McKinnie v. State

• Decision Date: 08 January 1964
• Citation: 379 S.W.2d 214,214 Tenn. 195,18 McCanless 195
• Parties: , 214 Tenn. 195 Lester G. McKINNIE et al. v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 214

379 S.W.2d 214

18 McCanless 195, 214 Tenn. 195

Lester G. McKINNIE et al. v. STATE of Tennessee.

Supreme Court of Tennessee.

Jan. 8, 1964.

Petition to Rehear Denied March 5, 1964.

Looby & Williams, Nashville, for plaintiffs in error.

George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Nashville, for the State.

BURNETT, Chief Justice.

The plaintiffs in error were convicted of conspiring to injure the business of the B & W Cafeteria by blocking the entrance thereto in the event they were denied entrance to and service in said cafeteria. The jury recommended a fine of less than $50.00. The trial judge sentenced each of these defendants to ninety days in the Davidson County workhouse and fined each of them $50.00. An appeal was seasonably perfected, able briefs filed, and oral arguments were heard, and, after a thorough study of the record and applicable authorities, we now have the matter for disposition.

The indictment alleges a violation of two sections of the Tennessee Code, § 39-1101(7), T.C.A., and § 62-711, T.C.A. The pertinent part of § 39-1101, T.C.A., is as follows:

'The crime of conspiracy may be committed by any two (2) or more persons conspiring: * * * (7) to commit any act injuries to public health, public morals, trade, or commerce * * *.'

Section 62-711, T.C.A., provides, in part, that 'any person guilty of turbulent or riotous conduct within or about' any hotel, inn, restaurant, etc., is subject to indictment and a fine of not less than $100.00. Section 62-710, T.C.A., was also mentioned in the indictment and the trial court's charge, but the defendants were not charged with violating this Section of the Code; nor could they have been so charged since this Section does not purport to define an indictable offense. It was mentioned merely to indicate that the B & W Cafeteria was permitted, by statute, to refuse admittance to any person whom it did not desire to serve.

There are thirteen assignments of error. They will not be taken up seriatim, but all of them will be treated and answered in the course of this opinion.

At about 12:20, P.M., Sunday, October 21, 1962, just after many church services had ended, and at a time when the patrons of the B & W Cafeteria were arriving for lunch, for defendants appeared at the entrance of the cafeteria which is located on Sixth Avenue, in the heart of Nashville, Tennessee. When they arrived, they were informed by the doorman that the cafeteria did not serve colored people and that they could not enter. Despite this, the defendants remained at the entrance to the cafeteria and insisted that, 'We are coming in and are going to eat when we git in.'

The defendants were asked in a polite way to move along and to refrain from making any trouble. At this time, they had entered a vestibule to the cafeteria, the size of which is estimated as being from four feet by four feet to six feet by fix feet and four inches. The defendants were in the vestibule, but were not permitted to enter the main part of the restaurant. After the defendants refused to remove themselves from the vestibule and after the acts hereinafter set forth had been committed, the police were called and they escorted the defendants away.

In considering the evidence hereinafter briefly summarized, we must remember that, in this State, fact determinations and reasonable inferences to be drawn therefrom are for the trier of facts, in this case the jury. On a review of a judgment of conviction, if there is material evidence to support the judgment, the defendants are presumed to be guilty and this Court will not reconsider the question of whether or not the evidence shows that they are guilty beyond a reasonable doubt; but will consider only the question of whether the evidence preponderates against their guilt and in favor of their innocence. Smith and Reynolds v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959), certiorari denied by the Supreme Court of the United States, 361 U.S. 930, 80 S.Ct. 372, 4 L.Ed.2d 354 (1960).

