Fields v. South Carolina Petition for Writ of Certiorari to the Supreme Court of South Carolina

    JAMES M. NAEKlinr, HI

I n  THE

§>upmnT (Emtrt nf %  Itttted States
O ctober T erm , 1963 

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

J ames F ields, et al.,
Petitioners,

—y.—

S tate of S ou th  Carolina .

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

J ack  Greenberg 
C onstance B aker  M otley 
M ich ael  M eltsner

10 Columbus Circle 
New York 19, New York

M atth e w  J . P erry 
L incoln  C. J e n k in s , Jr.

1107% Washington Street 
Columbia 1, South Carolina

W . N ew ton  P ough

Orangeburg, South Carolina

Attorneys for Petitioners

F ran k  H . H eeeron 
G eorge B . S m it h  

Of Counsel



I N D E X

PAGE

Citations to Opinions Below ..........................................   1

Jurisdiction ...................    2

Questions Presented ........................................................... 2

Constitutional Provision Involved .................................-  3

Statement ..............................................................................  3

How the Federal Questions Were Raised and Decided 
Below ....................................................................................  10

A rgu m en t  ...............    13
I. Conviction of Generalized Common Law Breach 

of the Peace for Peaceful and Orderly Speech 
and Assembly Opposed to Racial Segregation 
Denied Petitioners Due Process of Law Secured 
by the Fourteenth Amendment ................   13

II. Petitioners’ Convictions on Warrants Charging 
That Their Conduct “ . . . Caused Fear and 
Tending to Incite a Riot or Other Disorderly 
Conduct or Cause Serious Trouble” Violate the 
Due Process Clause of the Fourteenth Amend­
ment in That the Judgments Rest on No Evi­
dence of Guilt ........................................................... 17

C o n c l u s io n .................................... -................................. —- 20



11

T able op C ases

page

Cantwell v. Connecticut, 310 U. S. 307 .......................16,17
Cooper v. Aaron, 358 U. S. 1 .........................................  16

Edwards v. South Carolina, 372 U. S. 299 ...........2, 3,13,14,
15,16,17,18,19

Feiner v. New York, 300 N. Y. 391, 91 N. E. 2d 319,
affirmed, 340 XL S. 315............................................ 12,13,15

Fields v. South Carolina, 372 U. S. 522 ...................1, 3,13

Garner v. Louisiana, 368 II. S. 157.................................17,19

Lombard v. Louisiana,------U. S . ------- , 83 S. C t .------ ,
10 L. ed. 2d 338 ..............................................................  15

Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1947), cert.
den. 332 U. S. 851 .......... ............... ..................................  16

Stromberg v. California, 283 U. S. 359 ........................... 17

Taylor v. Louisiana, 370 U. S. 154................................... 19
Terminiello v. Chicago, 337 U. S. 1 ............................... 16
Thompson v. Louisville, 362 U. S. 199 ........................... 19
Thornhill v. Alabama, 310 U. S. 8 8 .......... ........................  17

Wright v. Georgia, —— IJ. S. ------ , 83 S. Ct. ----- ,
10 L. ed. 2d 349 ............................................................  16



Ill

I n d e x  to A ppendix

page

Order of the Supreme Court of South Carolina on 
Remand ..............................................................................  la

Order of the Orangeburg County Court, State v. Fields 3a

Opinion of the Supreme Court of South Carolina, State 
v. Fields ............................................................................  6a

Order of the Orangeburg County Court, State v. Gil­
christ ..................................................................................  7a

Opinion of the Supreme Court of South Carolina, State 
v. Gilchrist ......................................................................  9a

Order of the Orangeburg County Court, State v. 
Graham ....    10a

Opinion of the Supreme Court of South Carolina, State 
v. Graham .......................................    12a

Order of the Orangeburg County Court, State v. 
Witherspoon ........................................................   13a

Opinion of the Supreme Court of South Carolina, State 
v. Witherspoon .... ............................................................ 15a

Order of the Orangeburg County Court, State v. Heat- 
ley ............................-......................................................... 16a

Opinion of the Supreme Court of South Carolina, State 
v. Heatley ..........................................................................  17a

Order of the Orangeburg County Court, State v.
J. Brown ............................................................................  18a

Opinion of the Supreme Court of South Carolina, State 
v. J. Brown .............    19a

Order of the Orangeburg County Court, State v. 
Davenport ........................................................................  20a



IV

PAGE

Opinion of the Supreme Court of South Carolina, State 
v. Davenport ....................................................................  21a

Order of the Orangeburg County Court, State v.
I. Brown ............................................................................  22a

Opinion of the Supreme Court of South Carolina, State 
v. I. Brown ......................................................... -...........  31a



I n  t h e

(flmvt of tin Inttefr BUUs.
O ctober T erm , 1963 

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

J ames F ields, et al.,

-v.
Petitioners,

S tate of S outh  Carolina ,

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, en­
tered May 14, 1963, in State v. James Fields, et al.; State 
v. Bobbie J. Gilchrist, et al.; State v. Marie Graham, et al.; 
State v. Eula M. Witherspoon, et al.; State v. Alvin Eeatley, 
et al.; State v. Joseph C. Brown, et al.; State v. Frances 
E. Davenport, et al.

Citations to Opinions Below

The opinion of the Supreme Court of South Carolina on 
remand from this Court is unreported and appears in the 
appendix, infra pp. la-2a.

The opinions of the Supreme Court of South Carolina, 
constituting final judgments vacated and remanded by this 
Court, Fields v. South Carolina, 372 U. S. 522, are reported 
at 126 S. E. 2d 6, 7, 8, 9 (1962) and appear in the appendix 
(Fields 6a; Gilchrist 9a; Graham 12a; Witherspoon 15a; 
Heatley 17a; J. Brown 19a; Davenport 21a). The opinions



2

of the Orangeburg County Court are unreported and appear 
in the appendix (Fields 3a; Gilchrist 7a; Graham 10a; 
Witherspoon 13a; Heatley 16a; J. Brown 18a; Davenport 
20a).

The opinion of the Supreme Court of South Carolina and 
the opinion of the Orangeburg County Court in State v. 
Irene Brown, et al., 126 S. E. 2d 1 (1962) a companion 
case, cited as controlling authority for the judgment in peti­
tioners’ cases, appear in the appendix, infra pp. 22a-39a.

Jurisdiction

The judgment of the Supreme Court of South Carolina 
of which review is sought was entered May 14, 1963, infra 
pp. la-2a.

The jurisdiction of this Court is invoked pursuant to 
28 U. S. C. §1257(3), petitioners having asserted below and 
asserting here, deprivation of rights, privileges, and im­
munities secured by the Constitution of the United States.

Questions Presented

Whether petitioners were denied due process of law se­
cured by the Fourteenth Amendment:

(1) when convicted of generalized, vague common-law 
breach of the peace, for having engaged in peaceful and 
orderly speech and assembly, which allegedly produced 
community tension and minor traffic problems, on records 
revealing far less likelihood of public disturbance than 
those in Edwards v. South Carolina, 372 IT. S. 229.

(2) when so convicted on warrants charging that their 
peaceful and orderly walks which expressed ojoposition to 
racial segregation and suppression of speech in Orange-



3

Constitutional Provision Involved

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

Statement

March 18, 1963, this Court vacated the judgment of the 
Supreme Court of South Carolina in these cases, Fields v. 
South Carolina, 372 U. S. 522, and directed “ that this cause 
be remanded to the Supreme Court of the State of South 
Carolina for consideration in light of Edwards v. South 
Carolina, 372 U. S. 229.” May 14, 1963, the Supreme Court 
of South Carolina filed an order stating “ . . . we have con­
sidered this cause in light of Edwards v. South Carolina 
and adhere to and affirm the judgment of this court ren­
dered on June 6, 1962 ------  S. C. ------ , 126 S. E. 2d 6, for
the reasons stated in our opinion in State v. Brown, 240 
S. C. 357, 126 S. E. 2d 1” , infra p. 2a.

Petitioners, three hundred seventy-three Negro stu­
dents, were tried in seven separate trials from March 19, 
1960 to May 7, 1960. March 15,1960, petitioners along with 
other students from the Orangeburg area, began to walk 
in four separate groups toward the downtown area of 
Orangeburg, South Carolina to demonstrate dissatisfaction 
with racial segregation and “ second-class citizenship” in 
the city and state (Heatley 103-04; Gilchrist 73; Fields 127; 
Witherspoon 103).* Three hundred eighty-eight students 
were arrested and charged with common-law breach of the 
peace (Fields 102; Gilchrist 102; Graham 1-2; Witherspoon

* Seven trials resulted in seven separate records. Each record is 
designated by the first named defendant.

burg, “ caused fear” , “ tended[ed] to incite a riot or other
disorderly conduct” , and “ cause [d] serious trouble” , on rec­
ords barren of such evidence.



4

1-2; Heatley 1-2; J. Brown 1-2; Davenport 1-2). All were 
convicted in the Magistrate’s Court of the County of 
Orangeburg, sitting without a jury, and sentenced to fines 
of fifty ($50.00) dollars or 30 days in prison (Fields 137; 
Gilchrist 91; Graham 7; Witherspoon 132; Heatley 123; J. 
Brown 6; Davenport 7).

On appeal to the First Judicial Circuit of South Carolina 
and later to the Supreme Court of South Carolina, the cases 
were consolidated for argument and the convictions af­
firmed. Identical constitutional and state law questions 
were raised in each case. In a companion case, State v. 
Irene Brown, infra pp. 22a-39a, a jury trial in the Magis­
trate’s Court resulted in the conviction of fifteen students 
for common-law breach of the peace. This conviction was re­
versed, however, by the Supreme Court of South Carolina 
on the ground that the right to examine prospective jurors 
on the voir dire had been denied by the trial court.

It was stipulated below that the records in the cases of 
J. Brown, et al., Davenport, et al., and Graham, et al., 
would be the same as the record in Heatley, et al. (J. Brown 
5; Davenport 5; Graham 5).

The students were charged on warrants alleging that they

“ did commit breach of the peace by unlawfully and 
willfully congregating and marching in the City of 
Orangeburg, said County, and did approach what is 
known as the business section of the City of Orange­
burg, the groups being headed by a number of parties 
who refused to stop and return to the colleges upon the 
request of Chief of Police Hall and other officers in 
the City of Orangeburg, thereby disturbing the peace 
and tranquility of the normal traffic on the sidewalks 
as well as the streets in the City of Orangeburg, which 
caused fear and tending to incite a riot or other dis­



5

orderly conduct or cause serious trouble, thereby com­
mitting breach of the peace, against the form of the 
statute in such case made and provided, and against the 
peace and dignity of the State.”

