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

    I n  t h e

(Emtrt nf %  Imtpft Btnlza
October Term, 1962 

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

/
L eboy H enry, and 64 others, 

— v . —

City op R ock H ill.

Petitioners,

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

F rank H. H eefron 
George B. Smith

of Counsel

J ack Greenberg 
Constance Baker Motley 
Michael Meltsner 

10 Columbus Circle 
New York 19, N. Y.

Matthew J . P erry 
L incoln C. J enkins, J r.

1107% Washington Street 
Columbia, South Carolina

D onald J ames Sampson 
W illie T. Sm ith , J r.

125% Falls Street 
Greenville, South Carolina

Attorneys for Petitioners



I N D E X
PAGE

Citation to Opinions Below .....-..................................... 1

Jurisdiction ....................................................................  1

Questions Presented ....    2

Constitutional Provision Involved ................................  2

Statement ........................................................................  2

How the Federal Questions Were Raised and Decided 5

Reasons for Granting the Writ .................................... 8
I. Edwards v. South Carolina Requires Reversal 

Since the Facts Here Are Almost Identical to
Those of That Case, Petitioners Having Been 
Convicted of South Carolina’s Vague Crime of 
Common Law Breach of the Peace While As­
serting Rights of Free Speech and Assembly 
Secured by the Fourteenth Amendment ..........  8

II. The Convictions of the Petitioners for Breach 
of Peace Violate the Due Process Clause of the 
Fourteenth Amendment in That They Rest on No 
Evidence of Public Disorder, Disturbance, or
Violence, Actual or Threatened ......................... 11

Conclusion ......................................................................  13

Appendix ......................... -........................... - ...............  la

Order of the York County Court...................................  la



11
PAGE

Opinion of the Supreme Court of South Carolina ......  4a

Denial of Petition for Rehearing ................................  7a

Table of Cases

Cantwell v. Connecticut, 310 U. S. 296 ....:...................  9

Dejonge v. Oregon, 299 U. S. 353 ................................  9

Edwards v. South Carolina, 31 U. S. L. Week 4225 —.2, 6, 8,
9,10,11

Garner v. Louisiana, 368 U. S. 157 ...............................  12
Gitlow y. New York, 268 U. S. 652 ................................  9

Stromberg v. California, 283 U. S. 359 ......................... 9

Taylor v. Louisiana, 370 U. S. 154................................  12
Thompson v. Louisville, 362 U. S. 199 ......................... 12

Whitney v. California, 274 U. S. 357 ............................  9



I n  the

Ihtprtfm? (to rt nf %  Inttrft ^ ta te
October Term, 1962 

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

L ekoy H enby, and 64 others,
Petitioners,

City oe R ock H ill.

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

Petitioners pray 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 7, 1962, 
rehearing of which was denied on January 3, 1963.

Citation to Opinions Below

The opinion of the Supreme Court of South Carolina is 
reported at 128 S. E. 2d 775 and is set forth in the appendix 
hereto, infra, pp. 4a-6a. The Order of the York County 
Court is unreported and is set forth in the appendix hereto, 
infra, pp. la-3a.

Jurisdiction

The judgment of the Supreme Court of South Carolina 
was entered on December 7, 1962, infra, pp. 4a-6a. Petition 
for rehearing was denied by the Supreme Court of South 
Carolina on January 3, 1963, infra, p. 7a.



2

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

Questions Presented

1. Whether the arrests and convictions of the petitioners 
under South Carolina’s vague common law concept of breach 
of the peace denied their rights of free expression secured 
by the Fourteenth Amendment where the facts are almost 
identical to those of Edwards v. South Carolina decided by 
this Court on February 25,1963?

2. Whether petitioners were denied due process of law 
by their conviction for common law breach of the peace on 
a record devoid of evidence of any of the essential elements 
of the crime ?

Constitutional Provision Involved

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

Statement

Petitioners, sixty-five Negro students, were arrested in 
two groups on March 15, 1960 in front of the City Hall 
of Eock Hill, South Carolina and charged with common 
law breach of the peace. The warrant (E. 2) stated that the 
petitioners “did willfully and unlawfully commit a breach 
of the peace by assembling with others in a large group 
upon the public streets, singing in a loud, boisterous, and



3

tumultuous manner and refusing to disperse upon order of 
a police officer contrary to the peace and dignity of the State 
of South Carolina, and in violation of the ordinances of 
the City of Bock Hill.”

