*1 527 Valentine, v. mission 239 Miss. 2d 690 So. 890, 124 (1960); Mississippi Highway Commission, State McDuffie 239 Miss. 124 284 So. 2d (1960).
Affirmed. Ethridge, Rodgers
Lee, J.,G. Inser, J.J., concur.
Thomas v. February No. 42987 2d So. *2 Carsie A. Hall, Jack H. Young, Brown, Jess R. Jack- son; Jack Greenberg, Leroy Clark, Y., New York, D. N. appellant. *4 General, Travis, Patterson, Jack A.
Joe T. Attorney Nichols, Jr.,-Jackson, Robert G. appellee. *5 J.
Rodgers, with the Police Court City An affidavit was lodged Jackson, Henry defendant J. Mississippi, charging Thomas with conduct. exofficio Justice disorderly him tried defendant found “guilty.” of the Peace Court. The case was appealed County He Hinds with the aid of a and the evidence anew, jury, tried from guilty, recorded. The found defendant jury he on the County Court, appealed of the .sentence entered Judge record the Circuit Court. The Circuit Court, judgment County an affirming order has appealed from that case been judgment, this Court. 2087.5, § charged violating
The defendant was which are 1942, Rec., parts pertinent Miss. Code follows: *6 — “Section 2087.5 conduct constitute Disorderly felony, when,
“1. Whoever with intent provoke breach the peace, such that a breach or circumstances of the peace may thereby: be occasioned crowds or “(1) upon with others in or congregates * #* other any place of business engaged selling * * * or serving members of the who public fails or disperse refuses disperse and move or move on, or on, when ordered law by any so do enforcement of ficer of any such act municipality, county, or in which or acts are by committed, any or law enforcement officer Mississippi, any or other authorized * * * person * * “ * shall be guilty disorderly conduct, which made is a misdemeanor, and, upon thereof, conviction shall be punished a fine of than not more two hundred dollars ($200.00), or imprisonment county jail than more months, four both such (4) * * fine and imprisonment *”. record this case that defendant Thomas shows is Negro who at resides St. Florida. He Augustine, a student at Howard University City Wash- C. He ington, (an D. learned CORE organization known as of Racial Congress Equality) was planning series of bus rides purpose segregation for the testing laws, and he volunteered his services as a bus rider. He then received instructions how he act should when violence that he erupted; should hold hands by his side when he was beaten with chains. being bicycle advance Extraordinary publicity given through media, public news that various advising racially mixed “freedom groups, calling riders”, themselves G-eorgia, Alabama, were enroute and Missis- through Jackson, “stop Mississippi. with a over” at sippi, appre- law of Alabama became enforcement officers assigned an extent that hensive to such officers ride in meet busses in Atlanta, Georgia, as they proceeded busses across Alabama. *7 riders” May 20, 1961,
On three of “freedom groups occurred and a race riot Montgomery, Alabama, reached officers The Alabama May 21, on 1961. Sunday night," racial testified trial case that the of the instant upon Compare Alabama extremely in tense. situation was it is 2d where Abernathy 155 So. State (Ala.), on hundred were guardsmen said “fourteen national ’ ’ duty. a passenger When the busses which defendant was angry a of Anniston, large group Alabama, reached cursed and beat on the bus people up came and lay it. on occupants, People officers including behind front of the others pavement bus, and lay injuring move without bus, so that the driver could not to of police arrived Finally, them. a sufficient number automobiles left, many control the crowd. When the bus it and went down followed it until the tires bus on went stop. people to a A crowd of large brought A smoke up began occupants. bus curse and bomb was thrown into the bus and fire. caught the crowd their police arrived and after fired they guns, mem- retreated. The and police directed defendant other and place safety, bers of to move out of party they obeyed brought the officers. An ambulance was the bus of occupants the scene defendant other and and op- hospital. were Bus drivers refused taken to occupied erate the defendant and his group busses York went back to New demonstrators, of and-defendant individu- leadership under the of another regrouped mixed group again accompanied racially al. Defendant into two Alabama persons through on busses High- accompanied by time they This Mississippi. National Patrolmen and Alabama way contingency state Mississippi-Alabama to the line. Guard the dis- In the broadcast details meantime radios scenes Television actual turbance Alabama. broadcast of the riots throughout Mississippi Alabama, left newspapers nothing undone in an effort tell the Nation the progress of the so-called “freedom riders.” A great from many agents Department pre- Justice ceded the busses and “lined the highways.” people of Mississippi became highly and incensed at outraged what they believed be an invasion aimed at the tran- quillity. of the peace of the people of Mississippi.
The testimony of a banker and an automobile dealer prominent other Jackson, Mississippi, citizens indicated that a large percentage the citizens of Jack- son was uneasy, apprehensive activity the defendant and his companions was incite likely to *8 a riot, in particularly view of the the notoriety given so-called “freedom rider movement.”
