McKinnie v. Tennessee

PETITIONER:McKinnie
RESPONDENT:Tennessee
LOCATION:Criminal District Court, Parish of New Orleans

DOCKET NO.: 148
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 380 US 449 (1965)
ARGUED: Mar 08, 1965
DECIDED: Apr 05, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – March 08, 1965 in McKinnie v. Tennessee

Earl Warren:

148 Lester G. McKinnie et al, petitioners v. Tennessee.

Mr. Nabrit, you may proceed with your argument.

James M. Nabrit, III,:

Mr. Chief Justice, May it please the Court.

This is sit-in case here on certiorari from Tennessee’s highest court.

Petitioners are 8 young Negro college men whose liberty is at stake because they attempted to eat at a white only cafeteria in Nashville in October 21, 1962 and remained standing at the entrance vestibule after the doorman had barred their way because of their race.

They were convicted of conspiracy by a jury which agreed on a fine of less than $50 although empowered to find on as much as a $1,000.

The trial judge imposed the fine — the $50 fine and added a 90-day work house sentence.

Their claims that their conduct was constitutionally protected were rejected on appeal for the state’s highest court.

(Inaudible)

James M. Nabrit, III,:

That is permissible under the state law the jury controls fines over $50.

The Court — the judge controls the jail sentence.

(Inaudible)

James M. Nabrit, III,:

There is a procedure for a defendant to request that if you done more trial that was not done.

This Court granted certiorari in the case before its decisions in Hamm v. Rock Hill and Blow v. North Carolina holding that the Civil Rights Act of 1964 abated all pending prosecutions for non-forcible attempt to enter or remain in establishments covered by the Act.

Now, this case does not merely involve the liberty of these young men for by its arguments here, Tennessee is attempting, we think to nullify the Civil Rights Act of 1964 by criminal prosecutions brought under a law which the Tennessee Supreme Court itself admitted was originally enacted in 1875 to nullify the Civil Rights Act of 1875 dealing with the public accommodations.

Now we make six somewhat related arguments, and I’d like to state them briefly now as I probably will not have the opportunity to argue them all.

First, we make an abatement argue based on Hamm against Rock Hill.

Second, we make a state action racial discrimination argument premised on Lombard versus Louisiana and Robinson against Florida among other cases.

Third, we make an argument that there’s no evidence either of a conspiracy to obstruct the restaurant or of a conspiracy to call the riot two of the things — two of the several things charged in the indictment and we rely — we rely on the Thompson versus Louisville doctrine.

Fourth, we urged that there was error in instructions to the jury which invited the jury to convict on various unconstitutional grounds.

Including among others, an erroneous instruction about the statutes the defendants were accused of violating.

Trial Judge told the jury three times that the defendants were charged with violating the law which they were not — they were not accused of.

And also whether the — that the trial—

Hugo L. Black:

They charged the jury with something they were not — didn’t get the last word.

James M. Nabrit, III,:

Yes.

The trial judge three times during his instructions to the jury told the jury that these defendants were accused of a conspiracy to violate Section 62-710 of the Tennessee laws which I’ll describe in a moment but this is a section briefly that abrogates the common law (Inaudible) and this wasn’t true.

The State Court held that was error but said it didn’t see how it could affect the judgment of the jury.

And the other related matters, the fact that the accusation read to the jury as part of the instructions asserted the petitioners went to the restaurant with one of the things they’re accused of is going to the restaurant knowing that other people like patrons might attack them.

Fifth, we make an argument based on Cole against Arkansas that the Appellant Court rested its affirmance on a theory of what the crime was which was completely contrary to the theory on which the case was tried and litigated and submitted to the jury.

And sixth, there’s an argument that the jurors were not impartial with respect to the segregation issue which was central to the case.

James M. Nabrit, III,:

Now on the first point, the Hamm v. Rock Hill issue abatement question.

There is apparently no dispute about the fact that Title II of the Civil Rights Act covers the BMW Cafeteria.

State’s brief apparently assumes this and we think correctly so.

This restaurant is a large 450-seat cafeteria located in Nashville’s downtown business district open to the general public and offering to serve interstate travelers, we think within the meaning of Section 201 C2 of the Civil Rights Act.

Also the fact of racial discrimination is undisputed on the evidence and indeed admitted on the face of the grand jury’s presenter but the State contends that petitioners are not detected by the Act on the ground that their conduct was not peaceful and asserts that their acts were criminal even if they had a right to eat at the restaurant.

There are several answers to this.

At first, the case wasn’t tried on this basis and the accusation wasn’t made obviously.

The case was — accusation proceeded on the theory that the restaurant had a right to exclude these petitioners under a Tennessee law has to give them that right and this was a whole theory of the case in the Trial Court.

I’m going to talk about the accusation statutes involved and the judge’s instructions to the jury and in describing pretending to keep in mind that the scope of — we submit the scope of abatement under the Civil Rights Act.

The scope of its protection is the same as the scope of present protection for people who commit acts there under the — in establishments covered by the act.

Now the accusation mentioned three statutes which are set out in our brief and the federal courts petitioners’ brief of pages 4 and 5.

The first of the statutes is the conspiracy law Section 39-1101 subsection 7 prohibits a conspiracy to commit any act injurious to public health, public morals, trade of commerce.

The indictment alleged the petitioners inspired to injure the trade of business with a BMW Cafeteria in Nashville.

Now, the next two statutes—

Hugo L. Black:

(Inaudible)

James M. Nabrit, III,:

I beg your pardon.

Hugo L. Black:

(Inaudible).

What is the charge against that statute?

James M. Nabrit, III,:

At the moment, Your Honor, I was just attempting to describe the accusation and to point out to the statute to various statutes they were accused of violating in this indictment which was really a one count indictment.

There was no — there were no separate charges under these — these various statutes, it was just the one overall charge.

Hugo L. Black:

I understood you were attacking Edmond on the ground if it was conveyed.

James M. Nabrit, III,:

Yes sir that was—

Earl Warren:

Did the complaint say that these three statutes were violated?

James M. Nabrit, III,:

No, Your Honor.

The grand jury’s resentment said that the conspiracy statute was violated and also the—

Earl Warren:

Conspiracy to do what?

James M. Nabrit, III,:

Conspiracy to injure the trade or business of the BMW Cafeteria and the —

Earl Warren:

Did it state what statute it was violating?

Is that the violation of?

James M. Nabrit, III,:

Yes sir, well I can read it.

James M. Nabrit, III,:

It’s at the top of the second page of the record.

And it says that the defendants conspired to violate code section 39-1101 7 that is the Conspiracy Law and Section 62-711.

