(dissenting). The majority is holding that there is no substantial evidence to sustain the convictions for violating Act 226 of 1959. I do not agree. The Act provides that anyone who shall enter any place of business and create a disturbance in any manner whatsoever shall be guilty of a misdemeanor. Not only did the appellants create a disturbance in Pfeifers, Blass and Woolworth’s, but they went to those places for the specific purpose of creating a disturbance. The evidence is overwhelming to that effect.
It is clear from the evidence that the appellants did not go to the lunch counters at the places mentioned because they were hungry and wanted food, and no one contends that they went there for that reason. The evidence shows conclusively that on the morning of March 10th a large group of people met at Philander Smith College and there agreed to go to Woolworth’s for the purpose of attempting to force that place of business to serve them food, when they had no reason to believe that they would be served such food. About 50 of them walked' from the college to Woolworth’s; they all went in at the same time and sat down at the lunch counter. There are only 59 seats at the counter. It is a matter of common knowledge that in going from the college to Woolworth’s they passed or went near numerous eating places that would have served them food.
Certainly, no operator of a privately owned restaurant is required by law to serve anyone he does not want to serve. The appellants are presumed to know the law, and when they went there they knew they could not lawfully require Woolworth’s to serve them food. And they knew to a moral certainty that Woolworth’s would not voluntarily serve them.
The evidence is overwhelming that appellants went to Woolworth’s for the very purpose of creating a disturbance by violating the custom and practice of the community in seating themselves at a lunch counter reserved for others. Even when they were not served and the lunch counter was closed because of their conduct in occupying the seats, they continued to sit there. Of course, such an unusual occurrence created a disturbance, and someone called the police. When the police arrived and asked them to remove themselves from the lunch counter, about 45 complied, but five continued to sit there, although the lunch counter had been closed. When all the facts are considered, there is no conclusion to be reached except that appellants went to Woolworth’s to create a disturbance, to disrupt business and harass the proprietor. If this is not disturbing the peace, then it is hard to see how anyone could ever commit that offense.
The majority opinion is based on the premise that if a person is doing something lawful, he cannot be guilty of disturbing the peace. In my opinion, such reasoning is not sound. Certainly one has a right to pray or sing or do many other things that ordinarily would not be unlawful, but when such acts are done in a manner calculated to disturb the peace of the community, and does disturb the peace of many people to the extent that officers of the law have to be called to handle the situation, such acts are unlawful.
Disturbing the peace is synonymous with disorderly conduct and is so regarded in our statute. Our disturbing the peace statutes are placed under the heading of Disorderly Conduct in Ark. Stats., Vol. 4, p. 57. There have been many convictions for disturbing the peace or disorderly conduct that have been affirmed where the defendant had not so flagrantly violated the rights of others as was done by the appellants in the case at bar. In the case of State v. Cooper, 285 N. W. 903 (Minn. 1939), a discharged chauffeur had his former employer’s home picketed with a banner reading “Unfair to Private Chauffeurs and Helpers Union, Local No. 912”. In sustaining a conviction for disorderly conduct by the one carrying the banner, the Minnesota court said: “ ‘ Conduct is disorderly, in the ordinary sense, when it is of such nature as to affect the peace and quiet of persons who may witness the same and who may be disturbed or provoked to resentment thereby. ’ Or, as stated further: ‘ The probable and natural consequence of the conduct is the important element.’ As to modern statutes and ordinances relating to disorderly conduct, ‘it may be said in general that words and acts which tend to disturb the peace ... of the community, or of a class of persons, or of a family, are punishable.’ 18 C. J. p. 1216, [§ 2]B, and cases under note 12. And in several jurisdictions it has been held that such conduct ‘ as in the opinion of the magistrate tends to a breach of the peace’ is punishable; 'and even in the absence of such a statutory definition it is generally a question for the magistrate whether or not the particular act complained of is comprehended within the expression “disorderly conduct”.’ Id. and cases under notes 16 and 17; 8 R. C. L. p. 285, § 306, and cases under note 7. We are of opinion and so hold that it was for the court to determine whether upon this record defendant was guilty, and that its findings in that behalf should not be overturned. The judgment and sentence are therefore affirmed.”