The Mississippi National Guard and the Highway Patrolmen, armed with shotguns, and helicopters using fly the convoy, over met the busses at the Mississippi- Alabama state line, for the purpose of protecting Thus, caravan. this moved entourage from the state line along the highway, preceded by agents the U. S. Justice Department, toward Jackson, Mississippi. the meantime, the police department of the City of Jack- son had been informed of the progress of the group racially mixed out-of-state demonstrators, and also of apprehension, resentment, and fear engendered in the minds of individuals the invasion, heralded by news media. police used the local to ask radio stay citizens to away from the area of the bus station. The station was isolated by the and a police, corridor was established around the block in which persons and traffic were required “move on.” Nevertheless, spite of the precautionary efforts of the police, groups of inen to assemble began outside the windows corridor; above the street opened airconditioned were buildings observed that many persons peering was were out of from who leaning Policemen, the windows. block, from the line around spared picket
could be bus tbe outside the station ramp were stationed on did Persons, who or ten within station. eight they could not show ticket, those, have who “move station, required at were had business on.” arrived passenger, in which defendant bus, at
at Continental Bus Station Mississippi’s Jackson, National Guard May 24, personnel 1961. The P.M., 4:45 out- positions moved appointed debarked and to their Defendant, company with side the bus station. color- by the up ramp, passed companions, proceeded the white room. room, waiting waiting entered ed prevent group done to obstruct Nothing was L. Captain from the white J. entering waiting room. He at the station. charge was in Ray white room. waiting the defendant into the followed and moved toward many persons got up He testified that an defendant, people he observed required He some he had persons mood. said ugly “if let handle you the bus us suggested leave station rid of this out-of-town situation, get we’ll group this — he all this trouble And here, causing coming terminal, feeling “As entered they further stated: defendant, get Henry it would be best *9 with the he out Thomas, group along with, violence, approached order to I station, prevent bus them Henry part, of which was a ordered group this acted They to move on and move out of the terminal. I talked did not hear even though they me, though as — “I ”. He further said: a loud tone of voice there have definitely possibly believe would been bloodshed disturbance, possibly or some riot “I the order gave would have taken He place.” said: order, if twice, they obey then I asked refused to “I was at I He response.” which received no said: ’ refused violence defendant prevent ’, to and when trying
537 he stated was arrested. officer on, to he move get helped happy defendant have have been would go. he wanted wherever Testimony the destination shows Jackson was why testimony defendant defendant, and there no having station after not move out of the bus would having asserted and after destination, reached his waiting right the white room. to enter including persons group, fifteen in the There were as follows: addresses were their names and defendant, and Grady Edgehill Avenue, H. 1423 Donald, Re Moody, 917 Jr., H. Wilcox Nashville, Tennessee; John Copeland, Petersburg, Virginia; L. 2715 Street, Torgett John B. Col Lucretia Street, Nashville, Tennessee; Ackerberg, El lins, Paso, Texas; Fort Peter'M. Bliss, City; Arlington L. New York Clarence Avenue, Bradley Champagne, Illi Street, 407 East Thomas, Jr., Henry Florida; Thomas, 156-A, Elton, Box nois; J. Nash Avenue, Patton, Jr., Earnest John Johnson Street, Bedford Farmer, L. Tennessee; James ville, City; Creek Lewis, New York 1800 White John B. Holloway, Heights, Frank G. Tennessee; Nashville, Tonty Orleans, Louisiana; New Doris J. Street, 917% Tonty Orleans, New Louisiana. Castle, Street,
I. appeal presented questions There are two growing areas out of two Court, be determined legal concept: (1) the condi- Did the officer prevailing arrest the de- have the tions here meaning disorderly conduct within fendant for § the evidence and does 2087.5, Bee.; Miss. Code 1942, support (2) Federal the conviction? Do prevent individual conviction of an Constitutions claims because he here shown under the circumstances rights? exercising constitutional time be at the § part pertinent Bee., Code Miss. *10 any may private person arrest “An officer or states: 538
person without warrant, an indictable offense com- mitted, or a breach of threatened or attempted * * * in his ”. presence; 2469,
Section Miss. Code 1942, Rec., states: “Arrests for criminal offenses, prevent and to a breach peace, or commission of be made at crime, may any time or place.”
A breach of the peace punishable under the com- mon and was law, defined its broad sense include any upon infraction the public order tranquillity act any or conduct inciting to violence tending or provoke or excite others like Jur., conduct. 8 Am. 3,§ Breach of Peace, p. 834.
Personal violence was
not
element
necessary
under the common-law definition
breach
peace.
of the
One textwriter
points out:
“If
were,
communities
might be
kept
constant state of turmoil,
fear, and
anticipated
from the
danger
wicked
and con
language
duct of a guilty
not
party,
only destructive
the peace
but
public
citizens
morals without
the com
mission of the offense. The good sense and morality
of the law forbid such a construction.”
Jur.,
8 Am.
Breach of Peace,
3,§
pp. 834-835.
an
Moreover,
act
which if committed
aat
certain time and place would
not amount
to a breach of the peace,
constitute a
crime if committed at another
time or
place
different
whether
circumstances,
the act
is a breach of the peace can only be determined
light of circumstances
the act.
v.
surrounding
State
Hebert, 121
329,
Kans.
Under the of modern metropolitan va- life, states have enacted laws the- subject on rious of disr
539
that
pointed
conduct.
It lias been
out
under
orderly
failure
com
these
authority
statutes,
of some of
to
with the
of a
such as an order
ply
policeman,
orders
on,
move
or
desist from
constitute
picketing,
17 Am.
Con
disorderly
Jur., Disorderly
conduct. See
83
v.
duct,
2, p. 188;
788;
§
Anno.
A. L. R.
Bennett
E. 2d
438
City
726,
App.
(1943);
25 S.
69 Ga.
Dalton,
v.
263 N.Y.
In the People Galpern, case of 83 A. L. R. four N. E. was shown public friends street congregating five on defendant, including directed these persons, an officer an make such officer move on. The upheld order statutory provision specifi cally defining disorderly conduct, congregation including others, on a public street, and refusal to move on *12 when by police, ordered whereby breach of the may be occasioned. The Court the held that statute applies even defendant though were himself conducting in an orderly and inoffensive his acts manner, and not probably unreasonable. The Court pointed out that “Police are final officers not the of the arbiters rights * * * of citizens Reasonable must, discretion in such left be matters, them, only they when exceed that do discretion they authority transcend their and depart from duty. their rights assertion of the the upon individual trivial doubtful occasions and in cases may be ill-advised inopportune. Failure, even though conscientious, to obey police directions of a of ficer, not authority, his interfere with exceeding the public order and lead to breach the Then peace. the Legislature may determine whether such conduct shall subject ‘disorderly’, punish individual ment.” See cases convictions following upholding L. congregating others: Anno. 65 A. R. 2d 1152; People 530, v. 248 N. Y. Bogin, 512; 162 N. E. People v. 263 Hippie, N. Y. 188 N. 242, 725; People E. v. Hus 6 Misc. 2d 23 N. Y. sock, 182, 2d certiorari 520, denied, 312 659, U. 61 85 733, S. S. Ct. L. Ed. 1107; People v. 6 Misc. Garvey, 266, 2d N.Y.S. 2d 456.