Now Section 62-711 and the preceding Section 62-710 where Sections 1 and 2 of a single statute passed by Tennessee in March 1874 are the first section abrogated common law duty of innkeepers to serve all commerce, so they could exclude anyone and the second section which prohibits turbulent or right of conduct was designed to enforce the first section.

And this is the law, I mentioned earlier which a contemporary Tennessee Supreme Court of 1877 asserted was passed to avoid the effects of the Civil Rights Act of 1875.

This law was passed.

These two sections were enacted three weeks after the Federal Civil Rights Act that the comparison of them confirms that statement of the purpose.

They cover the same types of facilities indeed the Federal Act had a $500 penalty against discriminating proprietary and the Tennessee statute turned it around but with $500 civil penalty against a person who attempted to remain in an establishment after being screwed.

Now the accusation runs from pages 2 to 5 of the records were at length embraces a great number of different theories.

Potter Stewart:

Great number of what?

James M. Nabrit, III,:

Of different theories, Your Honor.

It starts out by describing what this restaurant is and then it asserts that the restaurant had a policy of serving white people only and that this policy was adapted under the statute under Section 62 710.

And this is the way in which that second law is brought into the accusation but it’s not charged and they violated expressly.

It’s charged that the restaurant had a right under the statute to exclude Negroes because of race.

And that the petitioners went to the restaurant conspired to conduct sit in affairs at white only restaurants knowing that they wouldn’t be served.

Then after being charged as further that after being denied service, they conspired of blocking the entrance and charges that they did this knowing that their mere presence there was likely to provoke patrons of the segregated cafeteria to start a fight or riot and that they were these petitioners were engaged in a movement to compel such restaurant integrating against their policies about them under this law.

Were they asked to leave the restaurant?

James M. Nabrit, III,:

Yes, Your Honor, they were.

There was some evidence of that.

The manager testified that he heard the doorman asked them to leave.

The doorman never mentioned that in his testimony but there were some evidence, my other witnesses that the doorman asked them to move on.

(Inaudible)

James M. Nabrit, III,:

No, Your Honor.

These petitioners got to a vestibule about 6 foot glass doors and — 6 foot wide glass doors which let from the sidewalk into a vestibule about 6 feet square.

And they were blocked at the inner doors by the guard, the doorman stationary to keep out Negroes.

Potter Stewart:

That’s what the record shows.

Isn’t it that the doorman was there to keep out Negroes?

James M. Nabrit, III,:

Yes sir, yes sir.

He was hired — he was hired some month or so before this incident.

Hugo L. Black:

What did he say to the Negroes?

James M. Nabrit, III,:

By his own account, he told them you can’t — he said, “You can’t come in and we don’t serve colored people here by other witnesses account that he was urging them to move on.

James M. Nabrit, III,:

That was the testimony of the manager.

Hugo L. Black:

Was the vestibule inside the restaurant.

James M. Nabrit, III,:

Yes sir.

It was a glass door leaning up the sidewalk into the building.

Hugo L. Black:

Inside the vestibule?

James M. Nabrit, III,:

Yes sir.

Now —

Hugo L. Black:

If I follow you correctly — if I follow your brief, the resentment here charged the violation of 39-1101 which is a conspiracy statute and finding it to commit any act injurious to public health, public morals, trade or commerce.

And then it charged the violation of 62-711 penalty for riotous conduct.

It did not charge although it referred to the 62-710 which defined a right of owners to exclude persons from places of public accommodation.

Now one of your points, I take on your brief and what you’ve just said is that when the Court charged at page 299, it said that the language of the resentment that the defendants are charged with the offense of the lawful conspiracy to violate code section 39-1017 code section 62-710 and 62-711.

And you’re arguing — one of your arguments I think it is that there was no charge of conspiracy to deprive one of the right which the statute 62-710 purported to give to an owner a right to exclude persons from places of public accommodation.

And therefore under Court of Arkansas there couldn’t be convicted because they were being convicted of a charge which was not lodged against it.

Is that a correct statement of the position of that point?

James M. Nabrit, III,:

Yes, sir it is.

And I would point out that the reference, Your Honor, mentioned on page 299 was only the first of three times the Court told them — told the jury that the defendants were charged under this statute.

The other second times under the bottom of 302 and the third time is over on page 305.

Now I think it’s important to know about this accusation is the defendants were not charged with disorderly conduct or breach of the peace.

Disorderly conduct or breach of the peace under Tennessee law Section 39-1213 carries only a 30 day sentence whereas the defendants were charged with conspiracy carrying the possible year in jail and a thousand dollar fine.

And they were not charged with violating 62-711 directly that only carried a fine.

They were charged with a conspiracy to violate.

Now we submit that the — on the abatement argument that the conviction should be reversed just on the face of the accusation because certainly under the Ham case any such accusation as this, if it were filed on the Court today would be obviously fatally defective under the Civil Rights and it’s totally a consistent with the Civil Rights Act in 1964, and there was no pretense here as there would — as there has been in some of the sit-in cases which has come before this Court that something other than racial discrimination was involved here.

It’s on the face of the accusation.

And the same observation, I think applies to the judge’s instructions to the jury.

He read the whole resentment with implicit approval to the grand jury.

He told they made this mistake three times about the statute and then he explained the conspiracy.

He explained what a conspiracy to commit acts injurious to a business was in these terms at page 300.

He said that injurious, page 300 of the record.

He said that injurious in this context led an invasion or violation of a legally protected interest or property right.

So this invited the jury to convey that merely if it believed that the complainants remain in the restaurant against his wishes.

James M. Nabrit, III,:

And now we — and again, an instruction that — that’s contrary to the theory of the Civil Rights Act or the Hampton.

I think, the second overall answer to the state’s claim—

Byron R. White:

Can I ask you a question please before you leave that other — what is the ACP’s origin of the Civil Rights Act of ‘64 in this regard? How much self help is a Negro entitled to use in attempts to enter a restaurant to secure service which the Act is in the right to have when he approaches a restaurant and he’s met at the door by a private bouncer who says you can’t come in.

How much self helf at that point the Negro is entitled to use?

James M. Nabrit, III,:

We certainly agree I think with the statement in the Hamm decision that he cannot violently remain there or attempt to enter but he can find its way in.

And I was just about to come to the facts of this case and to argue that the — there is no evidence here which supports this — what we think was the very unfair characterization of these petitioner’s conduct is then un-peaceful.

Byron R. White:

But, he is entitled to use violence to try to get in and I suppose you can say —

James M. Nabrit, III,:

We don’t have such a case but we don’t – we certainly wouldn’t argue that if we did.

Byron R. White:

Now he’s inside the restaurant in the vestibule.

I suppose that is inside the restaurant.

James M. Nabrit, III,:

From their property, yes.

Byron R. White:

And how much – is he entitled to stay there for as long as he wants to exactly?

