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DURHAM et al v. THE STATE.
GERMAN et al. v. THE STATE.
LLOYD et al. v. THE STATE.
22398.
22399.
22402.
Trespass; constitutional questions. Savannah City Court. Before Judge Oliver.
QUILLIAN, Justice.
1, 2, 4. The rights of a citizen guaranteed by the Constitutions of the United States and this State are not absolute. One may not in the guise of exercising his own rights unlawfully invade the rights of another.
3. The evidence is sufficient to prove every element of the offense charged in the accusation and fully authorized the defendants' conviction.
5. To overrule a motion for directed verdict in a criminal case is never error.
6. An assignment of error complaining of the exclusion of evidence, which in no way identifies the evidence alleged to have been excluded, shows no error.
On August 5, 1963, at the August term of the City Court of Savannah there came on for trial the cases of the State of Georgia against James Durham and James Alexander (hereinafter referred to as the Durham case), against William German and Albert Mack (hereinafter referred to as the German case), and against Wallace Lloyd, Billy Simmons, Johnny Hyman, Willie Pickett, Walter Roland Abney, Shirley Miller, Gloria Bartow, William T. Sams and John R. Smith (hereinafter referred to as the Lloyd case), the same being on accusation wherein the defendants were charged with violation of the Act 1960 (Ga. L. 1960, p. 142; embodied in Code Ann. 26-3005) which reads: "It shall be unlawful for any person, who is on the premises of another, to refuse and fail to leave said premises when requested to do so by the owner or any person in charge of said premises or the agent or employee of such owner or such person in charge. Any person violating the provisions of this section shall be guilty of a misdemeanor and upon conviction thereof shall be punished as for a misdemeanor."
Unless otherwise indicated the following recitation is applicable to each of the three cases.
Before arraignment and before pleading to the accusation the defendants filed a general demurrer to the accusation on the following grounds: that the Act of 1960 is unconstitutional on its face because it is so vague, indefinite and uncertain in that it fails to require that the person making the demand to leave the premises present document or other evidence of possessory right sufficient to apprise defendant of the validity of the demand to leave so as to violate his rights to due process of law under the Fourteenth Amendment to the United States Constitution; and it is unconstitutionally applied to the defendant in that it makes it a crime to be on property open to the public after being asked to leave, because of race or color, in violation of defendant's rights under the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. The demurrer was overruled by the trial judge.
The defendants then filed their plea in abatement reading: that the Act of 1960 is unconstitutionally vague on its face and as applied to the defendant's conduct which consisted solely of peacefully protesting against racial segregation in the City of Savannah; that the statute is unconstitutional as applied to the defendant's conduct in that it violates rights of free speech and assembly secured by the First Amendment and the due process clauses of the Georgia and United States Constitutions; that the statute as applied violates the defendant's rights under the equal protection and due process clauses of the United States Constitution in that it is used for the purpose and effect of thwarting the activities of the defendants, who are Negroes, against racial segregation; that the statute and accusation under it are so vague, indefinite and uncertain as not to fairly apprise the defendants of the acts they are charged with committing, thus denying them an opportunity to effectively prepare a defense, in violation of rights secured by the due process clause of the Fourteenth Amendment to the United States Constitution. Ruling thereon was reserved until the introduction of evidence was complete.
Upon the trial of the case, the judge of the court presided without the intervention of a jury as trier of the law and facts of the case. Evidence was then introduced by the State, at the close of which the trial judge overruled the defendants' plea in abatement. Counsel for the defendants then filed a motion to acquit which was likewise overruled.
The evidence adduced was in substance as follows.
In the Durham case (#22398) witnesses for the State testified that the defendants were sitting down in the vestibule and leaning back against the doors, which blocked ingress and egress to Morrison's Cafeteria; that the defendants were on Morrison's property; that the defendants were requested to leave by the assistant manager of the cafeteria, refused, and the police were summoned; that, subsequently, they were again asked to leave in the presence of the police and by the police and upon their continued refusal to comply were arrested.
The defendants testified they were arrested for taking part in a demonstration at Anton's (another restaurant) not at Morrison's. They stated they were arrested by a Negro policeman. The Negro policeman they identified testified he did not make any arrests at Anton's at that time. In rebuttal, a police lieutenant positively identified the two defendants as the ones blocking the door at Morrison's.
In the German case (#22399) witnesses for the State testified that the defendants were in an alcove or foyer, "just outside the door," on Morrison's property and were either sitting or lying and blocking the doorway; that the defendants refused to leave despite repeated requests that they do so and were finally arrested. The manager of Morrison's and a police officer both testified that some lay down and some stood up but they blocked the door preventing customers from entering or leaving Morrison's.
The defendant German in an unsworn statement denied that the defendants were on Morrison's property or blocked anyone from going into or leaving the cafeteria. He stated they were standing outside the cafeteria and were informed that it was closed.
