has 
been extended to mean that separate public facilities 
for Negroes are as a matter of law a violation of their 
constitutional rights. We further maintain that when 
a defendant is tried in a criminal case before a judge 
alone and in a segregated courtroom, this, without more, 
as a matter of law denies a defendant of a fair and 
public trial and is a deprivation of defendant’s rights 
under the Fourteenth Amendment to the Constitution. 
The gist of the Brown case, supra, says:



IS

. . we conclude that in the field of public edu­
cation the doctrine of separate but equal has no 
place. Separate facilities are inherently un­
equal.” (Emphasis ours.)

The Brown case, supra, has been extended by the United 
States district courts. In Dorsey v. State Athletic Coin­
mission (1958), this was said:

“ In the School Segregation Cases, 1954, 347 U. S. 
483, 74 S. Ct, 686, 98 L. Ed. 873, the Supreme 
Court held that classification based on race is in­
herently discriminatory and violative of the 
equal protection clause of the Fourteenth Amend­
ment. This principle, originally stated with re­
spect to children in public schools, has been ap­
plied to golf courses, parks, beaches, and swim­
ming pools, and buses and streetcars. The ap­
plication of the principle does not depend purely 
upon the fact that the school or the park is pub­
licly owned, it rests on the fact that the discrim­
inatory classification is enforced by state offi­
cials or state agencies. The Supreme Court has 
consistently defined State Action as including 
action of any agency of the state at any level of 
government.”

Further on the case says:

“ The Commission relies on the argument that 
the rule and statute were adopted under the 
state police power as a necessary measure to



19

preserve peace and good order . . . The same 
argument was made in Orleans Parish School 
Board v. Bush. Judge Tuttle for the Court of 
Appeals for the 5th Circuit, rendered the argu­
ment :

“  ‘The use of the term police power works no 
magic in itself. Undeniably the States retain 
an extremely broad police power, however, as 
everyone knows, is itself limited by the pro­
tective shield of the Federal Constitution.’ ”

The holding of the Brawn case, supra, was elaborated in 
Cooper v. Aaron, 358 U. S. 1, 178 S. Ct. 14.01, 3 L. Ed. 
(2d) 5. In the Aaron case the Court reiterated the prop­
osition that segregated schools denied the student equal 
protection of the laws and also denied him due process of 
law. It is significant that in the Cooper case the School 
Board had filed a petition seeking a postponement of a 
plan for desegregation on the principal ground of ex­
treme public hostility engendered largely by the official 
actions of the governor and the Legislature o f the State 
of Arkansas. The Supreme Court held that the extreme 
situation which existed in Little Rock and the powerful 
and continued hostility of the governmental officials 
and/or ordinary citizens were not grounds for suspen­
sion of the Court’s order. The Court said:

“ The right of a student not to be segregated on 
racial grounds in schools so maintained is indeed 
so fundamental and pervasive that it is embraced 
in the concept of due process of law.”



20

Thus we see that the “ separate but equal”  doctrine of 
Plessy v. Ferguson, 163 U. S. 537, would now appear to 
have no vitality in the field of public transportation, the 
field in which the doctrine was originally announced. 
The Brown case and its history in the Supreme Court 
would appear to force the conclusion that there now 
exists a positive mandate that segregated public facili­
ties are as a matter of fact unconstitutional by virtue 
of the due process and equal protection of the laws 
clause of Section 1 of the Fourteenth Amendment to the 
Constitution of the United States. This is on the theory 
that segregated facilities are inherently unequal and 
that the forced use of them is such a deprivation of basic 
civil liberty that it amounts to a denial of due process 
of law.

The only serious arguments which have been ad­
vanced in recent years regarding the constitutionality 
of public segregation by statute or otherwise have in 
large measure had as their basis the exercise of the 
police power of the state to prevent public violence. 
This argument falls apart when one views the Court’s 
reaction to the Little Rock violence as expressed in 
Cooper v. Aaron, supra. The Court says that violence 
or fears of violence are not proper factors to be consid­
ered in determining whether or not a given segregation 
statute or custom violates the Constitution. The Su­
preme Court is thus saying that individual liberty is 
more important than some abstract concept of public 
good.



21

The above argument is particularly strong in the 
light of the following statement by the trial judge at 
pages 5 and 6 of the transcript:

“ Also let the record show that it has been the 
practice and custom in the East Baton Rouge 
Parish Courthouse for many, many years and in 
the purpose of maintaining order in the court­
room separate portions are placed in the 
courtroom for both colored and white . . .”

II.

The Possibility That Retroactive Effect Will Be 
Given to a New Ruling Should Not Deter the 
Court from Making the Ruling, for the Court 
May Provide That It Will Operate Only in 

Future Cases.
If it is thought that the ruling sought in this 

action would create a serious problem in its retroactive 
application to previously litigated cases, the Court may 
limit the operation of the decision to cases arising in 
the future. See Great No. Ry. v. Sunburst Oil & Ref. 
Co., 287 U. S. 358 (1932); Durham v. United States, 
2U  F. (2d) 862, 87J (D. C. Cir. 195 i).

In the Sunburst case Justice Cardozo held that it 
was not a denial of due process for a state court to 
limit its overruling decision to future operation. He 
concluded that the courts were not under any legal re­
straint; that the question whether to apply a ruling



22

retroactively or to limit it to future cases could be re­
solved in accordance with the juristic philosophies of 
judges in each jurisdiction.

In this absence of legal restraint, the choice be­
tween retrospective prospective application is also avail­
able to the federal courts. Compare Warring v. Colpoys, 
122 F. (2d) 61+2 (D. C. Cir.), cert, denied, 311+ U. S. 678 
(191+1), with Farnsworth v. United States, 232 F. (2d) 
59 (D. C. Cir. 1956). The Court of Appeals for the Dis­
trict of Columbia, in adopting a new insanity test in 
the Durham case, expressly limited the application of 
the new test to future cases, saying: “ (I)n adopting 
a new test, we invoke our inherent power to make the 
change prospectively.” 211+ F. (2d) at 871+.

Justice Frankfurter, concurring in the free tran­
script ruling of Griffin v. Illinois, 351 U. S. 12, 25-26
(1956), feared that retroactive operation of the ruling 
would cause a flood of litigation and, therefore, pro­
posed that the Court include an express disclaimer of 
retroactive effect in its opinion. Even though the ma­
jority did not disclaim the retroactive effect of the rul­
ing, Justice Frankfurter nevertheless concurred in the 
result. Thus, the possibility of retroactive operation 
of the ruling, with its attendant difficulties, was not 
enough to induce Justice Frankfurter to oppose the new 
ruling.

It is submitted, therefore, that the possibility of 
retroactive effect need not deter the making of a con­



23

stitutionally required ruling, for retroactivity may be 
disclaimed.

III.

Segregation in the Courtroom Violated the Con­
stitutionally Protected Rights of the Spectators, 

and Defendant Has Standing to Assert 
Those Rights.