It has been said that the general outline for legisla- upon tion subject country seems to have been furnished of 5 George Chap. Statute IV, 83, which was a revision of pre-existing statutes of same class. See 17 Am. 187, Jur. Note 2, Stoutenburgh Frazier, 16 App. v. DC L. A. 220. R. 38 N. Taylor, Super. 6, J. A. 2d who loud defendant, used and offensive language in interference of the officer the lawful discharge his was duty, convicted assault battery on a police appealed, appellate and the officer. Defendant holding conrt lower court. sustained police patrolling record a heat officers, shows two midnight, group people, Negroes, after all noticed a congregated parking Springfield Ave- around meters at parked. nue and West Street where automobile was their complaints There had been numerous about theft from parking they meters, so the street walked across investigate. talking While officers were group, way upon pushed defendant came the scene and his group, demanding
into the to know center Upon going being what was on. asked whether or group, belonged he defendant said he did not. Whereupon, he told that this was business way. and that he be on should Defendant refused *13 against move to and entered a tirade the officers. into An altercation ensued, effect, the Court in held, obey that failure to a move can be to on order justified only conclusively where circumstances show purely arbitrary that the was order calculated any way promote public in to order.
In the instant case, in order for the State to convict § following- 2087.5, Miss. Code the 1942, Rec., present: (1) elements must be There must be a crowd- ing congregating- (2) or with others; defendant must place engaged selling serving- in a be of business in or public (or places members of in the one of other statute); (3) enumerated in the must be an there order given disperse by law-enforcing move on a officer or municipality county; (4) of a or the order must be dis- obeyed; provoke (5) intent breach of the peace, or the existence of circumstances that a such peace may thereby. breach of the be occasioned following: (1) The record in this case reflects the building The defendant in entered terminal Jack- Mississippi, day question company son, on the in the in (2) place terminal others; of business en- is a tbe public; to members selling
gaged or serving or- Police Department an officer Jackson (3) area; (4) move on out of dered defendant and (5) the officer’s orders obey refused defendant defendant at the time the testified that the witnesses crowd station, entered the companion and his toward de- antagonistic became already there people ordering acted if had not the officer fendant; violence. have been on, there would to move defendant no committed effect, that defendant It is argued, right at a he had place he was violence since breach violence provoke he did nothing be, of- illegal, although arrest was therefore, his peace, peo- to believe other have cause probable ficer had which was engendered to do violence were about ple place to be in fact that he exercised his where he was arrested. not bear in this case does
The evidence testi the defendant. assumed position out agent as an that defendant was mony acting shows organi “CORE”; an known organization certain laws of the segregation zation desired to test so, groups do mixed states, and in order extra advance into this area after' were sent people the people given, ordinary publicity advising “freedom riders” that waves of these states mixed knew that The defendant community. enroute to their *14 “freedom previous in a participation activity his caused violence and Alabama had precipitated ride” into of' the oc hospitalization of a bus and burning with Nevertheless, “regrouped the defendant cupants. the coun troubled section return others” to to he knew right, although his try again prove he evidence shows The up people.” “stir likely to whipped to be expected He to cause violence. expected Mis Jackson, came he short, with chains. bicycle his dis- to show CORE auspices sissippi, approval segregation, in incite violence laws and to prove a series of rather than as he claimed to incidents right unhampered his commerce. to travel in interstate companions obviously his defendant and realized publicized might that such a holocaust a invasion create knowledge and race It common riot. such ac- tivity only has created serious riots not the South country. (See 1.) but in other Note sections charge at how- testified, officer in the bus station repeatedly that he over, that a knew situation and stated believed to be After the de- riot was imminent. group fendant and his had reached their destination at Mississippi, proven right Jackson, had their waiting right enter the white room, assemble, ‘‘ they requested charge, to move on”. The officer in attempt an to control the at a situation time when everyone with was tense fear extent that the to such an striking mere of a door with a kodak caused newsmen —jump had a to hold one back tell crowd Suppose another individual crowd or to “move on.” people the officer had not asked these to “move on”, peace what then? It is business of a officer to try keep peace. a lawsuit, but it is his business to lawyer walking The officer not have does his advising side him what he cannot next, have do enjoy the same calm deliberation as one who reads printed page. cold, an incident from a Nevertheless, judge final an officer is not the of his actions as a always subject officer. His conduct is to review. In Bullock Tamiami Trail 266 F. Tours, Inc., 2d damage brought by pas- 326, sengers suit was certain colored “apparently both white of whom wife,” injuries were natives from assault Jamaica, an pointed which occurred Florida. The Court out notify duty company foreigners it was the of the bus segregation South, the custom of and the Court plaintiff, to the fact said reference colored *15 with a front of the bus man, part in the sitting than case stronger white woman “We can visualize no where drivers and show a situation bus two antici- reasonably have bus officials should company about and pated that mischief was hovering were some danger.” Bullocks knew only not the case at bar the defendant the deliberate the situation but he came the South for “for or, put it, he purpose violence, as inciting in regard Court decision purpose testing Supreme trail of violence travel He left a to interstate facilities.” therefore, war him in Alabama. The jury was, behind that he intended create disorder ranted finding Jackson, that, disorder and fact, violence violence were imminent at the time when Thomas refused officer’s to move on. obey order conduct disorderly define Legislature pro- an prescribe punishment therefor. This is offense by cognizable scribed statute or and is ordinance in the used as an offense under the common law. When statute, ordinance, of conduct prohibited by sense legal meaning relating public has well-established order. good instant have reached the conclusion in the We the circum defendant, the acts of the under case sustain his involved, stances here sufficient 1942, Recompiled. Miss. Code 2087.5, § conviction II. Does the claim of question:
We consider next rights defendant that he was his constitutional exercising make him immune from arrest and conviction for disor- derly conduct under the facts of this case? appellant’s is, first, gist argument transportation, a traveler in interstate defendant was facilities public he had the to use and, such, discrimination, bus without company offered tire Jackson, he traveled interstate bus in that, since had
545 his he was immune from arrest Mississippi, although peace. acts have resulted in breach of the might a In the be remembered that outset, should police tranquility power preserve of the in the limita people subject is reserved states imposed by tions state and federal Constitutions. 11 Am. Jur., § See list of cases set out under Con 255, Law, stitutional 16 Constitutional p. 986; S., C. J. also Law, §177, Hart v. 87 Miss. p. §185, p. 922; State, 906, 39 Donnell v. 48 171, 523; State, So. Miss. 661; v. 103 Miss. 60 Armstead, 790, 778; So. State v. J. J. Newman 923. Co., 802, Lumber 102 Miss. 59 So. to the
The Fourteenth Amendment United their States Constitution does not take from states away 11 Law, Am. Constitutional power. Jur., §261, p. 995; Barbier v. 27 Connolly, Rep. p. (Cal. U. S. 113, 1885).
