SHUTTLESWORTH v. BIRMINGHAM

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Argument of Constance Baker Motley

Chief Justice Earl Warren: Number 67, F. L. Shuttlesworth et al.

Petitioners, versus City of Birmingham.

Ms. Motley, you may proceed with your argument.

Ms Constance Baker Motley: Mr. Chief Justice, and may it please the Court.

In this case, the petitioners are two Negro ministers here on the grant of certiorari by this Court to review their convictions by the Alabama State Courts on a charge of inciting, aiding or abetting for violation of the trespass after warning ordinance which we have just discussed as a basis of the convictions of these students in the preceding case.

Now, the ordinance in this case also appears on page 2 of our brief.

It is a very strong ordinance which reads, “it shall be unlawful for any person to incite or aid or abet in the violation of any law or city ordinance or any provision of state law, the violation of which is a misdemeanor.”

Now, the records on which the state seeks to sustain these convictions, contained only the testimony of a Birmingham City detective, and this detective did not himself personally witness any of the facts to which he testified on this trial.

He was present in the Recorder's Court when these petitioners in this case were on trial and he testified in the Circuit Court on the new trial as to what he heard other witnesses say in the lower court.

Now, the entire testimony in the record in this case is very brief.

The first petitioner is Reverend Shuttlesworth.

Now, the testimony as to what Reverend Shuttlesworth did, the detective said, was that Gober and Davis, petitioners of the preceding case, testified that they took part in the sit-in demonstrations on March 31st, 1960.

And that they went to Reverend Shuttlesworth's house the preceding evening and discussed sit-in demonstrations.

Reverend Shuttlesworth was present, his wife was present, and several others students were present and the second petitioner in this case, Reverend Billups was present.

At this discussion, somebody prepared a list.

Now, who prepared it or what the list was, the record does not show.

The only other thing the record shows is that Reverend Shuttlesworth asked for volunteers and at one point said or announced, that he would get them out of jail.

Now, on that testimony, Reverend Shuttlesworth has been sentenced to 180 days at hard labor and a fine of $100.

Now, the testimony as to Reverend Billups, the other defendant -- or the other petitioner in this case, Davis one of the students in the preceding case reportedly testified that Reverend Billups picked him up on the campus of Daniel Payne College which Davis attends and drove him to Reverend Shuttlesworth's house and that Reverend Billups was present during the discussion.

What Reverend Billups said does not appear in the record at all.

From the record, it appears and he said, absolutely nothing and on that evidence, Reverend Billups has been sentenced to 30 days at hard labor plus a $25 fine.

Now we say first, that these convictions must be reversed because the record is devoid of any evidence to support a conviction that these petitioners urge the violation of any valid law of the City of Birmingham.

What they were urging was a sit-in demonstration.

Now, in order for this Court to find that what they were urging was a violation of some valid law of the City of Birmingham, it seems to me that this Court would have to find that a sit-in per se, as the court below finds, is a violation of law.

Now, as the prior decisions of this Court show, a sit-in per se is not an unlawful activity.

In the Garner case and in many state court cases, these convictions have been reversed or the petitioners have not been convicted and their cases have been dismissed, so that to urge somebody to participate in a sit-in demonstration is not itself a violation of any valid law.

Justice Hugo L. Black: Why wouldn't it be in your judgment?

Ms Constance Baker Motley: Because all they're urging is a protest against, in this case state enforced segregation and I think we have a right to protest against state enforced segregation.

Justice Byron R. White: By opinion?

Ms Constance Baker Motley: Yes, this is a method of communication.

In this case, these people went in to this place and sat down in an orderly fashion.

There were only two involved.

They didn't carry placards into the place.

Their activity was of -- in protesting was appropriate to the circumstance.

Justice Hugo L. Black: Was it charged or proven that they went there, that they were urged to go there and stay after the owner and knowingly advised them to leave --

Ms Constance Baker Motley: No, they test --

Justice Hugo L. Black: -- was there any evidence to that effect?

Ms Constance Baker Motley: Not in this case.

Justice Hugo L. Black: That's this one you're arguing, isn't it?

Ms Constance Baker Motley: That's right.