(Fields 1-2; Gilchrist 2; Graham 2; Heatley 2; Wither­
spoon 2; J. Brown 2; Davenport 2.)

Four groups of students were arrested. For convenience, 
the circumstances of each set of arrests are set forth sepa­
rately. Facts in common are set forth, infra p. 9.

The Amelia Street Groups 

First Group

About 12 noon, March 15, 1960, seventy-five to one hun­
dred Negro students walked in completely orderly fashion 
(Witherspoon 8, 18, 21, 119; Fields 58, 62, 63, 64, 105, 115; 
Gilchrist 28, 29; Heatley 8) on Amelia Street (Heatley 7), 
on the sidewalk, two or three abreast. They intended to 
protest racial discrimination in the city and state and to 
stimulate public discussion of their grievances at the Pub­
lic Square. (Gilchrist 64-65; Heatley 92-93; Witherspoon 
116, 123, 127; Fields 116.) Before reaching the Square, 
they were stopped by two officers one of whom asked for 
the spokesman (Heatley 7). At an officer’s request, the 
spokesman asked the group to disperse. WThen no one 
moved, the officer asked them himself (Heatley 7). Some 
students did not hear this request (Gilchrist 71; Wither­
spoon 111-112). When the group still did not move all were 
placed under arrest (Heatley 7). The reason for the ar­
rest was that they were “ demonstrating without a permit” 
(Heatley 7).

Another officer testified that due “ to the tension that 
was in town” and “ the tranquility of the normal flow of



6

traffic” it was better that the students not be allowed to 
continue to the Public Square (Heatley 65). But neither 
he nor the other officers specified any present disorder or 
particular threat of disorder as reasons for the arrest. 
The police admitted “ everybody” was peaceful and orderly 
(Heatley 87). No vehicular traffic was blocked (Fields 64, 
115; Gilchrist 29; Witherspoon 21, 90,118,119). Pedestrian 
traffic was light (Gilchrist 29) and the “ few” pedestrians 
were not inconvenienced (Gilchrist 29; Fields 63, 64; 
Witherspoon 119, 120). No crowd appeared and although 
a few onlookers appeared in yards adjacent to the opposite 
sidewalk the police noticed nothing special about them 
(Fields 63, 65,105,106; Gilchrist 29).

Second Group

The second Amelia Street group was proceeding just be­
hind the first when stopped by the same two officers. The 
second group numbered about fifty to seventy-five students 
(Gilchrist 27). The circumstances of their arrest were the 
same as the first group’s (Gilchrist 24; Heatley 9-10).

Russell Street Group

The same day, March 15, 1960, two groups of students, 
numbering three to four hundred (Gilchrist 9), proceeded 
on Russell Street in the direction of the downtown area 
(Gilchrist 8). They were stopped by officers and ordered to 
disperse (Gilchrist 7). When they refused, fire hoses were 
turned on them and tear gas thrown (Heatley 34; Fields 
20, 22). Police had summoned the fire truck before they 
went to meet the students (Fields 41). Only four of Russell 
Street students were arrested (Gilchrist 8, 9).



7

Traffic was tied up (Gilchrist 9) by fire hoses strung 
across the street (Fields 43). But no traffic was blocked 
before the police stopped the students (Gilchrist 14) and 
the fire hoses were strung out (Fields 43, 47).

The students themselves remained on the sidewalks (Gil­
christ 14). The Chief of Police testified they used the en­
tire sidewalks but he did not see anyone forced to walk 
into the street or prevented from using the sidewalk (Fields 
45, 47; Gilchrist 13-14). He said that the reason for the 
arrests was that the students had been told not to demon­
strate. They “ were orderly except for the fact they were 
walking in a group toward town” (Fields 47).

John Calhoun Drive and Middleton Street Group

As this group of seventy-five to one hundred proceeded 
along John Calhoun Drive (also known as Highway 301 and 
Highway 601) they were stopped by a police officer (Heat- 
ley 44). When he ordered them to disperse, the students 
refused. Asked by a member of their group if they wished 
to continue, they replied affirmatively (Heatley 45). The 
students continued on down the street, the officer accom­
panying them, and turned right on Middleton Street. As 
they neared St. John Street, they were stopped by another 
officer and told to disperse (Heatley 60). When they refused 
they were arrested (Heatley 45).

This group, like the others, was well behaved and quiet 
(Fields 92; Gilchrist 39; Witherspoon 79). There was no 
evidence of disorder among twelve to fifteen persons 
gathered on the side of Middleton Street opposite where 
the petitioners walked nor among persons gathered near

All the walkers were orderly and quiet (Fields 42, 49;
Gilchrist 13). Fifteen or twenty persons other than the
students were walking on the sidewalk (Heatley 38-39).



8

No vehicular or pedestrian traffic was blocked on John 
Calhoun Drive (Heatley 48-51; Gilchrist 39-40). Some 
motorists stopped of their own accord (Fields 82). A 
patrolman testified that the students covered the sidewalk 
on John Calhoun Drive (Fields 87; Gilchrist 44) but he 
also testified that the students walked in pairs (Gilchrist 
39) and that no pedestrians were prevented from passing 
(Heatley 48-51; Gilchrist 40).

Officer Brant testified that “ Traffic had stopped on the 
right side (of Middleton Street) where cars could not go 
through” (Witherspoon 57, 71). However, he also testified 
that the students themselves blocked no traffic on this street 
(Witherspoon 71; Heatley 51). Nor did he, while walking 
in the street (Witherspoon 67), stop any cars himself 
(Heatley 51). The Middleton Street sidewalk is wide enough 
for only two to pass (Gilchrist 35, 41). Brant testified that 
pedestrians were unable to use the sidewalks (Fields 83) 
but gave no evidence of any actual meeting of pedestrians 
and students. The pedestrians he observed were going into 
places of business on the street (Gilchrist 35; Heatley 45; 
Witherspoon 56).

The arresting officer testified in two trials that the stu­
dents, as they proceeded along Middleton Street, were on 
the sidewalk (Fields 92; Gilchrist 43). In a third he testi­
fied that two students were at the curb edge but not in the 
middle of the street, nor did they block traffic (Witherspoon 
77). He testified at one point that pedestrians were blocked 
from using the sidewalk (Witherspoon 77), but changed 
this to say that, as the students were walking toward him, 
two abreast, he asked several pedestrians to step aside 
(Witherspoon 77, 78). He added that no pedestrians were 
blocked by the students (Witherspoon 79). The students

St. John Street. Both groups moved when requested by the
police (Fields 77, 84; Gilchrist 34; Witherspoon 55, 79).



9

supported this view and said they were ready to move into
single file if a pedestrian appeared to allow passage (Fields
126-127).

Facts in Common

All the cases have significant facts in common. Each stu­
dent group attempted to walk to a public square in the 
center of the city to register its protest against racial 
segregation. Each was prevented from reaching this des­
tination. Each was orderly and peaceful. The students did 
not prevent vehicular traffic from passing; pedestrians were 
not inconvenienced. Reasons for the arrests, other than 
walking without a permit and failure to disperse, were 
that the community was tense (Gilchrist 10, 26; Heatley 
60; Witherspoon 74) and that the students had no right to 
demonstrate (Heatley 24). There is no evidence that the 
police received any information of violence the day of the 
arrests. They based their conclusion on three demonstra­
tions which had taken place prior to the date of the arrests 
and on talks with several persons in the community (Fields 
18). February 25th students had picketed the Kress Dime 
Store and no disturbance had taken place (Gilchrist 12). 
February 26th, more than two weeks before the students 
were arrested, a white and a Negro had been arrested for 
a brief “ fisticuff” during a sit-in at the same store (Fields 
15; Gilchrist 12). This was the only instance of violence 
recited to justify the petitioners’ arrest. March 1st, six 
hundred to seven hundred Negro students walked through 
town peacefully. Two persons were arrested that day “ from 
incidents that happened during the parading,” and four 
boys also were arrested apparently for having had paper 
bags over their heads (Heatley 66).

The Chief of Police talked to between ten and fifteen 
persons (Fields 33) who voiced no hostile objections nor



10

did they suggest that they would forcibly stop the demon­
strations (Fields 31, 39). The Assistant Chief of the South 
Carolina Law Enforcement Division talked to thirty or 
forty individuals (Witherspoon 50). Some expressed their 
feelings in a “belligerent manner” (Witherspoon 48) but 
none threatened violence themselves (Witherspoon 50). 
“ They were afraid of what somebody else might do” (With­
erspoon 50). Those who feared a disturbance never said 
from what source it might come (Heatley 43). Other evi­
dences of “ tension” were found in the fact that people 
“ would simply want to know what was going on around 
there at Kress’ Five and Ten Cents Store” (Witherspoon 
29). There were no threats (Witherspoon 29). On the day 
of the arrests there was no evidence of violence or threat­
ened violence.

There is no evidence that any of the groups of students 
blocked traffic or interfered with pedestrians. Whatever 
interference with traffic or pedestrians there was seems 
to have been a result of curiosity or police conduct (Fields
20, 40, 43, 47, 63, 64, 77, 84; Heatley 34, 48-51; Witherspoon
21, 67, 71, 77, 78; Gilchrist 29). The few pedestrians in 
the area of the demonstration seem to have been curious 
onlookers rather than persons blocked from reaching some 
specific destination (Heatley 45; Witherspoon 55, 56, 77, 
78, 79; Gilchrist 34, 35, 40).

How the Federal Questions Were Raised 
and Decided Below

The petitioners in these seven cases were tried before 
the Court of Magistrate, Orangeburg County, in seven 
separate trials on the 28th (Fields) and 31st (Gilchrist) of 
March, the 5th (Witherspoon), 8th (Heatley), 22nd (J. 
Brown), and 28th (Davenport) of April, and the 7th 
(Graham) of May, 1960.



11

Prior to entry of their pleas in most cases, petitioners 
moved to dismiss on the ground that prosecution for the 
offense charged in the circumstances alleged would con­
stitute a denial of due process of law under the Fourteenth 
Amendment to the Constitution of the United States (Fields 
8; Witherspoon 5; Heatley 5; J. Brown 5; Davenport 4-5; 
Graham 5). These were denied (Fields 8; Witherspoon 5; 
Heatley 5; J. Brown 5; Davenport 5; Graham 5). In Gil­
christ, petitioners objected specifically to denial of their 
freedom of expression and peaceful assembly in their pleas 
of not guilty (Gilchrist 6). Similar pleas were entered in 
other cases (Fields 12-13; Witherspoon 5-6).

Motions to dismiss on similar grounds were made at the 
close of the prosecution’s case (Heatley 89; J. Brown 7; 
Davenport 6; Graham 6-7) and prior to entry of judgment 
(Fields 135; Gilchrist 91; Witherspoon 130, 131; Heatley 
122; J. Brown 7; Davenport 6; Graham 6-7).