It is also it is recognized generally duty of the com preserve peace states to interstate merce states have the do so the state If police power. true, high such were not ways this nation throughout permanently pa would be with 11 Jur., trolled Federal Am. Consti Agents. See Law, Atty. tutional ex §265, p. State, rel., Collins, 1002; Co., Gen. v. Senatobia Blank Book & Stationery 258. 254, Miss. 76 So.
It pointed Johnsbury out the case of is St. Hunt, 588, Lake R. R. v. Champlain Company Vt. issued process A. order serve a civil which arrest action, by he commanded to an body defendant, engineer, officer railroad lawfully engineer, train or cars run such stop for the the arrest. purpose making* Boynton Virginia, not believe the
We do case case; appellant, point 364 U. cited is in in this S. violated a having there the was with charged defendant trespass statute. at the ease the defendant and companions bar
had debarked at into destination and had moved their the waiting room; they passed had the ticket window their the bus company obviously business concluded. There was reason defendant good why no should not have moved obeyed officer and out of *17 the situation which was serious rapidly deteriorating into trouble, unless, of of course, the activities the defendant were designed and incite them to aggravate to others violence. present apparent In case it is that officer acted in with good faith, cause, and reasonable prevent violence. to v. People of the New
Feiner State of 340 U. S. York, 295, 95 L. Ed. is particularly S. Ct. (1950), and significant pertinent to the constitutional issues here. A man young speech predomi- a a making nantly Negro neighborhood, before mixed audience of about 95 people, concern- making derogatory remarks and that public officials ing indicating Negroes should up rise in arms and for fight equal view of rights. the excitement aroused by speech, police officer him stop, asked he these ignored requests, and was arrested and convicted of disorderly conduct. The New §2087.5. York statute is somewhat similar Miss. Code York Appeals The New Court of affirmed the convic- 300 Y. 91 N. E. 316. tion. N. 2d The United States Court also affirmed. It Supreme gave considerable faith court weight finding of trial good were action to police justified taking officers breach of the the officers were prevent peace; motivated concern good faith, solely by acting of wel- preservation protection general order and fare. The Court then said:
“It cannot be used one thing say suppression unpopular views, for the an instrument that, speaker passes and another to when as here the say undertakes persuasion bounds argument prevent they powerless to a breach incitement to are riot, peace. the con- of the Nor in this can we case condemn approving judgment York sidered of three New courts police, crisis, with a used which the faced means duty preserve peace power in the exercise their findings and order. existing state courts as greater disorder situation and the imminence of coupled petitioner’s po- deliberate defiance lice officers convince us that we should not reverse this speech.” in the conviction name of free point applicable We think Feiner is here. Taylor In the case of Louisiana, 370 U.S. (1962), Negroes six were convicted in the state court violating breach-of-the-peace Louisiana’s law, jail. fined sentenced went Four of them waiting customarily into a room for white reserved patrons depot requested by police bus at a when *18 they they to claiming leave, so, refused to do were passengers. interstate The other while two were arrested nearby sitting brought in an automobile which had the six the bus station. to There was no evidence violence of presence before, but the trial court that said the mere Negroes waiting give of in the white room was to likely peace rise to a breach of the and was sufficient evidence guilt. petitioners sitting nearby of The two in an auto- brought mobile which had were the six to the station bus counselling procuring of convicted the first four to violate the that law. case In there was also testimony upon immediately petitioner’s entering that many waiting people the room, of the became there get restless some to onlookers climbed in the seats persons, a better view. These moved, on order however, police. of the There was evidence of violence. no petitioners quiet, orderly that the record shows were ‘‘ polite. trial said, court that the mere however, presence Negroes waiting likely of a white room was give peace.” a to to breach of States rise the The United Louisiana, in Garner v. “Here, Court said:
Supreme
charge
support
evidence
only
368 H. S.
that seg
custom
petitioners
a
violating
race,
rooms
to their
people
waiting
according
regated
facili
transportation
allowed
interstate
practice
conviction
the federal
law.” The
ties
reason
reversed.
defendants was
and the
in Taylor
The difference between
facts
sup-
evidence to
case
There was no
instant
is obvious.
the instant
case,
in that
whereas
port
the charge
the officer acted
case the evidence is overwhelming
Mississippi
power
under
the interstate
say
It is
preserve
peace.
thing
one
dif-
entirely
and an
segregated
cannot he
transportation
incite violence
say
people
ferent
thing
incite violence.
fanfare
action calculated
courts
the constitu
protect
The desire of the
in curtail
should not result
tional
of individuals
rights
duty
from the states
ing,
taking
U. S.
Mass.,
Beer
peace.