Petitioner Henry was tried and convicted on March 24, 
1960. The other petitioners appeared in several groups in 
the Recorder’s Court of the City of Bock Hill on March 
31st, 1960, April 7th, April 14th, April 21st, April 28th, 
1960, May 5th and May 26th, 1960 (R. 1). Upon the ap­
pearance of each group it was stipulated that the testimony 
in the trial of Leroy Henry was applicable to and incorpo­
rated by reference into the remaining trials (B. 1, 192). 
All of the petitioners were found guilty and sentenced to 
pay fines of thirty-five to forty-five dollars or to serve 
thirty days in prison (B. 1).

The cases were heard on appeal to the York County 
Court by the Honorable George T. Gregory, Jr. On Decem­
ber 29, 1961, Judge Gregory issued an Order affirming the 
convictions (B. 193).

On December 7, 1962 the Supreme Court of South Caro­
lina affirmed the convictions. Rehearing was denied on 
January 3,1963.

A. The First Group

On March 15, 1960 around 1 :00 P. M. (R. 40, 118) sixty 
Negro students gathered near the curb (R. 126) in front 
of the City Hall of Rock Hill, South Carolina to protest 
against racial segregation (R. 115,150,151,192). They sang 
several songs—The National Anthem, My Country ’Tis of 
Thee, God Bless America, What a Friend We Have in Jesus, 
and America The Beautiful (R. 20, 91, 113). Some of the 
petitioners carried signs (R. 44). After approximately 15 
minutes a police officer asked the leader of the group to



4

tell the students to disperse (E. 95). When they did not, 
he arrested them (E. 95).

The arresting officer, Lt. J. B. Brown, testified that he 
arrested petitioners “in view of the public peace,” and be­
cause there was immediate danger to the public peace 
(E. 92).

The arresting officer testified that the petitioners were 
singing in a “loud tone of voice” (E. 91). Another officer 
said that they sang in a “loud, boisterous manner” (E. 20). 
But the singing was described by the defendant’s witnesses 
as “very moderate” in tone (E. 145), low in volume (E. 147), 
and “in a very sweet, soft voice” (E. 166).

A car horn which was blowing could be heard distinctly 
above the singing (E. 125) which seemingly grew louder 
because of the horn (E. 92, 107). No complaints were made 
about the singing or any other of petitioners’ actions, by 
persons within the City Hall or onlookers (E. 64, 65).

There was no evidence that the petitioners’ conduct or 
the onlookers’ threatened the public peace. While there 
was testimony that work was disrupted by the singing 
(E. 41, 62, 119), no complaint about this was made (E. 64, 
65). Petitioners were not profane, insulting, discourteous, 
or anything of the kind (E, 63). The white onlookers “were 
just standing there to see what was going to happen” 
(E. 71). Five policemen were at the scene, and there is no 
evidence that more were called for or needed to control 
the situation (E. 108,109).

No white persons were arrested nor was any attempt 
made to arrest any, even though some were blowing horns 
and others did not disperse when ordered to (E. 68, 71, 
106,107,109,110).



5

Petitioners were on the sidewalk in front of City Hall 
and did not prevent anyone from passing (E. 20, 41, 55, 
57, 126). Nor did they block vehicular traffic (R. 126). The 
white onlookers on the other side of the street did not block 
traffic or pedestrians (E. 66). When some of the onlookers 
spilled out onto the street they were moved back with no 
trouble (R. 66, 67, 68). One of the state’s witnesses who 
testified that cars could not pass (E. 120), testified that 
the students did not block traffic (R. 126). Nor were per­
sons prevented from using parking meters (E. 56). Traffic 
was cut out of Hampton Street which is located in front of 
City Hall only around the time the arrests were made 
(E. 67).

B. The Second Group

The second group consisted of five persons who appar­
ently arrived after the others had been arrested. They 
acted in much the same manner as the first group, singing 
patriotic and religious songs (E. 43, 96), but apparently 
for less time than the first group. Police asked them to 
leave and when they refused, they were arrested; at this 
time the street was fairly clear of citizens (R. 96).