The -- there was no evidence that Shuttlesworth urged them to stay there until they had been arrested and until they had been ordered to leave.

There is no testimony, that's we're saying.

Justice Hugo L. Black: Well, would it have been a violation of this ordinance not the one that conceded to be invalid, but the one which is the basis of the other prosecution, would there have been any violation of that ordinance to go in there and stay before they were invited, told to get out by the owner?

Would they have violated any law by going in there and staying until the owner told them to get out?

Would they have violated this city ordinance?

Ms Constance Baker Motley: Well, in the circumstance of that Gober case, I think we've shown that the owner ordered them out and I think that --

Justice Hugo L. Black: I'm not talking about Gober, I'm talking about this one.

Is there any evidence in this case show that Shuttlesworth and this other man urged them to go into the store and stay there even though the owner ordered them to get out?

Ms Constance Baker Motley: No sir.

Justice Byron R. White: There is -- except the urging -- whatever you mean by a sit-in?

Ms Constance Baker Motley: That's right.

Justice Hugo L. Black: Well, I don't suppose we could take judicial knowledge of this issue – that they got to stay there or they order them out if that --

Ms Constance Baker Motley: Well --

Justice Hugo L. Black: -- if that's a valid law.

Ms Constance Baker Motley: I think that's different.

I think that they were going in there in this manner to protest, that's true.

But there is no evidence in this case that Reverend Shuttlesworth said to them, stay there until such time as your ordered to get out or stay there until the police come along and arrest you.

There just isn't any evidence in this record to that effect.

Justice Hugo L. Black: In other words, you say that taking all their evidence as proof, they did not prove any evidence from which it could be found that he urged them to go and then break this law by staying after they were ordered to leave?

Ms Constance Baker Motley: That's right.

That's right, exactly.

Justice John M. Harlan: [Inaudible] considers state court could permissively draw from the evidence that Shuttlesworth told them, I will get you out of jail, get them out of jail?

Ms Constance Baker Motley: Yes, the state --

Justice John M. Harlan: That's the real question, isn't it?

Ms Constance Baker Motley: That's right.

The state court drew the inference from that that Shuttlesworth had said to stay there until you're arrested and even the Court had difficulty with that because if you read their opinion, they were quite aware of the fact that there was no evidence that Suttlesworth told them to stay there until the police came.

What they actually said -- it's at the bottom of page 44, the second paragraph in the bottom.

There is no question of the restriction of any right of free speech or other simulated right derived from the Fourteenth Amendment since the appellant counseled the college students not merely to ask service in a restaurant but urged, convinced and arranged for them to remain on the premises presumably for an indefinite period of time.

And they used that word because there was no evidence in this record that Shuttlesworth said to stay there until you're asked to leave, stay there until the police came.

Justice John M. Harlan: But --

Ms Constance Baker Motley: They might have gone in and left after they were asked to leave as far as this record is concerned.

Justice John M. Harlan: What finding, if any, did the trial court make on that from that evidence, anything?

Ms Constance Baker Motley: This Court -- the trial court?

Justice John M. Harlan: Yes.

Isn't this the appellate court you --

Ms Constance Baker Motley: This is the --

Justice John M. Harlan: Oh, I beg your pardon?

Ms Constance Baker Motley: -- court of -- the Court of Appeals.

Justice John M. Harlan: Is it the Court of Appeals?

Now --

Ms Constance Baker Motley: Yes.

Justice John M. Harlan: Now, what was the trial court?

What did they find, if anything, on the significance to that portion, the federal or the state?

Ms Constance Baker Motley: Well, there was no opinion by the trial court in this case.

Justice Hugo L. Black: There was no jury, wasn't it?

Ms Constance Baker Motley: There was no jury.

No, but they were tried before the Court without a jury and convicted, found guilty and the sentence imposed.

Justice Hugo L. Black: No opinion of any kind, was there?

Ms Constance Baker Motley: No, I don't believe there was sir.

Unknown Speaker: [Inaudible] in the trial court.

Ms Constance Baker Motley: No, none at the trial court level.

The only opinion is the Court of Appeals' opinion in the said case.

Justice Hugo L. Black: This is what's I'm asking, the trial court.