In all cases, after judgment of guilt and sentence, mo­
tions in arrest of judgment or in the alternative for a new 
trial were made on the grounds, inter alia, that the evidence 
established that, the students were prosecuted only “ for the 
purpose of preventing them from engaging in peaceful as­
sembly” to protest against racially discriminatory prac­
tices of the community, “ contrary to the Due Process and 
Equal Protection clauses of the Fourteenth Amendment to 
the United States Constitution” (Witherspoon 132-33; 
Heatley 122, 124; J. Brown 7; Davenport 7; Graham 7) 
and that the evidence showed conclusively that at the time 
of their arrests the students were included in a peaceful 
and lawful assemblage of persons (Fields 139; Gilchrist 
93; Witherspoon 134). These motions were all denied by 
the trial court (Fields 135, 139; Gilchrist 91, 93; Wither­
spoon 131, 132, 134; Heatley 89, 123, 124; J. Brown 7; 
Davenport 7; Graham 7).



12

Petitioners appealed in all seven cases, as did the defen­
dants in the companion case of State v. Irene Brown (22a- 
39a), to the Orangeburg County Court, where arguments 
on the eight appeals, involving several identical issues, 
were heard together. The County Court affirmed all eight 
convictions (3a, 7a, 10a, 13a, 16a, 18a, 20a), issuing eight 
separate orders. The orders of the County Court in the 
seven cases involving petitioners here relied primarily and 
directly (5a, 8a, 11a, 14a, 16a, 18a, 20a) on the order ren­
dered in State v. Irene Brown (22a) in which the County 
Court dealt with the Constitutional issues raised at trial. 
On the authority of Feiner v. New York, 300 N. Y. 391, 91 
N. E. 2d 319, the County Court held that “ no action was 
taken until the police authorities in their considered judg­
ment came to the conclusion that the point had been reached 
where the action of the Appellants was dangerous to the 
peace of the community” (29a).

Before the Supreme Court of South Carolina the eight 
cases were consolidated for argument “because all of the 
cases involve basically the same issues and facts” (31a). 
The Supreme Court affirmed the seven cases here (6a, 9a, 
12a, 15a, 17a, 19a, 21a) on the express authority of its opin­
ion in State v. Irene Brown (31a), in which the constitu­
tional issues were decided adversely to the students, al­
though that case was reversed on an issue not presented in 
the other cases. In Irene Brown, the Supreme Court of 
South Carolina said:

“ The defendants next assert that the State failed to 
prove the commission by them of the offense of breach 
of peace and that their convictions were obtained in 
violation of their rights to freedom of speech and as­
sembly and their right to petition for redress of griev­
ances, protected by . . . the First and Fourteenth 
Amendments to the United States Constitution. All of



13

these questions may be resolved by a determination of 
whether or not there is any competent evidence to sus­
tain the conviction of the defendants for a breach of 
the peace”  (32a-33a).

Upon the authority of State v. Edwards,  -----  S. C. ------ ,
123 S. E. 2d 247, reversed, 372 U. S. 229, which had in turn 
relied upon Feiner v. New York, 340 U. S. 315, affirming, 
300 N. Y. 391, 91 N. E. 2d 319, the Supreme Court of South 
Carolina held in the case of Irene Brown that “ the evidence 
amply sustains the conviction of the defendants of the 
offense of breach of the peace” (38a).

This Court vacated the judgment of the Supreme Court 
of South Carolina and remanded “ for consideration in light
of Edwards v, South Carolina,------ U. S. ——” Fields v.
South Carolina, 372 U. S. 522. Upon consideration in light 
of Edwards, supra, the Supreme Court of South Carolina 
adhered to its earlier decision affirming petitioners’ con­
victions, infra pp. la-2a.

A R G U M E N T

I.

Conviction of Generalized Common Law Breach of the 
Peace for Peaceful and Orderly Speech and Assembly 
Opposed to Racial Segregation Denied Petitioners Due 
Process of Law Secured by the Fourteenth Amendment.

The Supreme Court of South Carolina has reconsidered 
these cases in light of Edwards v. South Carolina, 372 
U. S. 227 and adhered to its prior judgment, infra pp. la- 
2a. The application of this Court’s decision in Edwards 
to these eases is presented, therefore, for review.

The 187 petitioners in Edwards, supra, were convicted 
of the common-law crime of breach of the peace, as were



14

petitioners here. They had assembled on the grounds of the 
South Carolina State House “ to submit a protest to the 
citizens of South Carolina, along with the legislative Bodies 
of South Carolina” regarding their dissatisfaction with 
racial discrimination. They walked about the State House 
grounds from 30 to 45 minutes carrying placards. During 
this time 200 to 300 onlookers gathered. City officials then 
ordered the demonstrators to disperse and when they re­
fused arrested them. The city officials, including police, 
gave as reason for the arrests fear of violence from on­
lookers. It was urged also that vehicular and pedestrian 
traffic entering the State House grounds and on nearby 
streets and sidewalks was obstructed. The Supreme Court 
of South Carolina affirmed.

In reversing, this Court emphasized the absence of “ vio­
lence or threat of violence” by petitioners or onlookers. 
The Court stressed that speech, assembly, and petition for 
redress of grievances are supposed to invite dispute and, 
perhaps, stir to anger. In Edwards, South Carolina had 
not sought to apply a “ precise and narrowly drawn regula­
tory statute evincing a legislative judgment that certain 
specific conduct be limited or proscribed” but rather a gen­
eralized concept of breach of the peace not susceptible of 
exact definition. Edwards, 2>12 IT. S. 229, 236.

The facts of these cases fall well within the rule of 
Edwards. Indeed, if speech and assembly are to be con­
stricted, Edwards would have been a far more likely medium 
for that purpose than these cases. In Edwards, 187 Negroes 
demonstrated for 30 to 45 minutes. Here, four separate 
groups did nothing but walk in peaceful and orderly man­
ner for a few city blocks. They were arrested before reach­
ing the place where they desired to demonstrate.

In Edwards, 372 U. S. at 231, and in these cases there 
were no “ threatening remarks, hostile gestures or offensive



15

language” by onlookers. In Edwards, Ibid., however, 200 
to 300 onlookers gathered in one location; the police sought 
to justify the arrests on the ground that the crowd might 
become disorderly. In contrast, these records fail to re­
veal the presence of bystanders or onlookers in substantial 
numbers at all.

In Edwards, 372 U. S. at 233, city officials complained of 
a “ religious harangue” delivered by a leader of the group 
and loud, boisterous, singing. Here, there is no complaint 
about noise.

In Edwards, 372 U. S. at 232, police complained that 
pedestrians were impeded by onlookers although they moved 
on when asked. Here, no pedestrians were blocked.

In Edwards, 372 U. S. at 231, the police permitted the 
demonstrating for 30 to 45 minutes; here city officials had 
decided not to “ tolerate” the demonstrations before they 
began (Witherspoon 34, 64, 65, 83, 129; Fields 59, 76). Cf.
Lombard v. Louisiana,------ IJ. S. --------, 83 S. Ct. ------ , 10
L. ed. 2d 338.

As in Edwards, 372 U. S. at 236, this Court is not asked 
to “ review in this case criminal convictions resulting from 
the even-handed application of a precise and narrowly 
drawn regulatory statute evincing a legislative judgment 
that certain specific conduct be limited or prescribed.”  Peti­
tioners here have been convicted of the same vague and 
ambiguous offense.

Here, there was no actual or imminent disorder of any 
kind and only general fears that it would occur at some 
unspecified time in the future, in that “ there existed in the 
Orangeburg area very high tension on the part of Negroes 
and Whites . . . ” (37a). This case is therefore, not like 
Feiner v. New York, 340 U. S. 315, 317, 318 where a “ push­
ing, milling and shoving crowd” was “ moving forward” .



16

The Supreme Court of South Carolina agreed that the stu­
dents were completely peaceful (35a). Under these circum­
stances the opinion below must be read as justifying crimi­
nal conviction of those peacefully taking advantage of the 
right to free speech and expression because nameless others 
may act in a disorderly manner against the speakers. This 
conflicts with Edwards. See also Terminiello v. Chicago, 
337 U. S. 1; Cooper v. Aaron, 358 U. S. 1. Cf. Sellers v. 
Johnson, 163 F. 2d 877 (8th Cir. 1947), cert. den. 332 U. S. 
851.

Nor can the police seize upon traffic adjustment as a 
basis for suppressing freedom of expression. Edwards, 
372 U. S. at 236; Cantwell v. Connecticut, 310 U. S. 307, 308.

Moreover, as in Edwards and Cantwell, there has been 
no such specific declaration of state policy which “would 
weigh heavily in any challenge of the law as infringing con- 
stitional limitations.” Cantwell, 310 U. S. at 398. The Su­
preme Court of South Carolina noted city officials had 
advised that no further marches would be tolerated without 
a permit, but petitioners were not convicted under the 
specific provisions of a permit or traffic regulation. Itather, 
the State chose to employ a general concept of breach of 
the peace which South Carolina had never heretofore ap­
plied to interference with traffic. State v. Edwards, ------
S. C. —— , 123 So. 2d 247, reversed 372 U. S. 299, in which 
the State Supreme Court did so for the first time, was 
subsequently reversed by this Court and was decided after 
petitioners’ arrests and convictions here.

An all-inclusive breach of the peace provision “when 
construed to punish conduct which cannot be constitution­
ally punished, is unconstitutionally vague” Wright v. 
Georgia,------ U. S . --------, 83 S. C t .------ , 10 L. ed. 2d 349,



17

355-356; Garner v. Louisiana, 368 U. S. 157, 202 (Mr. Jus­
tice Harlan concurring); Edwards, supra; Cantwell, supra.

In the absence of a state statute, narrowly drawn, South 
Carolina cannot punish expression which only leads to 
minor interference with traffic. Petitioners’ “ communica­
tion, considered in the light of the constitutional guarantees, 
raised no such clear and present menace to public peace 
and order as to render (them) liable to conviction of the 
common law offense in question.” Cantwell v. Connecticut, 
310 IT. S. 296, 311; Stromberg v. California, 283 U. S. 359, 
369; cf. Thornhill v. Alabama, 310 IT. S. 88, 105, 106.

II.
Petitioners’ Convictions on Warrants Charging That 

Their Conduct “  . . . Caused Fear and Tending to Incite 
A Riot or other Disorderly Conduct or Cause Serious 
Trouble”  Violate the Due Process Clause of the Four­
teenth Amendment in That the Judgments Rest on No 
Evidence of Guilt.

