Hamm v. City of Rock Hill Petition for Writ of Certiorari to the Supreme Court of South Carolina

    I s r  t h e

(E m tr t  n f  %  £>ttxUs
October Term, 1962 

No............

A r th u r  H am m , J r .,
Petitioner,

—v.—

C ity  oe R ock H il l .

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

J ack Greenberg  
Constance B aker M otley 
J ames M. N abrit, III 
M ichael  M eltsner

10 Columbus Circle 
New York 19, N. Y.

M a tth ew  J .  P erry 
L inco ln  C. J e n k in s , J r .

1107% Washington Street 
Columbia, South Carolina

D onald J ames S ampson 
W il l ie  T. S m it h , J r .

1251/2 Falls Street 
Greenville, South Carolina

Attorneys for Petitioner

George B . S m it h  
of Counsel



I N D E X
PAGE

Citation to Opinions Below ...........................................  1
Jurisdiction ...........................   1

Questions Presented .................................................   2
Constitutional and Statutory Provisions Involved ..... 2
Statement ........................................................................  4
How the Federal Questions Were Raised.....................  6
Reasons for Granting the Writ .................................... 7

I. The State of South Carolina Has Enforced 
Racial Discrimination In Violation of the Equal 
Protection and Due Process Clauses of the 
Fourteenth Amendment to the United States 
Constitution ..........................................................  7

II. The City of Rock Hill Was Permitted to Prose­
cute Petitioner Hamm for Violation of All the 
“Available” South Carolina Law Including, But 
Not Limited to, Three Vague Statutes with Dis­
similar Provisions; He Was Sentenced and Con­
victed for the General Offense of “Trespass” 
Without Ever Being Informed of Which Stat­
ute He Had Breached; All of Which Violated 
His Rights Under the Due Process Clause of the
Fourteenth Amendment ...................................... 10

C o n c l u s io n ......................................................................  17

A ppen d ix

Order of the York County Court ............................. la
Opinion of the Supreme Court of South Carolina 5a 
Denial of Petition for Rehearing............    11a



11

Table of Cases
PAGE

Avent v. North Carolina, 253 N. C. 580, 118 S. E. 2d 47, 
certiorari granted 370 U. S. 934 (1962) (No. 11, 
October Term, 1962) ..................................................  9

Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) ....... 8
Bolling v. Sharpe, 347 II. S. 497 .................................... 8
Boman y. Birmingham Transit Co., 280 F. 2d 531 (5th

Cir. 1960) ..............   8
Brown v. Board of Education, 347 U. S. 483 .................  7
Buchanan v. Warley, 245 U. S. 6 0 ................................ 7
Burton v. Wilmington Parking Authority, 365 U. S.

715 ................................................................................8,15

Charleston v. Mitchell, 239 S. C. 376, 123 S. E. 2d 512
(No. 89, October Term, 1962) ...........................6, 7, 9,13

City of Columbia v. Barr, 239 S. C. 395, 123 S. E. 2d
54 (No. 90, October Term, 1962) ............................  7, 9

City of Columbia v. Bouie, 239 S. C. 570, 124 S. E. 2d
332 (No. 159, October Term, 1962) ............................  7, 9

Connally v. General Construction Co., 269 U. S. 385 .... 15
Cooper v. Aaron, 358 U. S. 1 .......................................  8
Corson v. U. S., 147 F. 2d 437 (9th Cir. 1945) .............. 11

Edwards v. South Carolina,----- U. S .------ , 9 L. ed. 2d
697 .......... ...................................................................10,11

Fields v. South Carolina, 31 U. S. L. Week 3297 ..........  10

Garner v. Louisiana, 368 U. S. 157................................  8
Gayle v. Browder, 352 U. S. 903 ....................................  8
Greenville v. Peterson, 239 S. C. 298, 122 S. E. 2d 

826, certiorari granted 370 U. S. 935 (No. 71, October 
Term, 1962) ............................................................. 6, 7, 9



Hirabayashi v. United States, 320 U. S. 8 1 .................  8

Lanzetta v. New Jersey, 306 U. S. 451 ......... ...............  12

Monroe v. Pape, 365 U. S. 167..................................... 8

Pierce v. U. S., 314 U. S. 306 ............ ...........................  14

Screws v. United States, 325 U. S. 91 .............................  8
Shelley v. Kraemer, 334 U. S. 1 ...... ....................... .....8,10
Stromberg v. California, 283 U. S. 359 ......................... 16

Taylor v. Louisiana, 370 U. S. 154 - ..........................   8
Thornhill v. Alabama, 310 U. S. 88 ................................  15
Trustees of Monroe Avenue Church of Christ v. Per­

kins, 334 U. S. 813 ...................... ...............................  10

Valle v. Stengel, 176 F. 2d 697 (3rd Cir. 1949) .............. 8

Williams v. North Carolina, 317 U. S. 387 .....................  16

I l l

PAGE



I n t h e

Supreme (Erwrt nt tkt
October Term, 1962 

No............

A r t h u r  H am m , J r., 

— v . —

C ity  oe R ock H il l .

Petitioner,

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of South Carolina, 
entered in the above entitled case on December 6, 1962, 
rehearing of which was denied January 11, 1963.

Citation to O pinions Below

The opinion of the Supreme Court of South Carolina 
is reported at 128 S. E. 2d 907. It is set forth in the 
Appendix hereto, infra p. 5a. The order of the York 
County Court is unreported and is set forth in the Ap­
pendix hereto, infra p. la.

Jurisdiction

The judgment of the Supreme Court of South Carolina 
was entered on December 6, 1962, infra p. 5a. Petition 
for rehearing was denied by the Supreme Court of South 
Carolina on January 11, 1963, infra p. 11a.



