Wright v. State of Georgia

Decision Date20 May 1963
Docket NumberNo. 68,68
Citation373 U.S. 284,83 S.Ct. 1240,10 L.Ed.2d 349
PartiesNathaniel WRIGHT et al., Petitioners, v. STATE OF GEORGIA
CourtU.S. Supreme Court

James M. Nabrit, III, New York City, for petitioners.

Sylvan A. Garfunkel, Savannah, Ga., for respondent.

Mr. Chief Justice WARREN delivered the opinion of the Court.

Petitioners, six young Negroes, were convicted of breach of the peace for peacefully playing basketball in a public park in Savannah, Georgia, on the early afternoon of Monday, Januay 23, 1961. The record is devoid of evidence of any activity which a breach of the peace statute might be thought to punish. Finding that there is no adequate state ground to bar review by this Court and that the convictions are violative of due process of law secured by the Fourteenth Amendment, we hold that the judgments below must be reversed.

Only four witnesses testified at petitioners' trial: the two arresting officers, the city recreational superintendent, and a sergeant of police. All were prosecution witnesses. No witness contradicted any testimony given by any other witnesses. On the day in question the petitioners were playing in a basketball court at Daffin Park, Savannah, Georgia. The park is owned and operated by the city for recreational purposes, is about 50 acres in area, and is customarily used only by whites. A white woman notified the two police officer witnesses of the presence of petitioners in the park. They investigated, according to one officer, 'because some colored people were playing in the park. I did not ask this white lady how old these people were. As soon as I found out these were colored people I immediately went there.' The officer also conceded that 'I have never made previous arrests in Daffin Park because people played basketball there * * *. I arrested these people for playing basketball in Daffin Park. One reason was because they were negroes. I observed the conduct of these people, when they were on the basketball Court and they were doing nothing besides playing basketball, they were just normally playing basketball, and none of the children from the schools were there at that particular time.' The other officer admitted that petitioners 'were not necessarily creating any disorder, they were just 'shooting at the goal,' that's all they were doing, they wasn't disturbing anything.' Petitioners were neat and well dressed. Nevertheless, the officers ordered the petitioners to leave the park. One petitioner asked one of the officers 'by what authority' he asked them to leave; the officer responded that he 'didn't need any orders to come out there * * *.' But he admitted that 'it is (not) unusual for one to inquire 'why' they are being arrested.' When arrested the petitioners obeyed the police orders and without disturbance entered the cruiser to be transported to police headquarters. No crowd assembled.

The recreational superintendent's testimony was confused and contradictory. In essence he testified that school children had preference in the use of the park's playground facilities but that there was no objection to use by older persons if children were not there at the time. No children were present at this time. The arrests were made at about 2 p.m. The schools released their students at 2:30 and, according to one officer, it would have been at least 30 minutes before any children could have reached the playground. The officer also stated that he did not know whether the basketball court was reserved for a particular age group and did not know the rules of the City Recreational Department. It was conceded at the trial that no signs were posted in the park indicating what areas, if any, were reserved for younger children at particular hours. In oral argument before this Court it was conceded that the regulations of the park were not printed.

The accusation charged petitioners with assembling 'for the purpose of disturbing the public peace * * *.' and not dispersing at the command of the officers. The jury was charged, with respect to the offense itself, only in terms of the accusation and the statute.1 Upon conviction five petitioners were sentenced to pay a fine of $100 or to serve five months in prison. Petitioner Wright was sentenced to pay a fine of $125 or to serve six months in prison.

Petitioners' principal contention in this Court is that the breach of the peace statute did not give adequate warning that their conduct violated that enactment in derogation of their rights under the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States. This contention was plainly raised at the trial, both in a demurrer to the accusation and in motions for a new trial, and was pressed on appeal to the Georgia Supreme Court. Both the demurrer and new trial motions raised a number of other issues. The Georgia Supreme Court held that error in the denial of the motions for a new trial could not be considered because it was not properly briefed on the appeal. But the court neverthe- less seemed to pass upon the claim because it had been raised in the demurrer,2 and affirmed the convictions. 217 Ga. 453, 122 S.E.2d 737. Certiorari was granted. 370 U.S. 935, 82 S.Ct. 1580, 8 L.Ed.2d 806.

