Opinion
No. 43372.
October 11, 1965.
1. Breach of peace — evidence — insufficient to sustain conviction.
Evidence was insufficient to sustain conviction for breach of peace in the case of defendant who promoted parade and demonstration of Negro students.
Headnote as approved by Lee, C.J.
APPEAL from the Circuit Court of Pike County; WM. H. WATKINS, JR., J.
Jack H. Young, Jackson; Robert L. Carter, Maria L. Marcus, Barbara A. Morris, New York, N.Y., for appellant.
I. The State has failed to prove the offense charged. Bell v. State, 89 Miss. 810, 42 So. 542; Burt v. State, 72 Miss. 408, 16 So. 342; Holt v. United States, 218 U.S. 245; McComb City v. Hill, 100 Miss. 193, 56 So. 346.
II. Appellant's conviction, without proof of the offense charged, is a denial of due process of law guaranteed by the Fourteenth Amendment to the United States Constitution and by Section Fourteen of the Mississippi Constitution. Thompson v. Louisville, 362 U.S. 199.
III. Section 2089.5 of the Mississippi Code 1942, as amended, is unconstitutional on its face in that the vagueness of its language is repugnant to the requirement of due process of law contained in both the Federal and State Constitutions. Lanzetta v. New Jersey, 306 U.S. 451; Lovell v. Griffin, 303 U.S. 444; Pierce v. United States, 314 U.S. 306; Stromberg v. California, 283 U.S. 359; United States v. Cardiff, 344 U.S. 174; Sec. 2089.5, Code 1942.
IV. Section 2089.5 of the Mississippi Code 1942, as amended, is unconstitutional on its face because the scope of its proscription infringes rights guaranteed by the First and Fourteenth Amendments to the United States Constitution and by Sections Eleven and Thirteen of the Mississippi Constitution. City of Portland v. Welch, 367 P.2d 2403; City of Toledo v. Sims, 169 N.E.2d 516; Deer Park v. Schuster, 16 Ohio Ops. 485, 30 Ohio L. Abs. 466; Feiner v. New York, 340 U.S. 315; Hague v. Committee for Industrial Organizations, 307 U.S. 496; Hand v. City of Fort Myers (Fla.), 13 So.2d 809; Kunz v. New York, 340 U.S. 290; McCoy v. Providence Journal Co., 190 F.2d 760; Massachusetts Comm. v. Gilfedder, 73 N.E.2d 241; People v. Andrew, 267 P.2d 445; People v. Duffy, 179 P.2d 876; Rockwell v. Morris, 211 N.Y.S.2d 25; Saia v. New York, 334 U.S. 558; Schenk v. United States, 249 U.S. 47; Sellers v. Johnson, 163 F.2d 877; State, Ex Rel. Wilson v. Russell, 146 Fla. 539, 1 So.2d 569; State v. Corbiaiero, 170 A.2d 74; Staub v. Baxley, 355 U.S. 313; Terminiello v. Chicago, 337 U.S. 1; United States v. Brewer, 139 U.S. 278; United States v. Carolina Products, 304 U.S. 144; Yick Wo v. Hopkins, 118 U.S. 536; Zenith International Film Corp. v. City of Chicago, 291 Fed. 785.
V. Section 2089.5 of the Mississippi Code, 1942 as amended, is unconstitutional as applied to appellant in that it has deprived him, without justification, of his rights of speech and assembly guaranteed by the First and Fourteenth Amendments to the United States Constitution and by Sections Eleven and Thirteen of the Mississippi Constitution. Application of Section 2089.5 to appellant also violated the equal protection clause of the Fourteenth Amendment to the United States Constitution. Brown v. Board of Education, 347 U.S. 483; Buchanan v. Warley, 245 U.S. 60; Cantwell v. Connecticut, 310 U.S. 296; DeJonge v. Oregon, 299 U.S. 353; Edwards v. South Carolina, 373 U.S. 229; Gayle v. Browder, 352 U.S. 903; Hague v. Committee for Industrial Organizations, supra; Kunz v. New York, supra; Niemotko v. Maryland, 340 U.S. 268; Pierce v. Society of Sisters, 268 U.S. 510; Schenk v. United States, supra; Sellers v. Johnson, supra; Shelly v. Kraemer, 334 U.S. 1; Smith v. California, 361 U.S. 147; Staub v. Baxley, supra; Sweezy v. New Hampshire, 354 U.S. 234; Terminiello v. Chicago, supra; Thornhill v. Alabama, 310 U.S. 86; Winters v. New York, 233 U.S. 507; Yick Wo v. Hopkins, supra.