Company
preserve
(1877).
7 L. Ed. 2d
Louisiana,
from convictions It defined statute. peace disturbing breach of in such any following as “the doing the public: disturb or alarm as would foreseeably manner * * * manner act in such a any other Commission (7) ’’ alarm the public. disturb or unreasonably as to *19 lunch took in the Garner, In students seats Negro two Briscoe, In Baton Rouge. of a store in drug counter sought at which students service lunch seven the counter Bus Greyhound restaurant section was in the Hoston, Negro In seven Baton Rouge. Terminal De- in Kress’s a lunch counter seats at took students Hoston, except In all Rouge. in Baton Store partment leave. the defendants not ask did management the manager police, they at Kress’s arrived, called and ordered the students leave. Petitioners did no- thing except arresting ask for and the officer service, they peace by disturbing he said “believed were they obey sitting there.” When declined the order they placed by leave, under arrest the officer. totally The Court that held the convictions were so evidentiary support devoid of un- to render them constitutional, under the Due Process Clause of the Four- they any upon teenth Amendment; did not rest support finding evidence which would that the defend- peace. ants had caused a disturbance of the The Court might assumed that the Louisiana courts construe encompass statutes to cept the traditional common-law con- disturbing permitted police peace, prevent public though an imminent commotion, even by peaceful ordinary part caused conduct on the pointed the accused, but the court out the defend- speeches, placards, ants made no carried no did beyond presence nothing their mere lunch at the counter to attract attention to themselves others. The man- or ager he Kress’s testified that some disturb- “feared might completely ance occur.” However, this fear pointed by unsubstantiated The Court out record. police petitioners that the were left “who arrested support except nothing with actions their own their opinion petitioners that it was breach of the they peacefully place sit where custom decreed activity, should not sit. and the circumstances Such any be and cannot cases, these is not evidence kind, so considered either the courts.” sharp Gamer, in the contrast facts instant amply appellant’s case Code sustain conviction under §2087.5. The evidence shows arrested officer apprehen- good faith, the defendant in under reasonable peace. an sion of imminent breach *20 cognizant Carolina, 372 are of Edwards v. South We (1962), where 229, 9 L. Ed. 2d S. Ct. 680 U.S. Negroes, charged crime common-law following peace, convicted under breach of were gathered and then The at a church facts: defendants grounds in walked to the Statehouse South Carolina protest capital. purpose Columbia, Their discriminatory alleged actions their dissatisfaction present, against Negroes. Thirty-six officers were forty permitted thirty they were within next orderly single an walk file or two abreast in minutes to During placards. way grounds, carrying through the during collected, time 200 to 300 had onlookers suggest period, threats, this' no there was evidence to police curiosity. defendants but mere The advised the they they dispersed minutes within that unless fifteen Negrroes so, and would be arrested. The declined to do Supreme they Caro were The of South arrested. Court Supreme affirmed United States lina conviction. appeal accepted the court’s on South Carolina Court ’ petitioners that the conduct constituted a breach decision independent peace law. an But, of the under the State on record, examination of the concluded South Caro petitioner’s constitutionally protected right infringed lina speech assembly, and freedom to of freedom of petition grievances. did in redress of Edwards any problem balancing Amend First volve substantial power rights against state. The ment contrary, requires apply facts case, instant on the to us ain different context. question state is con here is whether a prevent prohibited enforcing
stitutionally from laws city officials breach of the situation where good without faith record shows believed, dispute, imminent, violence mere disorder ly constituting that breach involve because the activities speech constitutionally protected elements of claimed *21 551 assembly. clearly and answer, in think, we negative, undisputed on the basis of in this facts rights appellant record. The constitutional to as- of freely express semble and with others are views they subject preser- manifest. Yet are be and must to the good police power vation order, of state, where violence are imminent. disorder People Kopezak,
In v. Y. 629, N. S. Court although right group held that, had the as a defendants gather purposes protect or assemble for lawful peaceful against injustices oppressions, in manner walking up nevertheless, their in and down the street premises, signs asking front carrying of their landlord’s against firetrap a for rent-strike conditions, constituted disorderly conduct.
People v. Levner, 30 N. Y. 2d hun- S. involved pickets, organiza- dreds of aof members union of gathered placards tions with similar who interests, picket mayor’s home at time when he was on justification It vacation. was held there was police disperse, officer’s order for them to and those obey properly guilty who refused found of dis- orderly pointed conduct. The Court out need officer not wait to take action until the crime or pre- obligation disorder occurred, has since his is also rights peaceful ventive, and that the constitutional of speech permit assembly freedom did de- not against disorderly fendants a law to violate conduct. People Richards, Misc. N. Y. 2d S. Long 457, where Island Park Commission con operated necessary facility cessionaire a restaurant a park, dispute in a state in there was no labor the record. park Picketing pickets restaurant female in bath ing signs secondary carrying purpose suits for the boycott large gather. disobeying caused crowds park patrolmen disorderly of an order constituted and a violation of conduct, an ordinance of commis- display parks sion prohibiting advertising re- parades except permit parks prohibiting officers park all of local persons obey orders quiring assembly did violate the defendants’ be these are relative and speech; free since rights be exercised all, the interest of and must regulated comfort and convenience general subordination to *22 peace good in with order. consonance 154 117 Burman, 150,
In v. Mich. N. W. People a a conviction of 589, where the court was considering vio in a in carrying flag parade defendant red disturbances, an to of ordinance riots and relating lation the carrying not in turn etc., which did refer (but of flags of held that the red flags) carrying red there no in is parade ordinance, the violated the a red a procession constitutional display flag the know that those composing procession where natural will be to disturb consequence inevitable of peace and violation public tranquility, assembly of are speech ordinance. Freedom police power but be may restricted under absolute, California, 357, v. 71 Whitney of the state. 274 U. S. Court, 1095, Hughes Superior L. Ct. v. 641; Ed. 47 S. Ct. International 460, 985, 718; 339 U. 94 L. Ed. 70 S. S. 470, 339 U. Hanke, Brotherhood v. T.C.W.H. Union & S. 126 773; Sugarman, 94 Ed. 70 S. Ct. State v. 995, L. 148 466. 777, Minn. N. W. 22 N. Y. 2d 571 McWilliams, (1940), v. S. People charge making was arrested under
the defendant New dis- an violation of York’s speech anti-Semitic the New statute, §722, 1, 2, conduct Subsecs. orderly Penal viz: Law, York as fol- part 722 of the Penal Law
“Section reads : lows provoke intent a breach
“Any person who be whereby breach peace, or acts shall be occasioned, any commits following
553 deemed have committed offense of disorderly conduct:
“1. offensive, Uses abusive disorderly, threatening, conduct or insulting language, behavior; in such disturb, Acts a manner as to annoy, “2. * * interfere with, obstruct, or be offensive ®.” others; opinion Court’s “As recently stated: stated Appeals Court 722, in a case under ‘acts section charged disorderly character, as conduct must be public in and such actually tend to disturb public peace do quiet.’ People v. 280 at Monnier, 77, N. Y. pages 78 and 79, 19 N. E. 2d 790. 789,
“It is not essential there be actual breach of an the peace. People v. Nesin, App. 179 Div. 869, 167 N.Y.S. 49; People Bevins, Y. Misc. N. S. 212, affirmed App. Div. N. 1141. Y. S.
