Opinion
17995
November 28, 1962.
Messrs. Jenkins Perry, of Columbia, Ernest A. Finney, Jr., of Sumter, and William W. Bennett, of Florence, for Appellants, cite: As to warrants not alleging facts sufficient to charge appellants with a breach of the peace: 239 S.C. 79, 121 S.E.2d 349; 239 S.C. 339, 123 S.E.2d 349; 239 S.C. 339, 123 S.E.2d 247; 169 S.C. 451, 169 S.E.2d 239; 195 S.C. 190, 11 S.E.2d 1. As to there being a total lacking of proof of commission of the offense charged: 239 S.C. 79, 121 S.E.2d 349; 239 S.C. 339, 123 S.E.2d 247; (S.C.) 126 S.E.2d 1; 368 U.S. 157, 7 L.Ed.2d 207; 368 U.S. 157, 7 L.Ed.2d 207; 307 U.S. 496; 340 U.S. 315, 71 S.Ct. 303; 337 U.S. 1, 95 L.Ed. 1131; 163 F.2d 377. As to the arrests and convictions of the appellants being in furtherance of the custom of racial segregation, and violative of the Fourteenth Amendment of the United States Constitution: 352 U.S. 903, 1 L.Ed.2d 114, 77 S.Ct. 145; 224 F.2d 752, app. dis., 351 U.S. 901, 100 L.Ed. 1439, 79 S.Ct. 692; 350 U.S. 879, 100 L.Ed. 776, 76 S.Ct. 141; 334 U.S. 1, 92 L.Ed. 1161, 68 S.Ct. 836; 346 U.S. 249; 326 U.S. 501, 90 L.Ed. 265, 66 S.Ct. 276; 350 U.S. 877, 100 L.Ed. 774, 76 S.Ct. 133; 220 F.2d 386; 350 U.S. 879, 100 L.Ed. 776, 76 S.Ct. 141, rev., 223 F.2d 93; 358 U.S. 54, 3 L.Ed.2d 46, 79 S.Ct. 228, aff., 252 F.2d 122; 347 U.S. 971, 98 L.Ed. 1112, 74 S.Ct. 783, rev., 202 F.2d 275; 347 U.S. 483; 240 F.2d 922, cert. den., 353 U.S. 924; 352 U.S. 903, 1 L.Ed.2d 114, 77 S.Ct. 145; 224 F.2d 752, app. dis., 351 U.S. 901, 100 L.Ed. 1439, 76 S.Ct. 692; 149 F.2d 212, cert. den., 326 U.S. 721; 94 U.S. 113, 24 L.Ed. 77; 326 U.S. 501, 90 L.Ed. 265, 66 S.Ct. 276; 109 U.S. 15. As to appellants being unwarrantedly penalized for exercising their constitutional right of freedom of expression: 368 U.S. 157, 7 L.Ed.2d 207; 283 U.S. 359; 310 U.S. 88; 368 U.S. 157, 7 L.Ed.2d 207.
Messrs. C.M. Edmunds, of Sumter, and Daniel F. McLeod, Attorney General, and Everett N. Brandon, Assistant Attorney General, of Columbia, for Respondent, cite: As to the warrants alleging facts sufficient to charge the offense of breach of the peace: 239 S.C. 79, 121 S.E.2d 349; 126 S.E.2d 1. As to the evidence being sufficient to support the verdicts of guilty: 239 S.C. 339, 123 S.E.2d 247; 239 S.C. 376, 123 S.E.2d 512; 253 N.C. 580, 118 S.E.2d 47; 239 S.C. 395, 123 S.E.2d 521.
November 28, 1962.
The appellants, forty-two Negro students, were convicted in the Recorder's Court for the City of Sumter, South Carolina, of the crime of breach of the peace. Their convictions were sustained on appeal to the circuit court and appeal to this Court followed.
The cases, although involving 16 different warrants, were disposed of in the Recorder's Court in five separate trials, with five separate appeals to this Court. Because the same basic facts and issues are involved in all of them, they were consolidated for argument and we have concluded that they may be properly disposed of in the same opinion.
While several questions are presented, we need only consider one, namely: Was any evidence presented to sustain the conviction of appellants for a breach of the peace?
The testimony is not in dispute. The record shows that, on the various dates covered in the warrants, the appellants in small groups entered several business establishments in the City of Sumter where lunch counters and soda fountains were operated, seated themselves in booths or at lunch counters reserved, by custom, for service to white persons only and sought service to them of food and drinks. They were ordered to leave by the proprietors in each instance because of the custom of the establishment of providing the service demanded to only white people. The appellants refused to leave. They were then arrested and charged with breach of the peace.
We have had occasion in recent cases to review the law relative to the crime of breach of the peace. State v. Randolph et al., 239 S.C. 79, 121 S.E.2d 349: State v. Edwards et al., 239 S.C. 339, 123 S.E.2d 247; and State v. Brown et al., S.C. 126 S.E.2d 1. Repetition of those principles of law is unnecessary here. The record in these cases, viewed in the light of the applicable legal principles, fails to disclose any evidence to sustain the conviction of these defendants for breach of the peace.
In no instance does it appear that any of the appellants committed any acts of violence. Large crowds of people were not involved and there was no interference with normal traffic. There was no boisterous conduct of any kind, and no threatened violence from any source.
We have had occasion to pass upon similar facts, as here involved, under a charge of trespass. City of Greenville v. Peterson et al., 239 S.C. 298, 122 S.E.2d 826; City of Charleston v. Mitchell et al., 239 S.C. 376, 123 S.E.2d 512; City of Columbia v. Barr et al., 239 S.C. 395, 123 S.E.2d 521; and City of Columbia v. Bouie et al., 239 S.C. 570, 124 S.E.2d 332. Such is not the charge, however, in these cases.
Reversed and remanded for entry of judgment for appellants.
TAYLOR. C.J., and MOSS and BRAILSFORD, JJ., concur.
BUSSEY, J., did not participate.