It is a universal truth that individual and group 
predilections, prejudices and choices have existed and 
will continue. We do not complain of this per se. What 
we do complain of is that the manifestation of majority 
prejudices through the use of the full panoply of state 
power. What we do seek is not a “gift”  unwarranted 
and unmerited but a “ right” due us from those in posi­
tions of trust, warranted and merited by the same rea­
sons said rights are accorded members of the majority.

It is also a truth, not quite so universal, that 
segregation in the courts is not fair. No amount of 
legal rationalization, no matter how skillfully stated, 
will be sufficient to satisfy the mind of the most illiter­
ate, insignificant individual that courtroom segrega­
tion is fair. The great strength of the Fourteenth 
Amendment is that it prohibits use of the evil eye and 
uneven hand. That unfairness exists and should be 
proscribed is not the question.

In 1868 with the ratification of the Fourteenth 
Amendment it may be said at the very least that the



24

gods conspired to create the circumstances resulting in 
the acknowledgment, be it ever so reluctant in some 
areas, of unfairness to minorities. Nineteen hundred 
fifty-four brought a revitalization of the Fourteenth 
Amendment, a reacknowledgment of the necessity for 
enforcing its proscriptions and an answer to the ques­
tion, long pending, when should Fourteenth Amend­
ment proscriptions be enforced.

Too much emphasis cannot be given to the Four­
teenth Amendment and the jurisprudence developed 
under it. Early recognition of Negroes’ rights and the 
nature it was to take was indicated by Strauder v. West 
Virginia, 100 U. S. 303, 308 (1880), which said:

“ The very fact that colored people are . . . denied 
by statute all rights to participate in the admin­
istration of the law, as jurors, because of their 
color . . .  is . . .  a stimulant to that race preju­
dice which in an impediment to securing to indi­
viduals of that race, the equal justice which the 
law aims to secure to all others,”

And at 100 U. S. 307-308:

“ The words of the (Fourteenth) Amendment . . . 
contain a necessary implication of a . . . right, 
most valuable to the colored race . . . the right to 
exemption from . . . legal discrimination . . .”

Since 1879 the Supreme Court has condemned 
any state action which would subject Negroes to “ legal



25

discriminations implying inferiority in Civil Society.” 
Strauder v. West Virginia, 100 U. S. 303, 308 (1879). 
See also Hirabayashi v. U. S., 320 U. S. 81,100 (1943) :

“ Distinctions between citizens solely because of 
their ancestry are by their very nature odious to a 
free people whose institutions are founded on a 
doctrine of equality . .

See also Takahashi v. Fish and Game Comm., 334 U. S. 
100 (1948).

The Strauder case evidences a concern by the 
U. S. Supreme Court about insuring judicial admin­
istration which preserves to parties before the court the 
equal protection of the laws.

This the Strauder case shows by the fact that 
it did not require evidence of actual prejudice against 
defendant. Only a prima facie showing of discrimina­
tion in the selection of the jury list was required. The 
line of cases since Strauder have maintained the same 
requirement. These cases on the basis o f circumstantial 
evidence have found denial of equal protection; a fortiori, 
a denial will similarly be found where as here there 
was a denial of a motion to desegregate the courtroom.

Avery v. Georgia, 345 U. S. 559 (1953), is an 
example of the close supervision the U. S. Supreme 
Court will exercise in reviewing the process of judicial 
administration of a state tribunal. There different



26

colored slips were made out for the Negro veniremen, 
and the judge who selected the jurymen gave uncon­
tradicted testimony that he had never practiced dis­
crimination in the discharge of his duty. The Court 
held that the absence of Negro jurymen on the panel 
constituted sufficient evidence to make out a prima facie 
case of discrimination. The Court noted: “ (Obviously 
that practice makes it easier for those to discriminate 
who are of a mind to discriminate.”  345 U. S. at 562.

The Court’s concern with equal protection in 
grand jury cases is no different. See Carter v. Texas, 
177 U. S. lf.lf.2; Eubanks v. Louisiana, 356 U. S. 584; 
Cassell v. Texas, 339 U. S. 282. As Justice Jackson 
pointed out in his dissent in Cassell, what the Court was 
concerned with was not the prejudice that might result 
to the defendant, but with the judicial administration 
of the state court, with a “method of enforcing the right 
of qualified Negroes to serve on grand juries.”  339 U. S. 
at 300. As the Court in Hill v. Texas, 316 U. S. 400, 
noted:

“ No state is at liberty to impose upon one 
charged with crime a discrimination in its trial 
procedure which the Constitution, and an Act of 
Congress alike forbids.”

The rationale of close supervision of state court 
proceedings is also evidenced by the federal review of 
actions brought to enforce restrictive covenants. See
Shelly v. Kraemer, 334, U. S. 1 (1948). In Barroivs v.



27

Jackson, 346 U. S. 249 (1952), the action was at law, 
and the relief prayed for was damages for breach of 
the restrictive covenant by a white vendor. The Court 
held that the judicial enforcement which violated the 
equal protection of the laws in a court of equity applied 
as well when an action on the covenant was prosecuted 
in a law court. The Court said: “ The result of the 
Sanction by the State would be to encourage the use of 
the restrictive covenants . . ”  Id. at 254. That rationale 
is equally applicable here.

To the argument that the instant case was a mis­
demeanor, triable by the judge alone, therefore there is 
a presumption that the trial was fair, we urge that this 
presumption is a rebuttable one that was overcome by 
the fact that the Court demonstrated its inability to 
conduct a fair trial by its failure to grant the motion 
to desegregate the courtroom.

IV.

Relator Has Standing to Assert the Denial of 
Rights to Others.

Relator, while not being a spectator per se, has 
standing to assert the rights of other spectators. One 
group of cases indicated that there is standing if there 
is sufficient nexus, or identity between the party whose 
right is being asserted and the party who is before the 
court. In N.A.A.C.P. v. Alabama, 357 U. S. 449 (1958), 
the association was held to have standing to assert the



28

rights of its members, rights of freedom of speech and 
of assembly. The Court said:

“ We think that petitioner argues more appro­
priately the rights of the members, and that its 
nexus with them is sufficient to permit that it 
act as their representative before this court . . .
We reject respondent’s argument that the asso­
ciation lacks standing to assert here constitu­
tional rights pertaining to the members, who are 
not of course parties to the litigation.”  Id, at 
458-59.

The Court also said:

“ Petitioner is the appropriate party to assert 
these rights, because it and its members are in 
every practical sense identical.”

It may be wryly suggested that one reason seg­
regation is so easily enforced is because of the racial 
characteristics involved, thus in a very real sense rela­
tor cannot be said to be urging a purely personal right. 
More properly he is urging a right common to all those 
subject to the same vice by reason of the same racial 
characteristics. One need not fully rely on the denial 
of a nexus sufficiently close. Skin color is not a nexus.