In Bennett v. City of Dalton, 25 S. E. 2d 726 (Ga. 1943), the defendants were distributing a religious magazine known as “The Watch Tower” and caused a crowd to gather. A policeman told them to move on, which they refused to do, stating they were doing the Lord’s work and would have to be locked up. They were therefore arrested. In affirming the convictions for disorderly conduct, and notwithstanding the constitutional guarantee of freedom of speech, freedom of press, freedom of worship and religious liberty was involved, the Georgia court said: ' ‘ The testimony of the policemen authorized the recorder, sitting as both judge and jury, to find that the refusal of the defendants to move on, after having been directed to do so by an officer of the law, constituted disorderly conduct.” Certiorari was denied by the United States Supreme Court. Bennett v. City of Dalton, 64 S. Ct. 197, 320 U. S. 712, 88 L. Ed. 418.
In the New York case of People v. Galpern, 181 N. E. 572 (1932), a policeman told about five or six men congregated on a sidewalk to move on, which they refused to do. The court found that they were violating no law at the time, but they were guilty of disorderly conduct in refusing to move on when directed by an officer to do so. The court said: “The courts cannot weigh opposing considerations as to the wisdom of the police officer’s directions when a police officer is called upon to decide whether the time has come in which some directions are called for. ’ ’ And that is exactly the situation that existed in the case at bar. The police were of the opinion that the situation was tense and such that the Negroes should move on, and only the ones who refused to do so were arrested. In addition to what has been said heretofore, clearly their refusal to move on when directed by an officer of the law created a disturbance within the meaning of the statute.
Under the decision handed down by the majority, a large number of people can go into any place of business, create a disturbance by their presence, disrupt business and annoy the proprietor to no end, and there is nothing-lie can do except request them to leave, which they can do and immediately return to the restaurant or other place of business and go through the same procedure until the owner breaks down and does business with them or goes out of business.
The trial court was completely justified in finding from the evidence in the cases that the real purpose of the appellants in going to the lunch counter at Woolworth’s was to unlawfully harass the owners, thereby compelling-such owners to serve food to the appellants or close the lunch counter. Here, the owners adopted the procedure of closing the eating places. The same thing occurred at Pfeifers and Blass.
In my opinion the evidence is ample to sustain the convictions for violating- the provisions of Act 226 of 1959, and in addition, Ark. Stats. § 41-1403 provides that if two or more persons assemble together for the purpose of disturbing the peace they are guilty of a misdemeanor.
For the reasons given I therefore dissent.
Supplemental opinion on denial of request for rehearing-in Case No. 4997 delivered June 3, 1963.
Jim Johnson, Associate Justice. Subsequent to the opinion delivered by this court in Lupper v. State on May 13, 1963, the United States Supreme Court on May 20, 1963, rendered opinions in four “sit-in” cases the pendency of which was specifically referred to in our opinion as cases in the nature of and similar to the cases at bar. The four cases are Avent v. North Carolina, # 11; Peterson v. City of Greenville, # 71; Lombard v. Louisiana, # 58; and Gober v. Birmingham, # 66.
Within the time prescribed by the rules of this court, appellants have petitioned for a rehearing urging reconsideration of our opinion in the light of these recent pronouncements of the United States Supreme Court.
A careful examination of copies of the official opinions in these cases furnished us by the Government Printing Office discloses that the court [in Lombard v. Louisiana, # 58] summarized its own holdings as follows:
“We have . . . held . . . that where an ordinance makes it unlawful for owners or managers of restaurants to seat white and Negroes together, a conviction under the State’s criminal processes employed in a way which enforces the discrimination mandated by that ordinance cannot stand. Equally the State cannot achieve the same result by an official command which has at least as much coercive effect as an ordinance.”
In compliance with petitioners’ request for review, we have reexamined our opinion in the light of the cited cases and find that appellants did not claim nor was there any showing made relative to the existence of a state law or municipal ordinance in the City of Little Rock which made it unlawful for owners or managers of restaurants or lunch counters to seat whites and Negroes together. Further, appellants did not claim nor was there any showing made that any official command was issued which could remotely have the coercive effect of a law requiring segregation of the races in restaurants or lunch counters. In fact, from our assiduous review of the entire record before us, we have been unable to find any claim, evidence or showing indicating in the slightest respect that the decision of the manager in the case at bar to exclude these petitioners from the lunch room was anything except the exercise of freedom of choice. Having thus reviewed our opinion in the light requested, rehearing is denied.