No ordinance requires a permit to sing in front of City 
Hall (E. S3).

How the Federal Questions Were Raised 
and Decided Below

Before the commencement of the trial defendants made 
a motion to quash the information and dismiss the war­
rants on the ground that they were vague, indefinite, and 
uncertain (E. 6, 7). The motion was denied (R. 8, 18, 19).

At the close of the prosecution’s case, a motion to dis­
miss the warrants was made on the grounds that the Four­



6

teenth Amendment had been violated in that there was no 
evidence showing a breach of the peace by the defendants 
(R. 141), and that the defendants were asserting rights of 
freedom of speech and assembly. The motion was over­
ruled (R. 143).

At the close of the defendant’s case, defendant renewed 
his motion to dismiss on grounds previously given (R. 188). 
The motion was overruled (R. 189).

After the verdict defendants moved for a new trial based 
on all the objections raised during the course of the pro­
ceedings (R. 189). The motion was overruled (R. 189).

In affirming the convictions, the York County Court, 
relied on Edwards v. South Carolina (R. 194), 123 S. E. 
2d 247, reversed, 31 U. S. L. Week 4225, and stated that 
all the legal objections had been properly overruled.

In their appeal to the South Carolina Supreme Court de­
fendants in the following exceptions contended that the 
Fourteenth Amendment had been violated because of the 
vagueness of the charge, the right of freedom of expression 
and the lack of any evidence to convict (R. 196):

1. “The Court erred in refusing to hold that the 
warrants are vague, indefinite and uncertain and do 
not plainly and substantially set forth the offense 
charged, thus failing to provide appellants with suf­
ficient information to meet the charge against them 
as is required by Article I, Section 16, Constitution of 
the State of South Carolina and in violation of appel­
lants’ rights to due process of law, secured by the 
Fourteenth Amendment to the United States Con­
stitution.”

# # * * *
6. “The Court erred in refusing to hold that appellants 
were convicted upon a record devoid of any evidence 
of the commission of any of the essential elements of



7

the crime charged, in violation of appellants’ rights 
to dne process of law, guaranteed by the Fourteenth 
Amendment to the United States Constitution, and by 
Article I, Section 5, Constitution of the State of South 
Carolina.”

# # # # #
8. “The Court erred in refusing to hold that the 
evidence shows conclusively that by the arrest and 
conviction of appellants the State of South Carolina 
used its police powers to deprive appellants of the 
right of freedom of assembly and the right of freedom 
of speech, guaranteed them by the First Amendment 
to the United States Constitution, and further secured 
to them under the equal protection and due process 
clauses of the Fourteenth Amendment to the Constitu­
tion of the United States.”

The South Carolina Supreme Court held that there was 
ample evidence to support the conclusion that the police 
acted in good faith, dismissed all the exceptions and af­
firmed the convictions, infra, p. 6a.



8

REASONS FOR GRANTING THE WRIT
I.

Edwards v. South Carolina Requires Reversal Since 
the Facts Here Are Almost Identical to Those of That 
Case, Petitioners Having Been Convicted of South Caro­
lina’s Vague Crime of Common Law Breach of the Peace 
While Asserting Rights of Free Speech and Assembly 
Secured by the Fourteenth Amendment,

In Edwards v. South Carolina, 31 U. S. L. Week 4225, 
decided February 25, 1963, this Court decided that the 
arrest and conviction of Negro students under South Caro­
lina’s vague concept of breach of the peace, while they 
were peacefully protesting against racial segregation, vio­
lated their rights of freedom of expression and petition 
for redress of grievances secured by the Fourteenth Amend­
ment. In this case, decided by the Supreme Court of South 
Carolina on December 7, 1962, subsequent to that court’s 
decision in Edwards and before this Court’s decision re­
versing it, Negro students also assembled to protest against 
racial segregation (R. 115, 150, 151, 192), this time in front 
of the City Hall of Rock Hill, South Carolina. Review of 
the facts and circumstances in each case demonstrates that 
the arrests and convictions of the students here were, if 
anything, even more unjustifiable than those in Edtvards.1

One hundred eighty-seven persons assembled in Edwards; 
sixty-five were present here. The Negro students in Ed­
wards registered their protest by marching, singing, and 
carrying placards. The two groups arrested here limited 
themselves to singing and carrying placards (R. 20, 44, 
91, 113). While the students in Edwards demonstrated 
forty-five minutes to an hour, the first group here dem­

1 The following references to Edwards are taken from the opin­
ion of the court, 31 IT. S. L. Week 4225 and 4226.



9

onstrated fifteen to thirty minutes, and the second group 
for a shorter period (R. 44, 95). Nor was there any clapping 
of hands, stamping of feet, or “religious harangue” like 
that found in Edwards.