However, should the cause of the vice, skin color, 
be not sufficient, witness what Brewer v. Hoxie School 
District, 238 F. (2d) 91 (8th Cir. 1956), says about the 
identity of interests necessary:



29

“ The School board having the duty to afford the 
children the equal protection of the law has the 
correlative right, as has been pointed out, to 
protection in performance of its function. Its 
right is thus intimately identified with the right 
of the children themselves. The right does not 
arise solely from the interest of the parties con­
cerned, but from the necessity of the government 
itself. Cf. Ex Parte Yarbrough, 110 U. S. 651 
(1884). Though, generally speaking, the right to 
equal protection is a personal right of an indi­
vidual, this is ‘only a rule o f practice,’ Barrow 
v. Jackson, 346 U. S. 249 (1952), which will not 
be followed where the identity of interest be­
tween the party asserting the right and the party 
in whose favor the right directly exists is suf­
ficiently close.”  Id. at 104.

Accord, Pierce v. Society of Sisters, 268 U. S. 510 
(1925) (pai ochial school asserting rights of parents 
and children), and Tranx v. Raich, 289 U. S. S3 (1915) 
(employee asserting employer’s right).

This same group of cases allowing standing on 
the basis of proximity of interest includes the grand 
jury cases where exclusion of Negroes as a class pro­
vides Negro defendants with standing to object to the 
exclusion of a class of which he is a member; e. g., Cas­
sell v. Texas, 339 U. S. 282 (1950).

Other cases indicate that a petitioner may even 
assert the rights of parties not before the Court, even



30

if there is no real identity of interests connecting the 
present and absent parties. Barrow v. Jackson, 346 
U. S. 249 (1952), allowed a white co-covenantor of a 
restrictive covenant to assert the rights of Negro pur­
chasers. The Court said:

“ Under the peculiar circumstances of this case, 
we believe the reasons which underlie our rule 
denying standing to raise another’s rights, which 
is only a rule of practice, are outweighed by the 
need to protect the fundamental rights which 
would be denied by permitting the damage ac­
tion to be maintained.” Id. at 257.

The Court added that the petitioner “will be per­
mitted to protect herself and, by so doing, close the gap 
to the use of this covenant, so universally condemned 
by the courts.” Id. at 257.

Segregation through the use of state coercive 
powers has been universally condemned by the courts. 
We respectfully submit that by permitting relator to 
assert the constitutional rights of spectators another 
gap will be closed on unconstitutional practices with 
reference to minority groups.

V.
The Bill of Information Charging Defendant 
With the Violation of 103.1 Is Fatally Defective 
Because It Fails to Inform the Defendant of the 

Nature and the Cause of the Accusation 
Against Him.



31

The bill of information reads in pertinent part:

“• • • he did under circumstances such that a 
breach of the peace could be occasioned thereby 
congregate with others in and upon a public 
street and upon public sidewalks in front of the 
courthouse in the Parish of East Baton Rouge, a 
public building, and in and around certain en­
trances of places of business and failed and re­
fused to disperse and move on when ordered to 
do so by the Sheriff of East Baton Rouge, a 
person duly authorized to enforce the laws of 
this State . . (Emphasis ours.)

Relator contends that the above bill of infor­
mation is fatally defective because it violates the Sixth 
Amendment to the Constitution of the United States; 
Article 1, Section 10, of the Constitution of the State 
of Louisiana, 1921, and L. S. A.-R. S. 15:227.

The Sixth Amendment to the Constitution of the 
United, States reads in pertinent part:

“ In all criminal prosecutions, the accused shall 
enjoy the right to . . . be informed of the nature 
and cause of the accusation . . . ”

Article 1, Section 10, of the Constitution of the 
State of Louisiana, 1921, reads in pertinent part:

“ In all criminal prosecutions the accused shall 
be informed of the nature and cause of the ac­
cusation against him. . . .”



32

L. S. A.-R. S. 15:227, Article 227, of the Code 
of Criminal Procedure reads:

“ The indictment must state every fact and cir­
cumstance necessary to constitute the offense, but 
it need do no more, and it is immaterial whether 
the language of the statute creating the offense, 
or words unequivocally conveying the meaning of 
the statute be used.” (Emphasis ours.)

Relator immediately calls the Court’s attention 
to the requirements of 15:227 that every circumstance 
constituting the crime must be included in the indict­
ment. A cursory reading of the bill of information 
proves that instead of listing every circumstance con­
stituting the crime it actually only uses the words 
“ under circumstances” without stating what particular 
circumstances were referred to.

At the very least this is a literal disparity be­
tween the requirements of the statute and the qualities 
of the bill of information.

The above bill of information does not meet the 
test of the Cruisliank case, United States v. Cruishank, 
97 U. S. 51f2, 23 L. Ed. 588, where it was said:

“ . . . The object of the indictment is, first, to 
furnish the accused with such a description of 
the charge against him as will enable him to 
make his defense, and avail himself of his con­
viction or acquittal for protection against a fur­



33

ther prosecution for the same cause; and second, 
to inform the court of the facts alleged, so that 
it may decide whether they are sufficient in law 
to support a conviction, if one should be had.
For this facts are to be stated, not conclusions 
of law alone. A crime is made up of acts and 
intent; and these must be set forth in the indict­
ment with reasonable particularity of time, place 
and circumstance.”  (Emphasis ours.)

Relator assumes arguendo that the statute may 
be sufficient to describe or legally characterize the of­
fense denounced, but it is our position that the infor­
mation is wholly insufficient to inform the accused of 
the specific offense with which he is charged. As au­
thority for this conclusion see State v. Varnado, on re­
hearing, 208 La. 319, 23 So. (2d) 106 (19H ), which, 
says:

“ It is the modern rule, universally applied by the 
courts, that in charging a statutory offense it is 
not necessary to use the exact words of the Stat­
ute. An indictment or information for such an 
offense is sufficient if it follows the language of 
the Statute substantially or charges the offense 1 
in equivalent words or others of the same import, 
if the defendant is thereby fully informed of the 
particular offense charged, and the court is en­
abled to see therefrom on what statute the charge 
is founded. . . .



34

“ The general rule . . .  is without application 
where the statutory words do not in themselves 
fully, directly and expressly, without uncer­
tainty or ambiguity, set forth all the elements 
and ingredients necessary to constitute the of­
fense intended to be punished. As the courts 
have pointed out, the words of the statute may be 
sufficient to describe or legally characterize the 
offense denounced, and yet be wholly insufficient 
to inform the accused of the specific offense of 
which he is accused . . .”  (Emphasis ours.)

We maintain that the general phraseology of 
14:103.1 does not have a commonly understood meaning 
and does not satisfy the test set out in State v. Robert­
son, 2hl La. 2Jp9, 128 So. (2d) 61>6 (1961) at 128 So. 
(2d) 61-8:

“ Under this test a statute is valid in the absence 
of detailed specification if the general phraseol­
ogy used in defining the crime has a fixed, defi­
nite, or commonly understood meaning and appli­
cation. . .

The phrase “ circumstances such that a breach of 
the peace may be occasioned” has been interpreted but 
has not been sustained by the U. S. Supreme Court. 
See Taylor v. Louisiana, 82 Sp. Ct. 1188. We say said 
phrase does not have a commonly understood meaning.

