Briggs v. State

Decision Date13 May 1963
Docket Number4997,4994,Nos. 4992,s. 4992
Citation367 S.W.2d 750,236 Ark. 596
PartiesChester BRIGGS et al., Appellants, v. The STATE of Arkansas, Appellee. Eugene D. SMITH et al., Appellants, v. The STATE of Arkansas, Appellee. James Frank LUPPER et al., Appellants, v. The STATE of Arkansas, Appellee.
CourtArkansas Supreme Court

Harold B. Anderson, Little Rock, Wiley A. Branton, Pine Bluff, for appellants.

Bruce Bennett, Atty. Gen., by Clyde Calliotte, Asst. Atty. Gen., Little Rock, for appellee.

JOHNSON, Justice.

These are the so-called 'sit-in' cases. They were submitted to this court on January 16, 1961. At that time there were cases claimed to be similar pending in other states. 1 By common consent our decision was delayed awaiting the outcomes of cases then pending in which petitions for certiorari to the United States Supreme Court had been filed. Since then additional petitions have been filed and there are now pending before the United States Supreme Court at least three cases of this nature in which certiorari has been granted. See Avent v. North Carolina, cert. 370 U.S. 934, 82 S.Ct. 1576, 8 L.Ed.2d 805; Peterson v. City of Greenville, cert. 370 U.S. 935, 82 S.Ct. 1577; 8 L.Ed.2d 806; Lombard v. Louisiana, cert. gr. 370 U.S. 935, 82 S.Ct. 1579, 8 L.Ed.2d 805. We were particularly interested in the outcome of the 'Garner cases', Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207, which appeared to be in point with the cases at bar. From the opinion of the United States Supreme Court in these cases, which were decided December 11, 1961, it developed that the cases did not involve a situation similar to ours and therefore afforded no persuasive authority.

While we originally intended to delay our decision until the United States Supreme Court had decided a case in point with ours, it is against our policy to delay for too long our decision in any pending case. We ascribe to the theory that justice delayed is justice denied. For many years when this court goes into summer adjournment all cases ready for submission have been decided except some rare case like these which is carried over for a definite reason. These cases have now been pending for over two years. We do not feel that we can properly delay them longer to await a decision of the United States Supreme Court. In order to avoid carrying these cases over another summer we now proceed to a decision.

Our cases here were consolidated. 2 They consisted of three criminal prosecutions against 13 defendants. The prosecutions arise out of the activities of the defendants in seeking to be served at eating facilities maintained for whites, the defendants being Negroes. The three cases involve separate incidents at separate retail establishments. There are factual and legal differences necessitating a different disposition of the cases of one group of appellants as compared to the other two groups.

Case No. 4992, styled Briggs et al. v. State, is a prosecution under Act 226 of the Acts of 1959. It involves a 'sit-in' at F. W. Woolworth Company in Little Rock on March 10, 1960.

Case No. 4994, styled Smith et al. v. State, is also a prosecution under Act 226 of the Acts of 1959. It involves a 'sit-in' at Pfeifers Department Store in Little Rock on April 13, 1960.

Case No. 4997, styled Lupper et al. v. State, is a prosecution under Act 226 and also under Act 14. It involves a 'sit-in' at the Gus Blass Store in Little Rock on April 13, 1960.

In the Briggs case, the evidence shows that the Negro defendants seated themselves at a lunch counter in Woolworth's and refused to leave when ordered to do so by police officers. The evidence is undisputed that these defendants were not requested to leave by the management or by anyone with authority to act for the management.

In the Smith case, the record shows that all defendants but one left the premises promptly upon the request of the manager.

The Lupper case was tried to a jury and there is adequate evidence on behalf of the State to support a finding that these two defendants, James Frank Lupper and Thomas B. Robinson, refused to leave the Gus Blass Store at the request of the manager.

ACT 226 CASES

We see no distinction in fact or law between the three prosecutions under Act 226 of 1959. Therefore, we will discuss the three cases together insofar as Act 226 is concerned. Of course, it will be necessary to discuss the prosecution under Act 14 separately.

For reversal of the Act 226 cases, it is insisted that:

(1) The Act is unconstitutional because it denied defendants due process and equal protection of the law.

(2) The Act has been applied in an unconstitutional manner.

(3) The evidence was insufficient to support a conviction; and,

(4) The judgment was excessive and harsh.

Since we are of the opinion that Point 3 is well taken, 3 we will not pass upon the constitutionality of Act 226 of 1959. This is in accordance with the established rule of this court that constitutional questions will not be decided where the case may be disposed of on other grounds. Bailey v. State, 229 Ark. 74, 313 S.W.2d 388; Bowling v. State, 229 Ark. 876, 318 S.W.2d 808.