2

The jurisdiction of this Court is invoked pursuant to 
Title 28, United States Code, Section 1257 (3), petitioner 
having asserted below, and claiming here, deprivation of 
rights, privileges and immunities secured by the Consti­
tution of the United States.

Questions Presented

1. Whether petitioner, a Negro, was denied due process 
and equal protection of the law under the Fourteenth 
Amendment to the Constitution of the United States by the 
use of the state executive and judicial machinery to arrest 
and convict him of trespass where he had attempted to 
obtain service at a lunch counter previously reserved for 
whites in a store entirely open to the public?

2. Whether petitioner was denied due process of law 
secured by the Fourteenth Amendment in that the city was 
not required to elect a statute under which to prosecute 
but was permitted to rely on all the “available” law, in­
cluding, but not limited to, three statutes which overlapped 
but were not coextensive, and in that petitioner was con­
victed and sentenced for the general offense of “trespass” 
without ever being informed of which statute—or common 
law rule—he had allegedly breached?

Constitutional and Statutory Provisions Involved

1. This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

2. This case also involves Section 16-386, Code of Laws 
of South Carolina, 1952, as amended 1954:



3

Entry on another’s pasture or other lands after notice; 
posting notice

Every entry upon the lands of another where any horse, 
mule, cow, hog or any other livestock is pastured, or any 
other lands of another, after notice from the owner or 
tenant prohibiting such entry, shall be a misdemeanor and 
be punished by a fine not to exceed one hundred dollars, 
or by imprisonment with hard labor on the public works 
of the county for not exceeding thirty days. When any 
owner or tenant of any lands shall post a notice in four 
conspicuous places on the borders of such land prohibiting 
entry thereon, a proof of the posting shall be deemed and 
taken as notice conclusive against the person making entry, 
as aforesaid, for the purpose of trespassing.

3. This case also involves Section 16-388 (2), Code of 
Laws of South Carolina, 1952, as amended 1960:

Any person:

(1) Who without legal cause or good excuse enters into 
the dwelling house, place of business or on the 
premises of another person, after having been 
warned, within six months preceding, not to do so or

(2) Who, having entered into the dwelling house, place 
of business or on the premises of another person 
without having been warned within six months not 
to do so, and fails and refuses, without good cause 
or excuse, to leave immediately upon being ordered 
or requested to do so by the person in possession, or 
his agent or representative, shall on conviction, be 
fined not more than one hundred dollars, or be im­
prisoned for not more than thirty days.

4. This case also involves Section 19-12, Code of Laws 
of City of Rock Hill:



4

Entry on lands of another after notice prohibiting 
the same

Every entry upon the lands of another, after notice 
from the owner or tenant prohibiting the same, shall 
be a misdemeanor. Whenever any owner or tenant 
of any lands shall post a notice in four conspicuous 
places on the border of any land prohibiting entry 
thereon, and shall publish once a week for four 
consecutive weeks such notice in any newspaper 
circulating in the county where such lands situate, a 
proof of the posting and publishing of such notice 
within twelve months prior to the entry shall be 
deemed and taken as notice conclusive against the 
person making entry as aforesaid for hunting and 
fishing.

Statement

Petitioner Hamm, a Negro student, was arrested for a 
sit-in demonstration at the lunch counter of McCrory’s 
dime store in Rock Hill, South Carolina on June 7, 1960 
(R. 14). He was convicted of trespass and sentenced to 
pay a fine of $100.00 or spend thirty days in jail (R. 116).

Hamm, along with Reverend C. A. Ivory, a Negro, now 
deceased, entered McCrory’s dime store on June 7, 1960 in 
order to buy notebook paper and a trash can (R. 92). After 
the purchases were made, Reverend Ivory suggested to the 
petitioner that they eat at the lunch counter in the store 
(R. 84, 85). Reverend Ivory testified that he had heard of 
“one or two” Negroes who had “gotten some type of ser­
vice” at the lunch counter (R. 94). Asked on cross- 
examination whether he believed he could obtain service, he 
replied, “yes” (R. 93, 94). Hamm seated himself on a stool 
at the lunch counter and Reverend Ivory, a cripple, re­
mained in his wheel chair at the counter (R. 15).



5

The Manager of the store, H. C. Whiteaker, saw Hamm 
occupy a seat at the lunch counter and sent for a police 
officer (E. 76). Two policemen arrived and in their presence 
the manager asked Hamm and Reverend Ivory to leave 
(R. 77). There is a conflict in the record as to whether or 
not the police officer requested the manager to ask the two 
to leave (R. 16, 26, 95). It is clear, however, that the man­
ager asked them to leave because they were Negroes (R. 
77, 78). Hamm and Ivory were peaceful and orderly at all 
times and there was no question of offensive conduct 
(R. 24, 79). The manager testified that it was the policy 
of the store not to serve Negroes at the counter (R. 72). 
However, he did not ask that the two Negroes be arrested 
(R. 29).

McCrory’s is a nationwide chain store which has no 
national policy with regard to segregation (R. 72). The 
store in question is admittedly open to all people, including 
Negroes (R. 71, 74). Thus, Negroes are free to purchase 
items at any counter in the store other than the lunch 
counter.

Petitioner Hamm, along with Reverend Ivory, was tried 
and convicted of “trespass” in the Recorder’s Court of 
the City of Rock Hill on June 29, 1960 and sentenced to pay 
a fine of one hundred dollars ($100.00) or serve thirty (30) 
days in prison (R. 1, 116). On December 29, 1961 the con­
victions were affirmed by the York County Court, which 
noted the death of Reverend Ivory.