Further, the case of State v. Vanicor, 239 La. 
357, 118 So. (2d) 1̂ 38 (1960), is in point. There de­



35

fendants attacked the following portions of the statute, 
to-wit: The possession of electrical devices “ under cir­
cumstances which indicate the said possession is for the 
purpose of illegally taking commercial fish . . .” This 
Honorable Court said at 118 So. (2d) b k l:

“ The phrase ‘under circumstances which indicate 
that said possession is for the purpose of illegally 
taking commercial fish’ is too vague, general and 
uncertain in our opinion to meet constitutional 
requirements. The legislature has failed to spec­
ify what these ‘circumstances’ are. The statute 
furnishes no clear definition of the word and no 
guide or standard by which such circumstances 
can be judged. It is susceptible to many inter­
pretations. Criminal Laws are stricti juris and 
this Court has consistently refused to usurp leg­
islative prerogatives by supplying definitions 
omitted in Criminal Statutes. . . .”

L. S. A.-R. S. 14:103 specifically outlines specific 
acts which constitute disturbing the peace. Those acts 
prohibited deal with conduct which is overtly tumultu­
ous. Obviously L. S. A.-R. S. 14:103.1 is the “ catch all” 
provision, a net within which would fall all activities 
not within 14:103. Thus being a general catch all 
provision, the information must provide “ with reason­
able particularity . . . time, place and circumstance.”

Merely to charge that defendant acted “ . . . under 
circumstances such that a breach of the peace could be



36

occasioned thereby” is no more than a conclusion. The 
bill o f information must state the specific circum­
stances which could result in a breach; for example, the 
presence of two hostile and belligerent groups, the pres­
ence of armed individuals, the existence of fights, curs­
ing or pushing or the presence of a group or groups 
which in the past had disturbed the peace or finally 
exhortation to violence.

In a recent United States Supreme Court deci­
sion involving a prosecution under the same statute 
here involved— L. S. A.-R. S. 14:103.1 (Taylor v. Lou­
isiana, 82 S. Ct. 1188), the Court refused to sustain a 
conviction based on the proposition that the mere pres­
ence of Negroes in a situation involving protest of racial 
discrimination violated this statute. This the Supreme 
Court did without argument and in a per curiam deci­
sion.

All that has previously been said with reference 
to the phrase “ . . . under circumstances such that a 
breach of the peace may be occasioned thereby . . .”  may 
be applied with equal vigor and with the same conclu­
sion when applied to the other nebulous phrase in the 
statute “ . . . crowds or congregates with others.”

It is submitted that unless an allegation or alle­
gations are made in the bill of information of the spe­
cific circumstances tending to occasion a breach of the 
peace, then the mere allegation of the presence of an 
individual with others upon a public street or in front



37

of a courthouse and his refusal to move on when ordered 
to do so by the sheriff is insufficient to satisfy the 
standards of completeness required under the Louisiana 
law, the Louisiana Constitution and the Federal Con­
stitution and such bill of information is void and of no 
effect.

VI.

The Disturbing the Peace Statute (R. S. 14:103.1) 
Under Which Relator Was Convicted Is Uncon­
stitutional in Its Application If Construed as Here 
to Proscribe Freedom of Assembly, Freedom of 

Speech and Peaceful Picketing.
Mr. Justice Harlan in his concurring opinion in 

Garner v. State of Louisiana, 82 S. Ct. 21̂ 8, said:

“ . . . Louisiana could not, in my opinion, consti­
tutionally reach these petitioners conduct under 
subsection (7 )— the “ catch-all clause” -—of its 
then existing disturbance of the peace statute . . .
I intimate no view as to whether Louisiana could 
by a specifically drawn statute constitutionally 
proscribe conduct of the kind evinced in these two 
cases, or upon the constitutionality of the statute 
which the state has recently passed. . . .”

In the Garner case the defendants were charged 
with violation of Subsection (7) of L. S. A.-R. S. H :103, 
the old disturbing the peace statute. It read in perti­
nent part as follows:



38

“ Disturbing the peace is the doing of any of the 
following in such a manner as to foreseeably dis­
turb or alarm the public:

“ (7) commission of any other act in such a man­
ner as to unreasonably disturb or alarm the pub­
lic.”

We adopt the previously quoted position of Mr. 
Justice Harlan and apply it to the present facts and to 
L. S. A.-R. S. 14:103.1.

We further adopt the following remarks made by 
Mr. Justice Harlan in Gamer, where he refers to State 
v. Sanford, 203 La. 961, 1U So. (2d) 778:

“ In that case the Louisiana Supreme Court re­
versed the convictions, under the then breach of 
the peace statute, of four Jehovah’s Witnesses 
who had solicited contributions and distributed 
pamphlets in a Louisiana Town, with an opinion 
which cited, inter alia, Cantwell v. Connecticut,
310 U. S. 296, and Martin v. Struthers, 318 U. S. 
141. Reference was made to the provisions of 
the Constitution of the United States guarantee­
ing freedom of . . . Speech. 203 La. At. 968, 14 
So. (2d) At. 780. The Court said most clearly, 
‘The application of the statute by the trial judge 
to the facts of this case and his construction 
thereof would render it unconstitutional under 
the above Federal Authorities.’ 203 La. At. 970,
14 So. (2d) At. 780, 781.”



39

R. S. 14:103.1, one of the statutes under which 
relator was charged, has been construed by the state 
to make peaceful picketing illegal on the theory that it 
constitutes disturbing the peace. This statute also ex­
pressly exempts labor picketing, thus, by implication, 
coupled with the interpretation of the trial Court, ef­
fects an unconstitutional result which was and is now 
prohibited. Thornhill v. Alabama, 310 U. S. 88 (1940).

Thornhill v. Alabama held that peaceful picket­
ing was within the liberties protected by the First and 
Fourteenth Amendments. Thornhill further held that 
such interest as the state had in protecting public peace 
was not substantial enough to proscribe peaceful picket­
ing. Such interest as the State of Louisiana has in pro­
tecting the public peace is not substantial enough to 
constitutionally support the application here made of 
the statute.

Even if  it be conceded arguendo that the statute 
might be constitutionally enforced in other circum­
stances, it is not so when its enforcement limits free­
dom of expression, as here. In a concurring opinion 
in Garner v. Louisiana, 368 U. S. 157, 82 S. Ch 248, Mr. 
Justice Harlan said at 272:

“ . . . When a state seeks to subject to criminal 
sanctions conduct which, except for a demon­
strated paramount state interest, would be within 
the range of freedom of expression as assured by 
the Fourteenth Amendment, it cannot do so by



40

means of a general and all inclusive breach of 
the peace prohibition. It must bring the ac­
tivity sought to be proscribed within the ambit 
of a statute or clause ‘narrowly drawn to define 
and punish specific conduct as constituting a 
clear and present danger to a substantial inter­
est of the state.’ Cantwell v. Connecticut, supra 
310 U. S. at 311; Thornhill v. Alabama, 310 
U. S. 88, 105. And of course the interest must be 
a legitimate one. A state may not ‘suppress free 
communication of views, religious or other under 
the guise of conserving desirable conditions. 
Cantwell, supra, at 308.”