In the Lloyd case witnesses for the State testified that after closing hours the defendants entered Morrison's in a group of about 25 and sat at tables, on the floor and in the lobby; that they refused to leave after being requested to do so and finally were arrested. The assistant manager of Morrison's testified the defendants came when the cafeteria was not serving after lunch; that there were signs in plain view indicating the cafeteria was closed; that the entrance door was locked but the defendants entered through the exit door; that a few customers were still eating, who had been served prior to closing time. He further testified: "Morrison's is cafeteria style, you have to go down a line and pick out your food and then waiters carry your tray to the table, the defendants did not get in that line." When asked whether he would have asked a white person acting similarly to leave, the witness stated: "Well, this was after serving hours and under the circumstances I would have probably asked them to leave." Police officers testified that the serving line was closed and the defendants did not attempt to enter such serving line as is customary in a cafeteria but merely said "they wanted to be served" while sitting at the tables.
In none of the cases was there any evidence that the defendants requested of the management or employees of Morrison's that they be served, nor was there any showing made that the defendants proclaimed the purpose of their acts or otherwise espoused their cause while sitting, lying or standing on the premises of the cafeteria.
At the conclusion of the evidence and after argument of counsel the trial judge entered a judgment finding each of the defendants guilty and sentencing them to "$100 or 2 months, 4 months on Public Works probated." Albert Mack received a sentence of "$200 or 4 months, 6 months on Public Works probated."
The defendants each filed a motion for new trial on the usual general grounds and the following special grounds: because the verdict results in denying to the defendant the equal protection of the laws secured by the United States Constitution; because the verdict and judgment enforced against the defendant was the result of the unconstitutional application of the statute in such manner as to deny this defendant the equal protection and due process of the laws guaranteed by the Fourteenth and First Amendments to the United States Constitution. The trial judge overruled the motions for new trial.
The cases having been consolidated, the defendants filed a single bill of exceptions and assigned as error the overruling of the demurrers, the plea in abatement, the motion to acquit and the motion for new trial, and the refusal to admit certain evidence.
The case is here for review.
1. The bill of exceptions assigns as error the judgment overruling the general demurrers to the accusation charging the defendants with the offense of trespass under Ga. L. 1960, p. 142 (Code Ann. 26-3005). The demurrers attack the statute as unconstitutional on precisely the same grounds as did the demurrers in the case of Clark v. State, 219 Ga. 680 (135 SE2d 270), decided January 30, 1964. This court in the Clark case held the statute to be constitutional and valid. The ruling there made is controlling in the present case.
2. The bill of exceptions contains an assignment of error complaining that the trial judge, after hearing evidence, overruled the defendants' plea in abatement. Some of the grounds of the plea reiterate the attack made on the constitutionality of the Act of 1960 contained in the general demurrer, and the ruling made in the preceding division of this opinion is applicable to them. Other grounds of the plea allege that the defendants were deprived of certain constitutional rights by the manner in which the statute was applied to their conduct on the occasion they were arrested. These grounds especially complain that the arrest of the defendants deprived them of the right to peacefully assemble at Morrison's Cafeteria and exercise their right of free speech by protesting the custom of the restaurant of serving only white people, thereby discriminating against members of the Negro race. In this manner the defendants allege they were denied equal protection of the law and due process in violation of the Fourteenth Amendment to the United States Constitution and Art. I, Sec. I, Par. III of the Georgia Constitution, and that their right of free speech and assembly was abridged in contravention of the First Amendment and Art. I, Sec. I, Par. XXIV of the Georgia Constitution.
In considering the issues presented by the plea in abatement it must be remembered none of the sacred rights guaranteed by the Constitution of the United States and of this State are unabridged, unrestrained and absolute. Cantwell v. Connecticut, 310 U. S. 296 (60 SC 900, 84 LE 1213); Clark v. State, 219 Ga. 680, supra. The freedom to assemble, a right zealously guarded by the court, and properly so, finds its primary limitation in the words of the First Amendment to the Constitution of the United States "to peacefully assemble."
In the case of Edwards v. South Carolina, 372 U. S. 229 (83 SC 680, 9 LE2d 697), although the court reversed a judgment finding the defendants guilty of the common law offense of trespass upon the grounds of the State Capitol at Columbia, South Carolina, the opinion carefully points out the fact that no one was prevented by the defendants (referred to therein as the petitioners) from going upon or leaving the grounds, that they did not impede traffic, or otherwise infringe upon the rights of other persons or of the public in general. After making these observations, the Supreme Court recognizes the principle that the right to assemble is not absolute, and holds: "There was no violence or threat of violence on their [the defendants] part, or on the part of any member of the crowd watching them. If, for example, the petitioners had been convicted upon evidence that they had violated a law regulating traffic, or had disobeyed a law reasonably limiting the periods during which the State House grounds were open to the public, this would be a different case. Edwards v. South Carolina, 372 U. S. 229, 236, supra.