The Supreme Court of South Carolina affirmed the con­
viction of Hamm on December 6, 1962. Rehearing was de­
nied on January 11, 1963.



6

H ow  th e  F e d e ra l Q u estio n s W ere  R aised

At the commencement of the trial in the Recorder’s 
Court of the City of Rock Hill, petitioner Hamm moved to 
require the City of Rock Hill to elect one statute under 
which to prosecute petitioner on the ground that pros­
ecuting him under three separate statutes and all other 
“available” South Carolina law without an election violated 
the due process clause of the Fourteenth Amendment (R. 
6). The motion was denied by the court (R. 13).

At the close of the prosecution’s case petitioner Hamm 
moved for judgment of acquittal on the ground that the 
State of South Carolina by supporting a private policy of 
discrimination, violated the equal protection and due 
process clauses of the Fourteenth Amendment (R. 58, 59). 
The motion was overruled (R. 64). This issue was raised 
again and rejected at the conclusion of defendant’s case 
by motion for a directed verdict (R. 98, 99); and after 
judgment, by motion for arrest of judgment or, in the 
alternative, for a new trial (R. 114).

On the appeal of petitioner Hamm and Reverend Ivory 
to the York County Court, the court stated that the offense 
of trespass had been stated with “reasonable and sufficient 
particularity.” It stated that all other legal objections 
had been properly overruled and, relying on City of Green­
ville v. Peterson, 239 S. C. 298, 122 S. E. 2d 826, certiorari 
granted 370 U. S. 935 (No. 71, October Term, 1962), and 
City of Charleston v. Mitchell, 239 S. C. 376, 123 S. E. 2d 
512, certiorari filed April 7, 1962 (No. 89, October Term, 
1962), affirmed the conviction of Hamm. The court also 
noted the death of Reverend Ivory.

On appeal the Supreme Court of South Carolina re­
jected Hamm’s contention that an election should have 
been required, stating that no prejudice had resulted to the



7

appellant. It also rejected Hamm’s argument that his 
arrest and conviction by state officials violated the Four­
teenth Amendment, stating that “identical contention was 
made, considered and rejected” in the cases of City of 
Greenville v. Peterson, 239 S. C. 298, 122 S. E. 2d 826, 
certiorari granted 370 IT. S. 935 (No. 71, October Term, 
1962); City of Charleston v. Mitchell, 239 S. C. 376, 123
S. E. 2d 512, certiorari filed April 7, 1962 (No. 89, October 
Term, 1962); City of Columbia v. Barr, 239 S. C. 395, 
123 S. E. 2d 54, certiorari filed April 7, 1962 (No. 90, 
October Term, 1962); City of Columbia v. Bouie, 239 S. C. 
570, 124 S. E. 2d 332, certiorari filed June 5, 1962 (No. 159, 
October Term, 1962).

Reasons for Granting the Writ

I
The State of South Carolina has enforced racial dis­

crimination in violation of the equal protection and 
due process clauses of the Fourteenth Amendment to 
the United States Constitution.

Petitioner seeks a writ of certiorari to the Supreme 
Court of South Carolina on the ground that his arrest and 
conviction constitute state enforcement of racial discrim­
ination contrary to the equal protection and due process 
clauses of the Fourteenth Amendment. The South Caro­
lina Supreme Court rejected this contention stating that 
“an identical contention was made, considered and re­
jected” in similar sit-in cases, infra, p. 10a.

State action enforcing racial discrimination and segre­
gation is condemned by the equal protection clause of the 
Fourteenth Amendment. Buchanan v. Warley, 245 U. S. 
60; Brown v. Board of Education, 347 U. S. 483; Shelley



8

v. Kraemer, 334 U. S. 1; Gayle v. Browder, 352 U. S. 903. 
Moreover, state supported racial discrimination which 
bears no rational relation to a permissible governmental 
purpose offends the concept of due process. Bolling v. 
Sharpe, 347 U. S. 497; Cooper v. Aaron, 358 U. S. 1.

Action by judicial officers is included within the Four­
teenth Amendment. Shelley v. Kraemer, 334 U. S. 1. 
Similarly, the amendment covers action by police officials. 
Taylor v. Louisiana, 370 U. S. 154; Garner v. Louisiana, 
368 U. S. 157; Monroe v. Pape, 365 U. S. 167; Screws v. 
United States, 325 U. S. 91. See also Baldivin v. Morgan, 
287 F. 2d 750 (5th Cir. 1961); Boman v. Birmingham 
Transit Co., 280 F. 2d 531 (5th Cir. 1960); Valle v. Stengel, 
176 F. 2d 697 (3d Cir. 1949).

Petitioner was arrested by a police officer of the City 
of Rock Hill (R. 28) even though the manager of the store 
did not request the arrest (R. 29). Indeed there is some 
testimony that the manager of the store was asked by the 
police to request petitioner to leave (R. 95). Even if the 
police did not initiate the request it is at least clear that 
they were enforcing a racially discriminatory policy of 
the store which was itself the reflection of community cus­
tom (R. 28). The manager testified, “I asked them to leave 
because we do not serve Negroes at the lunch counter” 
(R. 78). Such racial distinctions “are by their very nature 
odious to a free people whose institutions are founded 
upon the doctrine of equality.” Hirabayashi v. United 
States, 320 U. S. 81, 100. “For the state to place its 
authority behind discriminatory treatment based solely 
on color is indubitably a denial by a state of the equal 
protection of the laws, in violation of the Fourteenth 
Amendment.” Burton v. Wilmington Parking Authority, 
365 U. S. 715, 727 (dissenting opinion).