“The test in each case is whether the defendant’s conduct circumstances lead likely dis- *23 order or It public disturbance. will be seen in that, this applying test, the have courts necessarily passed the judgment upon social competing that would interests be the by served defendant’s freedom action, and by those served his conduct penalizing and utterances as objectionable.
“It been has also held that to statute, violate the the threat need be it verbal; not derive significance its from the People circumstances. v. 86 Sinclair, Misc. 426, 435, at 149 page 54, People N. Y. S. affirmed on Complaint of Wilson v. Sinclair, App. 167 Div. 151 N. Y. S. 1136.
“The assemble in the and right peaceably streets public like the places city, distribute right the literature, is state interference protected against by Federal Constitution. Committee for Indus- Hague 954, 964, trial 83 Organization, U. S. S. Ct. L. Ed. 1423. specifically the court said however,
“In case, all; in interest of this he right regulated ‘may relative, it not and must be exercised absolute, is but convenience, comfort in and general subordination to order.’ in consonance with good * & # * * m point in all “As the case ‘relative’ rights, meeting at which conduct in the course of a becomes employed, unlawful must ascertained the words be intent of of those there speaker, reaction extent, necessary, by bal- assembled to some where public social interests. ancing Against conflicting necessary discussion, interest freedom of is the ‘peace comfort and convenience’ weigh ‘general * * * order’ the community good opinion only power “The recognizes thus duty but its punish the State abuses of the right, meetings. to maintain in connection with street order the enforce- State, by That is duty discharged, section of the Penal Law.” ment of summary, rights we hold constitutional Ms conviction of defendant were not violated in preventing conduct. The state’s interest disorderly disorder, which were imminent violence fact is the vital and undisputed facts, controlling If the had been denied the exercise this case. defendant room, his the white or as- right waiting enter to protest for the purpose exercising semble But pertinent. of free would be argument speech, claim that he was merely defendant position no *24 for it is guaranteed a exercising constitutionally right, Ms participated true that he and associates manifestly sophisticated plan through to travel the in a highly All racial strife and violence. of up stir South in a manner create activities were broadcast their to uneasiness. public commotion and When the greatest Jackson, the companions defendant his reached police transpired had notice of all that in Alabama. had police anything other There is no evidence that the did keep peace. They deny the than did not defendant willing waiting enter the white room and were to ready anywhere to to escort defendant he wanted go. escape duty This Court to to cannot accord police authority necessary prevent violence, to true is the motives those who are about whatever of precipitate cause it. In violence, or to the situation require found it themselves, was reasonable to go. defendant move on he wanted wherever III.
Finally, (§2087.5) it that is contended the statute prosecuted vague which defendant was is so Mississippi uncertain that it is void and unenforceable. passed yet question, appears has not on this but it that our is statute somewhat similar of the New § pp. York Penal 383-4 Law, Laws, Consol. 722. pointed People The New York court out in v. Hussock, 23 N. 2dY. 520, 659, cert. U. den., 733, S. Ct. S. 85 L. “It 1107, that, Ed. is clear from the record although complaint especially charged violation a of subdivision 2 of said Section the Court found guilty refusing defendant of to move on when ordered policeman. so to In other words, do the convic upon tion was based violation Subsection of of pursuant person may said Section to which be adjudged guilty disorderly congregates conduct ‘who public with others on a street and move on refuses to * * * police.” great when ordered A deal appellant’s up by brief taken the contention applied by Section 722 as the Court below is unconstitu deprives liberty tional in that defendant of his assembly, speech press freedom and of liberty worship according his dictates * * * reading we conscience. of the record From
556 of the convict- properly are defendant was opinion * * ed Court Harriss, v. 347 U.S. 612, United States “If held: of offenses as which general class its the statute terms, statute is directed is within plainly marginal will not be down as even vague, though struck put might could be where doubts arise.” See: cases New v. States, 476; Roth United 354 U. S. Winters v. 333 507. York, U. S. careful Code §2087.5,
After of Miss. analysis indefinite, Rec., that it not 1942, vague we conclude respect process does in this due deny appellant law Amendment the Con the Fourteenth The act out points stitution of the United States. the con specific terms the elements of the offense and Amsterdam, it. for stituent elements of See Void 109 Pa. 67 Doctrine, (1960), U. of L. Rev. Vagueness Law, Constitutional reprinted Essays Selected on 560-599 pp. (1963). are opinion therefore of the the order
We the circuit court and conviction judgment affirming in the court should be affirmed. defendant county sentence of defendant affirmed.
