Abernathy v. State
| Decision Date | 23 October 1962 |
| Docket Number | 3 Div. 101 |
| Citation | 42 Ala.App. 149,155 So.2d 586 |
| Court | Alabama Court of Appeals |
| Parties | Ralph D. ABERNATHY v. STATE. |
Fred D. Gray and Solomon S. Seay, Jr., Montgomery, Jack Greenberg and Leroy D. Clark, New York City, and Louis H. Pollak, New Haven, Conn., for appellant.
MacDonald Gallion, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for the State.
The appellant and ten other persons were convicted in the court of common pleas of Montgomery County. In the circuit court, by agreement, the cases were considered as being tried separately, but evidence was introduced only in the Abernathy case and was considered as introduced in all the cases. There was a separate judgment of conviction as to each defendant.
On appeal to this court it is stipulated that the transcript of the testimony be copied into the record in this case only, and be considered a part of the record in each of the other cases, without the necessity of copying it into the record of each of said cases.
The statutes under which the defendant was charged provide:
'Title 14, Sec. 407: If two or more persons meet together to commit a breach of the peace, or to do any other unlawful act, each of them shall, on conviction, be punished, at the discretion of the jury, by fine and imprisonment in the county jail, or hard labor for the county for not more than six months.'
'Title 14, Section 119(1): Any person who disturbs the peace of others by violent, profane, indecent, offensive or boisterous conduct or language or by conduct calculated to provoke a breach of the peace, shall be guilty of a misdemeanor, and upon conviction shall be fined not more than five hundred dollars ($500.00) or be sentenced to hard labor for the county for not more than twelve (12) months, or both, in the discretion of the court.'
The evidence shows the eleven appellants involved in these appeals are four white men and seven Negroes. On May 24, 1961, the City of Montgomery was under martial law as the result of riots following the arrival at the Greyhound Bus Station on Saturday, May 20th, of three groups of so-called 'Freedom Riders.' A race riot occurred on Sunday night in the vicinity of the church of which the appellant Abernathy was the pastor, in which riot several thousand persons participated. Some of these appellants, including Abernathy, were at the church during the riot. The racial situation in the city was extremely tense. Some fourteen hundred national guardsmen were on duty. The streets were being patrolled by armed convoys.
The first groups of Freedom Riders had been given a police escort to the Mississippi state line on the morning of the day this additional group, composed of seven of these appellants, arrived at the Greyhound Bus Station. The explosive atmosphere was heightened by their arrival, at a time when it was considered the city had passed its crisis. This group was met at the station by a hostile crowd of some two thousand persons. The crowd was unruly and bricks and stones were hurled at the automobile in which these persons were driven from the bus station.
The next morning a military convoy, under the command of Colonel Poarch of the Alabama National Guard, escorted the appellants from the home of appellant Abernathy to the Trailways Bus Terminal. This escort had been arranged by General Graham, who had asked appellants to contact his office when they desired to travel. The convoy proceeded directly from Abernathy's house to the bus station. Upon entering the station they went directly to the ticket window and some of them bought tickets to Jackson, Mississippi. From there they went to the lunch counter in the front portion of the room and began to occupy the seats at the counter.
The State's testimony tended to show that at this time some thirty persons were milling around inside the station, eighteen or more besides the appellants and the law enforcement officers; four or five hundred people were outside in the immediate vicinity of the station, and over a hundred law enforcement officers were stationed outside. In the front part of the station there were large plate glass windows and it was possible for the crowd outside to see inside the station; that when the appellants sat down at the lunch counter an outburst of noise was heard from the crowd outside. At this time Colonel Poarch directed the Sheriff of Montgomery County to arrest the defendants. Colonel Poarch testified he gave the arrest order because the air was electric with excitement and tension; that the crowd outside was hostile to these persons; that there was also a number of people in the station that could have caused trouble or injury, not only to the defendants themselves, but also to innocent passersby or people who had no connection with either side of the trouble, as well as to the National Guardsmen, and it was his opinion the conduct of the defendants under the circumstances was calculated to provoke a breach of the peace.