James M. Nabrit, III,:

The restaurant is open and they probably still request against —

Byron R. White:

— stay there and the people in the vestibule could have stayed there as long as they — as the restaurant was open, as long as they were being denied the right which — let’s assume it happened today.

They could stay in the vestibule as long as the restaurant was open and since they had a right to enter the restaurant and get service?

James M. Nabrit, III,:

I think that if they do, that their conduct is protected by the — by Section 203C of the Act.

(Inaudible) speaking out situations today, these young men sitting at a table and refusing to leave standing in an entrance way to make no distinction.

James M. Nabrit, III,:

Well, I think the — obviously, there are potential, factual differences, but I urge that — I mean in some cases there might be differences but I think in this case there was no difference.

The entrance way in this case was not blocked.

If you go through the record, you’ll see there was testimony that 18 different people actually went through this vestibule while petitioners were standing there.

Byron R. White:

What if it was blocked?

What if there were so many people in the restaurant — they are in the vestibule that no one could get through and didn’t, and people were prevented from getting through.

Now what’s wrong with that?

James M. Nabrit, III,:

I think there’s a difference between standing in a vestibule attempting to enter which is what these petitioners were doing now deliberate effort to block the place.

Byron R. White:

Well, but I think they’re not really interested in blocking, they are interested in getting in.

They didn’t get in the vestibule but the result was that the people (Inaudible)

James M. Nabrit, III,:

As I said, 18 people did manage to go through while these petitioners were standing.

But in that situation, I would — I would say that the policy of the Civil Rights Act prevails over any incidental injury to the business which is attended upon the manager’s discriminatory action in violation of the Act.

It immediately flows from it and coincidentally, the manager discrimination.

Byron R. White:

So the blocking is really irrelevant in your mind but in any event – there was enough blocking here anyway?

James M. Nabrit, III,:

Well, I suppose I’ll accept I mean what I said the —

Hugo L. Black:

You don’t mean to say that complete obstruction —

James M. Nabrit, III,:

No, that was the point I tried to make that if someone went there for the purpose of obstructing a restaurant rather on purpose of requesting service, well what these young men were doing, they weren’t blocking the place anymore than someone sitting at the lunch counter blocked the lunch counter seat.

He was sitting there at the place where he was denied service asking for it.

That’s different from courting off the place and affirmatively trying to stop people from entering.

(Inaudible)

James M. Nabrit, III,:

They were there a total of 25 or 30 minutes apparently but most of the consensus seems to be – one wouldn’t be sitting there ever long —

Hugo L. Black:

These people numbered 8 as they went in this small vestibule that they were permitted to do and people could — other people could come in and out if the management permitted them to enter into the main dining room.

Therefore, there was no complete obstruction as the Supreme Court of Tennessee indicated.

They were standing there in a peaceful way you say, don’t you?

James M. Nabrit, III,:

Yes sir.

Hugo L. Black:

Well, the state said that’s the crux of the case.

James M. Nabrit, III,:

Yes sir.

Hugo L. Black:

It’s not people they say and it would be a violation of their act.

It would not be protected by the Civil Rights Act is that right?

James M. Nabrit, III,:

I take it the state argues, I’m not sure what their argument is.

I take it that they argue that the incidental blocking of the door is enough to justify the conviction.

And our point was that the — first the jury never considered this case in the context of these petitioner’s rights to be there, and totally convicted on the theory that they had no right to be there but even looking at it, in this different way.

The way the jury never looked at the case.

There’s no evidence.

The doorman, 64-years-old, weighing 140 pounds, held the door against 8 men, periodically opened it to allow the White patrons who brushed passed them to enter and closed it again.

The doorman testified their colloquy about the defendants. He says they were wanted in but not wanting to fight to get in.

I guess they could have fought their way to come in but they didn’t.

They stood in the doorway quietly, there was no indication that they talked to any of the — any of their customers who brushed and elbowed their way by them.

There was no cursing.

There was no fighting or riot.

Hugo L. Black:

(Inaudible) Sections 202 and 203 of the Act, the Civil Rights Act if you have put this in the appendix to your brief.

And I take it that you correctly appeal and what you’re saying is that they didn’t need to get congregated in the vestibule.

They met under Section 202 of this Act applies to seek service.

And then the deprivation occurred under Section 203.

Hugo L. Black:

And then it is the persons denied them or instructed them in their right to seek service.

And then you joined to these statutes in our Hamm decision.

Do you say that that was an abatement?

Would that be a correct description of what you’re trying to say?

James M. Nabrit, III,:

Yes, Your Honor, that is.

And then entirely apart from the abatement argument, we argue that Cole v. Arkansas requires a reversal.

The Tennessee Court said it was considering the case stripped of any questions of race and discrimination so the act of complaint was still unlawful.

They — they made an arguendo or assumption that the defendants had a right to go in the premises solely.

They didn’t assume that they had the right to stay there.

But — and then the trial court examined the evidence and concluded that there was evidence the defendants committed a breach of the peace.

Well, this was exactly an opposite theory upon which the case was – that upon which the case was submitted to the jury.

The jury was never told that the proprietor was wrong and these defendants had a right to stay there, and it’s totally opposite.

There was no charge of a breach of the peace as I mentioned that carried a penalty 112 of the penalty they were liable to.

Most importantly, I think the defense would have been different if there had been a charge that these defendants having a lawful right to enter nevertheless, it was illegal means of self help.

Hugo L. Black:

Mr. Nabrit, I have to quarrel here a little bit, if you look at page 311 of the record, did not the court submitted a revised chart to a jury saying that leading it was not a criminal offense to the State of Tennessee for Negro and white persons who serve food together who entered into a criminal offense for Negroes to peaceably seek to be served food in the place which offered the service to the general public?

James M. Nabrit, III,:

Yes sir, it did.

But what the trial court also did was — that was a revision of the actual requested instruction which appears on page 307 — the material in brackets on 307 is the material that the Court refused to instruct and he refused to instruct.

Hugo L. Black:

And what was then — what was then the defect in the Court’s instruction?

The Court said that these defendants had a right to peaceably to seek service and it’s not a criminal offense for whites to have them together.

Now what was the element to support in your opinion omitted?

James M. Nabrit, III,:

The Court repeatedly instructed the jury that this restaurant, the BMW Cafeteria, had a right under Section 62-710 to keep out Negroes to feed its own customers and to exclude Negroes, it instructed them.

Hugo L. Black:

Is this a constitutional argument or it relates to your abatement of the Civil Rights Act?

James M. Nabrit, III,:

The — I think the point is that if — well the Court said it wasn’t a crime to seek service.

It did not instruct the jury that the defendants had a right to serve.