As to free speech, it is held in Breard v. City of Alexandria, 341 U. S. 622 (71 SC 920, 95 LE 1233, 35 ALR2d 335), that freedom of speech or press does not mean that one can talk or distribute literature where, when, and how one chooses, but the right to do so must be adjusted to the rights of others.
The opinion is a restatement of the first tenet of civilized society, that the rights of the individual extend to and end at the boundary of the rights of others.
The proprietor of Morrison's Cafeteria had a legal right to choose his patrons and no law, State or Federal, denied him, the owner of a privately owned establishment operated upon private property, from confining the services of the restaurant to members of a particular class or race. The rule is well stated in Slack v. Atlantic White Tower System, 181 FSupp. 124, 127 (affirmed 284 F2d 746): "Such segregation of the races as persists in restaurants in Baltimore is not required by any statute or decisional law of Maryland, nor by any general custom or practice of segregation in Baltimore City, but is the result of the business choice of the individual proprietors, catering to the desires or prejudices of their customers. . . . In the absence of statute, the rule is well established that an operator of a restaurant has the right to select the clientele he will serve, and to make such selection based on color, if he so desires."
The evidence adduced upon the trial of the Lloyd case showed the defendants, members of a company of about 25 persons, after Morrison's was closed for business according to its usual custom, and signs on the entrance door announced the restaurant was closed, came uninvited into the same through the exit door; some sat in the lobby, others sat on the floor and still others seated themselves in chairs at the tables. No announcement was made by the defendants or any of their company as to the purpose of their visit, none of the group requested any employee of the restaurant to serve them, and since the restaurant was operated solely as a cafeteria and no one came to the counters from which the food was served, they did not place themselves in a position to be served. They refused all requests by the assistant manager and police to leave.
In the Durham case the defendants, according to the State's evidence, leaned against the door of Morrison's and blocked the ingress of customers who desired to enter. The assistant manager in charge of the restaurant requested that the defendants leave the premises and they refused to leave. The defendants steadfastly denied being at the restaurant on the occasion when arrested but testified they were at another restaurant. This testimony was contradicted by at least one police officer who positively identified both defendants and testified he was acquainted with them.
In the German case there was ample evidence to show that the defendants went upon the premises of Morrison's and were sitting or lying in the doorway so as to block the entrance to the establishment. They refused the request Of the manager to leave the premises. A defendant in this case denied they did hinder entrance into the restaurant.
The State's evidence showed the defendants did not assemble peacefully, but intruded upon the property of another, wilfully interfered with the business the owner was there conducting and refused to surrender dominion of the premises upon the request of the owner's authorized agent. This conduct amounted to violence and was without question the wilful, unlawful invasion of the rights of another. There was ample evidence to authorize the judgment overruling the plea in abatement.
3. The general grounds of the motion for new trial present only the contention that the judgments finding the defendants guilty as charged were not supported by evidence. We have in the preceding division discussed the evidence submitted upon the trial. It is sufficient to prove every element of the offense charged in the accusation and fully authorized the defendants' conviction.
4. The only special grounds of the motion for new trial attempt to set up the same contentions as those asserted by the demurrer and plea in abatement. There was no error in overruling them.
5. The defendants except to an order of the trial judge denying the motion to acquit. The motion was tantamount to a motion for directed verdict. Smith v. Smith, 219 Ga. 739 (135 SE2d 866). "It is not error in a criminal case to refuse to direct a verdict of not guilty." Winford v. State, 213 Ga. 396 (5) (99 SE2d 120), and cases cited.
For a variety of reasons the assignment of error is not sufficient to present any question for this court's determination: it is a ruling on the admissibility of evidence that should have been presented by motion for new trial, Jones v. Andrews, 89 Ga. App. 734 (81 SE2d 304); the evidence alleged to have been excluded is not set out in the exception or otherwise therein identified. Colman v. State, 213 Ga. 9, 11 (4) (96 SE2d 611); Charlton v. State, 214 Ga. 778 (2) (107 SE2d 840); Cotherman v. Cotherman, 218 Ga. 486, 487 (128 SE2d 728). See Ga. L. 1953, Nov. Sess., pp. 440, 447 (Code Ann. 6-801); Ga. L. 1957, pp. 224, 232 (Code Ann. 6-901).
Judgments affirmed. All the Justices concur.
Andrew J. Ryan, Jr., Solicitor, Robert E. Barker, Assistant Solicitor, contra.
B. Clarence Mayfield, E. H. Gadsden, for plaintiffs in error.
ARGUED MARCH 9, 1964 -- DECIDED APRIL 9, 1964 -- REHEARING DENIED APRIL 21, 1964.
Friday May 22 21:35 EDT


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