Relator here was convicted under a disturbing 
the peace statute which is a supplement to a pre-exist­
ing disturbing the peace statute. See R. S. 14:103. The 
crime which the statute created is an offense very un­
like the old misdemeanor of disturbing the peace. As 
applied here, the mere act of persons peacefully pro­
testing against racial segregation is given the dynamic 
quality of a crime. There is guilt, although there were 
no fights, riots, angry words, or molestation of the pub­
lic. Thus, in effect, the accused is to be punished not 
for an actual disturbance of the peace but for advocat­
ing an end to racial segregation.

The right of free speech is a fundamental right 
given a preferred position with relationship to the other 
freedoms guaranteed by the Constitution. This right



41

may not ordinarily be denied or abridged. But although 
the right to free speech is fundamental, it is not in its 
nature absolute. Its exercise is subject to restriction, 
if  the particular restriction proposed is required in 
order to protect the state from serious injury— political, 
economic or moral. That the necessity which is essen­
tial to a valid restriction does not exist unless speech 
would produce, or is intended to produce, a clear and 
imminent danger of some substantive evil which the 
state constitutionally may seek to prevent has been set­
tled. See Schneck v. United States, 2U9 U. S. 1̂ 7, 52.

It is the function of the Legislature to determine 
whether at a particular time and under the particular 
circumstances the intent to breach the peace or presence 
under circumstances such that a breach of the peace may 
be occasioned thereby, coupled with crowding or con­
gregating with others and refusing to move on when 
ordered to do so by police, constitutes a clear and pres­
ent danger of substantive evil. The Legislature must 
decide in the first instance whether a danger exists 
which calls for a particular protective measure. But 
where a statute is valid only in case certain conditions 
exist, the enactment of the statute cannot alone establish 
the facts which are essential to its validity.

The courts have not yet fixed the standards by 
which to determine when a danger shall be deemed 
clear; how remote the danger may be and yet be deemed 
present; and what degree of evil shall be deemed suffi­



42

ciently substantial to justify resort to abridgment of 
free speech as the means of protection. To reach sound 
conclusions on these matters it is necessary to bear in 
mind why the state is ordinarily denied the power to 
prohibit dissemination of social, economic and political 
doctrine which a vast majority of its citizens believes to 
be false and fraught with evil consequence.

Fear of serious injury cannot alone justify sup­
pression of free speech. Thus the presence of one in 
circumstances such that a breach of the peace may be 
occasioned does not qualify the state to abridge the right 
of relator to peacefully picket, nor does the imputation 
to relator o f intent to disturb the peace qualify the state 
to abridge peaceful picketing. To justify the suppres­
sion of free speech there must be reasonable ground to 
fear that serious evil will result if free speech is prac­
ticed. There must be reasonable ground to believe that 
the danger apprehended is imminent. There must be 
reasonable ground to believe that the evil to be pre­
vented is a serious one. In order to support a finding 
of clear and present danger it must be shown either 
that the immediate serious violence was to be expected 
or was advocated, or that the past conduct furnished 
reason to believe that such advocacy was then contem­
plated.

No danger flowing from speech can be deemed 
clear and present, unless the incidence of the evil ap­
prehended is so imminent that it may befall before there 
is opportunity for full discussion. Only an emergency



43

can justify repression. Moreover, even an imminent 
danger cannot justify resort to prohibition of these func­
tions essential to effective democracy unless the evil 
apprehended is relatively serious. Prohibition of free 
speech is a measure so stringent that it would be in­
appropriate as the means for averting a relatively triv­
ial harm to society. The fact that the picketing is likely 
to result in some violence or in destruction of property 
is not enough to justify its suppression. There must be 
the probability of serious injury to the state. The legis­
lative declaration that facts existed within the state 
which constituted a clear and present danger to a sub­
stantial state interest creates merely a rebuttable pre­
sumption that said conditions constitutionally exist as a 
general proposition. We submit that the evidence on 
record does not constitute facts which authorize the 
state to constitutionally abridge the right of relator to 
peacefully protest against segregation.

If a contrary conclusion were reached, then any 
time a Negi’o in Louisiana rebels, be it ever so peaceful, 
against segregation, then he violates R. S. 14:103.1. 
Every time the N.A.A.C.P. or C.O.R.E. holds a meeting 
or every time a Negro sits in a front seat of a city bus 
he may have intent to breach the peace imputed to him 
or he may be deemed to have been present in a circum­
stance whereby a breach of the peace may have been 
occasioned. For Louisiana to infect the administration 
of its criminal laws by using them to support the cus­
tom of segregation offends the salutary principle that



criminal justice must be administered “ without refer­
ence to considerations based on race.” Gibson v. Missis­
sippi, 162 U. S. 565, 591.

The above-mentioned limitations exist not be­
cause control of such activity is beyond the power of 
the state, but because sound constitutional principles 
demand of the state Legislature that it focus on the 
nature of the otherwise “ protected”  conduct it is pro­
hibiting, and that it then make a legislative judgment 
as to whether that conduct presents a so clear and 
present a danger to the welfare of the community that 
it may legitimately be criminally proscribed.

Louisiana may have made its legislative judg­
ment, but it cannot reasonably be said that attention was 
focused on otherwise protected rights. Rather than 
focus the Legislature used a buckshot approach; witness 
the bill of information in pertinent part:

“ . . . He did under circumstances such that a 
breach of the peace could be occasioned thereby 
congregate with others in and upon a public 
street and upon public sidewalks in front of the 
courthouse in the Parish of East Baton Rouge, 
a public building, and in and around certain en­
trances of places of business and failed and re­
fused to disperse and move on when ordered to 
do so by the Sheriff of East Baton Rouge, a

44



45

person duly authorized to enforce the laws of 
the state.”

On February 25, 1963, the United States Su­
preme Court in the case of Edwards, et at., v. South 
Carolina, ■—- U. S. — , 23 U. S. S. Ct. Bulletin 919, re­
versed convictions of some 187 Negroes who had been 
found guilty of breach of the peace because they con­
ducted a demonstration against racial discrimination 
on the South Carolina State House grounds. The facts 
in this most recent case are very much similar to the 
facts herein. In Edwards this was said:

“ These petitioners were convicted of an offense 
so generalized as to be, in the words of the South 
Carolina Supreme Court, ‘not susceptible of exact 
definition.’ And they were convicted upon evi­
dence which showed no more than that the opin­
ions which they were peaceably expressing were 
sufficiently opposed to the views of the majority 
of the community to attract a crowd and neces­
sitate police protection.

“ The Fourteenth Amendment does not permit a 
State to make criminal the peaceful expression 
of unpopular views. . . .”

The Edwards case is in our opinion on all fours 
with the instant case and requires a reversal of the 
conviction herein.



46

VII.

The Disturbing the Peace Statute (R. S. 14:103.1) 
Under Which Relator Was Convicted Is, If Ap­
plied to Him, So Vague and Uncertain as to 

Violate Due Process.