9

Any contention that preservation of the institution of 
private property requires the state to aid in the exclusion 
of Negroes in a situation such as this is ill-conceived. 
McCrory’s is a national chain store with no national policy 
in regard to segregation (E. 72, 80). The manager testified 
that the store itself was open to all members of the general 
public including Negroes (E. 74). The lunch counter in 
question was an integral part of McCrory’s operation.

The state involvement in the maintenance of segregation 
in McCrory’s store is vividly brought out by reading the 
arrest warrant. There the City of Bock Hill emphasized 
that the lunch counter was “customarily operated upon a 
segregated basis,” and that “racial tension was high due to 
numerous recent prior demonstrations against segregated 
lunch counters refusing service to members of the Negro 
race of the defendant, both within the city and throughout 
the south generally.” It is clear from the warrant that 
state officials arrested Hamm not for any offensive conduct 
on his part, but simply because he was a Negro.

Factual and legal issues like those raised in this case 
are now before this Court in a number of cases, some of 
which have been argued, Avent v. North Carolina, 253 
N. C. 580, 118 S. E. 2d 47, certiorari granted 370 U. S. 934 
(1962) (No. 11, October Term, 1962); Greenville v. Peter­
son, 239 S. C. 298, 122 S. E. 2d 826, certiorari granted 
370 U. S. 935 (No. 71, October Term, 1962), and some of 
which are pending decision on petition for writ of certiorari, 
City of Charleston v. Mitchell, 239 S. C. 376, 123 S. E. 2d 
512 (No. 89, October Term, 1962) ; City of Columbia v. 
Barr, 239 S. C. 395, 123 S. E. 2d 54 (No. 90, October Term, 
1962); City of Columbia v. Bouie, 239 S. C. 570, 124 S. E. 
2d 332 (No. 159, October Term, 1962). The last four cases 
were relied on by the Supreme Court of South Carolina 
in rejecting the constitutional objections raised by peti­
tioner in this case.



10

When questions presented in a petition for writ of 
certiorari are identical or similar to questions in another 
case in which the court has already granted certiorari, 
the issues involved in the petition are appropriate for re­
view by certiorari. Compare Trustees of Monroe Avenue 
Church of Christ v. Perkins, 334 U. S. 813, with Shelley v. 
Kraemer, 334 U. S. 1.

Compare Edwards v. South Carolina, -----  U. S. ----- ,
9 L. ed. 2d 697 and the disposition of Fields v. South 
Carolina, 31 U. S. L. Week 3297.

II

The City of Rock Hill was permitted to prosecute 
petitioner Hamm for violation of all the “available” 
South Carolina law including, but not limited, to, three 
vague statutes with dissimilar provisions; he was sen­
tenced and convicted for the general offense of “tres­
pass” without ever being informed of which statute he 
had breached; all of which violated his rights under 
the due process clause of the Fourteenth Amendment.

Before the commencement of the trial in the Recorder’s 
Court of the City of Rock Hill, petitioner Hamm asked the 
prosecutor to inform him under which statute the warrant 
had been drawn and on which statute the prosecution was 
relying for a conviction. The prosecutor declined to do so 
stating that the city “relies upon all the available law that 
has a proper bearing upon a relationship to the offense 
charged” (R. 6). The most he would reveal was that the 
city, ‘‘amongst other things,” was relying on Section 16-386, 
Code of Laws of South Carolina, 1952, as amended 1954; 
Section 16-388 (2), Code of Laws of South Carolina, 1952, 
as amended 1960; and Section 19-12, Code of Laws of City 
of Rock Hill (R. 8). He mentioned those “without waiving



11

the right to rely upon any other sections” and he stated 
that Hamm could be found guilty of trespass “without 
reference necessarily to what particular statute or ordi­
nances he is charged under” (E. 11, 12). The Eecorder’s 
Court supported the city in its refusal to be specific, 
stating, “The warrant informs the defendant of what he is 
charged . . . ” (R. 13).

Thus the city was allowed to prosecute Hamm for the 
generic offense of trespass, bringing to bear the whole 
body of “available” (R. 6) or “applicable” (R. 11) South 
Carolina law including three specific statutes which, as 
will be showm below, covered conduct which was in some 
respects the same, in some respects different. Despite the 
fact that “good pleading would unmistakenly inform the 
accused as to the law he is alleged to have violated . . . ” 
Corson v. U. 8., 147 F. 2d 437, 438 (9th Cir. 1945), Hamm 
was forced to defend himself against an amorphous mass 
of South Carolina law.

This mass of law may have included South Carolina’s 
vague crime of breach of peace. See Edwards v. South
Carolina,----- - U. S .----- -, 9 L. ed. 2d 697, or even common
law trespass, for the warrant alleged a general state of 
facts which could relate to any of the named statutes and 
which appeared to include other elements. As the warrant 
was phrased, it included not only elements of trespass, but 
also elements of breach of peace. When it referred to high 
racial tension, numerous anti-segregation demonstrations, 
and recent trials of demonstrators on charges of breach 
of peace, and when it implied that petitioner Hamm and 
his companion were helping to create this tension, it in­
troduced elements which could only confuse Hamm in his 
defense. This confusion was compounded in the judge’s 
charge to the jury. Here again it seemed that breach of 
peace was made an essential element of Hamm’s crime.



12

The judge charged “trespass to property is a crime at 
common law when it is accompanied by or tends to create 
a breach of the peace. When a trespass is attended by 
circumstances constituting breach of the peace, it becomes 
a public offense, subject to criminal prosecution” (R. 103). 
Both from the warrant and the charge to the jury, peti­
tioner Hamm was justified in believing that if the state 
could not prove that public disorder had been an element 
in this situation, it had not proved its case.