It instructed them the absent.

The — it —

Earl Warren:

Mr. Nabrit, your time has expired but you may take until 12 o’clock when we recess and the counsel may ask five minutes for it to decide.

James M. Nabrit, III,:

Thank you, Your Honor.

Potter Stewart:

Another point, I just wanted to clear.

Your point is that the conduct here on this record would be conduct which today would be lawful under the Civil Rights Act.

Potter Stewart:

And therefore under the policy of abatement would also be also be lawful at the time it occurred, is that it?

And your — well how did you — do you get or raise any constitutional claim on this one?

James M. Nabrit, III,:

Yes, we do.

Byron R. White:

This is in addition to the argument of the Civil Rights Act.

James M. Nabrit, III,:

An additional argument.

Well, we have an argument based on Lombard versus Louisiana and Robinson against Florida that specifically relates to the Tennessee Act to prosecute it under which was designed to encourage segregation.

And we made reference in our reply brief at page 9 to administrative regulation which required segregation of restaurants and this was the regulation that’s quoted in this Court’s opinion in Turner versus Memphis —

Byron R. White:

In the same line?

James M. Nabrit, III,:

And held invalid, that regulation was held invalid by this Court a few months before this event took place.

But we submit that the theory of the Robinson case at least as much state involvement as it was in the Robinson case.

Now, I left the last point a bit too early.

One of the thing I wanted to mention was that, if the defendants had been apprised that trial of the State’s theory that the — that the State argues now right to be there but it acted then, then perhaps the counsel would have had entirely different case.

He would have been — he wouldn’t have been able to rely on his Fourteenth Amendment state action argument.

And he might have thought of necessary to put on the defendants to testify and deny this case.

But a decision not to do that was made under an entirely different case.

In conclusion, I would submit that the actions of these petitioners were not materially different from the actions of the petitioners in 25 other sit-in cases.

Now this Court has reversed to vacate convictions in the past four terms.

Byron R. White:

Mr. Nabrit, would it make any difference in this case that the events in the year took place in the vestibule, what if the same events that taken place just outside the outside door that it’s not the people were up in outside the outside door with the same and the 120 pound bouncer was placed at the outside doors and — but the Negroes who wanted to be in crowded around the door, we just — it’s the same situation.

James M. Nabrit, III,:

Yes, that the factual situation, Your Honor, describes — it was exactly the fact situation in Blow V. North Carolina.

Petitioners were waiting outside the outer doorway of a restaurant.

The Court reversed those convictions last month.

Byron R. White:

There was the obstruction there.

It was more of a picketing.

Thomas E. Fox:

Mr. Chief Justice, may it please the Court.

Indictment in this case refers to it as a sit-in case.

I submit that that is not exactly correct because this is not a sit-in case or if it were a sit-in case, we wouldn’t have any case under the Arthur Hamm versus Rock Hill case and under the Blow versus North Carolina.

We insist that the conduct of the defendants in this case was violent, turbulent, and righteous, in accordance with the definition that was set out in the case of Feiner versus New York or in the case of Senn v. Tile Layers Union that came along, I believe just prior to 1940.

In those — from those definitions especially the Tile case, we understand that that acts are violent, that acts are not peaceful that they’re forceful and not non-forceful as referred to in the Hamm case, if physical force is used in order to accomplish the purpose of the people making the demonstrations or the people that were charged with the offense.

Now in this case, as was stated by my worthy opponent, there is a vestibule at the BMW Cafeteria in Nashville Tennessee which is from the evidence from about 6 feet by 6 feet or 6 feet by 4 feet.

The witnesses disagree or differ a little bit as to size of this vestibule.

Thomas E. Fox:

On Sunday at noon at the time when there’s a big crowd of people eating at the restaurant, these eight petitioners who were defendants originally came to that restaurant.

They say for the purpose of acquiring food.

They moved into the vestibule, the eight of them, and I submit that that just about filled it and were confronted with the doorman to the effect that this — that the restaurant only served white people and that they couldn’t’ be served, and they were asked to leave.

They didn’t leave.

They didn’t say anything out of the way.

My opponents insist that they were peaceful.

We think that we insist that — or I insist that there being there in the vestibule preventing people from leaving or entering the restaurant at will and there is an onset some entered and some left.

Some had to squeeze through.

Some had to make them after they get them, the eight petitioners to move over before they could — before they could move at—

(Inaudible)

Thomas E. Fox:

No, Your Honor, there is not except we insist that — the verdict to the jury finding the defendant is guilty as were charged in the criminal case warrants the inference or — or the — the finding by the jury that their conduct was violent or that it was forceful.

(Inaudible)

Thomas E. Fox:

Your Honor please, we — we think so—

(Inaudible)

Thomas E. Fox:

This statute 39-1101 is a conspiracy statute.

It has seven parts the — these defendants.

The conspiracy was charged under the letter.

That is a statement or requirement.

It requires that acts be injurious to trade.

Now the other section of the code that was talked about is 62-711, one of the other sections the Court just talked about.

That section of the code makes it unlawful for any person to engage in turbulent or riotous conduct about a restaurant or hotel.

It I think on the indictment is no more than the overt act that is necessary to show a conspiracy and that statute, that overt act must be a turbulent riotous act in order to constitute the conspiracy in this case.

There have been certain — there has been only one conviction under the later section, the court mentioned 62-711 that was the Lester case that my opponent mentioned.

That was the case where an indictment was motion to caution indictment which was granted by the trial judge was reversed by our Supreme Court back in 1877.

The statute was enacted in 1875.

The Court observed in that opinion and I don’t have any way of — I went back to the archive to find out whether or not this defendant in the Lester case was a Negro or whether he was a white person.

I wasn’t able to ascertain that fact but the Court observed this.

They said that this Act is generally supposed to have been enacted to offset the results or the effects of the Civil Rights Act that was passed by the United States Congress in 1875.

No, I don’t say that it was intended to nullify that act and I don’t think that our Supreme Court in 1875 would have said or in 1877 in our legislature in 1875 would have enacted a statute to nullify an act of Congress.

I think the legislature could proceed that because of the Civil Rights Act that was passed by Congress in 1875 that there would be some turbulent conduct.

Thomas E. Fox:

There would be some — some — some people that were unhappy about the situation.

And I think this Act was adopted for the purpose of enabling the owner of the restaurant of the hotel to deal with the situation without regard to color of the skin.

That if any person were there in the premise of the hotel or the restaurant acting in a turbulent or riotous way that the owner of the hotel would have a right to bring an action against him not only a criminal offense but also to bring a civil action against him for damages.

Potter Stewart:

What was the jury charged as to the elements of the crime that they must find?