Petitioners were convicted of common law breach of the 
peace upon warrants alleging that they (Fields 1-2; Gil­
christ 2; Graham 2; Witherspoon 2; Heatley 2; Daven­
port 2)

“ . . . did commit breach of the peace by unlawfully 
and wilfully congregating and marching in the City 
of Orangeburg, said County, and did approach what is 
known as the business section of the City of Orange­
burg, the groups being headed by a number of parties 
who refused to stop and return to the colleges upon the 
request of Chief of Police Hall and other officers in the 
City of Orangeburg, thereby disturbing the peace and 
tranquility of the normal traffic on the sidewalks as 
well as the streets in the City of Orangeburg, which 
caused fear and tending to incite a riot or other dis­



18

orderly conduct or cause serious trouble, thereby com­
mitting breach of the peace . . . ”

There is no evidence in these records that petitioners’ 
conduct “ caused fear” , tended to “ incite a riot or other dis­
orderly conduct” or caused “ serious trouble” of any kind as 
alleged in the warrants. The students were at all times 
peaceful, orderly, well dressed, and well demeaned (see 
supra at pp. 5-10). The records reveal no act or word 
which might have caused violence. Absent are signs of dis­
order or potential disorder, such as threatening remarks, 
hostile gestures, pushing, milling or body contact. There 
is a similar absence of evidence of disorder or potential 
disorder by any onlookers. Nor is there evidence that a 
crowd gathered to observe petitioners. Cf. Edwards v. 
South Carolina, 372 U. S. at 231.

The Supreme Court of South Carolina agreed that “ the 
record discloses that none of the defendants committed any 
act of violence” (35a) but upheld the conviction on the 
ground of “ . . .  a clear and present danger of riot, dis­
order, interference with traffic . . .  or other immediate 
threat to public peace” (35a). The finding of a clear and 
present danger was supported solely by the conclusion that 
“ very high tension on the part of Negroes and whites, re­
sulting from a series of demonstrations on the part of Negro 
students” (37a) existed in Orangeburg.

This “ tension” was found in prior demonstrations against 
racial segregation, or “ clashes,” as the Supreme Court of 
South Carolina called them. But the records reveal only 
that on February 25, 1960 students had picketed the Kress 
dime store in Orangeburg and no disturbance had taken 
place (Gilchrist 12). On February 26 a white and a Negro 
had been arrested for a brief “ fisticuff” during a demonstra­
tion at the Kress store (Fields 15; Gilchrist 12). No other 
evidence of violence is shown to have taken place in Orange­



19

burg. March 1, 1960, six to seven hundred Negro students 
walked through town to express disapproval of the City’s 
racial policies (Heatley 66). Two persons were arrested 
on that day “ from incidents that happened during parad­
ing” {Ibid.).

On the ground that these prior demonstrations had 
created “ tensions” between the races, the police arrested 
petitioners on March 15, 1960. But these facts do not per­
mit an inference of violence or threatened violence. All 
they may evidence is that the students’ point of view was not 
the same that other persons held in Orangeburg. Such “ ten­
sion” between the races is a fact of life in the American 
South today. Therefore, to find it alone sufficient basis for 
abridgment would end freedom of expression in that area 
of the country with respect to the race question.

Petitioners cannot be convicted because their expression 
may have upset prejudices and preconceptions in the com­
munity concerning issues of national importance, for this 
result is the purpose of protected expression. Cf. Edwards, 
372 U. S. at 237.

Petitioners cannot be convicted on the totally unsub­
stantiated opinion of the police that disorder will occur. 
Garner v. Louisiana, 368 U. S. 157; Thompson v. Louisville, 
362 U. S. 199; Taylor v. Louisiana, 370 U. S. 154.

Nor is there evidence of traffic problems which prove 
the crime charged. There is no evidence that traffic prob­
lems “ caused fear” or tended to “ inciting a. riot” as charged 
in the warrants. Such trivial interference with traffic on the 
streets of the city as these records show was caused by ac­
tions of the police. The few pedestrians who observed the 
demonstration were curious bystanders and were not im­
peded by the students. Any slowdown in vehicular traffic 
was caused by police action in arresting or dispersing the 
students, not by the behavior of the students themselves.



20

CONCLUSION

Wherefore, for the foregoing reasons, Petitioners pray 
that the petition for writ of certiorari be granted.

Respectfully submitted,

F ran k  H . H effron 
G eorge B. S m it h  

Of Counsel

J ack  Greenberg 
C onstance B aker  M otley 
M ichael  M eltsner

10 Columbus Circle 
New York 19, New York

M atth e w  J . P erry 
L incoln  C. J e n k in s , J r.

1107% Washington Street 
Columbia 1, South Carolina

W. N ew ton  P otjgh

Orangeburg, South Carolina

Attorneys for Petitioners



APPENDIX



la

A P P E N D I X

Order of the Supreme Court of South Carolina on 
Remand Filed May 14, 1963

T h e  S tate ,
Respondent,

J am es F ields, et al.,
Appellants.

T h e  S tate ,
Respondent,

B obbie J. G ilch bist , et al.,
Appellants.

T h e  S tate , 

—v.—
Respondent,

M arie G r a h a m , et al.,
Appellants.

T h e  S tate ,
Respondent,

F ttt.a M. 'W itherspoon , et al.,
Appellants.

T h e  S tate ,

— y.—

A lyin  H eatley , et al.,

Respondent,

Appellants.



2a

Order of the Supreme Court of South Carolina on Rem,and
Filed May 14, 1963

T h e  S tate ,

J oseph  C. B ro w n , et al.,

T h e  S tate ,

F rances E. D avenport, et al.,

Respondent,

Appellants.

Respondent,

Appellants.

ORDER

The mandate of the United States Supreme Court in this 
case vacated the judgment of this Court and further pro­
vided “ that this cause he remanded to the Supreme Court 
of the State of South Carolina for consideration in light of 
Edwards v. South Carolina, 372 U. S. 229.”

Pursuant thereto, we have considered this cause in the 
light of Edwards v. South Carolina and adhere to and affirm
the judgment of this Court rendered on June 6, 1962,------
S. C. — —, 126 S. E. (2d) 6, for the reasons stated in our 
opinion in State v. Brown, 240 S. C. 357, 126 S. E. (2d) 1.

/ S / C. A. T aylor C. J.

N J oseph  R. M oss A . J.

/*/ J. W oodrow L ew is A . J.

N T hom as P. B ussey A. J.

M J. M . B railsford A. J.



3a

The State v. James Fields et al.

ORDER

The appeals herein are from convictions in the Court of 
Magistrate, Honorable D. Marchant Culler, Orangeburg 
County Magistrate, presiding, upon a charge of the com­
mon law crime of breach of the peace. The defendants 
herein were tried jointly, and the trial was one of eight 
such trials, wherein various groups were tried for the 
offense stated after certain incidents which arose in the 
City of Orangeburg on March 15, 1960. Approximately 
350 persons were arrested as a result of the incident 
referred to, and, for the sake of convenience, they were 
divided into eight groups for trial.

Nearly all of the issues raised in these appeals have 
been disposed of by Order handed down this date in the 
case of the State v. Irene Brown, et al., and the con­
clusions expressed in that Order are applicable to the 
questions here presented except as hereinafter detailed.

These appeals by Exception No. 2 allege that the trial 
conducted was not a public trial and was therefore in 
violation of the due process clause of the Fourteenth 
Amendment to the Constitution of the United States. The 
basis for this allegation of error is that “ the room or office 
in which the trial was had was so small and narrowly con­
fined as to deny attendance at said trial of the relatives, 
friends and persons interested in the welfare of the de­
fendants” .

There is no merit in this contention. The Courtroom 
was admittedly small, being described by the presiding 
Magistrate as approximately 15 by 30 feet. The Court

Order of the Orangeburg County Court
Filed December 5, 1961



4a

takes judicial notice of the fact that this was the regu­
lar Courtroom of the presiding Magistrate for the hear­
ing of all matters, and takes further notice that this is 
not an unusually small Courtroom as is customarily pro­
vided for Magistrates of South Carolina. Irrespective of 
this, the trial was in all respects a public trial and the 
allegations of error in this respect are totally without 
merit. 48 A. L. R. (2d) 1436. It is particularly noted 
that there is no showing that anyone was, in fact, excluded 
from attendance upon the trial. Consequently, there was 
no predudice to any of the appellants.

Exception No. 8 of the appeals herein alleges error in 
declining to “ expunge the testimony of the State’s wit­
nesses, such testimony having not identified any of these 
defendants as having committed any crime * * * ”

The testimony reveals that the participants in the demon­
stration leading to the arrest were taken to the City 
Jail, or to the jail yard of the County of Orangeburg, 
and thereafter all of the participants were taken to the 
County Courthouse and from the latter place to the 
Magistrate’s office, where they gave bond. During this 
period all of the participants were under the surveillance 
and in the custody of police officers. While in custody 
they each executed bonds, which bonds were offered in 
evidence and admitted without objection, in the course of 
the trial. (Tr. pp. 79, 80, 95.) The two defendants who 
testified admitted participating as a group in the march. 
(Tr. pp. 147, 163.)

It appears clear that the defendants were identified as 
participants in the demonstration and this Exception is 
therefore overruled.

Order of Orangeburg County Court
Filed December 5, 1961



5a

Order of Orangeburg County Court 
Filed December 5, 1961

The Order of this Court in the case of The State v. 
Irene Brown, et al., is hereby adopted as conclusive of the 
other exceptions raised in these appeals.

All other exceptions of the appellants are overruled 
and the convictions and sentences are affirmed.

/ s /  J am es B . P eu itt ,

J am es B. P eu itt ,
Presiding Judge,

First Judicial Circuit.

December 5, 1961.



6a

I n  th e  S uprem e  C ourt oe S ou th  C arolina

Opinion of the Supreme Court of South Carolina
Filed June 6, 1962

T h e  S tate ,

v.
Respondent,

J am es F ields, et al.,
Appellants.

L ew is , A.J. : These defendants, 22 in number, were tried 
by the Magistrate at Orangeburg, South Carolina, without 
a jury, and found guilty of the offense of breach of the 
peace. They have appealed and charge error on the part 
of the trial court (1) in refusing to dismiss the warrant 
issued against them on the grounds that the information 
upon which the warrant was issued failed to fully set forth 
the crime charged, and (2) in refusing to sustain their 
contention that the State failed to prove the commission by 
them of the offense of breach of the peace. Under basically 
the same facts, the identical issues were presented in the 
case of The State v. Irent Brown, et al. and decided ad­
versely to the contentions of these defendants. The decision 
in that case, which is being filed simultaneously herewith, 
is controlling here and requires affirmance of the judgment 
of the lower court.