Conviction and All Justices concur. 1.
Note State, can this Court Under the authorities Smith, notice facts. judicial Day take of historical v. Miller, 526; 87 39 & 395, Company Miss. So. Clark 205 Miss. Grillis, Moore v. 475; 154 Miss. So. 233, L. R. 2d 1425. Court 505, So. 2d A. This later of Mississippi take notice citizens does the shock such underwent (September 1962) lives in which University Mississippi, at riot President damaged. property were lost and 32,000 Mississippi some sent into United States remained Mis troops these troops, and regular Army months. sissippi many *26 specially concurring: J.,
Brady, opinion my colleagues, suggest I of and concur in why these additional verdict and reasons sentence of the trial be court should affirmed. objective, analysis
An factual of the circumstances appellant clearly which existed at the time arrested unequivocally distinguishes and case from the cases upon appellant by support in relied contention illegal, that his arrest was and violated his constitu- rights speech, non-segregated assembly, tional travel process in interstate commerce, and the due clause the Fourteenth Amendment. opinion majority cases cited are Garner Negro
v. Louisiana, where two took students at seats drugstore; a lunch Louisiana, counter a Briscoe v. sought where seven students service the restaurant portion Greyhound of a Bus v. Terminal; Hoston Negro Louisiana, where a seven at students took seats variety Taylor lunch counter in Louisiana, and store; Negroes waiting where four went into the white room depot leaving companions sitting of a bus two outside brought in the car which had all six the station. prove The records that in all of the four cited cases petitioners absolutely nothing above did but seat themselves ask and to be served. There is trail no following petitioners along turmoil violence and their organi- routs to their destinations. No racial national master-minding financing were zations courses their of action in the case at as bar. No National Guardsmen accompanied petitioners, in a bus, other order might them, safe travel be afforded as was the here. In these all case four cases and others cited appellant anticipated, large-scale, there no exacer- generation conflicts, bated no deliberate mass of strife campaign involving strategy no sectional turmoil, sovereign premeditated several states interstate synchronized methodically executed movements violence, mob interrupted when which, step by step, procedures plans reforming a retreat and required — participants retntoring recoaching bar. in the case at all to exist of which is shown in all the other cases, and In the four above cited evidenti- the foregoing we find appellant, cases cited by cases re- in the thereto, addition facts ary wanting. in the case not, there was upon by appellant lied carried nationwide, publicity program bar, hourly at *27 hook-ups, radio on the media of television and through programs all interrupted which on the hour or half-hour misnamed “Freedom the publicize and propagandize there by appellant In the cited sorties. cases Riders” called National Guardsmen no fourteen hundred — seventy-five violence, mob or prevent service to into stations the bus had to be detailed policemen who with any from contact a cordon by isolate the same terminal. the using properly save those persons De- and Justice General’s Office Attorney The cases, and other no in the four part partment played De- played role was but the case at bar vital the riders. accompanied officers partment Justice there was by appellant cited the four and other cases at in the case excitement, while concern or little or no trail of vio- propaganda, publicity, of the bar, because had risen to aforesaid, feeling excitement lence ap- carrying the buses arrived so that when pitch fever had appellant all confederates), fourteen his pellant (and a mario- like enter the bus station demurely to do was vio- The stage confederates. with his fourteen nette been set. already lence had ap- scheme of executed, premeditated perfectly
The he affiliates, played in which associates, pellant, aforesaid created already had role, a leading condition at explosive volatile and a highly propaganda the slightest Mississippi, in Jackson, the bus station violence potential triggered have would incident bloody riot. into generated have which would evidentiary support justify the ar- essential appellant present. rest policeman was order of justified, any to move on was not because of subjective objection conclusion in his but mind, realization a violent breach im- minent.
The case of Edwards South Carolina can afford appellant but little benefit that al- reason though Negroes eighty-seven there were one hundred and single left who had their church had file walked Capitol grounds or two abreast around the in an or- derly placards protesting carrying manner discrimina- tory against Negroes, completely action the case de- any premeditation, propaganda, exciting void of public feeling, impending acts of violence, blood- present shed was case. In Edwards the forty thirty pa- acted or after minutes of continuous rading because a curious crowd some three two persons hundred had collected watch on streets to picketing. subjectively The officers decided marching stop would have to and the marchers *28 disperse within fifteen or be minutes arrested. marchers did not desist and were arrested. There was absolutely impending no violence the time shown at of only possibility might arrest, the but the that arise. The distinction between Edwards case is too and obvious to merit further consideration. presented
The transcendent issue here is: Can a non- prove a citizen, resident of deliberate in effort a statute traveling unconstitutional, state while interstate impunity commerce, violate other statute and regulating peace, statutes the maintenance and of order tranquility supersede within that State, and thus or nullify right regulate the State’s its in- and control ternal domestic affairs? corollary judicial
It is a of durable administration protect respec- judiciary guard that the must and of branches our powers separate tive limited of it is part, and of which governments, Federal State any participate in, not instrument or for, and be an calculated which procedure deliberately function is or very fiat destroy or decree or by judicial to alter which that upon representative government foundations law- the continued and which likewise reposes, insures It is inherent ful and operation judiciary. wise shall the es- possess self-government and the exercise same police powers right sential and in regulating the maintenance of and order domestic demonstra- and its affairs. Mass conducting intimidations, and or threats altercations tions, thereof, incite violence, produce conduct calculated or are the antithesis of under same, self-government orderly peaceful law maintenance of geared existence. by individuals junkets, planned