Since there is some question as to whether the Georgia Supreme Court considered petitioners' claim of vagueness to have been properly raised in the demurrer,3 we prefer to rest our jurisdiction upon a firmer foundation. We hold, for the reasons set forth hereinafter, that there was no adequate state ground for the Georgia court's refusal to consider error in the denial of petitioners' motions for a new trial.

I.

A commentator on Georgia procedure has concluded that '(p)robably no phase of pleading in Georgia is fraught with more technicalities than with respect to raising constitutional issues.'4 Examination of the Georgia cases bears out this assertion. In an extraordinary number an attempt to raise constitutional issues has been frustrated by a holding that the question was not properly raised or pursued. But '(w)hatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.' Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 14, 68 L.Ed. 143. See also Love v. Griffith, 266 U.S. 32, 45 S.Ct. 12, 69 L.Ed. 157; Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 90 L.Ed. 1131; Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488.

In this case the Georgia Supreme Court held that error in the denial of the motions for a new trial could not be considered because '(t)here was no argument, citation of authority, or statement that (the grounds for reversal stated in the new trial motions) * * * were still relied upon.' The court found 'the applicable rule, as laid down in Henderson v. Lott, 163 Ga. 326 (2), 136 S.E. 403, (to be) * * *: 'Assignments of error, not insisted upon by counsel in their briefs or otherwise, will be treated by this court as abandoned. A mere recital in briefs of the existence of an assignment of error, without argument or citation of authorities in its support, and without a statement that it is insisted upon by counsel, is insufficient to save it from being treated as abandoned." 217 Ga., at 454—455, 122 S.E.2d, at 740. Presumably the court was restating the requirements of § 6—1308 of the Georgia Annotated Code of 1935. That section provides: 'All questions raised in the motion for new trial shall be considered by the appellate court except where questions so raised are expressly or impliedly abandoned by counsel either in the brief or upon oral argument. A general insistence upon all the grounds of the motion shall be held to be sufficient.'

To ascertain the precise holding of the Georgia court we must examine the brief which the petitioners submitted in connection with their appeal. It specifically assigned as error the overruling of their motions for a new trial. And in the section of the brief devoted to argument it was stated:

'Plaintiffs-in-Error had assembled for the purpose of playing basketball and were in fact only playing basketball in a municipally owned park, according to the State's own evidence. Nevertheless, they were arrested and convicted under the said statute which prohibited assemblies for the purpose of 'disturbing the public peace or committing any unlawful act.' Where a statute is so vague as to make criminal an innocent act, a conviction under it cannot be sustained. Murray Winters v. New York, 333 U.S. 507 (68 S.Ct. 665, 92 L.Ed. 840). * * * Plaintiffs-in-Error could not possibly have predetermined from the wording of the statute that it would have punished as a misdemeanor an assembly for the purpose of playing basketball.'

Obviously petitioners did in fact argue the point which they press in this Court. Thus the holding of the Georgia court must not have been that the petitioners abandoned their argument but rather that the argument could not be considered because it was not explicitly identified in the brief with the motions for a new trial. In short the Georgia court would require the petitioners to say something like the following at the end of the paragraph quoted above: 'A fortiori it was error for the trial court to overrule the motions for a new trial.' As was said in a similar case coming to us from the Georgia courts, this 'would be to force resort to an arid ritual of meaningless form.' Staub v. City of Baxley, supra, 355 U.S. at 320, 78 S.Ct. at 281. The State may not do that here any more than it could in Staub. Here, as in Staub, the state ground is inadequate. Its inadequacy is especially apparent because no prior Georgia case which respondent has cited nor which we have...

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