In both cases the crowd could only be described as 
curious. In Edwards the onlookers numbered two hundred 
to three hundred persons while here there were one hundred 
and fifty “at the greatest gathering” when the first group 
was singing (R. 66). When the second group was arrested, 
“the street was fairly clear as far as citizens were con­
cerned . . . ” (R. 96). There was testimony in Edwards 
by the city manager that “possible troublemakers” were 
present in the crowd, but similar evidence is lacking here. 
Police officers were at the scene and in control in both 
cases, thirty being present in Edwards, five or six here 
(R. 108,109).

No disruption of traffic can be found in either case. Even 
the slowing down of traffic which occurred in Edwards is 
missing here.

What was said by this Court in Edwards, 31 U. S. L. 
Week 4227 is equally true here,

“It has long been established that these First Amend­
ment freedoms are protected by the Fourteenth Amend­
ment from invasion by the States. Gitlow v. Neiv York, 
268 U. S. 652; Whitney v. California, 274 U. S. 357; 
Stromberg v. California, 283 U. S. 359; DeJonge v. 
Oregon, 299 U. S. 353; Cantwell v. Connecticut, 310 
U. S. 296. The circumstances in this case reflect an 
exercise of these basic constitutional rights in their 
most pristine and classic form.”

Moreover if singing before the City Hall of Rock Hill in 
protest against racial segregation is enough to arrest and



10

convict these petitioners, South Carolina’s use of common 
law breach of the peace is subject to the vice of vagueness. 
No ordinance or statute prevented petitioners from singing 
in front of City Hall (R. 83). Thus this Court is not asked 
to review “criminal convictions resulting from the even- 
handed application of a precise and narrowly drawn regu­
latory statute evincing a legislative judgment that certain 
specific conduct be limited or proscribed.” Edwards v. 
South Carolina, 31 U. S. L. Week at 4227. The South Caro­
lina Supreme Court in this case defined breach of the peace, 
as it did in Edwards, in this way (infra, p. 5a):

“ ‘In general terms, a breach of the peace is a viola­
tion of public order, a disturbance of the public tran­
quility, by any act or conduct inciting to violence . . ., 
it includes any violation of any law enacted to preserve 
peace and good order. It may consist of an act of vio­
lence. It is not necessary that the peace be actually 
broken to lay the foundation for a prosecution for this 
offense. If what is done is unjustifiable and unlawful, 
tending with sufficient directness to break the peace, 
no more is required. Nor is actual personal violence 
an essential element in the offense . . . ’ ”

This Court rejected such a vague definition as insuffi­
cient to convict persons engaged in the exercise of rights of 
freedom of speech and expression holding:

“These petitioners were convicted of an offense so gen­
eralized as to be, in the words of the South Carolina 
Supreme Court, ‘not susceptible of exact definition.’ 
And they were convicted upon evidence which showed 
no more than that the opinions which they were peace­
ably expressing were sufficiently opposed to the views 
of the majority of the community to attract a crowd



11

and necessitate police protection.” Edwards v. South 
Carolina, 31 U. S. L. Week 4227.

Certiorari should be granted because the opinion of the 
Supreme Court of South Carolina is in direct conflict with 
this Court’s decision in Edwards. These petitioners, like 
those in Edwards, were asserting rights of free expression 
which South Carolina has abridged by means of a crime 
so vaguely defined as to be repugnant to the Fourteenth 
Amendment.2

II.
The Convictions of the Petitioners for Breach of 

Peace Violate the Dee Process Clause of the Four­
teenth Amendment in That They Rest on No Evidence 
of Public Disorder, Disturbance, or Violence, Actual or 
Threatened.