These strife-fomenting riders,” called “freedom and groups erroneously of constitutional guar- as an exercise poorly disguised government operation, are the harbingers antees, committees, men law but under groups is of which Com- represented highest expression the world. order, throughout munist rights enjoy peace The collective the citizens to thereof are protected be from breaches and order and maintain with the duty State’s synonomous domestic affairs. There in its peace, tranquility order the United States or the Constitution nothing fourteenth particularly thereto, amendments the individual preference which gives amendment, States over their various citizens rights *29 the As yet rights citizens thereof. rights collective country of are not absolute the individual citizen this of the of citizens. majority must the of yield rights and the main- essential paramount right If there be a the self-government of and in orderly peaceful tenance the see of State to right it must be the states, various and in their persons its citizens are safe their intimi- demonstrations, mass from nationwide property con- disorderly and from dations, peace of the breaches calculated to cause breaches and deliberately planned duct which degree and actual peace of the violence. successfully pro- the is collective of citizens this thereof varies and tected subdivisions States and power their respective authority directly all citi- conduct peaceful orderly among maintain and n —(cid:127) of objective self-government. zens the primary the citi- rights the sacred individual of order impera- impaired may endure, zens not be and perform tive that be permitted various states of prerogatives their common-law duties inherent, their citizens among order maintaining all associations. personal their contacts and varied this failure, performance of refusal, prohibition or law tranquility, high duty maintaining peace, subdi- political part order on States or swift way thereof is a certain and positive, visions which local and destroy completely all State governments uncontrollable, create end- compose nation, thus ultimate inescapable less turmoil and violence and its — where monolithic State ruthless, totalitarian or count for naught. individual rights regimented and revo- strife, when whirlwinds of rebellion Today most the civiliz- the foundations of lution are shaking inability, because of or world, nations ed those nations and sub- failure part on complete con- orderly maintain peaceful thereof divisions citizens, life of its customary duct the usual of a plans premeditated assert solemnly we of their social citizens, regardless of nonresident group or ethnic economic power philosophy, beliefs, political to test violence order to create strife and status can- ordinances, laws or city of State constitutionality *30 not thereby vitiate destroy or nondelegable, sacred, inexorable duty which city to all owes its citizens to maintain peace order. and We hold this to be true even though group nonresident citizens assert the subtle subterfuge they merely are exer- constitutional cising their rights speech, freedom of assembly, uninhibited passage in interstate com- merce in justification of their premeditated and well executed conspiratory scheme.
A State which cannot, or will not, protect the safety of all citizens and their property which rights, cannot, or will not, exercise its inherent common-law police powers reserved and guaranteed its it, regulate internal domestic affairs in such a situation as pre- sented here, has lost already its attributes character- istics aas It sovereign is, state. no fact, longer State but some type of unautonomous association which exists because of merely the sufferance an all-power- ful which entity tolerates its existence. proper
With deference all concerned, regardless of constitutional legal sophistry, or subterfuge, judicial legerdemain, the communal, sinister divisive plots to create antagonisms, to breed hatred, produce violence and bloodshed in this State peoples of among different racial origin have who lived together harmoni- ously almost 200 years shall become stark reali- ties through failure of this Court the in- recognize violate constitutional rights the citizens of this other states to lawfully peace, maintain and tran- order in their domestic quility per- affairs those punishing sons who flaunt deliberately and violate laws their gov- the same, and demand con- erning simultaneously who stitutional immunity to do so.
For these additional reasons, my opinion, judg- ment of the trial court is affirmed.
McElroy Rodgers, JJ., join in opinion. *31 ON MOTION ENTEY FOE OF JUDGMENT J.: Eodgers,
Each of the following appellants appealed to Supreme Court of the United States from judgment of Court this the respective wherein this causes, Court affirmed judgments of the County Circuit- Courts of the First Judicial District of Hinds County, Mississippi, which each respective appellant was convicted of a breach of the peace.
The judgment of this Court has been reversed of judgment the Supreme Court of the United States in each of causes, the mandate of that Court has been filed with Court, wherein each the re- of spective appellants has been allowed costs appeal of the sum of $100.00.
Now, therefore, in obedience to the mandate of United States Supreme Court, each of the following- named defendants is discharged, appearance and his bond released: J.
Henry Thomas v. State of No. Mississippi 42,987 L. James Farmer v. State Mississippi of No. 42.983 John Lee Copeland v. of State Mississippi No. 42.722 Ernest Patton, Jr. v. State of Mississippi No. 42,956 Grady H. Donald State of Mississippi v. No. 42,951 Peter M. v. Ackerberg State of Mississippi No. 42.984 James Luther Bevel State of Mississippi v. No. 42,960 Charles David v. Myers State of Mississippi 42,968 No. Yvonne Carolyn Seed v. State of Mississippi No. 43.031 John J. McDonald v. of Mississippi 42,970 State No. B. Eaymond Eandolph, Jr. v. State of Mississippi No. 43.032 M. Anderson v. of Alexander State Mississippi No. 42.985 E. 42,963 William Harbour State of No. Mississippi v. Aelony 42,980 v. No. Mississippi Zev State Marion Davido v. No. Mississippi Allen State of 42.723 Mississippi
Claire O’Conner State of 42,982 No. Mississippi David Kerr Morton v. No. 42,973 State Mississippi Katherine A. Plenne 42,957 v. State of No. Mississippi Robert Earl v. State of No. 42,978 Filner Mississippi Sanda M. Nixon v. No. 42,966 State Terry Susan Perlman v. State of
Mississippi 42,961 No. Lestra Aleñe Peterson v.
Mississippi 43,034 No. Mississippi 43,029 Thomas Van Roland v. State No. Joan Pleune Frances v. State
Mississippi 43,036 No. Grant Harlan Muse, Jr. v. State of
Mississippi No. 42,975 Edythe Knight Pauline v. State of Mississippi 42,958 No. Bromberg Mississippi Edward No. 42,967 J. Mississippi Lester G. McKinnie v. State No. 42,971 Mississippi 42,999 Elizabeth S. Adler v. State of No. discharged Reversed, defendants with their reason- able costs.
All Justices concur. City Mississippi Jackson, Hills, v. Creston Inc. February 22,
No. 43353 2d 215 172 So.