Affirmed.

T aylor, C.J., Moss, B ussey and Brailseord, JJ., concur.



7a

The State v. Bobbie J. Gilchrist

ORDER

The appeals herein are from convictions in the Court 
of Magistrate, Honorable D. Marchant Culler, Orangeburg 
County Magistrate, presiding, upon a charge of the common 
law crime of breach of the peace. The defendants herein 
were tried jointly, and the trial was one of eight such trials, 
wherein various groups were tried for the offense stated 
after certain incidents which arose in the City of Orange­
burg on March 15, 1960. Approximately 350 persons were 
arrested as a result of the incident referred to, and, for 
the sake of convenience, they were divided into eight groups 
for trial.

In these appeals, by Exception No. 1, the defendants 
urge that the Court erred in allowing an amendment to 
the warrant after the case was called for trial.

The original warrant alleged that the defendants ap­
proached Lowman and Russell Streets which enter the 
business section of the City of Orangeburg and that the 
group was headed by one Daniel Blue. The amended war­
rant alleged that the defendants approached what is known 
as the business section of the City of Orangeburg, the 
groups being headed by a number of parties.

It is manifest that the amendment to the warrant was 
of slight significance and cannot in any manner be construed 
to have prejudiced the rights of these defendants. Section 
43-112 of the 1952 Code of Laws allows an amendment of the 
information at any time before trial. See also Town of 
Mayesville v. Clamp, 149 S. C. 346, 147 S. E. 455. This 
exception is without merit.

Order of the Orangeburg County Court
Filed December 5, 1961



8a

Order of Orangeburg County Court 
Filed December 5 , 1961

The remaining excejitions are disposed of by the con­
clusions expressed in the Orders of the Court in the com­
panion cases of The State v. Irene Brown, et al., and The 
State v. James Fields, et al., which Orders are incorporated 
herewith as a part of this Order.

All exceptions of the appellants are overruled and the 
convictions and sentences are affirmed.

s /  J ames B . P ru itt ,
Presiding Judge,

First Judicial Circuit.

December 5, 1961.



9a

I n  th e  S uprem e  C ourt op S ou th  C arolina

Opinion of the Supreme Court of South Carolina
Filed June 6, 1962

T h e  S tate ,

v.
Respondent,

B obbie J. G ilch rist , et al.,
Appellants.

L ew is , A.J. : These defendants, 28 in number, were tried 
by the Magistrate at Orangeburg, South Carolina, without 
a jury, and found guilty of the offense of breach of the 
peace. They have appealed and charge error on the part 
of the trial court (1) in refusing to dismiss the warrant 
issued against them on the grounds that the information 
upon which the warrant was issued failed to fully set forth 
the crime charged, and (2) in refusing to sustain their 
contention that the State failed to prove the commission by 
them of the offense of breach of the peace. Under basically 
the same facts, the identical issues were presented in the 
case of The State v. Irene Brown, et al. and decided ad­
versely to the contentions of these defendants. The decision 
in that case, which is being filed simultaneously herewith, 
is controlling here and requires affirmance of the judgment 
of the lower court.

Affirmed.

T a y lo r , C.J., Moss, B u ssey  a n d  B ra ilsfo rd , J J co n cu r .



10a

The State v. Marie Graham, et al.

ORDER

The appeals herein are from convictions in the Court of 
Magistrate, Honorable D. Marchant Culler, Orangeburg 
County Magistrate, presiding, upon a charge of the common 
law crime of breach of the peace. The defendants herein 
were tried jointly, and the trial was one of eight such trials, 
wherein various groups were tried for the offense stated 
after certain incidents which arose in the City of Orange­
burg on March 15, 1960. Approximately 350 persons were 
arrested as a result of the incident referred to, and, for the 
sake of convenience, they were divided into eight groups for 
trial.

Exception No. 2 alleges error of the Court “ in permitting 
the State’s witnesses * * * to testify to ‘clear and present 
danger.’ ”

The precise testimony complained of is not detailed. It 
appears manifest, however, from a reading of the record 
stipulated as controlling in these cases, that the testimony 
of the witnesses for the State as to the circumstances which 
existed prior to and at the time of the demonstration which 
led to the arrests bore directly upon the issue of whether 
a breach of the peace was imminent. Such testimony was 
therefore clearly relevant as pointedly indicated in People 
v. Feiner, 300 N. Y. 391, 91 N. E. (2d) 319, upheld by the 
United States Supreme Court, 340 U. S. 315, 95 L. Ed. 295. 
An act which is lawful in some circumstances may be unlaw­
ful in others and testimony of the State’s witnesses which 
tended to establish the tensions and emotions existing in 
the community was clearly admissible. The Exception made

Order of the Orangeburg County Court
Filed December 5, 1961



11a

is most general in nature, no specific testimony has been 
called to the attention of the Court as objectionable, and 
a study of the record by the Court fails to reveal any testi­
mony which may come within the scope of this general 
exception and the same is overruled.

All other exceptions have been duly considered and found 
to be controlled by the Order of this Court in the com­
panion cases of State v. Irene Brown, et al., State v. James 
Fields, et al., and State v. Bobby J. Gilchrist, et al., which 
Orders are hereby incorporated herein.

All exceptions of the appellants are overruled and the 
convictions and sentences are affirmed.

s /  J ames B . P ru itt ,
Presiding Judge,

First Judicial Circuit.

Order of Orangeburg County Court
Filed December 5, 1961

December 5, 1961.



12a

I n  th e  S uprem e  C ourt oe S o u th  Carolina

Opinion of the Supreme Court of South Carolina
Filed June 6, 1962

T h e  S tate ,

v.
Respondent,

M arie Grah a m , et al.,
Appellants.

L ew is , A.J. : These defendants, 91 in number, were tried 
by the Magistrate at Orangeburg, South Carolina, without 
a jury, and found guilty of the offense of breach of the 
peace. They have appealed and charge error on the part 
of the trial court (1) in refusing to dismiss the warrant 
issued against them on the grounds that the information 
upon which the warrant was issued failed to fully set forth 
the crime charged, and (2) in refusing to sustain their 
contention that the State failed to prove the commission by 
them of the offense of breach of the peace. Under basically 
the same facts, the identical issues were presented in the 
case of The State v. Irene Brown, et al. and decided ad­
versely to the contentions of these defendant. The decision 
in that case, which is being filed simultaneously herewith, 
is controlling here and requires affirmance of the judgment 
of the lower court.

Affirmed.

T a y lo r , C.J., Moss, B u ssey  a n d  B railseord , J J con cu r .



13a

The State v. Eula M. Witherspoon, et al.

ORDEE

The appeals herein are from convictions in the Court 
of Magistrate, Honorable D. Marchant Culler, Orange­
burg County Magistrate, presiding, upon a charge of the 
common law crime of breach of the peace. The defendants 
herein were tried jointly, and the trial was one of eight such 
trials, wherein various groups were tried for the offense 
stated after certain incidents which arose in the City of 
Orangeburg on March 15, 1960. Approximately 350 persons 
were arrested as a result of the incident referred to, and, 
for the sake of convenience, they were divided into eight 
groups for trial.

Exception No. 4 alleges error in not permitting a State’s 
witness to “ be questioned relative to the source of his 
authority to stop the peaceful demonstration of the defen­
dants and to arrest them.” This has apparent reference 
to the testimony of the witness Morrison W. Whetstone, 
Captain, Orangeburg City Police Department. On cross 
examination Captain Whetstone testified that he had asked 
a group of the defendants, who were marching in column, 
to stop. He was asked “ * * * what authority were you 
acting pursuant to?” The following is taken from the 
Transcript of testimony, page 19:

“ A. As my duties as a police officer to preserve peace 
and order.

Q. I understand that, but isn’t it a fact, Captain 
Whetstone, that most police activity is done pursuant 
to some ordinance or statute?

A. That’s correct.

Order of the Orangeburg County Court
Filed December 5, 1961



14a

Q. Then what ordinance or statute were you acting 
pursuant to?

A. I believe this is taken from the State statute.
Q. You were not acting pursuant to any Orangeburg 

municipal ordinance?
A. No, sir.”

The testimony sought to be elicited was clearly a matter 
of law and not within the proper scope of examination. It 
had no bearing upon the guilt or innocence of these defen­
dants and it is not apparent how in any manner it could 
have enlightened the Court thereabout. No showing of 
prejudice to any defendant is made. This Exception is 
therefore overruled.

All other exceptions have been duly considered and are 
hereby overruled. Most, if not all, of the exceptions are 
controlled by the Orders of this Court in the parallel cases 
of State v. Irene Brown et al.; State v. James Fields et al.; 
State v. Bobby J. Gilchrist et al.; and State v. Marie Graham 
et al., which Orders are hereby incorporated herein.

All exception s o f  the appellants are overru led  and the 
con v iction s and sentences are affirmed.

s /  J ames B . P ru itt ,
Presiding Judge,

First Judicial Circuit.

Order of Orangeburg County Court
Filed December 5, 1961

December 5,1961.



15a

I n  th e  S uprem e  C ourt of S o u th  C arolina

Opinion of the Supreme Court of South Carolina
Filed June 6, 1962

T h e  S tate ,

v.
Respondent,

E u la  M, W itherspoon , et al.,

Appellants.

L ew is , A.J. : These defendants, 50 in number, were tried 
by the Magistrate at Orangeburg, South Carolina, without 
a jury, and found guilty of the offense of breach of the 
peace. They have appealed and charge error on the part 
of the trial court (1) in refusing to dismiss the warrant 
issued against them on the grounds that the information 
upon which the warrant was issued failed to fully set forth 
the crime charged, and (2) in refusing to sustain their 
contention that the State failed to prove the commission by 
them of the offense of breach of the peace. Under basically 
the same facts, the identical issues were presented in the 
case of The State v. Irene Brown, et al. and decided ad­
versely to the contentions of these defendants. The decision 
in that case, which is being filed simultaneously herewith, 
is controlling here and requires affirmance of the judgment 
of the lower court.

Affirmed.

T a y lo r , C.J., Moss, B u ssey  and B railsfo rd , JJ., concur.



16a

The State v. Alvin Heatley, et al.

ORDER

The appeals herein are from convictions in the Court 
of Magistrate, Honorable D. Marchant Culler, Orangeburg 
County Magistrate, presiding, upon a charge of the com­
mon law crime of breach of the peace. The defendants 
herein were tried jointly, and the trial was one of eight 
such trials, wherein various groups were tried for the 
offense stated after certain incidents which arose in the 
City of Orangeburg on March 15, 1960. Approximately 350 
persons were arrested as a result of the incident referred 
to, and, for the sake of convenience, they were divided into 
eight groups for trial.