Even under South Carolina’s amorphous definition of 
breach of the peace there is no evidence to support the 
petitioners’ convictions. The testimony of the police was 
that petitioners were well mannered (R. 63). The onlookers 
made no move actual or threatened which suggested that 
they were hostile to the petitioners. They made no com­
plaints (R. 64, 65). They “were just standing there to see 
what was going to happen” (R. 71). Moreover, none were 
arrested by the police (R. 68, 71, 109, 110). The situation 
was so controlled that only five policemen were at the scene 
and no more were called to control the students and the 
crowd (R. 108,109). * 18

2 Moreover, petitioners respectfully submit that since the legal 
and factual issues here are essentially the same as those found in 
Fields v. South Carolina, 31 U.S.L. Week 3297, decided on March
18, 1963, the same disposition made in that case should be made 
in this.



12

There was no disruption of traffic since it was able to 
move freely both on the sidewalk and in the streets (R. 
41, 55, 56, 57, 66, 67, 68, 126). One street was blocked 
off only around the time the arrests were made (R. 67). 
There is testimony that some of the drivers blew their 
horns (R. 92, 106,107, 125). But the arresting officer stated 
that this lasted only a matter of seconds (R. I l l ) ,  nor 
were any arrests made of persons blowing horns (R. 109).

There was testimony of police officers and a city em­
ployee who helped take petitioners to jail that the singing 
was loud and work was disrupted (R. 20, 21, 62, 91, 119, 
125). But the singing was not loud enough nor work dis­
rupted enough to cause any complaints to be made (R. 64, 
65). The onlookers, both on the sidewalk and in the build­
ings, can only be termed willing listeners. Even the testi­
mony of the police was that petitioners were orderly, 
courteous, and polite (R. 63).

Certiorari should be granted and the decision below re­
versed for the additional reason that due process of law 
secured by the Fourteenth Amendment was denied in that 
there was no evidence to sustain the convictions. Thompson 
v. Louisville, 362 U. S. 199, Garner v. Louisiana, 368 U. S. 
157, Taylor v. Louisiana, 370 U. 8. 154.



13

CONCLUSION

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

Respectfully submitted,

J ack Greenberg 
Constance Baker Motley 
Michael Meltsner 

10 Columbus Circle 
New York 19, N. Y.

Matthew J . P erry 
L incoln C. J enkins, J r.

1107% Washington Street 
Columbia, South Carolina

Donald J ames Sampson 
W illie T. Smith , J r.

125% Falls Street 
Greenville, South Carolina

Attorneys for Petitioners

F rank H. H eefron 
George B. Smith

of Counsel



APPENDIX



A P P E N D I X

I n the

YORK COUNTY COURT

T he City of R ock H ill

-v.-

L eroy H enry, et al.

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 store, 
on April 1, 1960, before enactment of the 1960 Trespass 
Act (No. 743). 4

4. Two Trespass charges, wfithin 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 re­
fused 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 con­
tinuance of their activities 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 directness to breach the public peace.

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

In like manner this Court finds no distinguishing fea­
tures between the one trespass case, which occurred at 
one time and place and the two later trespass cases at 
the same place. In all three cases each defendant was asked 
to leave the premises by the Manager of the store, this 
occurred in the presence of a City police officer, who then 
himself requested each defendant to leave and explained 
that arrest would follow upon failure to leave. After each 
defendant failed to leave the private premises involved, 
following allowance of a reasonable opportunity after re­
quest so to do, first by the Manager and then by the police 
officer, each defendant was arrested and charged with tres­
pass. Here again, under the facts disclosed in the record



3a

and the law of force in this state, the charge of trespass 
is properly made out as to each defendant. See City of 
Greenville v. Peterson et al., S. C. Supreme Court Opinion 
No. 17845, filed November 10, 1961 and City of Charleston 
v. Mitchell et al., S. C. Supreme Court Opinion No. 17856, 
filed December 13, 1961.

A number of specific legal questions were raised by the 
Defendants, including particularly a question as to ade­
quacy and sufficient (sic) of the warrants and whether or 
not the Defendants were properly advised of the charges 
pending against them. An examination of the warrants 
discloses that in each case the facts constituting the of­
fense charged were stated with reasonable and sufficient 
particularity. It is the opinion of this Court that the va­
rious 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 
hearing of the appeals herein and before rendering judg­
ment thereon.