Thomas E. Fox:

Your Honor please, they were charged that if they conspired to injure the trade of the BMW Cafeteria, by entering into turbulent or riotous conduct that they, of course, would have made out the defense.

Now I believe that’s in substance of what the statement of the elements of the offense — the essential elements of the offense were.

I like to say this about the statute 62-710 the Civil Statute that a good deal has been set about.

Hugo L. Black:

Which one?

Thomas E. Fox:

62-710 that is the Civil Rights or Civil Statute that abrogated common law rule to authorize the owner of a hotel or restaurant to treat it I believe as his own private place of abode that he could let in or otherwise people according to his own choosing.

That section is included in the indictment.

We insist — or the State of Tennessee insists that the purpose of including that was to show to help show a conspiracy, a conspiracy, of course, under the law in our State and I think on the rules that are set down by this Court can be determined from the circumstances from the relationship of the parties and other circumstances of that sort even though there is no formal agreement.

Well, this statute the purpose of stating the contents of that statute in the indictment was for the purpose of showing that these defendants had in mind.

They knew about the situations of restaurant it has alleged an indictment that was generally known and it says in the indictment that they were sit-in cases occurring at other restaurants so that is one of the elements of the conspiracy.

Hugo L. Black:

What did the — what does the indictment charge as to 62-710?

Thomas E. Fox:

It said this.

The Court after reading the three sections of the code then began to —

Hugo L. Black:

Well, the indictment I say and not the Court, but the indictment.

Thomas E. Fox:

Excuse me, the indictment.

The indictment, as I remember, it says this that these defendants conspired to enter trade by sitting in or by acts that were turbulent or riotous under 16-711 knowing that it was the position or the hotel — not the hotel but the restaurant had the rule of serving only white people pursuant to the statute.

It says under the statute.

Hugo L. Black:

Now what did the — what did the Court instruct so far as 67-627 — all of those concerns?

Thomas E. Fox:

The Court after reading the three statutes involved then began to talk about the three statutes referring to it by number 39-1101, 62-710 and 62-711 as if they were all for the same purpose because the Court immediately after referring to the three numbers would say that the defendant violated these statutes by committing acts that were injurious to the restaurant.

And so we insist that it was clearly an error in an oversight.

And we insist further that —

Hugo L. Black:

What was error in an oversight?

Thomas E. Fox:

In saying that the defendants violated 62-710 because clearly they didn’t violate that.

They couldn’t have violated it.

It was only a civil statute.

Hugo L. Black:

And what did the Court say about 62-710 where will we find that in the record the exact instruction of the Court?

Thomas E. Fox:

In three different places, Your Honor please, and I have them marked at the top of page 299, Your Honor please.

Earl Warren:

Yes.

Thomas E. Fox:

At the bottom of page 302, Your Honor please.

Earl Warren:

62.

Thomas E. Fox:

And then near the close at the bottom of page 305.

Earl Warren:

299 and what’s the next one?

Thomas E. Fox:

302 at the bottom of the page.

Earl Warren:

302

Thomas E. Fox:

At the bottom page 305.

Earl Warren:

I don’t find anything what you mean with this but was this a clear error on the part of the Court?

Thomas E. Fox:

Yes sir, we admit that the Court made error including Section 62-710 along with the other statutes, and said that if you find the defendants violating these three statutes, he should left out that the middle in the 62-710.

Potter Stewart:

The resentment of 62-710 is referred to on the top of page 3 in the record but simply as saying that the owners of the said cafeteria reserved the right not to admit, I’m excluding said cafeteria, any person, any owners for any reason whatsoever chose not to admit and they said under the provisions of section 62-710, so that would be just descriptive right?

Thomas E. Fox:

Yes sir we think so.

Potter Stewart:

Is that the only mention of it in the resentment as you know of, I can’t find it anywhere else?

Thomas E. Fox:

Your Honor please, I believe that’s correct.

Yes sir.

That’s a — that’s a circumstance to show that the defendants intended what they did that that was a part of the conspiracy that is the purpose of that being an indictment.

Earl Warren:

What did your Supreme Court say about that error?

Thomas E. Fox:

The Supreme Court agreed with my argument that it was in a nature of typographical error and that the jury —

Earl Warren:

But unless you have a typographical error?

Thomas E. Fox:

Yes sir.

We just say that it’s obvious the trial judge made an error in referring to that statute as indicated for one reason per se and that is that he filed it by saying that if the defendants committed acts injurious to trade that he just didn’t mean to include that in that indictment or that he shouldn’t.

(Inaudible)

Thomas E. Fox:

Yes sir.

(Inaudible)

Thomas E. Fox:

They agreed it was error, yes sir.

And we — I made both those arguments below, if the Court please, that it was in the nature of typographical error that everybody could – it was obvious to everybody and that no objection was made to it.

Byron R. White:

(Inaudible)

Thomas E. Fox:

Yes sir, that’s indicated in the record but I’ll admit that I had forgotten that I knew it until you put it.

Byron R. White:

(Inaudible)

Thomas E. Fox:

Yes sir, the record indicates it’s given and out of the question that a discussion of that particular request and instructions so far as I know had never been made before.

Thomas E. Fox:

This is the first time in my knowledge that its’ really been noticed.

But the record certainly shows it was given that’s my construction of the record.

Hugo L. Black:

I want to be sure about to argue upon — do I understand you to say that this conviction could not be sustained under your state law unless there was evidence to show that the conspiracy was to do something turbulent or what’s the other way of it?

Thomas E. Fox:

Violent or use —

Hugo L. Black:

Violent.

Thomas E. Fox:

Or use some physical force.

We think that the facts clearly show that the defendants used physical force to accomplish their purpose in this case.

Hugo L. Black:

(Inaudible)

Thomas E. Fox:

Sir?

Hugo L. Black:

Had the State had in its -– turbulence or violence, and the charge or anything?

Thomas E. Fox:

Yes sir, I don’t remember exactly let me—

Hugo L. Black:

What do you say it means?

Thomas E. Fox:

If the Court please, I’ll back off from that a little, I don’t recall that the Court really did say what — what it was — I think they did and I believe I can find it because there are lists of definitions here.

Byron R. White:

(Inaudible)

Thomas E. Fox:

Yes sir we think so.

Byron R. White:

Turbulence and violence adhere—

Thomas E. Fox:

Yes sir we — and we think about turbulence and violence, it means the use of physical force, if they used physical force to injure trade.

Hugo L. Black:

Do you refer to physical force has remained over?

Thomas E. Fox:

Yes sir.

Byron R. White:

— over the rotation?

Thomas E. Fox:

Yes sir.

Not — not in this remaining or — or actually blocking —

Thomas E. Fox:

Blocking the door.

We think by remaining they did block the door.

Earl Warren:

It was always shown under your statement.