Chief Justice Earl Warren: If we should reverse the Gober case, could this stand under any circumstances?

Ms Constance Baker Motley: I didn't get the --

Chief Justice Earl Warren: If we were to reverse the Gober case, could this case stand under any circumstances?

Ms Constance Baker Motley: No sir.

Chief Justice Earl Warren: Because it's merely aiding and abetting?

Ms Constance Baker Motley: Yes, they were charged with aiding and abetting, yes.

Chief Justice Earl Warren: Yes.

Ms Constance Baker Motley: This -- the violation of the trespass after warning.

Now, this Court should find that the Gober convictions are invalid, I should think that these convictions would automatically fall.

Chief Justice Earl Warren: Have to fall.

Justice John M. Harlan: Was that necessarily follow, do that necessarily follow?

Ms Constance Baker Motley: If this Court should free Gober and --

Justice John M. Harlan: Yes.

Ms Constance Baker Motley: Yes, I think because all they were charged with was urging or inciting and aiding and abetting Gober to commit a crime and if he is found not to have committed any crime, I should think that their conviction would fall.

Justice John M. Harlan: Well, wouldn't -- then on what ground did the Gober case was reversed supposing in the Gober case it was reversed on the ground that the evidence wasn't sufficient?

Ms Constance Baker Motley: Evidence wasn't sufficient to?

Justice John M. Harlan: To permit the conviction of Gober.

Does conviction under your aiding and abetting statute, this statute we're concern with here, depend upon proof that the substantive crime which was inciting --

Ms Constance Baker Motley: Otherwise -- is that what you mean now.

Justice John M. Harlan: -- was committed?

Ms Constance Baker Motley: No sir.

I think that -- it's correct that in a -- under statute like this, you don't have to prove that a --

Justice John M. Harlan: You don't have to prove it.

Ms Constance Baker Motley: -- substantive crime was actually committed.

But you have --

Justice John M. Harlan: Yes.

Ms Constance Baker Motley: -- but if you can show that they urged the violation of a valid law, they're still guilty whether that act was actually committed or not, yes.

Justice John M. Harlan: Therefore, you have to qualify your statement wouldn't you that -- under all circumstances reversed it in Gober would result in a reversal here would depend on the ground, wouldn't it?

Ms Constance Baker Motley: Yes.

Yes, I see what you mean now.

That's true.

Justice Byron R. White: Would the [Inaudible]

Ms Constance Baker Motley: The actual -- if the actual crime had not been committed, he could still be convicted of a crime of inciting a violation of a valid law.

Justice Byron R. White: [Inaudible]

Ms Constance Baker Motley: That's right.

He could have been convicted of this section in this case, but we say that his conviction is invalid because there is no evidence that he urged a violation of any valid law.

All it shows is that they discussed a sit-in.

Now, a sit-in means the cause that you go in but it doesn't necessarily mean you stay there until you're asked to leave.

And it doesn't necessarily say, you stay there until the police are called because these sit-ins have taken various forms as the history of the sit-in show, some of them have gone in and some have left when they were asked to leave and they were not arrested.

Justice Byron R. White: Well, I suppose there's some question about anybody's ability to incite a violation of this trespass law in the faith of a municipal ordinance requiring segregation.

Ms Constance Baker Motley: Yes.

I think that what happened here was the segregation ordinance.

It must be considered as we ask this Court to consider it and considering this conviction that what was really behind it was the segregation ordinance.

We ask the Court in this case also to take judicial notice about segregation ordinance in considering what was behind the situation.

Justice William J. Brennan: Now here, was there any reference at all about (Inaudible) --

Ms Constance Baker Motley: No, no.

In this trial, there was not Your Honor.

We only ask the Court to take judicial notice of a law that the court of the state could have just --

Justice William J. Brennan: How about on appeal?

Ms Constance Baker Motley: Pardon me?

Justice William J. Brennan: How about in the brief on appeal?

Ms Constance Baker Motley: No, I don't believe they raised that on the appeal on this case, but this Court now judicially know certainly from the preceding case that this ordinance is in the background of this situation.

And what Shuttlesworth was urging if he's urging anything which was a law of the City of Birmingham, a violation of, it was this invalid city ordinance requiring racial segregation and certainly, the law -- even this ordinance doesn't say, you may be convicted for urging a violation of an invalid law.