Without specific knowledge of the statute he was charged 
with violating, petitioner Hamm could not prepare an ade­
quate defense for “It is the statute, not the accusation 
under it, that prescribes the rule to govern conduct and 
warns against transgression.” Lametta v. New Jersey, 306 
U. 8. 451, 453. Certainly it is basic to due process that a 
defendant should not be forced to guess what laws he is 
charged with violating.

Petitioner Hamm’s rights were further denied because 
he was not informed of what statute he had been convicted. 
The jury simply found him guilty of the generalized of­
fense of trespass (R. 112). The sentence of thirty days 
in jail or one hundred dollars fine could be imposed under 
Section 16-386, Section 16-388 (2), Section 19-12 of the 
City Code, or some other “applicable” statute. The stat­
utes mentioned by the prosecutor prohibited dissimilar 
conduct. Hamm had no way of knowing how the prose­
cution met its burden of proving violation of a statute. 
Nor did he know whether he was convicted of violating 
an unconstitutional statute. This defect of not knowing 
the statute he allegedly breached was not cured by the 
fact that Section 16-388 (2) was one of the things read 
when the Recorder attempted to define trespass for the 
members of the jury (R. 102). Petitioner was neither 
found guilty of any particular statute or statutes nor was 
he acquitted of any others.



13

Petitioner’s difficulties were enhanced because those 
statutes which were mentioned as outlawing his conduct, 
on their face, outlawed dissimilar conduct, so that trespass 
under the one might not be trespass under the other.

While Section 16-386, Code of Laws of South Carolina, 
1952 and Section 19-12, Code of Laws of City of Rock Hill 
are similar, Section 16-388 (2), Code of Laws of South 
Carolina, 1952, as amended 1960, is substantially different. 
Section 16-386 and Section 19-12 prohibit entry on lands 
of another only “after notice from the owner or tenant 
prohibiting such entry.” The notice can be given by post­
ing notices on the borders of land. Section 16-386 on its 
face applied only to farm land and, at the time of the trial 
in this case it had never been construed as requiring a per­
son who entered a business at the invitation of the owner 
to leave when asked.1

Section 16-388 (2) on its face prohibits conduct com­
pletely unlike that prohibited by Section 16-386. It re­
quires :

(1) That a person enter a place of business. (2) That 
he be requested by the person in possession or his agent 
or representative to leave. (3) That he refuse to leave. 
(4) That he have no good cause or excuse for his refusal 
to leave.

Thus Section 16-386 and Section 19-12 on the one hand, 
and Section 16-388 (2) are different in at least four re­
spects. First of all the conduct prohibited by Section 16- 
386 and Section 19-12 is entry after notice, not as in Sec­
tion 16-388 (2) remaining after notice. Secondly, while

1 City of Charleston v. Mitchell, 239 S. C. 376, 123 S. E. 2d 512, 
certiorari filed April 7, 1962 (No. 89, October Term, 1962), which 
expanded Section 16-386 to include conduct like that of this peti­
tioner, had not yet been decided by the Supreme Court of South 
Carolina when this case was tried.



14

all three statutes make provision for actual notice, both 
Section 16-386 and Section 19-12 provide for constructive 
notice. Thirdly, when actual notice is given under Section 
16-386 or Section 19-12 it must be given by the “owner or 
tenant,” not by “the person in possession, or his agent or 
representative” as in Section 16-388 (2). Finally, there 
is no “good cause or excuse” requirement in Section 16-386 
and Section 19-12 as there is in Section 16-388 (2). Hamm 
was therefore placed in the unfair position of defending 
against the whole body of “available” South Carolina law 
including specified statutes which prohibited dissimilar 
conduct.

In addition to being forced to defend himself without 
knowing under which statute or ordinance he was charged, 
the particular statutes and ordinances mentioned by the 
prosecutor as possibly providing a basis of conviction all 
contain vague and ambiguous provisions.

Both Section 16-386 and Section 19-12 of the Code of 
Laws of City of Bock Hill prohibit “entry” on another’s 
land “after notice” from the owner or tenant. However, 
Negroes, including Hamm, were welcome to enter the store. 
Hamm was convicted only by expanding the words “entry 
after notice” to “remain after notice.” 2 But it is well 
settled that “judicial enlargement of a criminal act by 
interpretation is at war with the fundamental concept of 
the common law that crimes must be defined with appropri­
ate definiteness.” Pierce v. U. 8., 314 U. S. 306, 311.

Section 16-388 (2) is also unconstitutionally vague when 
applied in this situation. It states that a person must leave 
the premises when asked unless he has good cause or excuse 
not to leave. Nowhere in Section 16-388 (2) are the words 
“good cause or excuse” defined. No standards are set out

2 See footnote 1.



15

by which Hamm and others similarly situated could know 
what amounts to “good cause or excuse.” Certainly, in a 
store open to the public, including Negroes, where Hamm 
has purchased items and where he is orderly in every way, 
he should expect that he has “good cause or excuse” not 
to leave. In his instructions to the jury, the City Recorder 
stated that “good cause or excuse” meant “one valid in 
the eyes of the law, and under existing circumstances, not 
merely a personal cause or excuse of insufficient stature 
to have any legal force” (R. 104), but he refused to charge 
that race could not be the basis of a violation of the stat­
utes (R. 105, 106). But if as a matter of law a Negro has 
no “good cause” to request service at a “whites only coun­
ter” the statute runs afoul of Mr. Justice Stewart’s con­
demnation of legislative enactments “authorizing discrim­
inatory classification based exclusively on color.” Burton 
v. Wilmington Parking Authority, 365 U. S. 715, 727 (con­
curring opinion). The vice in this section lies not only in 
the fact that the legislature has set no guidelines to deter­
mine the breach, but also in the fact that it has given such 
power to the manager of a store, permitting him to use the 
arbitrary classification of race as a basis for violation. 
“That the terms of a penal statute creating a new offense 
must be sufficiently explicit to inform those who are subject 
to it what conduct on their part will render them liable to 
its penalties, is a well-recognized requirement, consonant 
with ordinary notions of fair play and the settled rules of 
law. And 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 violates the first essential of 
due process of law.” Connally v. General Construction Co., 
269 IT. S. 385, 391.

