Fields v. South Carolina Petition for Writ of Certiorari to the Supreme Court of South Carolina
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January 1, 1963

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Brief Collection, LDF Court Filings. Fields v. South Carolina Petition for Writ of Certiorari to the Supreme Court of South Carolina, 1963. 5ba73ea8-b19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e8a279b8-a447-4c92-9ef6-d078be62fe1c/fields-v-south-carolina-petition-for-writ-of-certiorari-to-the-supreme-court-of-south-carolina. Accessed April 29, 2025.
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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. * 38 ■