All exceptions have been duly considered. The issues 
raised have been disposed of by the Orders of this Court 
in the cases of State v. Irene Brown, et al., State v. James 
Fields, et al., State v. Bobby J. Gilchrist, et al., State v. 
Marie Graham, et al., and State v. Eula M. Witherspoon, 
et al., which Orders are herewith incorporated as a part of 
the Order.

All exceptions of the appellants are over-ruled and the 
convictions and sentences are affirmed.

s /  J ames B . P bttitt,
Presiding Judge,

First Judicial Circuit.

Order of the Orangeburg County Court
Filed December 5, 1961

December 5, 1961.



17a

I n  th e  S uprem e  C ourt op S o u th  C arolina

Opinion of the Supreme Court of South Carolina
Filed June 6, 1962

T h e  S tate, 

v.

A lvin  H eatley, et al.,

Respondent,

Appellants.

L ew is , A.J.: These defendants, 47 in number, were tried 
by the Magistrate at Orangeburg, South Carolina, without 
a jury, and found guilty of the offense of breach of the 
peace. They have appealed and charge error on the part 
of the trial court (1) in refusing to dismiss the warrant 
issued against them on the grounds that the information 
upon which the warrant was issued failed to fully set forth 
the crime charged, and (2) in refusing to sustain their 
contention that the State failed to prove the commission by 
them of the offense of breach of the peace. Under basically 
the same facts, the identical issues were presented in the 
case of The State v. Irene Brown, et al. and decided ad­
versely to the contentions of these defendants. The decision 
in that case, which is being filed simultaneously herewith, 
is controlling here and requires affirmance of the judgment 
of the lower court.

Affirmed.

T a y lo r , C.J., Moss, B u ssey  a n d  B railsfo rd , J J concur.



18a

The State v. Joseph C. Brown et al.

ORDER

The appeals herein are from convictions in the Court 
of Magistrate, Honorable D. Marchant Culler, Orangeburg 
County Magistrate, presiding, upon a charge of the com­
mon law crime of breach of the peace. The defendants 
herein were tried jointly, and the trial was one of eight 
such trials, wherein various groups were tried for the 
offense stated after certain incidents which arose in the 
City of Orangeburg on March 15, 1960. Approximately 
350 persons were arrested as a result of the incident re­
ferred to, and, for the sake of convenience, they were 
divided into eight groups for trial.

All exceptions have been duly considered. The issues 
raised have been disposed of by the Orders of this Court 
in the cases of State v. Irene Brown, et al., State v. James 
Fields, et al., State v. Bobby J. Gilchrist, et al., and State 
v. Marie Graham, et al., which Orders are herewith incor­
porated as a part of this Order.

All exceptions of the Appellants are overruled and the 
convictions and sentences are affirmed.

s /  J ames B. P r u it t ,
Presiding Judge,

First Judicial Circuit.

Order of the Orangeburg County Court
Filed December 5, 1961

December 5, 1961.



19a

I n  th e  S uprem e  C ourt of S o u th  C arolina

Opinion of the Supreme Court of South Carolina
Filed June 6, 1962

T h e  S tate,

Y.

Respondent,

J oseph C. B ro w n , et al.,
Appellants.

L ew is , A.J.: These defendants, 50 in number, were tried 
by the Magistrate at Orangeburg, South Carolina, without 
a jury, and found guilty of the offense of breach of the 
peace. They have appealed and charge error on the part 
of the trial court (1) in refusing to dismiss the warrant 
issued against them on the grounds that the information 
upon which the warrant was issued failed to fully set forth 
the crime charged, and (2) in refusing to sustain their 
contention that the State failed to prove the commission by 
them of the offense of breach of the peace. Under basically 
the same facts, the identical issues were presented in the 
ease of The State v. Irene Brown, et al. and decided ad­
versely to the contentions of these defendants. The decision 
in that case, which is being filed simultaneously herewith, 
is controlling here and requires affirmance of the judgment 
of the lower court.

Affirmed.

T a y lo r , C.J., Moss, B u ssey  a n d  B railsfo rd , JJ., con cu r .



20a

The State v. Frances E. Davenport, et al.

ORDER

The appeals herein are from convictions in the Court 
of Magistrate, Honorable D. Marchant Culler, Orange­
burg County Magistrate, presiding, upon a charge of the 
common law crime of breach of the peace. The defendants 
herein were tried jointly, and the trial was one of eight 
such trials, wherein various groups were tried for the 
offense stated after certain incidents which arose in the 
City of Orangeburg on March 15, 1960. Approximately 
350 persons were arrested as a result of the incident re­
ferred to, and, for the sake of convenience, they were 
divided into eight groups for trial.

All exceptions have been duly considered. The issues 
raised have been disposed of by the Orders of this Court 
in the eases of State v. Irene Brown, et al., State v. James 
Fields, et al., State v. Bobby J. Gilchrist, et al., State v. 
Marie Graham, et al., and State v. Eula Witherspoon, et al., 
which Orders are herewith incorporated as a part of this 
Order.

All exceptions of the appellants are overruled and the 
convictions and sentences are affirmed.

s /  J ames B . P k u itt ,
Presiding Judge,

First Judicial Circuit.

Order of the Orangeburg County Court
Filed December 5, 1961

December 5, 1961.



21a

I n  th e  S uprem e  C ourt op S outh  C arolina

Opinion of the Supreme Court of South Carolina
Filed June 6, 1962

T h e  S tate ,

v.
Respondent,

F rances E. D avenport, et al.,

Appellants.

L e w i s , A.J. : These defendants, 46 in number, were tried 
by the Magistrate at Orangeburg, South Carolina, without 
a jury, and found guilty of the offense of breach of the 
peace. They have appealed and charge error on the part 
of the trial court (1) in refusing to dismiss the warrant 
issued against them on the grounds that the information 
upon which the warrant was issued failed to fully set forth 
the crime charged, and (2) in refusing to sustain their 
contention that the State failed to prove the commission by 
them of the offense of breach of the peace. Under basically 
the same facts, the identical issues were presented in the 
case of The State v. Irene Brown, et al. and decided ad­
versely to the contentions of these defendants. The decision 
in that case, which is being filed simultaneously herewith, 
is controlling here and requires affirmance of the judgment 
of the lower court.

Affirmed.

T a y lo r , C.J., Moss, B u ssey  and B railsfo rd , JJ., concur.



22a

The State v. Irene Brown, et al.

ORDER

This is an appeal from conviction by a jury in the 
Court of Honorable D. Marchant Culler, Orangeburg 
County Magistrate, upon a charge of the common law 
crime of breach of the peace. There are fifteen defendants 
who were convicted at a trial held in Orangeburg on March 
16, 17, 18 and 19, 1960. Upon convictions, they were given 
an alternative sentence of $50.00 fine or 30 days imprison­
ment. Timely notice of appeal to this Court was given 
and arguments were heard by me in open court. Counsel 
for the State and for the Defendants have both filed briefs.

Appellants were part of a group of nearly three hundred 
students who left the campus of Claflin University in the 
City of Orangeburg on March 15, 1960 at approximately 
midday to proceed to the main business section of the 
city. The announced purpose as developed during the 
course of the trial was that these Defendants were pro­
ceeding for the purpose of expressing grievances and to 
petition officials of the city, county and state governments 
for redress of grievances. This purpose is contained in a 
so-called plea to the information which the Defendants 
made. There was no evidence adduced to show that there 
was any official of the State government present in the 
City of Orangeburg on that day. No audience had been 
sought by any of the Defendants with any official of the 
City or County of Orangeburg.

The testimony shows that a large group of these students 
appeared on the date stated, going west on East Russell 
Street in the City of Orangeburg and were met there by

Order of the Orangeburg County Court
Filed December 5, 1961



23a

Chief of Police Hall and other officers. They were re­
quested by these officials to return to their school and they 
refused to do so. Testimony is contained in the record 
that traffic was blocked, streets were cluttered and a large 
crowd of citizens were gathering at this location.

There is further testimony that another large group 
appeared going west on East Amelia Street in the direc­
tion of the main business district. This group also refused 
to turn back when requested to do so. Upon the refusal 
of the Defendants to return to their campus, some two 
hundred and eighty-eight were arrested, charged with 
breach of the peace and confined in the city and county 
jails in Orangeburg.

All defendants were released on bond before the day 
was over and the fifteen who compose the Appellants 
here were called to trial on March 16, 1960 and convicted 
by jury as heretofore set forth.

Appellants excepted to the verdict and judgment of con­
viction upon eight specifically stated grounds and one 
general ground reserving as an exception any error which 
might be disclosed by the record. The eight specific grounds 
will be considered and disposed of in order.

The first exception relates to the denial of various mo­
tions for a continuance made prior to the commencement 
of the trial. No showing is made that this denial of a 
continuance has injured the Appellants in any way. This 
is a misdemeanor charge and there is no showing that 
Defendants were prejudiced. Under the well-settled rule 
of this State, the granting of a continuance is within the 
discretion of the trial judge. I find no abuse of discretion 
and, therefore, no error. See State v. Livingston, 223 S. C. 
1, 73 S. E. (2d) 850.

Order of Orangeburg County Court
Filed December 5, 1961



24a

The second exception concerns the denial of a motion 
for severance and separate trials for the Defendants. It 
is again well settled under the law of this State that the 
severance of Defendants is a matter for the discretion of 
the trial judge. State v. Britt, et al, 237 S. C. 293, 117 
S. E. (2d) 371.

The record reveals that previous demonstrations had 
caused such a feeling of apprehension on the part of the 
police officers of the City of Orangeburg that additional 
officers had been procured to prevent and control any out­
break of disorder or violence. The record amply substan­
tiates the position taken by the officials of the City of 
Orangeburg that the appearance of large groups of per­
sons marching along the streets would most probably result 
in serious disturbances. The apprehension entertained by 
these officials was fully justified. Traffic conditions were 
impeded to such an extent that one of the officers testified 
that persons walking upon the sidewalks were compelled 
to take refuge in places of business. In these circumstances, 
the action of the police officials in moving quickly to avoid 
a clear and present danger to the public order was fully 
warranted.

Exception number three is from the denial of a motion 
to quash the information and to dismiss the warrant. An 
examination of the warrant which is before me shows that 
it plainly and substantially sets forth the charge of breach 
of the peace. There was no error in the refusal of a motion 
to quash and dismiss. Duffle v. Edwards, 185 S. C. 91, 
193 S. E. 211.

Exception number four is from a denial of a motion to 
request the jurors to submit to a voir dire examination. It 
appears from the record that the selection of a jury in this

Order of Orangeburg County Court
Filed December 5, 1961



25a

case was made strictly in accordance with the provisions 
of Section 43-116 of the 1952 Code of Laws of South Caro­
lina. That section makes no provision for the placing of 
Magistrate’s Court jurors on their voir dire examination.