A. Due Process Requires That a State Statute 
Give Fair Notice of What Conduct Is Crim­
inal.

The United States Supreme Court has repeat­
edly held that a state statute violates the due process 
clause of the Fourteenth Amendment if it fails (1) to 
give fair notice of what acts it encompasses, and (2) 
to provide the trier with a sufficiently definite stand­
ard of guilt to avoid conviction on an ad hoc basis; 
e. g., Lanzetta v. Neiv Jersey, 306 U. S. 151; Connolly 
v. General Construction Co., 269 U. S. 385; Musser v. 
Utah, 333 U. S. 95; Winters v. New York, 333 U. S. 
507, 519. As the United States Supreme Court said in 
Connolly, 269 U. S. at 391:

“  . . .  a statute which either forbids or requires 
the doing of an act in terms so vague that men 
of common intelligence must necessarily guess at 
its meaning and differ as to its application, vio­
lates the First essential of due process of law.”

Similarly, in Lanzetta, the Court defined the fail- 
notice required by due process at 306 U. S. 153:



47

. . no one may be required at peril of life, lib­
erty or property to speculate as to the meaning of 
penal statutes. All are entitled to be informed as 
to what the state commands or forbids . . . ”

Mr. Justice Harlan in his concurring opinion in 
Gamer v. Louisiana, 82 S. Ct. 248, at page 274, said:

“ While Cantwell was not explicitly founded on 
that premise, it seems to me implicit in the opin­
ion that a statute which leaves the courts in 
uncertainty as to whether it was intended to 
reach otherwise constitutionally protected con­
duct must by the same token be deemed inade­
quate warning to a defendant that his conduct 
has been condemned by the state . . . ”

Under the jurisprudence of our own state the 
statute herein is unconstitutionally vague. Witness 
what was said in State v. Christine, 239 La. 289, 118 
So. (2d) 4-03, 413, a 1960 case:

“ A  cardinal rule basic in our law provides that 
one cannot be held accountable, or subject to 
criminal pi'osecution, for any act of commission 
unless and until that act has first been denounced 
as a crime in a statute that defines the act sought 
to be denounced with such precision the person 
sought to be held accountable will know his con­
duct falls within the purview of the act intended 
to be prohibited by, and will be subject to the 
punishment fixed in, the statute.



48

“ And the courts have not only consistently re­
fused to usurp the prerogatives of the legisla­
ture by supplying either the definition or essen­
tial elements thereof that have been omitted in 
the drafting of the statute, but, under rules call­
ing for construction of all criminal and penal 
statutes as stricti juris, resolved ambiguities in 
favor of accused.
U  *  *  *

“ The dividing line between what is lawful and 
unlawful cannot be left to conjecture * * *. Penal 
statutes prohibiting the doing of certain things, 
and providing a punishment for their violation, 
should not admit of such a double meaning that 
the citizens may act upon the one conception of 
its requirements and the courts upon another.

“ United States v. Capital Traction Co., 34 App. 
D. C. 592, 19 Ann. Cas. 68, quoted with approval 
in Connally v. General Construction Co., 269 
U. S. 385, 46 S. Ct. 126, 128, 70 L. Ed. 322, 
where it was further pointed out that

“ * * * a statute which either forbids or requires 
the doing of an act in terms so vague that men 
of common intelligence must necessarily guess at 
its meaning and differ as to its application vio­
lates the first essential of due process of law.

“ 269 U. S. at page 391, 46 S. Ct. at page 127, 70 
L. Ed. at page 328.



49

“ And, as stated in a familiar quotation from the 
reports of the United States Supreme Court,

“ Every man should be able to know with cer­
tainty when he is committing a crime. * * * It 
would certainly be dangerous if the Legislature 
could set a net large enough to catch all possible 
offenders and leave it to the courts to step inside 
and say who could be rightfully detained and 
who should he set at large.” (Emphasis ours.)

“ United States v. Reese, 92 U. S. 214, 23 L. Ed. 
563, 565 and 566.”

B. R. S. 14:103.1 DID NOT GIVE FAIR NO­
TICE TO RELATOR THAT HIS ACTION 
WAS ILLEGAL.

Section 103.1 has on its face several ambiguities. 
It is not entirely clear whether the prosecution must 
show an actual disturbance or only circumstances such 
that a disturbance may be occasioned. The statute does 
not indicate the meaning of the phrase “ crowcis or con­
gregates with others,”  and since this is not a phrase 
of common usage one could be let to speculate as to 
when his conduct was such that he “ crowds or congre­
gates with others.” One might reasonably ask were not 
the 150 to 200 whites who were present also crowding 
and congregating? Despite these difficulties, we as­
sume arguendo that the statute is constitutional if  it is 
construed to apply only to acts which are violent, loud 
or boisterous. It was only upon this interpretation



50

that this Court sustained the constitutionality of an 
earlier but similar disturbing the peace statute. State 
v. Sanford, 203 La. 961, 11,. So. (2d) 778.

Relator’s activities, however, did not involve a 
disturbance of the peace. He was engaged in a protest 
against racial discrimination. The facts clearly indi­
cate that the police, not the public, were disturbed by 
the defendant’s conduct. The facts clearly show that 
the state, through the unwarranted action of the police, 
was itself promoting its own policy of racial discrim­
ination.

The record clearly shows that relator made a 
nonviolent speech (Tr. pp. 29, 37, 44, 63, 124, 158, 268, 
302, all state’s witnesses) ; no violence occurred (Tr. pp. 
20, 67, 127, 262, all state’s witnesses) ; there were no 
acts of violence toward anyone (Tr. pp. 127, 262, all 
state’s witnesses) ; no arrests were then made (Tr. pp. 
79, 89, 96, 329); this was an orderly demonstration 
(Tr. pp. 23, 44, 90, 117, 119, 124, 140, 169, 205, 237, 
319, 354, 376) ; there was a group of between 150 and 
200 white persons on the courthouse grounds across the 
street (Tr. pp. 36, 166); but this was not a hostile group 
(Tr. pp. 27, 28, 167) ; there were present some 80 or 90 
policemen (Tr. pp. 254, 312, 316, 355) who could handle 
any situation which would have arisen (Tr. pp. 327, 
329, state’s witnesses); and, finally, relator had full 
control over the students at all times until the tear gas 
bombs were thrown and the police dogs were turned



51

loose on the students (Tr. pp. 35, 38, 107, 119, 123, 124, 
257, 313, 355). In such circumstances, we submit that 
this Court should apply a strict standard in determin­
ing whether a statute is unconstitutionally vague; for 
a vague statute provides all too easy means by which 
a state can impose ad hoc criminal penalties. Winters 
v. New York, 333 U. S. 507, 509-510, 517, indicates that 
the degree of certainty required for due process is par­
ticularly strict in the delicate area of freedom of ex­
pression ; otherwise, the Court said, expression which is 
constitutionally protected would be effectively prohib­
ited by the very vagueness of the law. Smith v. Califor­
nia, 361 U. S. U 7, 151.