I’m talking about the statement at all that was shown was that these people went there and they conspired together to go there only for the purpose of going in and remaining to come near with that bringing new — except just remaining even though ordered to get away.

Would that violate the state statute?

Thomas E. Fox:

If this Court please, I think it would on those circumstance because it would — it would block the entrance by staying or remaining where they did.

Hugo L. Black:

Well you have to add to that then with this blocking.

Thomas E. Fox:

Yes sir they blocked it.

Thomas E. Fox:

We think now — we think that going inside and sit down.

Hugo L. Black:

Have you any statute against that specifically in Tennessee?

Thomas E. Fox:

No sir, we don’t have this.

Hugo L. Black:

If that was the statute?

Thomas E. Fox:

No, sir not that I know of, it wasn’t discussed in this case.

Hugo L. Black:

You have no such statute in making the case going in another person’s property against his will or remain there against his will?

Thomas E. Fox:

If the Court please, I don’t know — I don’t know whether we have such a statute or not unless — of course under 62-711 there has to be a turbulent or riotous conduct.

The reference was made to what this Court said about our statute and our restaurant regulation in the case of Turner v. Memphis.

Hugo L. Black:

I have trouble myself this time unless you have some kind of definitions of the statute, that would make me believe that there was a turbulence in a regular sense, (Inaudible)

Thomas E. Fox:

If the Court — if Your Honor please —

Hugo L. Black:

I think that something is disorderly or destroying and disturbing the situation?

Thomas E. Fox:

Yes sir.

Well, if the Court please —

Hugo L. Black:

The conduct so to speak —

Thomas E. Fox:

We — we think that the case of Senn versus Tile Layers Union of Wisconsin case in which this Court discussed the Wisconsin’s statute is authority for our insistence that if there was physical force used to —

Hugo L. Black:

Well you mean if they — they remained there.

Thomas E. Fox:

And blocked the entrance.

If they remained there, I think it’s, it couldn’t have been — you have to, you can’t escape the conclusion that the blocked entrance had to remain there because it was 6×6 or 6×4 and there were 8 people in it.

And the proof does show that they effectively blocked, not effectively but blocked it to the point that people had some difficulty squeezing through.

There’s a big group of people inside to point it out.

There’s a big group outside.

It was not clear whether they wanted to go in or would just — just bystanders or site seers.

Hugo L. Black:

But turbulent is a pretty thing on the terms on it and the meanings on it.

Thomas E. Fox:

Well I didn’t put it in my brief if the Court please but in the Webster’s Dictionary it means violent and we think —

Hugo L. Black:

I understand when you speak of violence in a general sense —

Thomas E. Fox:

Yes sir.

Hugo L. Black:

— pushing or hitting or forcing.

Here you have what seems to be from the record that seems going in there with a purpose of staying there, you didn’t get it to stay there.

Thomas E. Fox:

Yes sir.

Hugo L. Black:

And they did stay there.

Thomas E. Fox:

Yes sir for 15 to 20 minutes or 25.

Hugo L. Black:

And all the statutes that you have covered it in this statute here?

Thomas E. Fox:

Yes sir, and so far as I know —

Hugo L. Black:

What do you — what do you say about its vulnerability, if it’s vague and uncertain and ambiguous to justify permanent provisions?

Thomas E. Fox:

I have thought about that question considerably in the Hamm Case the Arthur Hamm Jr. versus Rock Hill and in the Elton Cox cases, I don’t think the word turbulent is used but the word riotous and the word violent is used.

And although I could — I thought we made those two terms are a little bit too vague to determine exactly what they meant.

Then I found that this Court had used those words.

And I think used them just in there ordinary sense.

And so we think we’re entitled to that — that same use of them or at least in this case that — that those were — that they were violent and riotous.

It’s so well known what those two words mean.

Potter Stewart:

In that connection, Mr. Fox, I notice that what your statute says the use of the word violence, says turbulent or riotous conduct.

Thomas E. Fox:

Yes sir.

Potter Stewart:

Are they different things turbulent conduct?

Thomas E. Fox:

I don’t think so if Your Honor please.

I think it means the same thing.

Yes sir and I think both of them.

I think the use of physical force amounts to being turbulent or it amounts to being riotous.

Byron R. White:

And its physical force I gather in your view —

Thomas E. Fox:

Yes.

Byron R. White:

They stand there in such way that the access of aggressors prevented by people going in and out, is that it?

Thomas E. Fox:

Yes sir it seemed to be concede by my — where the opponents that if these people had used force to push on through the door that they wouldn’t be covered by the Hamm case.

And I think in the Elton Cox case that that that’s really part of the holding in that case.

That if they use force to push on through, that they wouldn’t be protected by the Civil Rights Act.

Now, I can’t see any difference if the Court please in using force to push on through or using force to stand at a place that will eventually cause the owner to open the door and let them through.

(Inaudible)

Thomas E. Fox:

Yes sir.

We — we’d like — I’d like to —

(Inaudible)

Thomas E. Fox:

Your Honor please —

(Inaudible)

Thomas E. Fox:

Yes sir I think that might have been—

(Inaudible)

Thomas E. Fox:

Yes sir.

(Inaudible)

Thomas E. Fox:

We think so under the holding in Ingram v. United States that was the tax case.

There it was said that — well first American –the Tobacco Company v. United States.

There it was said that you infer the criminal act from the acts that we’re doing.

You don’t have to have an expression of it or anything of that such you infer from circumstances.

Now in the Ingram case, it was said that that if the conspiracy is not one of the major objectives but one of the minor that it no less is still a conspiracy that is punishable as I understand it.

In other words, I think that the defendant’s first objective was to get in and be fed.

I don’t think there’s any question about that.

But when they were not, then they continued to remain in the vestibule and block it.

Now we think that was their second objective.

We think it was understood between these eight petitioners because of their conduct.

First, they all — I think the record indicate that they all knew that they were not going to be permitted to enter that was common knowledge.

I think the record indicates that I maybe wrong but I think that’s right.

I think that’s really it was alleged.

That all happened there at the same time.

That all happened there at the time when the restaurant was crowded.

They all stayed.

They all performed as a unit or as a team throughout the whole incident.

There wasn’t many questions about what one would do and what the other would do.

They all acted in concert but those are the words that I’m trying to use all the way through this proceeding.

So we think that the only inference that can be drawn from those circumstances, I thought is that they did act together and that they conspired to do the thing that they had done.

Now, I would like to mention this, the case of Turner v. Memphis that had to do with the house down at the airport at Memphis Tennessee.

As my opponents understand that case, they say that this Court declared Section 62-710 unconstitutional and a restaurant regulation that we had in effect at that time to be unconstitutional.