In the case of Thornhill v. Alabama, 310 U. S. 88, a pro­
vision similar to this one was held to be too vague to



16

warrant a conviction of the accused. In that case a state 
statute said that any person who “without a just cause or 
legal excuse therefor” loitered about or picketed the place 
of business of another person could be imprisoned. The 
Court condemned the use of the words “without a just cause 
or legal excuse” saying that they did “not in any effective 
manner restrict the breadth of the regulation” ; and that 
“the words themselves have no ascertainable meaning either 
inherent or historical” (310 U. S. at 100). Under this rea­
soning Section 16-388 (2) must also be held too vague to 
meet the requirements of fair notice.

Moreover, if it cannot be known from the record whether 
or not a defendant was convicted under an unconstitution­
ally vague statute, the conviction cannot stand because of 
the indeterminate possibility that it was premised on 
another provision of law not subject to the same infirmity. 
Stromberg v. California, 283 U. S. 359, 368. In Stromberg 
the court, noting that the defendant had been convicted 
under a general jury verdict which did not specify which 
of three statutory clauses it rested on, concluded that “if 
any of the clauses is invalid under the Federal Constitu­
tion, the conviction cannot be upheld.” The principle was 
followed in Williams v. North Carolina, 317 U. S. 387, 392, 
when the court said:

“To say that a general verdict of guilty should be up­
held though we cannot know that it did not rest on the 
invalid constitutional ground on which the case was 
submitted to the jury would be to countenance a 
procedure which would cause a serious impairment of 
constitutional rights.”

Certiorari should be granted for the additional reason 
that the City of Rock Hill, by burdening defendant with 
the whole body of “available” South Carolina law, by speci-



17

fying only statutes which were dissimilar and too vague 
to give Hamm notice that they prohibited his conduct, and 
by convicting him of the generalized offense of trespass 
without reference to a particular statute, violated Hamm’s 
rights under the due process clause of the Fourteenth
Amendment.

CONCLUSION

Wherefore, for the foregoing reasons, it is respectfully 
submitted that the petition for writ of eertiorari should
be granted.

Respectfully submitted,

J ack Greenberg 
C onstance B aker M otley 
J ames M. N abrit, III 
M ich a el  M eltsnbr

10 Columbus Circle 
New York 19, N. Y.

M a tth ew  J. P erry 
L incoln  C. J e n k in s , J r .

1107% Washington Street 
Columbia, South Carolina

D onald J ames S ampson 
W il l ie  T. S m it h , J r .

125% Falls Street
Greenville, South Carolina 

Attorneys for Petitioner

George B . S m it h  

of Counsel



APPENDIX



APPENDIX

IN THE YORK COUNTY COURT 

C ity  of R ock H il l ,

A r th u r  H am m , J r.

appeal from  t h e  recorder’s court of t h e

CITY OF ROCK HILL

Order

This Court now has before it for consideration a total of 
seventy-one cases which were heard by the Recorder’s 
Court for the City of Rock Hill. The convictions of all 
defendants were in due time appealed to this Court and 
heard together by this Court on an agreed Transcript of 
Record. By occurrence and charge the cases are grouped 
as follows:

1. Sixty-five breach of peace charges, upon the public 
streets at City Hall, on March 15, 1960.
2., Three breach of peace charges, upon the public 
streets at Tollison-Neal Drug Store, on February 23, 
1961.
3. One Trespass charge within McCrory’s variety 

1 store, on April 1, 1960, before enactment of the 1960
Trespass Act (No. 743).
4. Two Trespass charges, within McCrory’s variety 
store, on June 7, 1960, after enactment of the 1960 
Trespass Act.



2a

An examination of the Transcript of Record on Appeal 
discloses no real distinction between the first sixty breach 
of peace cases at City Hall, the next five on the same day 
at the same place only a short time later, and the three 
breach of peace cases on the public streets at Tollison-Neal 
Drug Store. In all of these cases it appears from the record 
that the public peace was endangered, that the defendants 
were properly forewarned by a police officer to cease and 
desist from further demonstrations at that time and place, 
and move on, which they failed and refused to do, despite 
allowance of ample time within which to have complied 
with the order, and that thereafter they were arrested and 
charged with breach of peace as continuance of their activi­
ties under the circumstances then existing, as shown by the 
record, constituted open defiance of proper and reasonable 
orders of a police officer and tended with sufficient direct­
ness to breach the public peace.

The offense charged in each of the sixty-eight breach of 
peace cases is clearly made out under the facts shown by 
the Transcript of Record and the law of force in this state, 
particularly as the law is shown by the recent decision of 
the South Carolina Supreme Court in the case of State 
v. Edwards et al., Opinion No. 17853, filed December 5, 
1961.