All of which is duly ordered.
George T. Gregory, J r., 

Residing Judge, 
Sixth Judicial Circuit.

Chester, S. C.
December 29,1961.



4a

Opinion of the Supreme Court of South Carolina

T he State of South Carolina 

IN THE SUPREME COURT

T he City of R ock H ill,

—v.-
Respondent,

L eroy H enry, et al.,
Appellants.

Appeal from York County. George T. Gregory, J r., 
Residing Judge, Sixth Judicial Circuit. Affirmed.

T aylor, C.J.: Appellants here are sixty-five Negroes who 
were arrested March 15, 1960, and convicted by the City 
of Rock Hill, South Carolina, of the common law offense 
of breach of peace.

The record reveals that on the day in question all of 
those arrested were engaged in singing patriotic and re­
ligious songs in a loud and boisterous manner in the city 
of Rock Hill; that the crowd assumed such proportions that 
it spread from the sidewalk into the street; that tension 
was present in the community resulting from previous dem­
onstrations and threats of bombings had been made; that 
the singing was done in such loud and boisterous manner 
that work in the City Hall was completely disrupted. This 
demonstration had been going on from 25 to 30 minutes 
before they were forewarned by police officers to desist 
from further demonstrations. They failed and refused to 
comply with the request of the police and were arrested 
and charged with breach of peace.



“In general terms, a breach of the peace is a viola­
tion of public order, a disturbance of the public tran­
quility, by any act or conduct inciting to violence # # * , 
it includes any violation of any law enacted to preserve 
peace and good order. It may consist of an act of 
violence. It is not necessary that the peace be actually 
broken to lay the foundation for a prosecution for this 
offense. If what is done is unjustifiable and unlawful, 
tending with sufficient directness to break the peace, 
no more is required. Nor is actual personal violence 
an essential element in the offense * * # .

“By ‘peace’, as used in the law in this connection, is 
meant the tranquility enjoyed by citizens of a munici­
pality or community where good order reigns among 
its members, which is the natural right of all persons 
in political society.” 8 Am. Jur. 834, Section 3; State 
v. Edwards, 239 S. C. 339, 123 S. E. (2d) 247. See also
State v. Brown,----- S. C .------ , 126 S. E. (2d) 1; City
of Sumter v. McAllister, -----  S. C. -——, 128 S. E.
(2d) 419, filed November 28, 1962; City of Sumter v. 
Lewis, -----  S. C. ----- , 128 S. E. (2d) 684, filed De­
cember 1,1962.

Appellants in their brief contend principally that they 
were discriminated against because they were Negroes; 
second, that there was no breach of peace in that what 
they were doing was not within itself unlawful.

Appellants were not convicted under a statute designed 
to perpetuate segregation but were convicted of the com­
mon law offense of breach of peace, and this applies to 
any person irrespective of race. The singing of patriotic 
songs and religious hymns is, of course, not unlawful if 
done in a lawful manner, but even such praiseworthy acts 
may be done at a time and place and in such manner as



6a

to be unjustifiable and unlawful resulting in a breach of 
the peace. There is ample evidence here to support the 
conclusion that the police acted in good faith to maintain 
the public peace, to assure the availability of the streets 
for their primary purpose of usage by the public, and to 
maintain order in the community.

For the foregoing reasons, we are of opinion that all 
exceptions should be dismissed; and It Is So Ordered. 
J udgment Affirmed.

Moss, L ewis and B railsford, JJ., concur. Bussey, A.J., 
did not participate.



7a

Order of Denial of Rehearing

I n the

SUPREME COURT OF SOUTH CAROLINA

City oe R ock H ill,

-v.—

Respondent,

Leroy H enry, et al.,
Appellants.

(Endorsed on Back of Petition for Rehearing)

None of the matters referred to in this petition were 
either overlooked or misapprehended.

The petition is therefore denied.

C. A. T aylor, C.J.
J oseph R. Moss, A.J.
J. W oodrow L ewis, A.J. 
J. M. Brailsford, A.J.



<̂S1Ŝ “ '38