Well, I don’t understand that case held that.

The case said this that there was a question of whether to proceed at that time or to wait I believe for construction of that code section and that restaurant regulation.

This Court said there was no use to see what the results that was because that statute and that regulation could only be a defense insofar as it’s stated an affirmative state policy to segregate and they said under that and then added on their cases that there wouldn’t be a defense because it just couldn’t be done.

So we don’t think the State declared them unconstitutional.

Thomas E. Fox:

It just said that if they were sought to be used for that purpose of warning the acts of the restaurant and segregating it, that would be unconstitutional.

Now this — in this reply brief is the first time that the restaurant regulation has been mentioned.

I take it that if it’s a part of the law in Tennessee or if it were a part of the law the State could take, I mean this Court could take judicial notice of it.

At least this is the first time it’s raised.

So I’m raising the question about whether or not it can be considered farther been the federal court.

I would say this that I don’t know whether that regulation is part of the law or not it says this that when restaurants are open to both white and colored, they should be served separately.

And then it goes on to say that sets out some specifics that that would amount to a compliance with it.

Now that’s the effect of it.

Well, I don’t know whether that — at the time whether that is — has the force of law or not.

Of course a regulation that is designed for that purpose does have but I would like to say this that one mentioned.

Hugo L. Black:

Was it used as a law to compel these things?

Thomas E. Fox:

Your Honor please, it was in the regulations in 1961 and in 1962 when this offense was committed in March of 1963 it was taken out and that was after this case was tried but it was never mentioned so I don’t think anybody ever noticed it.

Except I would think this that the restaurant inspectors tried — I don’t know there’s no evidence and I certainly don’t know I think that’s the best answer that I can give to that.

Hugo L. Black:

You have no evidence that it was repealed or anything of that kind?

Thomas E. Fox:

Except in March 1963 after this case was trialed it was taken out of the regulation.

Hugo L. Black:

Yes but not before this case.

Thomas E. Fox:

Not before.

Now what fact was given to it during that time I have no knowledge it wasn’t brought up except in the reply brief so I don’t.

Precisely what did it provide?

Thomas E. Fox:

The restaurants catering to both white and Negro patrons should be arranged so that each race is properly segregated, segregation will be considered proper where each race shall have separate inferences and separate facilities of every kind said to prevent patrons of the different races come in contact with other in entering be served and at any other time until they leave the premises.

That was in effect of the time.

Thomas E. Fox:

Yes sir that was in effect of the time of this prosecution.

Would the restaurant owner have violated it if he let them come in?

Thomas E. Fox:

Well, if the court please I don’t know what that requires.

They way it’s stated there’s been no construction of it and I don’t know that it requires them to comply with it.

It says what he should do?

Byron R. White:

But Mr. Fox certainly in turn, we treated that very regulation, the violation of it is a misdemeanor and as a general applicability to all restaurants and hotels in the State of Tennessee, you’re suggesting you don’t know whether that’s the law or not?

Thomas E. Fox:

If Your Honor please from reading the regulation itself I don’t know what it replies.

Byron R. White:

Well, that’s the way, we treated it the statutes is now authorized a division of inspection so far the issue of such rule and regulation and make violation for such regulation for misdemeanor and the regulation promulgated by the division provides that you just read.

Restaurants catering to both white and negro patrons should be arranged till each race was properly segregated and we certainly treated it in that case but what would some concession on the court of Tennessee in that case, it should be so treated at least on the part of the — I should say as a statute of general applicability.

Thomas E. Fox:

If Your Honor please, the way I understand that this court treated was that if it did amount to a state policy to segregate that it was unconstitutional and couldn’t be used as a defense.

Now I don’t think that this court.

I didn’t understand that the court said that of course, I may need to read it again.

Byron R. White:

Were you suggesting that assuming the Court hadn’t already passed on this regulation and the regulation was in existence at the time of these events, would you have any doubt that this case ought to be reversed on Lombard if the regulation was enforced which required — which at least gave the state to put some pressure upon restaurant owners to give segregated service?

Thomas E. Fox:

Yes sir.

If the court please, I know now that if the regulation were still in existence it wouldn’t be that nobody would enforce it.

Now I don’t know what —

Byron R. White:

I don’t suppose it was imposed after.

Thomas E. Fox:

After Turner?

Byron R. White:

Yeah.

Thomas E. Fox:

I think that’s when it’s taken off the books, if the court please.

I think it was — if there was a letter and this is outside the record as I said, this was just brought up at this time.

Turner was reported.

Thomas E. Fox:

Turner was for this case and after the Turner case was decided, then our restaurant inspector and I found that out after you get receiving the reply brief on the Third of last week.

I asked for the copy of the regulation.

I got a copy of the regulations and the attempt of the — or the effort that was made by the hotel and restaurant inspector, department of I believe it’s part of insurance and banking department on our state I don’t how it got the beat or that part of it but we do have some statutes on hotels and restaurants but that was taken out in March 1st, 1963.

Byron R. White:

March 1st, ‘63 that was after.

Thomas E. Fox:

After this conviction.

Byron R. White:

After this conviction but and after Turner.

Thomas E. Fox:

Yes sir.

Byron R. White:

Turner was before the events happened in this case.

Thomas E. Fox:

Yes sir that’s right.

Byron R. White:

So about 6 months before this was October 21, 1962 turner was decided March 26, 1962 so it took them a few months before they formally to get this out of the books.

Thomas E. Fox:

Yes sir.

Byron R. White:

Why did it took them a year?

Then they wouldn’t have a competition isn’t that right?

Thomas E. Fox:

Yes sir.

If the court please I don’t know anything but except what I found out learning that we had had such a regulation.

Let me say this in reply —

Hugo L. Black:

(Inaudible)

Thomas E. Fox:

If the court please, I don’t know if I fully understand what your question is but—

Hugo L. Black:

It’s this.

We held in several cases Eagleson v. Lombard

Thomas E. Fox:

Yes sir.

Hugo L. Black:

Where there was a state law compelled or required for segregation that matter so far as state action was concerned and you couldn’t enforce this other law against (Inaudible).

Thomas E. Fox:

If the court please first, I don’t know that this regulation requires that from the wording of it.

Now second —

Potter Stewart:

It sounds like it does?

Thomas E. Fox:

Sir?

Potter Stewart:

It sounds like it does.

Thomas E. Fox:

It sounds like it does but as far as I know it hadn’t been construed.

I can’t.

Potter Stewart:

But we have to conclude though it ends.

It shows a policy doesn’t it as far as segregation and record.

Thomas E. Fox:

Yes sir it does that.

Potter Stewart:

And then how do we know that, that wasn’t the reason the man was actually active in this case.

Thomas E. Fox:

Yes sir.