In like manner this Court finds no distinguishing features 
between the one trespass case, which occurred at one time 
and place and the two later trespass cases at the same 
place. In all three cases each defendant was asked to leave 
the premises by the Manager of the store, this occurred in 
the presence of a city police officer, who then himself re­
quested each defendant to leave and explained that arrest 
would follow upon failure to leave. After each defendant

Order



Order

failed to leave the private premises involved, following 
allowance of a reasonable opportunity after request so to 
do, first by the Manager and then by the police officer, each 
defendant was arrested and charged with trespass. Here 
again, under the facts disclosed in the record and the law 
of force in this state, the charge of trespass is properly 
made out as to each defendant. See City of Greenville v. 
Peterson et al, S. C. Supreme Court Opinion No. 17845, 
filed November 10, 1961, and City of Charleston v. Mitchell 
et al, S. C. Supreme Court Opinion No. 17856, filed Decem­
ber 13,1961.

A number of specific legal questions were raised by the 
Defendants, including particularly a question as to ade­
quacy and sufficiency of the warrants and whether or not 
the Defendants were properly advised of the charges pend- 
ing against them. An examination of the warrants dis­
closes that in each case the facts constituting the offense 
charged were stated with reasonable and sufficient par­
ticularity. It is the opinion of this Court that the various 
legal objections raised in the court below, which are not 
set forth in detail herein, were properly overruled. See 
State v. Randolph et al, 239 S. C. 79, 121 S. E. (2d) 349, 
filed August 23, 1961, other authorities cited herein, and 
other applicable decisions of our Courts referred to in the 
cited authorities.

Accordingly, it is hereby ordered and decreed that the 
convictions by the Recorder’s Court of the City of Rock 
Hill in all of the seventy-one cases under appeal are hereby 
affirmed, and each of the cases is remanded for execution of 
sentence as originally imposed.

This Court takes note, from published reports, of the 
untimely death of the Defendant, Rev. C. A. Ivory, since



4a

hearing of the appeals herein and before rendering judg­
ment thereon.

All of which is duly ordered.

G eorge T. Gregory, J r., 
Residing Judge, Sixth Judicial Circuit.

Chester, S. C.,
December 29,1961.

Order



5a

THE STATE OF SOUTH CAROLINA 
I n  t h e  S u pr em e  Court

Opinion by Moss, A.J.

City  oe R ock H il l ,
Respondent,

—v.—

A r th u r  H am m , J r .,
Petitioner.

APPEAL PROM YORK COUNTY, GEORGE T. GREGORY, JR., JUDGE

Moss, A.J . :

Arthur Hamm, Jr., the appellant herein, was convicted 
in the Recorder’s Court of the City of Rock Hill on June 
29, 1960, of the charge of trespass, in violation of Section 
16-388 (2) as is contained in the 1960 Cumulative Supple­
ment to the 1952 Code of Laws of South Carolina. The 
judgment of conviction was affirmed on December 29, 1961, 
by the Honorable George T. Gregory, Jr., Resident Judge 
of the Sixth Circuit. This appeal followed.

The evidence shows that on June 7, 1960, the appellant, 
along with Rev. C. A. Ivory, now deceased, entered the 
premises of McCrory’s Five and Ten Cent Store in the 
City of Rock Hill, South Carolina. Ivory was a cripple and 
confined to a wheelchair. He was pushed into the store by 
the appellant. Ivory and the appellant proceeded down the 
aisles of the store and made one or two purchases. There­
after, they proceeded to the lunch counter operated by



6a

McCrory’s. Ivory, still in his wheelchair, came to a stop 
between the stools at the said counter. The appellant took 
a seat on a stool at the lunch counter. The appellant and 
Ivory sought to be served. They were not served and were 
asked to leave the lunch counter. Upon their refusal to 
leave at the request of the manager of McCrory’s store, 
they were placed under arrest by police officers of the City 
of Rock Hill.

The first question for determination is whether the City 
Recorder committed error in refusing to require the City 
of Rock Hill to elect whether the prosecution was under 
Section 16-386 or Section 16-388, Code of Laws of South 
Carolina, or Section 19-12, Code of Laws of the City of 
Rock Hill.

It should be borne in mind that the warrant charged the 
appellant with committing a trespass on June 7, 1960, and 
that he,

“did willfully and unlawfully trespass upon privately 
owned property by remaining along with one Rev. C. A. 
Ivory at the lunch counter in McCrory’s variety store, 
which is customarily operated upon a segregated basis, 
and refusing to leave said counter, after the manager 
of said store, in the presence of City Police Capt. John 
M. Hunsucker, Jr., advised him he would not be served 
and specifically requested him to leave said lunch coun­
ter, and after the aforesaid police officer thereupon 
advised him that he would be arrested for trespass 
unless he left said premises as directed, which he never­
theless failed and refused to do, * * * .”

The appellant asserts that under Section 15-902 of the 
1952 Code of Laws of South Carolina that whenever a per­
son is accused of committing an act which is susceptible of

Opinion by Moss, A.J.



Opinion by Moss, A.J.

being designated as several different offenses that the 
Municipal Court upon a trial of such person shall be re­
quired to elect which charge to prefer and a conviction of 
an offense upon such an elected charge shall be a complete 
bar to further prosecution for the alleged offense. An 
examination of the warrant here shows that the only offense 
charged against the appellant was that of a trespass and 
the warrant above quoted, in our opinion, charges a viola­
tion of Section 16-388 of the 1960 Cumulative Supplement 
to the Code, which provides tha t:

“Any person:

“ (2) Who, having entered into the dwelling house, place 
of business or on the premises of another person * * * 
and fails and refuses, without good cause or excuse, 
to leave immediately upon being ordered or requested 
to do so by the person in possession, or his agent or 
representative,

“Shall, on conviction, be fined not more than one hun­
dred dollars, or be imprisoned for not more than thirty 
days.”