Justice William J. Brennan: Mrs. Motley, from what said in the Court of Appeals at page 44 of its opinion, would it not appear that they sustained the conviction solely on the incite language of the ordinance?

Ms Constance Baker Motley: Yes, it appears --

Justice William J. Brennan: So that any aiding and abetting is out, isn't it?

Ms Constance Baker Motley: Well, they said that our brief talked only about aiding and abetting and forgot about incite.

Justice William J. Brennan: Yes.

Ms Constance Baker Motley: Now, I don't know whether we can say they --

Justice William J. Brennan: Well, its --

Ms Constance Baker Motley: -- rest on it solely on that or not.

Justice William J. Brennan: It's not the clearest in the world but it does look as though the court said in any event we can sustain this on the incite --

Ms Constance Baker Motley: Inciting, yes.

Justice William J. Brennan: -- without reference to aid or abetting.

Ms Constance Baker Motley: Yes.

They said that we just talked about aiding and abetting and we forgot all about inciting and certainly, there was inciting here to violate a city ordinance, and this is -- they found.

And then they -- as I say, they went on to hold a sit-in per se an illegal activity.

And this is a basis on which these people were convicted just by finding that if you go and sit in a place and even if you leave, in other words, before you're asked or you don't intend to go in there to stay until the police, nevertheless that's a form of trespass, they say after warning just to go in a place and sit down.

Justice John M. Harlan: Can I ask you one question before you sit down?

Ms Constance Baker Motley: Yes sir.

Justice John M. Harlan: Assuming and I'm not suggesting, so assuming however that one concluded that the evidence was sufficient as to Shuttlesworth, could Billups be held on the evidence of -- is being having taken students over to Shuttlesworth's premises plus his presence there as an aider and abetter of Shuttlesworth's incitement either under the provisions of the abetting provisions of this statute or under some general accessory of law that maybe in your state?

Ms Constance Baker Motley: I would say no, because there's nothing in this record to show that Billups did anything at all except take this man there and sit there.

I don't see how a man could be convicted for a crime and if you read Gober's or Davis' testimony, his testimony in the preceding case was that he asked Reverend Billups to drive them over there when he saw Reverend Billups on their campus.

Of course, that's not in this record, it's in the preceding record.

But I don't think that this man Billups could be held guilty of a crime because he sat in on this discussion where the record shows that he said absolutely nothing.

Justice John M. Harlan: Do you have a general accessory statute in Alabama?

Ms Constance Baker Motley: Well, I don't really --

Justice John M. Harlan: This is Alabama, isn't it?

Ms Constance Baker Motley: I understand they do have a general ordinance --

Justice John M. Harlan: Can you give me the citation to it?

Ms Constance Baker Motley: We don't have the citations to that Your Honor.

Justice John M. Harlan: I'll check it.

Ms Constance Baker Motley: I'd like to save the remainder of my time for the rebuttal.

Chief Justice Earl Warren: You may.

Mr. Davis.

Argument of Watts E. Davis

Mr. Watts E. Davis: May it please the Court.

I believe one of your justices just asked the question of whether or not without the use of the word “incite,” the petitioners would have still been involved under the aiding and abetting language and I have cited in my brief, the case of Davis versus State, 36 Alabama, well of course its cited, which -- and this is on page 11 if you have my brief.

The words, aid and abet comprehend all the systems rendered by actual words of encouragement or support and then went on to say, nor is it necessary to show prearrangement to do the specific wrong complained of and I also cite the case [Inaudible] versus State stating aiding and abetting and comprehend all the assistance rendered by acts or words of encouragement.

And then also, the participation in a crime in the community of purposes -- that perpetrators need not be proved by direct or positive testimony but may be inferred from circumstantial evidence and that's Parsons versus State all of which are set out on page 12 of respondent's brief.

But actually, I don't think there's any special significance in the use of the word “incite” except it might clarify to some extent, but the state courts in construing its own statute have said that the actual word of encouragement are sufficient under aiding and abetting alone without even referring to the use of the language incite was [Inaudible] --

Justice William J. Brennan: [Inaudible] facing this only on this opinion of the Court of Appeals and that's (Voice Overlap) --

Mr. Watts E. Davis: I think I can explain that to his Honor --

Justice William J. Brennan: -- before this Court.