For the defendants, William S. Coffin, Jr., Chaplain of Yale University, testified he first learned of racial violence in Montgomery from appellant MacGuire on May 21, 1961. As a result of such information and a sermon he had preached, he along with four other appellants, MacGuire, Noyce, Smith and Swift, three of whom are white men and one a Negro decided to come to Montgomery. They flew to Atlanta and were joined there for the bus trip to Montgomery by appellants Carter and Jones, who are Negroes. They spent the night in Montgomery and the seven travelers decided to proceed to Jackson, Mississippi. Appellant Shuttlesworth, Lee, Abernathy and Walker, Negroes, accompanied them to the bus terminal. They were provided heavy military escort to the terminal. Upon arrival at the station they were ushered into the white waiting room and they went directly to the ticket window and seven of the appellants purchased tickets to Jackson, Mississippi. Shortly after leaving the ticket window they seated themselves at the lunch counter and ordered and were served coffee. At this point they were placed under arrest by the sheriff. They were given no warning that they were not to sit at the counter. That it was not possible to see persons in the lunchroom from outside through the tinted glass windows; that when he left Abernathy's house it was his intention to seek service at the terminal on a racially integrated basis.
Donald Martin, Alabama News Manager, United Press International, testified that on the day previous to appellant's arrest a racially mixed group used the facilities of the white waiting room at the Trailways Bus Terminal. There were no incidents and they were not arrested. At that time there was a crowd of approximately two hundred fifty to three hundred fifty persons on streets surrounding the bus terminal; that it was not possible to discern the race of persons at the lunch counter when looking through the glass from outside; that he was not in the terminal on the day appellants were arrested.
General Henry Graham, Adjutant General of Alabama, was called as a witness by the defendants. He testified he was present when the defendants were arrested. He was asked if he had occasion to make public comment on the arrests shortly after they were made. The court sustained the State's objection to any statement he may have made after the arrest, on the ground the defendant could not be allowed to impeach his own witness.
The witness testified that on May 24th, he was in charge of the military situation in Montgomery; that on that day two bus loads of passengers elected to leave for Jackson, Mississippi, and military escort was provided for the buses to the Mississippi State line; that he read in the newspapers that the passengers ate in racially mixed groups at the lunch counter before boarding their buses, but that he was not in the bus station at the time and he accompanied the first bus load; that no traveler had been arrested until these defendants were arrested; that he first heard these defendants were enroute to Montgomery from Atlanta when he was at the Mississippi line and he turned the military party back to Montgomery rather rapidly and some of the force reached Montgomery at the same time these seven travelers arrived there from Atlanta; that he was present in the bus terminal the next morning when these defendants were arrested; that he was provoked, was irritated and was angry because of the danger in which this incident had placed his men and the people of the community, but they were not arrested because he was angry, and it was not anger that led to his changing his method of dealing with the Freedom Riders; that whether he would have ordered the arrest of the first travelers who ate as a racially mixed group if he had been present would have depended upon the situation at that particular time; that he had made the statement that these defendants wanted to be arrested and 'we have accommodated them.'
The prosecutions were begun in the Common Pleas Court by affidavit. The affidavit charged that this defendant, on or about May 25, 1961, 'did disturb the peace of others by violent, profane, indecent, offensive or boisterous conduct or language or by conduct calculated to provoke a breach of the peace in that he did come into Montgomery, Alabama, which was subject to martial rule and did wilfully and intentionally attempt to test segregation laws and customs by seeking service at a public lunch counter with a racially mixed group, during a period when it was necessary for his own safety for him to be protected by military and police personnel and when the said lunch counter building was surrounded by a large number of hostile citizens of Montgomery.
'COUNT II
'Ralph D. Abernathy did meet with two or more persons to commit a breach of the peace or to do an unlawful act, against the peace and dignity of the State of Alabama.'
In the circuit court Count I of...
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