The warrant under which the appellant was prosecuted 
plainly and substantially sets forth the acts of the appel­
lant and thus informed him of the nature of the offense 
against him, in accordance with Section 43-111 of the 1952 
Code. City of Charleston v, Mitchell, et al., 239 S. C. 376, 
123 S. E. (2d) 512, and City of Greenville v. Peterson, et al., 
239 S. C. 298, 122 S. E. (2d) 826.

This case was tried by the Recorder of the Municipal 
Court of Rock Hill, with a jury. The Recorder, in deliver­
ing his charge to the jury, gave the following instructions:



8a

“Now, this defendant is charged under a warrant issued 
by the city of Kock Hill with the offense of trespass. 
I am not going to read this warrant to yon. It has 
been read to you and it has been discussed, and you 
know what is in the warrant. If you want to know 
then what is meant by trespass, what does trespass 
mean, I am going to read to you a portion of an Act 
of the General Assembly which became law on the 16th 
day of May, 1960, reading you only a portion of it, 
and that portion which applies in this particular case.

“Any person who, having entered into a place of busi­
ness or on the premises of another person, firm, or 
corporation, and fails and refuses without good cause 
or good excuse to leave immediately upon being ordered 
or requested to do so by the person in possession, or 
his agents or representatives, shall on conviction be 
fined not more than $100.00 or be imprisoned for not 
more than thirty days.”

It is readily apparent that the Recorder submitted to 
the jury only the question of whether the appellant was 
guilty of the offense of trespass as is defined by an Act of 
the General Assembly, approved May 16, 1960, 51 Stats. 
1729, now incorporated in the 1960 Supplement to the Code 
as Section 16-388 (2).

Should the City Recorder have required an election by 
naming the statute under which the prosecution was 
brought? We think not. The warrant here charged a single 
offense of trespass upon facts which are not in dispute. 
In 27 Am. Jur., indictments and informations, Section 133, 
at page 691, we find the following:

“ * * * There need, of course, be no election where the 
indictment or information charges only one offense

Opinion by Moss, A .J.



Opinion by Moss, A.J.

and the several different counts are merely variations 
or modifications of the same charge. This rule has 
been applied to an indictment where an unlawful act- 
relied on by the state as the basis for the charge was 
made unlawful by more than one statute, it being held 
that in such case it is error to compel the state to elect 
upon which statute it relies for a conviction. * * * 
State v. Schaeffer, 96 Ohio St. 215, 117 N. E. 220.

In 42 C.J.S., Indictments and Informations, Section 
185, at page 1149, we find the following:

“ * *'* No election is necessary where the indictment, 
properly construed, charges but one offense although 
several acts comprising the offense are included, or 
several methods by which the offense may have been 
committed are stated. The prosecuting attorney is not 
required to state at the trial the particular section of 
the code under which accused is being tried where the 
offenses or acts with which accused is charged are 
fully set out, nor is he required to elect where the 
offenses defined by the various statutes are included 
within the crime charged, * # #

And again:

“ * * * Although no express statement of election is 
made by the prosecution, accused is not prejudiced 
where the trial in fact proceeds on only one charge, or 
appropriate instructions are given to the jury. * * *

There is nothing substantial in the objection that the 
City Recorder refused to require the city of Rock Hill to 
elect the particular statute upon which the prosecution was 
based. The warrant charged a single offense of trespass



10a

and the Eecorder submitted to the jury only the question 
of whether the appellant was guilty of trespass as such 
was defined in the statute heretofore cited. There was no 
prejudice to the appellant.

The record shows that the appellant and the Eev. C. A. 
Ivory are Negroes. It was the policy of McCrory’s store 
not to serve Negroes at its lunch counter. The appellant 
asserts by exceptions 3, 4 and 5 that his arrest by the police 
officers of the city of Eock Hill and his conviction of tres­
pass that followed was in furtherance of an unlawful policy 
of racial discrimination and constituted State action in 
violation of his rights to due process and equal protection 
of the laws under the Fourteenth Amendment to the United 
State Constitution. Identical contention was made, con­
sidered and rejected in the cases of City of Greenville v. 
Peterson, et al., 239 S. C. 298, 122 S. E. (2d) 826; City of 
Charleston v. Mitchell, et al., 239 S. C. 376, 123 S. E. (2d) 
512; City of Columbia v. Barr, et al., 239 S. C. 395, 123
S. E. (2d) 521; and City of Columbia v. Bouie, et al., 239 
S. C. 570, 124 S. E. (2d) 332, in each of which was involved 
a sit-down demonstration similar to that disclosed by the 
uncontradicted evidence here, at a lunch counter in a place 
of business privately owned and operated, as was McCrory’s 
in the case at bar.

All exceptions of the appellant are overruled and the 
judgment appealed from is affirmed.

Affirmed.

T aylor, C.J., L ew is  a n d  B railsford, JJ., concur. B ussey , 
A.J. d id  n o t p a r tic ip a te .

Opinion by Moss, A.J.



11a

Petition for Rehearing and Petition for  
Stay o f Remittur

THE STATE OF SOUTH CAROLINA 
I n  t h e  S u pr em e  C ourt 

Case No. 4912

C ity  oe R ock H ill ,
Respondent,

A r t h u r  H am m , J r .,
Appellant.

Supreme Court of South Carolina 
Clerk’s Office, Columbia, S. C. 
Filed December 17,1963 
Frances H. Smith, Clerk

Petition denied.

Supreme Court of South Carolina 
Clerk’s Office, Columbia, S. C. 
Filed January 11,1963 
Frances H. Smith, Clerk

C. A. T aylor, C. J .  
J oseph  R . M oss, A .J .
J .  W oodrow L ew is , A .J .  
J .  M. B railsford, A .J .



38