Interpretation of a state statute prior to the de­
fendant’s conduct may sometimes clarify otherwise in­
definite language sufficiently to satisfy the require­
ments of fair notice. See, e g., Chaplinsky v. New 
Hampshire, 315 U. S. 568, 57k; International Harvester 
Co. v. Kentucky, 23k U. S. 216. This statute has not 
been interpreted by any appellate court of this state. 
However, the latest decision of this Court on the gen­
eral subject of disturbing the peace, State v. Sanford, 
203 La. 961, lk  So. (2d) 778, said the following at 203 
La. 970:

“ * * * to construe and apply the statute in the 
way the district judge did would seriously in­
volve its validity under our state constitution, 
because it is well settled that no act or conduct 
however reprehensible, is a crime in Louisiana,



52

unless it is defined and made a crime clearly 
and unmistakably by statute. * * * (Emphasis 
ours.)

This Court has repeatedly recognized that under 
our state Constitution fair notice is an element of due 
process. See, e. g., State v. Christine, 239 La. 259, 118 
So. (2d) 4.03 (1969); State v. Sanford, supra; State v. 
Kraft, 214 La, 351, 37 So. (2d) 815 (1948). In State v. 
Kraft, supra, the Court explained the requirement of 
certainty as follows, 214 La. at 356:

“ . . . it is sufficient to say that a criminal stat­
ute, in order to be valid and enforceable, must 
define the offense so specifically or accurately 
that any reader having ordinary intelligence will 
know when or whether his conduct is on the one 
side or the other side of the border line between 
that which is and that which is not denounced 
as an offense against the law.”

Since the statute under which relator was here 
convicted has never been interpreted by this Court, we 
must rely upon previous interpretations of a similar 
statute. The application of the statute here is directly 
contrary to the holding of the Sanford case, since here 
the state is applying this statute to punish completely 
peaceful activity. Thus, relator was not given fair no­
tice that his conduct was criminal either by the terms 
of the statute or by its interpretation in the Louisiana 
courts.



53

The Obstructing Public Passages Statute (R. S. 
14:100.1) Under Which Relator Was Convicted 
Is Unconstitutional If Construed, as Here, to 
Proscribe Peaceful Picketing. (See Argument 

VI, Page 27.)

IX.

The Bill of Information Charging Defendant With 
the Violation of 100.1 Is Fatally Defective Be­
cause It Fails to Inform Defendant of the Nature 
and the Cause of the Accusation Against Him.

The bill of information reads in pertinent part 
as follows:

“ . . . did violate the provision of R. S. 14:100.1 
in that he did wilfully obstruct the free, conven­
ient and normal use of a public sidewalk within 
the City of Baton Rouge thereby impeding, hin­
dering and restraining passage thereon . . .” 
(Emphasis ours.)

The above information violates the Sixth Amend­
ment to the Constitution of the United States; Article 
1, Section 10, of the Constitution of the State of Lou­
isiana, 1921; L. S. A.-R. S. 15:227; L. S. A.-R. S. 15:2, 
and L. S. A.-R. S. 15:5.

The Sixth Amendment to the Constitution of the 
United States reads in pertinent part:

VIII.



54

“ In all criminal prosecutions, the accused shall 
enjoy the right to . . .  be informed of the nature 
and cause of the accusation . . .”

Article 1, Section 10, of the Constitution of the 
State of Louisiana, 1921, reads in pertinent part:

“ In all criminal prosecutions the accused shall 
be informed of the nature and cause of the accu­
sation against him . .

L. S. A.-R. S. 15:227, Article 227, of the Code 
of Criminal Procedure reads :

“ The indictment must state every fact and cir­
cumstance necessary to constitute the offense, but
it need do no more, and it is immaterial whether 
the language of the statute creating the offense, 
or words unequivocally conveying the meaning of 
the statute be used.”  (Emphasis ours.)

L. S. A.-R. S. 15.2 says in pertinent part:

“ . . . All prosecutions for offenses not capital, 
shall be by indictment or by information . . .”

L. S. A.-R. S. 15:5 says:

“An information is a written accusation of crime
made by the District Attorney, signed by him, 
and filed either in open court or in the office 
of the clerk of the court having jurisdiction.” 
(Emphasis ours.)



55

The bill of information herein does not charge a 
crime. One cannot constitutionally be charged with ob­
struction “ of a public sidewalk.” One must be charged 
with obstruction of a particular sidewalk; i. e., “ . . . 
that sidewalk on the East Side of St. Louis Street, in 
the City of Baton Rouge, Louisiana identified by mu­
nicipal number 200, bounded on the North by . . . and 
bounded on the South by . . .”

The above bill of information does not meet the 
test of United States v. Cruishank, 97 U. S. 542, 23 L. 
Ed. 588, where it was said:

“ . . . the object of the indictment is, first, to fur­
nish the accused with such a description of the 
charge against him as will enable him to make 
his defense, and avail himself of his conviction 
or acquittal for protection against a further 
prosecution for the same cause; and second, to 
inform the court of the facts alleged, so that it 
may decide whether they are sufficient in law to 
support a conviction, if one should be had. For 
this facts are to be stated, not conclusions of law 
alone. A  crime is made up of acts and intent; 
and these must be set forth in the indictment 
with reasonable particularity of time, place and 
circumstance.” (Emphasis ours.)

Relator assumes arguendo that the statute may 
be sufficient to describe or legally characterize the of­
fense, but it is our position that the information is



56

wholly insufficient to inform the accused of the specific 
offense with which he is charged. As authority for 
this conclusion see State v. Varnado, on rehearing, 208 
La,. 319, 23 So. (2d) 106 (19UU), which says:

. . the words of the statute may be sufficient 
to describe or legally characterize the offense de­
nounced, and yet be wholly insufficient to inform 
the accused of the specific offense of which he is 
accused . .

The case of State v. McQueen, 230 La. 55, 87 So. 
(2d) 757 (1955), stands for the proposition that a bill 
of information which does not apprise the defendant of 
what he must be prepared to meet on the trial is fatally 
defective. This is the test set out by the Court at 230 
La. 62:

“ In this case the information is based on con­
clusions of law, which are legal abstractions af­
fording no protection. The U. S. Supreme Court 
has spoken and provided a test in such circum­
stances. It stated that the test is not whether it 
(the information) could have been more definite 
or certain, but whether the information contains 
the elements of the offense intended to be charged 
and sufficiently apprises the defendant of what 
he must be prepared to meet, and in case any 
other proceedings are taken against him for a 
similar offense, whether the record shows with 
accuracy to what extent he may plead a former



57

acquittal or conviction. See Cochran and Sayere 
v. U. S., 157 U. S. 286, 15 S. Ct. 628, 39 L. Ed. 
704; Rosen v. U. S., 161 U. S. 29, 16 S. Ct. 434,
40 L. Ed. 606; Hagner v. U. S., 285 U. S. 427,
52 S. Ct. 417, 76 L, Ed. 861.”

Further on the Court quite succinctly says at 230
La. 66:

“ We do not find anywhere in the Code of Crim­
inal Procedure provision that an accused charged 
in an indictment or information that fatally 
fails to apprise him of the acts on which the of­
fense with which he is sought to be charged is 
based must probe the innermost recesses of the 
prosecuting attorney’s mind in an effort to ascer­
tain just what acts of his the attorney thinks 
constitutes a crime.”

X.