Mr. Watts E. Davis: I think I can explain that.

Justice William J. Brennan: I see.

Mr. Watts E. Davis: There -- that brief which you don't have and I have read what the great -- let's say, well they never proved that these students went out anywhere and committed any crime.

Now, how can you aid and abet somebody when you haven't established they committed a crime?

I pointed out in my brief that they were overlooking and used the word incite and -- because they used the word incite is convenient in this case because -- and you don't need the Court decisions to read the -- that end, that word encouragement, are aiding and abetting.

So our ordinance simply spells out that inciting is one of the alternate modes of offending the ordinance.

Justice William J. Brennan: Well, then you read the opinion as saying that the conviction can rest on the language aid or abet?

Mr. Watts E. Davis: Oh, yes sir.

Yes sir.

Yes sir.

Incite actually is nothing in our opinion but they had gone on this level that they have to aid and abet somebody to do a crime.

Justice Hugo L. Black: Crime?

Mr. Watts E. Davis: And they'd made it more of convenient well on offense.

And it made it more convenient to say well, let's use the word incite, that's a clear word and you'll overlook it and I pointed out that they were overlooking the inciting part.

Because I think incite give the flavor of the thing.

At least it warrants you that you don't have to have a combination of this thing result in some actual offense later on.

If I get out here and hold a meeting and I said, I don't want you people, get out here and I want you to go about this plan of robbery or intimidation and incite the other.

And I may do my best to influence them, but my powers in persuasion are not always very successful and they may change their mind, but the point is I -- I am inciting and the court in its decision under the state statute said that I'm also aiding and abetting, but they tried to go on the theory that to aid and abet should had to have the actual commission of the crime.

As I pointed out in brief, many cases called it even the common law, that's what in the facts and our position is simply that we have codified one in effect was common law.

Justice Arthur J. Goldberg: Mr. Davis, where in this record or was there any evidence, any evidence that Reverend Shuttlesworth incited or aided and abetted anybody to do anything [Inaudible] sit-in? I don't take it your contention here, that a sit-in as such is illegal under the law of Birmingham.

Mr. Watts E. Davis: Well, I say this that the Appellate Court in Alabama said that they sit down, they used the word sit down as contrast to sit-in.

It was comparable to sit down strikes and that evidently the connotation that we used here, you see these things were discussed in a meeting, they would just -- sit down was used all through the trial and no one ever objected to it.

Everyone understood the use of the word, the Court reasoned that it was comparable to the Fansteel case wherein you had your sit down strikes.

Justice Arthur J. Goldberg: But the charge here was a violation of Section 1436?

Mr. Watts E. Davis: A trespass after --

Justice Arthur J. Goldberg: The trespass after warning.

Mr. Watts E. Davis: -- warning and the Court in this instance construed that to include a sit down and the question really is I assume what is a sit down, what did – prime out to that question, the question is, did the Court have the right to assume if you were to sit down was and in this case, it did.

Justice Hugo L. Black: Suppose they had done precisely what's the Court of Appeals said, gone there and sat it down for an indefinite time and nothing had happened, would they have violated your law?

Mr. Watts E. Davis: I don't think the Court of Appeals was as comprehensive in its language that it might have been.

Justice Hugo L. Black: Well, it -- I suppose --

Mr. Watts E. Davis: I think it assumes that the parties in interest of this thing knew that there was warning involved it also.

Justice Hugo L. Black: All I'm saying -- asking is that whether this is crime or a quasi crime, it has to be proved in the Court, but the charge is that they incited them to violate this section.

Mr. Watts E. Davis: City ordinance or statute.

Justice Hugo L. Black: And you would agree that that meant that they violated nothing unless they were ordered to get out and refused to go out.

Mr. Watts E. Davis: That's right.

They -- you have to incite them to violate some city ordinance.

Justice Hugo L. Black: And they'd have to incite them to violate the whole thing which was to go in, not merely to go in but stay there after they were invited to leave.