The record clearly shows that these defendants physically blocked the entrance to the B & W Cafeteria by placing themselves in this small vestibule so as to prevent people from entering or leaving; and that entrance to and exit from the restaurant was not possible without squeezing and worming through the wall of flesh created by the defendants' presence and position. The evidence likewise shows that in blocking this entrance, the defendants were pushing and shoving to some extent in an effort to enter this restaurant, but were prevented from doing so because the doorman kept the inner door closed to them. For example, one of the State's witnesses testified about the situation as follows:

'Well, it was still blocked and people inside couldn't get out. And you could see the crowd outside--wasn't coming in. And it just seemed like an awfully long time till the--under the circumstances--it wasn't too long--while that state of confusion existed. * * *'

A number of other witnesses testified to this state of facts and as to things they heard while they were trying to get in or out of the restaurant. Probably under the record, one or two white people did squeeze their way either in or out while all of this was going on, but nevertheless these defendants refused to vacate the vestibule until they were peacefully escorted away by the police. The record clearly shows that after the vestibule was cleared, the people inside the restaurant were able to go out and the people outside the restaurant were able to enter. There is also proof that there were as many as seventy-five people on the outside attempting or wanting to get in while these defendants were in the vestibule.

Section 39-1101, T.C.A., makes it a misdemeanor for two or more persons to conspire to do an unlawful act. In order for the offense to be indictable, it must be committed manu forti--in a manner which amounts to a breach of the peace or in a manner which would necessarily lead to a breach of the peace. The charge here, as it is clearly set forth in the indictment, is that the defendants crowded into this small vestibule and through their actions, as detailed above, committed an act injurious to trade and commerce. When two or more persons conspire to commit an act such as this, § 39-1101, T.C.A., provides that they shall be guilty of a conspiracy. Section 62-711, T.C.A., in part provides that when a person is guilty of turbulent or riotous conduct within or about restaurants, hotels, etc., he may be indicted and fined not less than $100.00. One of the questions raised by the defendants is whether the indictment in this case sufficiently describes the offense to meet the requirements of § 40-1802, T.C.A., which provides that the indictment must state the facts in ordinary and concise language so as to enable a person of common understanding to know what was intended, etc. Clearly, the indictment in this case, which consists of over a legal page in 10 point type, informs each of the defendants of the conduct for which he has been indicted, and the statutes which the State contends that such conduct has violated.

The defendants through various motions and throughout the trial attempted to say that this prosecution was brought for the purpose of enforcing a rule of segregation or racial exclusion in facilities licensed by the State, open to the public, and vested with public interest; and that such a prosecution is contrary to the due process and equal protection clauses of the 14th Amendment to the Constitution of the United States. From a very careful examination and reading of the record, the indictment, and the charge of the court, we certainly feel that such questions are not determinative of this prosecution. We can assume for the sake of argument that discrimination based on race by a facility such as this cafeteria does violate the due process and equal protection clauses, but these questions are not presented here. A careful reading of this record shows that the only question is whether or not these defendants were attempting, in an illegal manner, to correct what they deemed to be an unconstitutional practice on the part of this cafeteria; and, if the method which these defendants adopted was illegal, whether it constitutes a misdemeanor under the Sections of the Code under which they were indicted.

This Court long ago in State v. Lasater, 68 Tenn. 584 (1877), held that an indictment under § 62-711, T.C.A., was good and that the act was constitutional. In that case, a judgment quashing the indictment was reversed where the indictment alleged that the defendant had been guilty of turbulent and riotous conduct within and about a hotel by quarreling, committing assaults and batteries, breaches of the peace, loud noises, and trespass upon a hotel. It seems to us that there is sufficient proof in the instant case, which the jury apparently believed, to warrant the conviction under this Section. The word 'riotous' is defined by Webster's New World Dictionary as 'having the nature of a riot or disturbance of the peace.' The conduct of the defendants certainly meets this definition. Nowhere in this record is it insisted that there was not a prior agreement to engage in such conduct if entrance to this restaurant was denied. In Smith and Reynolds v. State, supra, this Court had occasion to define a criminal conspiracy. This definition seems to meet the situation here. We likewise held in the Smith and Reynolds case that a conspiracy may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators, and other circumstances; and that such a conspiracy consists of a combination between two or more persons for the purpose of accomplishing a criminal or unlawful act, or an object, which although not criminal or unlawful in itself, is pursued by unlawful means, or the combination of two or more persons to do something unlawful, either as a...