The Obstructing Public Passages (R. S. 14:100.1) 
Under Which Appellant Was Convicted Is, If Ap­
plied to Them, So Vague and Uncertain as to 

Violate Due Process.

A. Due Process Requires That a State Statute 
Give Fair Notice of What Conduct Is Crim­
inal. (See Argument VII, Page 32.)

B. R. S. 14:100.1 Did Not Give Fair Notice to 
Petitioner That His Actions Were Illegal.



58

The first paragraph of 14:100.1 reads as follows:

“ No person shall wilfully obstruct the free, con­
venient and normal use of any public sidewalk, 
street, highway, bridge, alley, road, or other 
passageway, or the entrance, corridor or passage 
of any public building, structure, water craft, or 
ferry, by impeding, hindering, stifling, retard­
ing or restraining traffic or passage thereon or 
therein.”

This statute is most indefinite as to what con­
duct on the part of an individual shall “ obstruct the 
free, convenient and normal use of various public pas­
sages.” We are only told that one can obstruct by “ im­
peding, hindering, stifling, retarding or restraining.” 
Further, this statute does not define any of these terms 
which thereby subjects them to a wide variance of inter­
pretation on the part of public officials seeking to en­
force them. The terms used to “ define” the offense: 
“ impeding, hindering, stifling, retarding, restraining,” 
are so vague and indefinite as to cause one to speculate 
as to when his conduct constitutes obstructing public 
passages. Despite these difficulties, we assume, ar- 
gu-endo, that the statute is constitutional if  it is con­
strued to apply to acts which effectively block a public 
passage in such a way as to be dangerous to the safety 
of individuals who pass thereon. It is only upon this 
interpretation that the constitutionality of this statute 
could be sustained, for, if this statute is construed to



59

proscribe peaceful picketing, then it would be unconsti­
tutional for that reason.

We submit that this Court should apply a strict 
standard in determining whether a statute is unconsti­
tutionally vague; for a vague statute provides all too 
easy means by which a state can impose ad hoc crim­
inal penalties. Winters v. New York, 333 U. S. 507, 509- 
510, 517, indicates that the degree of certainty required 
for due process is particularly strict in the delicate area 
of freedom of expression; otherwise, the Court said, ex­
pression which is constitutionally protected would be ef­
fectively prohibited by the very vagueness of the law. 
Smith v. California, 361 U. S. 11*7, 151.

There is not a word in R. S. 14:100.1 which 
clearly, and unmistakably, prohibits an individual from 
protesting racial segregation. If the statute applies to 
these facts, it can be used to convict anyone for any 
conduct that the local officials, acting ad hoc, find dis­
tasteful.

This Court has repeatedly recognized that under 
our state Constitution fair notice is an element of due 
process. See, e: g., State v. Christine, 239 La. 259, 118 
So. (2d) 503 (1960); State v. Sanford, supra; State v. 
Kraft, 215 La. 351, 37 So. (2d) 815 (1958). In State v. 
Kraft, supra, the Court explained the requirement of 
certainty as follows, 215 La. at 356:



60

. . it is sufficient to say that a criminal stat­
ute, in order to be valid and enforceable, must 
define the offense so specifically or accurately 
that any reader having ordinary intelligence will 
know when or whether his conduct is on the one 
side or the other side o f the border line between 
that which is and that which is not denounced as 
an offense against the law.”

Interpretation of a state statute prior to the de­
fendant’s conduct may sometimes clarify otherwise in­
definite language sufficiently to satisfy the require­
ments of fair notice. See, e. g., Chaplinsky v. New Hamp­
shire, 315 U. S. 568, 574-; International Harvester Co. 
v. Kentucky, 234 U. S. 216. This statute has not been 
interpreted by any appellate court of this state. Since 
this is true, there has been no clarifications of the 
vagueness of this statute, and its inherent weaknesses 
remain. Thus, petitioners were not given fair notice 
that their conduct was criminal either by the terms of 
the statute or by its interpretation of our appellate 
courts.

XI.
The Trial Judge Committed Prejudicial Error Be­
cause in Finding the Defendant Guilty He Ap­

plied the W rong Standard.
In the disturbing the peace case the trial judge 

dictated his reasons for conviction into the record; in so 
doing, he indicated that the wrong standard was ap­
plied. The judge took the position that the mere pres­



61

ence of 1,500 Negroes in downtown Baton Rouge to 
protest racial segregation, without more, was inher­
ently a breach of the peace. This is what the trial 
judge said at transcript page 545:

. . It should be inherently dangerous and a 
breach of the peace, recognizing racial tension 
as we have it in the South. It must be recog­
nized to be inherently dangerous and a breach 
of the peace to bring 1,500 people, colored peo­
ple, down in the predominantly white business 
district in the City of Baton Rouge and congre­
gate across the street from the courthouse and 
sing songs as described to me by the defendant 
as the CORE National Anthem carrying lines 
such as ‘black and white together’ and to urge 
those 1,500 people to descend upon our lunch 
counters and sit there until they are served. 
That has to be an inherent breach of the peace

And at page 544:

“ . . . It recognizes . . . there is racial tension . . . 
and the . . .  intent of the statute is to give the 
police the power to punish or disband or break 
up mass demonstrations, especially where they 
might involve racial overtones. . . . ”  (Emphasis 
ours.)

This statement of the Court is the heart of de­
fendant’s objection. If the statute means what the



62

Court suggests it means, then freedom of speech means 
nothing, then any protest against segregation in any 
form, no matter how peaceful, is a criminal act. This 
may have been what the Legislature had in mind, but 
this is not constitutional. The core of the Court’s posi­
tion is that the mere presence of 1,500 Negroes in down­
town Baton Rouge without more is a breach of the 
peace. This is the same position that was reversed in 
Taylor v. Louisiana, 82 S. Ct. 1188, a per curiam deci­
sion rendered without argument. We humbly submit 
that this reasoning and conviction cannot stand.

CONCLUSION.
WHEREFORE, it is respectfully submitted that 

the trial Court committed prejudicial error in each of 
the rulings complained of in Bills of Exception Num­
bers 1 through 4, inclusive, and it is prayed that the 
verdict and sentence rendered in both cases herein be 
set aside, annulled and vacated, and the defendant dis­
charged, or in the alternative be granted a new trial, 
and for all appropriate and equitable relief.

Respectfully submitted,

ROBERT F. COLLINS,
NILS R. DOUGLAS,
LOLIS E. ELIE,
MURPHY W. BELL,

Attorneys for Appellant-Relator.
Of Counsel:
CARL RACHLIN,

280 Broadway, N. Y., N. Y.



63

CERTIFICATE OF SERVICE.

I, NILS R. DOUGLAS, member of the bar of the 
State of Louisiana, hereby certify that a copy of this 
original brief on behalf of defendant-relator in support 
of an application for supervisory writs and habeas cor­
pus, has been mailed by United States mail, postage pre­
paid, to the District Attorney for the Parish of East 
Baton Rouge, State of Louisiana, namely, Sargent 
Pitcher, Jr., Parish Courthouse, Parish of East Baton 
Rouge, Louisiana.

NILS R. DOUGLAS.