Now, I have grave doubts myself in finding in the evidence that was given anything on which as Mr. Justice Harlan said, of course they could draw an inference.

It was to incite to violation of the law, that would be one thing, but I find it difficult to say because they had merely invited them to go there and stay even for a long time.

That that's enough, (Voice Overlap) --

Mr. Watts E. Davis: I agree with you Your Honor.

Justice Hugo L. Black: -- which I think a criminal or quasi-criminal activity have to be established to convict them (Inaudible).

Mr. Watts E. Davis: Well I agree with you, just suggesting when they go there and remain for long time would not be sufficient.

The essential element is, whether or not he had contemplated when they went there, they were only told to leave when he -- first, he asked for volunteers, well of course just to go there and sit and leave when they were told, then they didn't require volunteers.

Justice Hugo L. Black: [Inaudible]

Mr. Watts E. Davis: But he assured them he would get them out of jail.

Justice Hugo L. Black: [Inaudible] -- would the burden of proof that he -- you have to prove a crime by evidence if -- you can't just guess.

Mr. Watts E. Davis: I go along --

Justice Hugo L. Black: And --

Mr. Watts E. Davis: -- with Your Honor completely, yes sir.

Justice Hugo L. Black: And of course, that here, they said go there.

Well, I can well imagine that much could be accomplished in a way, they [Inaudible] merely by going there and staying and then leaving.

Mr. Watts E. Davis: I would -- perhaps be one of the first to concede that this is not the strongest case I would like to have.

The question is -- the question here is whether or not the rule are set out in Thompson versus City of Louisville and as affirmed in Garner versus State of Louisiana is still in effect whether we have any evidence.

Justice Hugo L. Black: Well, it did.

I don't --

Mr. Watts E. Davis: Any evidence, whatever.

Justice Hugo L. Black: I must say that I understood that to mean, I had little to do with it, I understood that means that they must have some evidence from which it can be inferred, the man is guilty of each essential element of the crime.

Here, an essential element of the crime is to stay there as it conceded after they warned to leave. He didn't tell them to do that.

I would find it difficult myself to draw an inference from this evidence but that's what he told them to do, that's a basic conviction of a crime (Inaudible).

Mr. Watts E. Davis: Well, one thing is --

Justice Hugo L. Black: And talking at his home.

Mr. Watts E. Davis: Yes.

Well, I appreciate Your Honor's proper law on that and it's not an easy one and I don't think that it is, but we do have this situation, do we know what a sit-down demonstration is?

They cite more review articles that deal with them as a thing of common experience.

It was a fact of life in Birmingham when these things came up to trial -- at the trial, at the Circuit Court level.

They were an established fact of life.

When I asked to our superiors if they discussed sit downs, abet was the earlier evidence, he said, yes.

I said did -- do you know of your own knowledge that they in fact, these people are attending his meeting participated in the sit downs, yes.

I know of my own personal knowledge, yhey did.

Now, where is any question --

Justice Hugo L. Black: But the fact --

Mr. Watts E. Davis: -- what a sit down is.

Justice Hugo L. Black: The fact that they -- the fact that they went there and assuming if they went there and went further than they had -- language to do and were guilty of violating it.

You can't take that back, that is to show that when he told them this, he'd included something that you wouldn't (Voice Overlap) --

Mr. Watts E. Davis: Well, I think if he (Voice Overlap) something else --

Justice Hugo L. Black: -- without it.

Mr. Watts E. Davis: Yes sir.

I don't know of this other statements.

Justice William O. Douglas: I don't see why you make these concessions counsel because if this ordinance requires a separation to races in restaurant is valid, that whether they stay a minute or whether they stay ten minutes or whether they stay until there's a fight --

Mr. Watts E. Davis: Well, we don't, we've never conceded the ordinance was valid Mr. Justice Douglas.

And in fact, that brings me up to a point that --

Chief Justice Earl Warren: Mr. Davis, I was just wondering if the Court according to your theory could not take judicial notice of the provisions of an ordinance of Birmingham which specifically stated a crime, how can it take judicial notice of the fact that the term sit-in contains the elements of a public offense?

Mr. Watts E. Davis: I don't think it's the question of judicial notice Mr. Chief Justice.