VI. Appellant's conviction inflicts on him cruel and unusual punishment contrary to the provisions of Article Three, Section Twenty-Eight of the Mississippi Constitution and the provisions of the Fourteenth Amendment to the United States Constitution. Robinson v. California, 370 U.S. 60.
VII. The refusal of the Court to discharge biased jurors for cause constitutes reversible error and is a violation of the due process clause of the Fourteenth Amendment to the United States Constitution. Ex Parte Cornwell, 144 Ala. 497, 39 So. 354; Ex Parte Wallace, 24 Cal. Rpts.2d 933, 152 P.2d 1; State, Ex Rel. La Russa v. Himes, 197 So. 762; State, Ex Rel. McFerran v. Justice Court, 32 Wn.2d 544, 202 P.2d 927; Tumey v. Ohio, 273 U.S. 50.
Delos H. Burks, William A. Allain, Peter M. Stockett, Jr., Asst. Attys. Gen., Jackson, for appellee.
I. The trial court did not err in denying defendant's motion for a directed verdict at the close of the State's case. Ross v. State, 234 Miss. 309, 106 So.2d 56; Smith v. State, 205 Miss. 170, 38 So.2d 698.
II. The trial court did not err in refusing to discharge biased jurors for cause, and rejecting Instruction No. 5 submitted by defendant. Bailey v. State, 174 Miss. 453, 165 So. 122; Brooks v. State, 178 Miss. 575, 173 So. 409; Frierson v. State, 250 Miss. 339, 165 So.2d 342; Holmes v. State, 199 Miss. 137, 24 So.2d 90; Neilsen v. State, 149 Miss. 223, 115 So. 429; Reeves v. State, 159 Miss. 498, 132 So. 331; Wheeler v. State, 219 Miss. 129, 63 So.2d 517; Whitehead v. State, 246 Miss. 530, 151 So.2d 196.
III. The trial court did not err in overruling defendant's motion for a new trial. Cantwell v. State of Connecticut, 126 Conn. 1, 8 A.2d 533, 310 U.S. 296, 60 S.Ct. 900; Davis v. Burgess, 54 Mich. 514, 20 N.W. 540; Edwards v. South Caroline, 373 U.S. 229; Halter v. State, 74 Neb. 757, 105 N.W. 298; People v. Anderson, 1 P.2d 64; People v. Benman, 154 Mich. 150, 117 N.W. 589; People v. Johnson, 96 Mich. 175, 48 N.W. 870; People v. Kovalchuck, 68 N.Y.S.2d 165; People v. Ripke, 155 N.Y.S. 590; St. Louis v. Slupsky, 254 Mo. 309, 162 S.W. 155; Schenk v. United States, 249 U.S. 47; Shields v. State, 187 Wis. 448, 204 N.W. 486; State v. Hebert, 121 Kansas 329, 246 P. 507; State v. Reichman, 164 Tenn. 653, 188 S.W. 255; Sec. 2089.5, Code 1942; 12 Am.Jur.2d, Secs. 665, 666, 667, 669, 670.
IV. The trial court did not err in refusing to rule that Section 2089.5 of the Mississippi Code of 1942, Annotated, as amended, is unconstitutional on its face. Bibb v. Navajo Freight Lines, 250 U.S. 520, 3 L.Ed. 1003, 79 S.Ct. 962; Carter v. Craig, 77 N.H. 200, 90 A. 598; Cox v. New Hampshire, 312 U.S. 569, 85 L.Ed. 1049, 61 S.Ct. 762; Erie R. Co. v. Williams, 233 U.S. 685, 58 L.Ed. 1155, 34 S.Ct. 761; Everson v. Board of Education, 330 U.S. 1, 91 L.Ed. 711, 67 S.Ct. 504, 168 A.L.R. 1392, reh. den. 330 U.S. 855, 91 L.Ed. 1297, 67 S.Ct. 962; Fleming v. Nestor, 363 U.S. 603, 4 L.Ed.2d 1435, 80 S.Ct. 1367, reh. den. 364 U.S. 854, 5 L.Ed.2d 77, 81 S.Ct. 29; Hughes v. Superior Court, 339 U.S. 460, 94 L.Ed. 995, 70 S.Ct. 718; International Brotherhood, T.C.W.H. Union v. Honke, 339 U.S. 470, 94 L.Ed. 995, 70 S.Ct. 773; Jung v. City of Winona, 71 F. Supp. 558; People v. Charles Schweinder Press, 214 N.Y. 395, 108 N.W. 639, error dismissed 242 U.S. 618, 61 L.Ed. 530, 37 S.Ct. 214; Polar Ice Cream Creamery Co. v. Andrews, 208 F. Supp. 899, 372 U.S. 939, 9 L.Ed.2d 966, 83 S.Ct. 932; State v. Hutchinson Ice Cream Co., 168 Iowa 1, 147 N.W. 195, affirmed 242 U.S. 153, 61 L.Ed. 217, 37 S.Ct. 28; Thomas v. State, 252 Miss. 527, 160 So.2d 657; Weeks v. Crippled Childrens Hospital of Philadelphia, 200 F. Supp. 77; Whitney v. California, 274 U.S. 347, 71 L.Ed. 1095, 57 S.Ct. 641; Amendment XIV, United States Constitution; 16 Am.Jur.2d, Constitutional Law, Secs. 172, 174, 259, 263, 295, 310.