Section 1 of Act 226 of 1959 [§ 41-1432 Ark.Stats.] reads as follows:

'Any person who shall enter any public place of business of any kind whatsoever, or upon the premises of such public place of business, or any other public place whatsoever, in the State of Arkansas, and while therein or thereon shall create a disturbance, or a breach of the peace, in any way whatsoever, including, but not restricted to, loud and offensive talk, the making of threats or attempting to intimidate or any other conduct which causes a disturbance or breach of the peace or threatened breach of the peace shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than five hundred dollars ($500.00) or imprisoned in jail not more than six months, or both such fine and imprisonment.'

Under this Act the prohibited offenses are creating disturbances or breaches of the peace. The Act sets forth loud and offensive talk, the making of threats and attempts to intimidate as examples of prohibited conduct. While there was some evidence on the part of the State to the effect that feeling and tension were high, the State offered no substantial evidence that these defendants entered the store to carry out a conspiracy to cause a breach of the peace, nor was there evidence that these defendants or any of them uttered any loud offensive talk, made any threats or attempted to intimidate anyone. The defendants had a right to peacefully seek service at the lunch counters. By the same rule, management had a right to refuse to serve them. Since the peaceful efforts of the defendants to get service at the lunch counters were lawful, and in the absence of a substantial showing that such efforts were organized and calculated to disturb or breach the peace, it cannot be said here that the mere making of these efforts amounted to 'creating a disturbance or breach of the peace.' It is obvious that the Act contemplates a doing of that which the actor has no legal right to do. The defendants in the Briggs case refused to leave at the command of the police officers but in the absence of a request by management of the officers to order appellants to leave the premises, the officers had no right or authority to give such orders. There is no contention in this case that the officers had received such a request from management. Hence, the refusal of the defendants to leave was not unlawful and could not have been unlawful until they refused to leave at the request of the management or the officers in compliance with a request from management. In the Smith case all defendants but one left promptly at the request of the management. Certainly those leaving were guilty of no offense. The case of the one individual (in the Smith case) who did not leave promptly gives us more concern. However, we are constrained to believe that any unrest, tension or disturbance existent in the Pfeifer store at that time had already been created by the lawful efforts of all the defendants to obtain service. There is no showing that this act of the defendant created a disturbance or breach of the peace. A different question would be presented had this defendant been prosecuted under Act 14 of 1959 but no such charge was placed against him.

The point which we wish to make completely clear is that the mere fact that the exercise of a lawful right may result in a disturbance or breach of the peace does not make the exercise of that right a violation of the law so long as the right is exercised in a peaceful manner and without force or violence or threats of same. Therefore, we conclude that all defendants in all prosecutions under Act 226 of 1959 should have been acquitted.

In the Lupper case, which involves violations of Act 14 of 1959, was well as violations of Act 226, the appellants make the same contentions as to Act 14 as are made as to Act 226 and an additional point is raised as to alleged error in refusing to give certain instructions.

DUE PROCESS & EQUAL PROTECTION OF LAWS

Section 1 of Act 14 of 1959 [§ 41-1433 Ark.Stats.] reads as follows:

'Any person who after having entered the business premises of any other person, firm, or corporation, other than a common carrier, and who shall refuse to depart therefrom upon request of the owner or manager of such business establishment shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) or by imprisonment not to exceed thirty (30) days, or both such fine and imprisonment.'

Appellants assert that Act 14 is unconstitutional in that it denies them equal protection of the laws and due process as guaranteed by the Fourteenth Amendment to the Constitution of the United States and Section 8 of...

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4 cases
  • Hamm v. City of Rock Hill Lupper v. State of Arkansas
    • United States
    • United States Supreme Court
    • December 14, 1964
    ...On appeal to the Pulaski Circuit Court, a trial de novo resulted in verdicts of guilty and the Arkansas Supreme Court affirmed, 236 Ark. 596, 367 S.W.2d 750 [Fastcase Editorial Note: The Court's reference to 236 Ark. 596, 367 S.W.2d 750 is short for Briggs v. State, 236 Ark. 596, 367 S.W.2d......
  • Griffin v. State, 5503
    • United States
    • Supreme Court of Arkansas
    • June 29, 1970
    ...... The language is perfectly clear, and the intent to do the prohibited act is a criminal . Page 887. intent. Briggs v. State, 236 Ark. 596, 367 S.W.2d 750, vacated on other grounds sub nom., Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 S.Ed.2d 300 ......
  • Neal v. Still, 5--5268
    • United States
    • Supreme Court of Arkansas
    • June 22, 1970
    ...Appellant's contention that the statute requires neither knowledge nor intent as an element of the crime is answered in Briggs v. State, 236 Ark. 596, 367 S.W.2d 750, vacated on other grounds sub nom, Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964). In the statu......
  • Benton v. Kelley
    • United States
    • Supreme Court of Arkansas
    • June 11, 2020
    ...S.W.3d 722 (2004). While an inclination by this court to not follow Supreme Court precedent is not unknown, see, e.g. , Briggs v. State , 236 Ark. 596, 367 S.W.2d 750 (1963), it is ultimately self-defeating. Briggs was vacated by the Supreme Court in Hamm v. City of Rock Hill , 379 U.S. 306......

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