Chief Justice Earl Warren: Well, what is -- how does it acquire, how to acquire knowledge in the (Voice Overlap) --

Mr. Watts E. Davis: In the first place -- first place, these petitioners passed up -- well, or at their insistence, they had no jury.

Chief Justice Earl Warren: Beg pardon?

Mr. Watts E. Davis: They had no jury, it was their choice and they elected not to have a jury to try the case so the Court sits as a jury.

If we had 12 men sitting there, and I think the two are the same in this situation where they elect to let the court act as jury.

He is charged by law, juror has to use his common experiences, his common sense, his common knowledge of affairs.

And he finds that as a matter of common experience not because he judicially knows something.

That -- I think judicial knowledge and things we know as a matter of common experience as jurors are two different things.

Chief Justice Earl Warren: You mean that a juror would be used -- would be expected to use his common sense --

Mr. Watts E. Davis: Yes sir.

Chief Justice Earl Warren: -- [Inaudible] such things but the judge would not?

Mr. Watts E. Davis: He is admonished -- I didn't say that.

Chief Justice Earl Warren: No, but the inference is there.

Mr. Watts E. Davis: Well, I didn't say that to you.[Attempt to Laughter]

I said simply this, a court judicially knows certain things, it may not know at all as is [Inaudible] [Laughter]

But jurors --

Justice Hugo L. Black: We don't concede that.

Mr. Watts E. Davis: This is purely argument.

Jurors are charged by the Court.

Gentlemen should be able to use your common experiences.

Those things you know are common facts in life.

That's why they picked 12 of them.

Together, a mass of human experiences and this thing was widely known, it's been sensationalized throughout our publications and I think outside of that as well.

But it was not something --

Justice Hugo L. Black: I know -- may I see Mr. Davis in that connection that I know -- I'm not an expert on it but I would think there are some sit-ins where they sit there until they're directed out and then they get out –-

Mr. Watts E. Davis: This rule, a little more stubborn.

Justice Hugo L. Black: Well, I say this -- they might have been when they got there.

Mr. Watts E. Davis: Yes sir.

Justice Hugo L. Black: But merely telling a man to go and --

Mr. Watts E. Davis: Well, I think this may answer that question and please, I don't want to go -- I want to save some time after the Solicitor General, 15 minutes if I may.

He assured them he would get them out of jail.

Now admittedly they didn't breach the peace.

Justice Hugo L. Black: Yes, but there was a --

Mr. Watts E. Davis: They claim that and we claim that.

Justice Hugo L. Black: There was an ordinance there, though where they could be put in jail whether they violated it or not.

Mr. Watts E. Davis: Not the petitioners.

No, the restaurant operator, the restaurant operator is the one that goes to jail under this restaurant ordinance that they bring up here in this Court.

Chief Justice Earl Warren: Couldn't anyone who aided and abetted him go to jail?

Mr. Watts E. Davis: I'm sure so, yes sir.

Chief Justice Earl Warren: Well, wouldn't these people be aiding and abetting him?

Mr. Watts E. Davis: No sir.

The ordinance doesn't say that.

The ordinance puts a burden on a restaurant operator for that petitions and inferences.

And then they were shown whether he had the petitions or inferences.

That isn't in the record even if we're going to try to find it in the record.

That is not in the record.

Justice Hugo L. Black: No, I was --

Mr. Watts E. Davis: Yes.

Justice Hugo L. Black: I was limited to the precise evidence that's in the record in a criminal case on the question of sufficiency.

Mr. Watts E. Davis: I'm lost a moment here.

Justice Hugo L. Black: Well, I -- you would too of course.

I say -- what I mean is that I agree with you that we should limit consideration of whether there's enough evidence here to the actual evidence as given in the case.

Mr. Watts E. Davis: Yes sir.

But I think there are reasonable inferences we may draw and one is this if they were not going to breach the peach, what were they're going to jail for.

If the operator of the restaurant was the one involved in not putting up the separate doors and the petitions and so forth, certainly they weren't going to jail for his people.

Then what did -- what did Reverend Shuttlesworth have in mind when he assure them he would get them out of jail.