Hugo L. Black:

I thought that on this report that your brief took the position that a conspiracy is different from individual actions which left me in somewhat of quandary have I misread your brief?

Thomas E. Fox:

I believe so if I understand your question.

If the Court that Mr. Justice Black further in response to your question, I think this that under the Hamm case, even though that — maybe I’m going too far but I don’t understand that a man is permitted to take the law in his own hands.

Hugo L. Black:

But I’m talking about before we get to the Hamm case.

Thomas E. Fox:

Yes sir.

Hugo L. Black:

You have a statute.

You have a law based on the Hamm.

Thomas E. Fox:

Yes sir.

Hugo L. Black:

It makes it unlawful in the State that people eat together while they are in the restaurants.

Thomas E. Fox:

Yes sir.

Hugo L. Black:

Now we know that the state couldn’t then claim as a man were not state action.

If this is state action you agreed onto this.

Thomas E. Fox:

Yes sir absolutely.

Hugo L. Black:

Then why isn’t the state action regulation — shows a state policy which would be rested on or least expected of this?

Thomas E. Fox:

If the court please this would be my answer to it and I said it hadn’t been construed but I think that the department of hotel and restaurants or the people in the charge of it might have been suggesting that it would be encouraged in order to prevent emotional flair ups and things of that sort.

Hugo L. Black:

We had one complied with labor.

Thomas E. Fox:

Yes sir.

I went back and read that.

I think that compels it though.

I think that compels segregation.

Earl Warren:

But didn’t your statute says that these regulations of the department had the force of law and a violation of them was a misdemeanor.

Thomas E. Fox:

Yes sir.

Byron R. White:

Well Mr. Fox, I take it that you concede that well maybe you don’t concede it but if these events had happened after the passage in 1964 Civil Rights Act, I take it you would still be here on the same theory namely that while the negroes had a right to service they didn’t have the right to this kind of self help.

Thomas E. Fox:

Yes sir.

Byron R. White:

You would be making the same argument.

Thomas E. Fox:

Yes sir.

Byron R. White:

And you then consequently make the same argument as far as abatement is concerned.

Thomas E. Fox:

Yes sir.

Byron R. White:

Consequently, I would think you would make the identical argument in regard to Peterson and Lombard because those statutes, those holders certainly do anymore for a negro seeking service in the Civil Rights Act and whatever Peterson Lombard was to give the Negroes the right to do and what are their ever freedom from state compulsion, it wouldn’t give them a freedom to use a particular degree or brand of self help and so all the questions reduce to the same issue was there the kind of conduct by the negroes here which took them outside the protection of either Civil Rights Act of 64 or Peterson or Lombard, isn’t that really the question?

Thomas E. Fox:

Yes that’s right.

Byron R. White:

Now let me ask you one other thing.

The indictment here in this case charges that the defendant formed a block within the vestibule was any customers and patrons from the street from coming out that said conspirator did further attempts to force their way inside the main cafeteria section did push around and shove white patrons therein which conduct continues to appear more in 30 minutes.

Now is there any evidence to support that charge.

Thomas E. Fox:

Yes sir, we think.

Byron R. White:

Did the Supreme Court of Alabama think that that’s true? Tennessee?

Thomas E. Fox:

Yes sir, I think though that our supreme court said that I think in their opinion that this respect that if this one violent conduct or if this one the use of physical force then the case ought to be reversed.

Byron R. White:

But the trial court never charged the jury at all, that it was essential to find any kind of turbulence of violent conduct.

The only — this case instructed on was the injurious to trade.

Thomas E. Fox:

Yes sir.

Byron R. White:

Isn’t that correct?

Thomas E. Fox:

Yes sir I think that’s correct.

We have compared that —

Byron R. White:

You agree and Supreme Court of Alabama currently or Tennessee, excuse me agreed there must be some turbulent conduct if you think.

Thomas E. Fox:

Some use of physical force.

Byron R. White:

Would you say that that is essential?

Thomas E. Fox:

Yes sir.

We think so.

Byron R. White:

That it wasn’t submitted to the jury?

Thomas E. Fox:

If the court please we think that it was mainly.

Byron R. White:

You tried to find out once before that—

Where were the instructions focused in this sentence?

Juror, you must find that this conduct was turbulent or riotous before you may bring in a verdict of guilt where does that appear anywhere in the instruction?

Byron R. White:

The only thing the judge keeps saying that you must find that these defendants did confederate unlawfully to commit acts injurious to the restaurant business, trade and commerce but that’s — and you said that two or three times without ever saying that turbulence or violence is of any necessity in the case at all?

Thomas E. Fox:

If the Court please, I didn’t understand your — I don’t think I understood your question at first but I do now and I’m looking forward I’m not sure that it is an instruction.

Byron R. White:

Well, assume that it isn’t what difference does that make?

Thomas E. Fox:

If the Court please, in reading Section 62-711, I think that would have effect of the instruction.

It says that the — it defines what is meant by an act injurious to trade and that was read by the Court, the trial judge to the jury.

Byron R. White:

Well, that’s true but that doesn’t have anything to do with violence or physical conduct?

Thomas E. Fox:

If Your Honor please, we think that when you say turbulent or riotous that means violence.

Byron R. White:

And where is that?

Thomas E. Fox:

The passage that I’m referring to is at 298 where it says the person guilty of turbulent or riotous conduct.

Byron R. White:

Well that’s just the reading of the statute.

Thomas E. Fox:

Yes sir.

It says that’s what they’re charged with the violation of statute.

Byron R. White:

That’s as close as you can go?

Thomas E. Fox:

I would think that’s as close as the trial judge got to it.

Yes sir.

Byron R. White:

But now did the Alabama or the Tennessee Supreme Court — what does it conclude about this conduct?

They characterize it as they make a finding that on this record they were guilty of some kind of force?

Thomas E. Fox:

Yes sir.

I think, I can find it on page 324 and 325.

It says, “We cannot escape the fact these eight defendants were blocking the entrance of the doorway.”

And we think that by blocking is equivalent to saying they used physical force.

Byron R. White:

But they never think that the evidence supports the charges in the indictment that they were trying to force their way into the restaurant or that they were pushing white customers around? Does anybody ever in either court indicate that, that actually occurred?

Thomas E. Fox:

Yes sir.

I think so.

Byron R. White:

What judge ever found out — page 317 says that the evidence shows the blocking and that blocking and in blocking the defendants were pushing and shoving to some extent?

Thomas E. Fox:

Yes sir, 316 and 317

Byron R. White:

In an effort to enter the restaurant?

Thomas E. Fox:

Yes sir

Byron R. White:

And that’s it?

Thomas E. Fox:

Yes sir I think that’s it.

That’s as near as we have.