The contention that voir dire examination is a matter of 
right in the Magistrate’s Court is a novel one in this State. 
It is well settled that the requirements of due process in 
Magistrate’s Courts are satisfied by a summary trial held 
in a fair and just manner. State v. Randolph, et al., filed 
August 23, 1961. Section 38-3 of the 1952 Code of Laws 
of South Carolina recites that nothing contained in the 
provisions of the Code relating to juries and jurors in 
Circuit Courts shall affect the power and duty of Magis­
trates “ to summon and empanel jurors when authorized by 
code provisions of law.” Since Section 43-116 is an entirely 
separate provision and relates only to Magistrate’s Court 
and contains no provision for voir dire examination, I am 
of the opinion that such examination is not allowable. See 
Schnell v. State, 17 S. E. 966, 92 Ga. 459.

Having concluded that there is no such right in the Courts 
of Magistrate, I find that it was, therefore, not error to 
deny the motion. Moreover, the transcript of the trial 
shows that Appellants did not use any of the ten peremp­
tory challenges which were allowed them, and made no 
complaint that the jury was biased or otherwise disquali­
fied in any respect. State v. Gantt, 223 S. C. 431, 75 S. E. 
(2d) 674. No showing whatever of any prejudice to the 
Appellants has been made.

The fifth exception relates to a challenge to the array 
of the jury panel on the grounds that Negroes were system­
atically excluded therefrom. This exception is patently 
untenable inasmuch as it is undisputed that a Negro was a 
member of the trial jury.

Order of Orangeburg County Court
Filed December 5, 1961



26a

The sixth exception relates to the refusal to permit cross 
examination of the Chief of Police of Orangeburg with 
respect to his personal views as to the efforts of members 
of the colored race to obtain service at lunch counters at 
which white persons are normally and customarily served. 
The question was raised, purportedly, for the purpose of 
showing bias and prejudice on the part of the witness. 
The issue of whether colored persons and white persons 
should be seated and be served at the same time at lunch 
counters was not a matter which related in any degree to 
the prosecution. At best, such testimony would only re­
motely relate to any bias or prejudice on the part of the 
witness testifying and the rejection of such irrelevant and 
collateral matter rested within the discretion of the trial 
court and I do not find any abuse of such discretion. 98 
C. J. S., Witnesses, paragraphs 559, 560. Cf. State v. 
Brooks, 235 S. C. 344, 111 S. E. (2d) 686.

Exception number seven relates to the denial of a motion 
to strike the testimony of the Chief of Police of Orange­
burg relating to previous existing tensions in the com­
munity, upon the ground that such testimony was never 
in fact linked to these particular Defendants. Such testi­
mony was relevant and admissible, even if not connected to 
these Defendants, because it tended to show the state of 
the feelings, emotions and undercurrents of tension exist­
ing in the community, upon which the arresting officers 
relied in exercising their judgment to make the arrests in 
these cases. There is no error here.

Exception number eight is from the denial of motions 
for a directed verdict, for a new trial and for arrest of 
judgment. There was ample testimony and evidence to 
sustain these particular denials at the stage of the trial

Order of Orangeburg County Court
Filed December 5, 1961



27a

wherein each was made, and there was, accordingly, no error 
in the denial thereof. See State v. Langston, 195 S. C. 190, 
11 S. E. (2d) 1.

Exception number nine relates to a general reservation 
of any and all rights asserted at the trial on behalf of these 
defendants. It was urged in the arguments before me and 
in the brief submitted by the Appellants that they had a 
constitutional right to engage in the activities for which 
they were arrested, regardless of any peril to the com­
munity which might result therefrom. The relevant con­
stitutional provisions are asserted as the Thirteenth and 
Fourteenth Amendments to the Constitution of the United 
States and Article V of the Constitution of South Carolina.

In connection therewith is the case of People v. Feiner, 
300 N. Y. 391, 91 N. E. (2d) 319. In that case the Court 
of Appeals of the State of New York wrote an exhaustive 
opinion in a case which arose in that State in 1950, the 
factual situation being similar in many respects to the 
cases presently before this Court upon appeal.

Feiner, a University student, stationed himself upon one 
of the city streets of the City of Syracuse and proceeded 
to address his remarks to all those who would listen. The 
general tenor of his talk was designed to arouse Negro 
people to fight for equal rights, which he told them they 
did not have. Crowds attracted by Feiner began to fill up 
the sidewalks and overflow into the street. There was no 
disorder, but in the opinion of police authorities there was 
real danger of a disturbance of public order or breach of, 
the peace. Feiner was requested by police to desist. He 
refused. The arrest was then made and Feiner was charged 
and convicted of disorderly conduct.

Order of Orangeburg County Court
Filed December 5, 1961



28a

In upholding the conviction, the New York Court quoted 
from Cantwell v. State of Connecticut, 310 U. 8. 296, 60 
S. Ct. 900, 84 L. Ed. 1213,128 A. L. R. 1352, said:

“ The offense known as breach of the peace embraces 
a great variety of conduct destroying or menacing 
public order and tranquility. It includes not only 
violent acts, but acts and words likely to produce 
violence in others. No one would have the hardihood 
to suggest that the principle of freedom of speech 
sanctions incitement to riot or that religious liberty 
connotes the privilege to exhort others to physical 
attack upon those belonging to another sect. When 
clear and present danger of riot, disorder, interference 
with traffic upon the public streets or other immediate 
threat to public safety, peace or order appears, the 
power of the State to prevent or punish is obvious.”

The appellants in the present case have emphasized re­
peatedly in the trials and in their arguments before the 
Court and in their Brief that no one of them individually 
committed any single act which was a violation of law. It 
is their contention that they had a right to assemble and 
act as they did so long as they did no other act which was 
in itself unlawful. Apparently they reject the proposition 
that an act which is lawful in some circumstances might be 
unlawful in others. The New York Court in answering a 
similar contention made by the defendant in the Feiner ease 
said:

“We are well aware of the caution with which the 
courts should proceed in these matters. The intolerance 
of a hostile audience may not in the name of order be

Order of Orangeburg County Court
Filed December 5, 1961



29a

permitted to silence unpopular opinions. The Constitu­
tion does not discriminate between those whose ideas 
are popular and those whose beliefs arouse opposition 
or dislike or hatred—guaranteeing the right of freedom 
of speech to the former and withholding it from the 
latter. We recognize, however, that the State must 
protect and preserve its existence and unfortunate as 
it may be, the hostility and intolerance of street audi­
ences and the substantive evils which may follow there­
from are practical facts of which the Courts and the 
law enforcement officers of the State must take notice. 
Where, as here, we have a combination of an aroused 
audience divided into hostile camps, an interference 
with traffic and a speaker who is deliberately agitating 
and goading the crowd and the police officers to action,' 
we think a proper case has been made out under our 
State and Federal Constitutions for punishment.”

In the case before the Court, Appellants were given every 
opportunity to avoid being arrested. No action was taken 
until the police authorities in their considered judgment 
came to the conclusion that the point had been reached 
where the action of the Appellants was dangerous to the 
peace of the community. There is no indication whatever 
in this case that the acts of the police officers were taken 
as a subterfuge or excuse for the suppression of the Appel­
lants’ views and opinions. The evidence is clear that the 
officers were motivated solely by a proper concern for the 
preservation of order and the protection of the general 
welfare in the face of an actual interference with traffic, 
and an imminently threatened disturbance of the peace 
of the community.

Order of Orangeburg County Court
Filed December 5, 1961



30a

The State of South Carolina, the City of Orangeburg, 
and the County of Orangeburg, in the exercise of their 
general police powers, of necessity have the authority to 
act in situations such as are detailed in the evidence in 
these cases and the conduct of this duly appointed officers 
of the law was not arbitrary, capricious or the result of 
prejudice, but was founded upon clear, convincing and com­
mon sense reasoning in an effort to preserve the public 
peace, safety and good order.

All exceptions of the Appellants are overruled and the 
convictions and sentences are affirmed.

s /  J ames B . P ru itt ,
Presiding Judge,

First Judicial Circuit.

Order of Orangeburg County Court
Filed December 5, 1961

December 5, 1961.



31a

I n th e  S uprem e  C ourt of S ou th  Carolina

Opinion of the Supreme Court of South Carolina

Filed June 6, 1962

T h e  S tate,

v.
Respondent,

I rene B ro w n , et al.,
Appellants.

L ew is , A.J. :

On March 15, 1960, 349 Negro students were arrested 
in the City of Orangeburg, South Carolina, and charged 
with the crime of breach of the peace. All were subse­
quently convicted in Magistrate’s Court and sentenced to 
pay fines of Fifty ($50.00) Dollars or serve thirty (30) 
days in jail. All have appealed and, since they were charged 
in eight separate groups and each group tried separately, 
there are eight cases on appeal. However, because all of 
the cases involve basically the same issues and facts, they 
were consolidated for argument. The appeal in this case 
involves a group of fifteen defendants who were tried and 
convicted before the Magistrate and a jury, all of the re­
maining eases being tried before the Magistrate without 
a jury.

At the outset of their trials the defendants moved to dis­
miss the warrants against them on the ground that the in­
formation upon which the warrants were issued failed to 
fully set forth the crime charged. The motions were refused 
and such is the basis for one of the exceptions on appeal.



32a

There can be no doubt that a person charged with a 
criminal offense has a constitutional right to be fully in­
formed of the nature and cause of the offense with which he 
is charged, Article 1, Section 18 of the Constitution of South 
Carolina, and that the information upon which a prosecu­
tion is commenced in Magistrate’s Court must so allege. 
State v. Randolph, 239 S. C. 79, 121 S. E. (2d) 349. The 
question here is whether the warrants meet these require­
ments.

The warrants charged that the defendants “ did commit 
breach of the peace by unlawfully and wilfully congregating 
and marching in the City of Orangeburg, said County, and 
did approach what is known as the business section of the 
City of Orangeburg, the groups being headed by a number 
of parties who refused to stop and return to the colleges 
upon the request of Chief of Police Hall and other officers 
in the City of Orangeburg, thereby disturbing the peace 
and tranquility of the normal traffic on the sidewalks as 
well as the streets in the City of Orangeburg, which caused 
fear and tending to incite a riot or other disorderly conduct 
or cause serious trouble.”

We have recently had occasion to review the elements 
necessary to constitute the offense of breach of the peace
in the case of The State v. Edwards, et a l.,------ S. C .------- ,
123 S. E. (2d) 247. The foregoing warrants plainly and 
substantially charged, under our decisions, the crime of 
breach of the peace, fully informing the defendants of the 
nature and cause of the offense charged. The lower court 
properly refused to dismiss the warrants.