They discussed --

Chief Justice Earl Warren: Well, we've had -- we've had some case is here, the Garner case and the Louisville case and other cases where they did put him in jail whether there wasn't any evidence of any kind against them.

Mr. Watts E. Davis: Well, I have to say this --

Chief Justice Earl Warren: I didn't say that under those circumstances something to that kind could happen.

Mr. Watts E. Davis: I agree with His Honor in this.

This may not have been the only conclusion reachable under the facts, but the question is whether the Court acting as a jury had any evidence before it, could it -- could it act upon any thing it had to find that he was inciting them to go or remain on the premises of another.

Justice John M. Harlan: Oh, [Inaudible] the rule and that is that we think that judge the constitutional permissibility of the inferences.

This isn't a question for us, it should -- as it might be if we were sitting under the state appellate court and reviewing the evidence.

Mr. Watts E. Davis: Yes sir.

Justice John M. Harlan: Was that the nature of the state questionnaire, I didn't – Well, I suppose an issue of the statement.

Justice Arthur J. Goldberg: Mr. Davis, [Inaudible] that the total evidence in your case, is why Reverend Shuttlesworth asked for volunteers to just stay and sit down [Inaudible].

Then the following day, they made some [Inaudible] and would get them out of jail, is that a [Inaudible]?

Mr. Watts E. Davis: There were a little bit more to it because there's --

Justice Arthur J. Goldberg: [Inaudible] of it anymore or the record's pretty careful as to [Inaudible]?

Mr. Watts E. Davis: You are on 30 and 31 I believe.

Justice Arthur J. Goldberg: [Inaudible] I don't want to take your time now, but that's all you did --

Mr. Watts E. Davis: Of course -- of course, we started out with the statements made by Gober and made by Davis on another occasion.

It describes the fact that Reverend Billups came out to school and then he rode with him and with several other people there to Shuttlesworth (Inaudible).

Justice Arthur J. Goldberg: [Inaudible] Reverend Shuttlesworth that what he did [Inaudible]

Mr. Watts E. Davis: Well, he discussed, yes.

He did -- he participated in the discussion and asked for volunteers and assured them he'd get them out of jail, that was it.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Watts E. Davis: So, that that --

Justice Arthur J. Goldberg: [Inaudible] and he would get them out of jail.

Mr. Watts E. Davis: That was [Inaudible] --

Justice Arthur J. Goldberg: And afterwards, --

Mr. Watts E. Davis: Yes sir.

Justice Arthur J. Goldberg: [Inaudible

Mr. Watts E. Davis: That's right sir.

Justice Arthur J. Goldberg: [Inaudible] that was another issue to [Inaudible]

Mr. Watts E. Davis: That's right, that's correct.

Justice John M. Harlan: What do you say about Billups?

Mr. Watts E. Davis: If I may take the liberty, counsel for petitioners, they didn't refer to the other record, some record in -- evidence to the carried six over the meeting, this one, he carried one.

One or six, I don't think it makes any difference.

But nevertheless, he was out to school and carried a student to the meeting.

He sat there.

He did not take a stand to negative his position.

But at least there were some evidence there that he was part and parcel of the scheme, they were both fraternities of the same -- of the minister [Inaudible]

Justice John M. Harlan: Is it permissible under Alabama law for a court to draw an inference in the failure that if the defendant take a stand -- take a stand in a criminal case?

Mr. Watts E. Davis: If -- it must not be commented upon to the jury but whether he commented or not, there is no evidence to negative.

That's the only point I make, not that he did negative that there is nothing to make.

And the Court in the Appellate Court opinion said, there's nothing -- have no choice but assume he was part and partial but he didn't get up leave.

There was no evidence of that.

There was no evidence that he recuse himself in any way from any responsibility.

But he did take someone there, he did remain there and these things were discussed in his presence.

I don't know whether it's a fact-finding of group of people gathering one person maybe standing over here just to count his own money, but I think they generally assumed he is part of the operation unless he takes the stand that it was of some strong defense.

Thank you.

Chief Justice Earl Warren: Ms. Motley, do you have any --

Rebuttal of Constance Baker Motley

Ms Constance Baker Motley: I have nothing further Your Honor.

Chief Justice Earl Warren: Yes, very well.