V. The trial court did not err in refusing to set aside the punishment inflicted upon appellant, and such punishment was not contrary to the provisions of Article III, Section 28 of the Mississippi Constitution and the due process provisions of the Fourteenth Amendment to the United States Constitution. Brown v. State (Fla.), 13 So.2d 458; Ex Parte McInnis, 98 Miss. 773, 54 So. 260; Vigouroux v. State, 136 Miss. 505, 101 So. 576; 15 Am. Jur., Criminal Law, Secs. 523, 530.
Robert Moses was found guilty and sentenced for a misdemeanor, in which the affidavit charged that he "on or before the 4 day of October 1961, within the corporate limits of the City aforesaid, did then and there wilfully and unlawfully disturb the public peace by violent and loud offensive and boisterous conduct calculated to provoke a breach of the peace and leading to a breach of the peace, Against the peace and dignity of the State of Mississippi."
The evidence showed that Moses was a teacher of mathematics in New York City before taking up his abode in McComb City in 1961. There he became a salaried employee of the Student Nonviolent Coordinating Committee. He had been engaged in conducting voter registration schools. His headquarters, near the Negro high school grounds, were over Burgland's Supermarket. There the signs, used in the demonstration, out of which this incident occurred, were made up. The lettering on them was as follows: "STAMP OUT MISSISSIPPISM, FEAR THE TRUTH!", "WE STUDENTS PROTEST", "BRENDA AND LEWIS WERE REFUSED ADMITTANCE TO SCHOOL", "WHY WERE BRENDA AND LEWIS REFUSED ADMITTANCE?", and "LEE COULD BE ME".
The Brenda and Lewis, referred to above, were Brenda Travis and Isaac Lewis, two teenagers, who had been suspended by the principal of the Negro high school because they got into trouble and were put in jail. This arose out of alleged misconduct and a violation of the law during certain activities in the McComb Greyhound Bus Station. The record does not disclose any appeal to, or requested hearing by, the governing authorities of the School District.
On the afternoon of October 4, 1961, shortly after school had been dismissed, approximately 100 of the junior and senior pupils from the Negro high school went to the headquarters of Robert Moses, where they obtained a number of the above described signs. Moses then arranged the pupils in pairs, and instructed them to parade down the city sidewalks. Several other nonresident fellow workers of Moses joined in the march and demonstration. Some of the witnesses, describing Moses' control and leadership, testified that he was like a hen mothering her brood. They paraded over a substantial area of the City, traversing eighteen city blocks.
There was evidence by the State that the demonstrators were singing, shouting and chanting. The parade ended on the steps of the City Hall. Large numbers of white people were attracted to the scene and scuffling occurred on the steps of the City Hall between a bystander and one of the adult demonstrators.
The evidence was sufficient to show that this parade and demonstration, was fomented, organized, and directed by the defendant; but it was not shown that he had been guilty of violent, loud, offensive or boisterous conduct.
Regardless of the contempt which many may have for Moses in promoting a demonstration, largely participated in by immature teenage children, it appears that the State did not seek to prosecute him on that account or that there is such a criminal offense provided for under the law. The charge was that he unlawfully disturbed the public peace by violent, loud, offensive and boisterous conduct. The evidence for the State simply did not establish that charge.
This Court, in the case of Thomas v. State, 252 Miss. 527, 160 So.2d 657 (1964), dealt with a situation which was more provocative than the facts, adduced in evidence, show this one to have been. The conviction in that case was affirmed by this Court. However on appeal, the Supreme Court of the United States, in its decision ( 380 U.S. 524, 14 L.Ed. 265 (1965)) reversed the judgment of this Court and ordered the discharge of Thomas.
In the recent case of Guyot v. State, 252 Miss. 509, 175 So.2d 184 (1965), the opinion, citing Thomas v. State, supra, reversed the judgment of the trial court and discharged the appellant. (Hn 1) Since the evidence in this case fails to meet the burden required of the State, namely, to prove the guilt of the defendant beyond reasonable doubt, it follows that this cause must be reversed and the appellant discharged.
Reversed and appellant discharged.
All Justices concur.