The defendants next assert that the State failed to prove 
the commission by them of the offense of breach of the 
peace and that their convictions were obtained in viola­

Opinion of the Supreme Court of South Carolina in
The State v. Irene Brown, et al.



33a

tion of their rights to freedom of speech and assembly 
and their right to petition for redress of grievances, pro­
tected by Article I, Sections 4 and 5, Constitution of South 
Carolina, and the First and Fourteenth Amendments to the 
United States Constitution. All of these questions may be 
resolved by a determination of whether or not there is any 
competent evidence to sustain the conviction of the defen­
dants for a breach of the peace.

The Orangeburg area, according to the testimony, has a 
population of approximately twenty thousand. Claflin Col­
lege and the South Carolina State College are located in 
Orangeburg, both attended solely by Negro students. It 
appears that, beginning about February 25, 1960, there be­
gan a series of demonstrations by the Negro students in the 
Orangeburg area in protest against racial segregation. On 
February 25, 1960, a group picketed in front of Kress’ 
Store in the main business section of the City. On Febru­
ary 26,1960 a larger group staged a “ sit in” in Kress’ Store. 
On March 1, 1960 there was a parade through the City by 
600 to 700 Negro students.

As a result of these demonstrations the officers testified 
that very high tension and feeling was created among both 
the White and Negro races in the community. Two or three 
clashes between Negroes and Whites had occurred, resulting 
in arrests. In their efforts to maintain order among the citi­
zens of the community, the City officials called to their as­
sistance State law enforcement officers, the Mayor of the 
City publicly advised that no further marches or parades 
would be tolerated within the City without a permit, and a 
notice was read at the assembly hour at the South Carolina 
State College on March 2, 1960 informing the students that,

Opinion of the Supreme Court of South Carolina in
The State v. Irene Brown, et al.



34a

before further parades or marches downtown, the City au­
thorities would require that a permit be obtained.

Under the foregoing circumstances and without notice to 
the City officials, three groups of Negro students, totaling 
approximately one thousand, left the campuses of the afore­
mentioned colleges about 12 o’clock in the day of March 15, 
1960 and proceeded to march, two abreast, along the side­
walks toward the main business section of the City of 
Orangeburg, each of the three groups taking a different 
route. The purpose of the procession of students, as testi­
fied by some of the defendants during the trial, was to peti­
tion the City officials of Orangeburg for redress of griev­
ances in allegedly denying to them the right of peaceful 
assembly and of freedom of speech. However, no audi­
ence had been sought, or apparently intended, with any 
official of the City, County or State government. They 
planned to proceed to the City Square where they would 
sing The Star Spangled Banner and pray, after which they 
would return to their respective campuses. The procession 
of students, under the State’s testimony, blocked traffic, 
streets were cluttered, and the sidewalks were blocked to 
such an extent as to require pedestrian traffic to enter busi­
ness establishments to get off the street. As the students 
proceeded toward the main business section of the City, 
the officers intercepted each group. They were in each in­
stance asked by the officers to disperse and return to their 
schools. Some of the students acceded to the requests of 
the officers and others refused, persisting in continuing the 
march. The refusal to disperse in obedience to the com­
mand of the officers resulted in the arrest of the defendants 
and the issuance of warrants charging them with the offense 
of breach of the peace.

Opinion of the Supreme Court of South Carolina in
The State v. Irene Brown, et al.



35a

The record discloses that none of the defendants com­
mitted any act of violence. It is their basic contention that 
they had a right to assemble and act as they did, so long as 
they did no other act which was in itself unlawful.

In State v. Edwards, et ah, supra, ------  S. C . ------ , 123
S. E. (2d) 247, the following definition of breach of the 
peace, from 8 Am. Jur. 834, Section 3, was approved: “ In 
general terms, a breach of the peace is a violation of pub­
lic order, a disturbance of the public tranquility, by any act 
or conduct inciting to violence * * * , it includes any viola­
tion of any law enacted to preserve peace and good order. 
It may consist of any act of violence or an act likely to pro­
duce violence. It is not necessary that the peace be actually 
broken to lay the foundation for a prosecution for this 
offense. I f what is done is unjustifiable and unlawful, tend­
ing with sufficient directness to break the peace, no more is 
required. Nor is actual personal violence an essential ele­
ment in the offense.” And, in Cantwell v. Connecticut, 310 
U. S. 296, 60 S. Ct. 900, 84 L. Ed. 1213, 1220, 128 A. L. E. 
1352, the United States Supreme Court in discussing the 
conflict between the assertion of constitutional rights by the 
individual and the power of the State to punish for breach 
of the peace stated: “ The offense knowm as breach of the 
peace embraces a great variety of conduct destroying or 
menacing public order and tranquility. It includes not only 
violent acts but acts and words likely to produce violence 
in others. No one would have the hardihood to suggest that 
the principle of freedom of speech sanctions incitement to 
riot or that religious liberty connotes the privilege to exhort 
others to physical attack upon those belonging to another 
sect. When clear and present danger of riot, disorder, in­
terference with traffic upon the public streets, or other im­

Opinion of the Supreme Court of South Carolina in
The State v. Irene Brown, et al.



36a

mediate threat to public safety, peace, or order, appears, the 
power of the state to prevent or punish is obvious.”

The defendants have the constitutional right to freedom 
of speech, assembly and to petition for redress of griev­
ances. The fact that the defendants may have been at the 
time of their arrests attempting to assert such constitutional 
rights does not answer the question here. While the state 
must safeguard the constitutional rights of the defendants, 
it also has a duty to preserve the public peace and to assure 
the availability of the streets to serve the necessary require­
ments of the community. The constitutional guarantees 
which, admittedly, the defendants have a right to enjoy 
may not be asserted in any manner, regardless of any re­
sulting peril to the community therefrom. The constitu­
tional principles here invoked do not prohibit state action 
when a clear and present danger of riot, disorder, inter­
ference with traffic upon the public streets, or other im­
mediate threat to public peace or order appears.

The defendants were engaged at the time in expressing 
their opposition to racial segregation. The question of 
racial practices is a present and perplexing one, involving 
deep seated feelings and beliefs. Where issues are involved 
which so deeply affect the feelings and emotions of a people, 
incidents often precipitate open conflict which in other situ­
ations would go unnoticed. In urging the adoption of one’s 
views it must be recognized that the constitutional right 
exists to oppose as well as to espouse a cause. It is clear, 
however, that unpopular views may not be silenced under 
the guise of the preservation of order. In the conflict 
of opposing ideas the rights of the contending factions 
must be balanced if the state is to exist and the constitu­
tional rights of all preserved. Therefore, the principle

Opinion of the Supreme Court of South Carolina in
The State v. Irene Brown, et al.



37a

has become fixed that, in exercising the rights guaranteed 
under the Constitution, one may not commit a breach of 
the peace. This is not a denial of those rights but rather a 
recognition that they can only exist in an orderly society.

Regardless of the differences in opinion that may be held 
as to the justification for the feeling in the community, the 
fact remains that the record justified the finding, inherent 
in the verdict, that on the occasion in question there existed 
in the Orangeburg area very high tension on the part of 
both Negroes and Whites, resulting from a series of demon­
strations on the part of the Negro students. There had been 
clashes, resulting in arrests, between Negroes and Whites. 
These were realities which local officials had to recognize 
and in the light of which common prudence required that 
they act. The local officials sought to preserve the peace by 
public notices, by invoking a regulation against parades 
without a permit, and by bringing in additional officers. 
Heedless of the requests by the officials and in the face of 
the high tension between the races in the community, the 
Negro students, one thousand strong, on March 15, 1960, 
began a march by three different routes into the congested 
business area of the City. There is absent from this record 
any showing or intimation that, had the defendants applied 
to the City officials for a permit to parade or sought in ad­
vance an audience with such officials, so that adequate police 
protection could be afforded and traffic conditions safe­
guarded, such permit wTould not have been issued or audi­
ence granted. As stated by the Circuit Judge in affirming 
the convictions of the defendants: “ No action was taken 
until the police authorities in their considered judgment 
came to the conclusion that the point had been reached 
where the action of the appellants was dangerous to the

Opinion of the Supreme Court of South Carolina in
The State v. Irene Brown, el al.



38a

peace of the community. There is no indication whatever 
in this case that the acts of the police officers were taken 
as a subterfuge or excuse for the suppression of the ap­
pellants’ views and opinions. The evidence is clear that 
the officers were motivated solely by a proper concern for 
the preservation of order and the protection of the general 
welfare in the face of an actual interference with traffic, 
and an imminently threatened disturbance of the peace of 
the community.”

The evidence amply sustains the conviction of the defen­
dants of the offense of breach of the peace.

The remaining question to be decided concerns the re­
fusal of the Magistrate to grant the defendants’ motion for 
examination of the jurors on their voir dire. This question 
concerns only the fifteen defendants involved in this case 
as the defendants in the other cases on appeal were tried by 
the Magistrate without a jury. These defendants made 
timely motion that the prospective jurors be examined on 
their voir dire. The Magistrate denied the motion and 
made no examination to determine whether bias or preju­
dice existed on the part of any juror. The sole question 
presented, and to which we limit our determination, is 
whether error was committed in the absolute refusal to 
make any examination of the prospective jurors as to pos­
sible bias or prejudice, when such request was timely made.

Trial by a jury was demanded by these defendants in ac­
cordance with the provisions of Section 43-115 of the 1952 
Code of Laws, and Article 1, Section 18 of the Constitution 
of this State guaranteed to them the right to a trial “by 
an impartial jury” .

Examination of prospective jurors on their voir dire is a 
guaranty of the right of the parties to an impartial jury.

Opinion of the Supreme Court of South Carolina in
The State v. Irene Brown, et al.



39a

Opinion of the Supreme Court of South Carolina in 
The State v. Irene Brown, et al.

And, when timely request was made, it became the duty of 
the Magistrate to make reasonable inquiry of the jurors 
to determine whether bias or prejudice existed, to the end 
that the constitutional right of the litigants to a trial by 
an impartial jury could be secured.

The question here is not as to the exercise of the trial 
Court’s discretion in determining the impartiality of a 
juror, but concerns the absolute denial of an inquiry, after 
request, into such matter. The refusal of the Magistrate to 
examine the jurors on their voir dire so affects substantial 
rights of the defendants as to require reversal of the judg­
ment herein and the granting of a new trial on that ground 
to the fifteen defendants in this case.

Eeversed and remanded for a new trial.

T aylor, C.J., Moss, B ussey and B railsford, JJ., concur.



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