concurring.
I join Part II of the Court’s opinion but would reverse on Count I for a somewhat different reason. The police power of a municipality is certainly ample to deal with all traffic conditions on the streets — pedestrian as well as vehicular. So there could be no doubt that if petitioner were one member of a group obstructing a sidewalk he could, pursuant to a narrowly drawn ordinance, be asked to move on and, if he refused, be arrested for the obstruc*96tion. But in this case the testimony is that the group dissolved when warned by the police, save only the petitioner.* At the time of the arrest petitioner was no longer blocking traffic. Section 1142 of the Birmingham General Code makes it unlawful to “obstruct the free passage of persons on . . . sidewalks.” The ordinance, as it has been construed by the Alabama Court of Appeals, has been held to apply only to one who continues to block a sidewalk after a police warning to move. Middlebrooks v. City of Birmingham, 42 Ala. App. 525, 527, 170 So. 2d 424, 426. There was no such “obstructing” here, unless petitioner’s presence on the street was itself enough. Failure to obey such an order, when one is not acting unlawfully, certainly cannot be made a crime in a country where freedom of locomotion (Edwards v. California, 314 U. S. 160) is honored. For these reasons I think there was no evidence, within the meaning of Thompson v. City of Louisville, 362 U. S. 199, to sustain the conviction and hence I would reverse the judgment outright.
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS.
Officer Robert L. Byars, who made the arrest, testified on cross-examination as follows:
“Q. How many persons were standing there at that intersection when you first observed it?
“A. Some ten or twelve.
“Q. Were they all colored or white people, or altogether or what?
“A. I didn’t pay particular notice to the race.
“Q. You stood there a minute or minute and a half and then you went out and cleared the intersection?
“A. I went out and asked them to move.
*97“Q. Was that great big crowd out there and the intersection completely blocked? You testified you had half of the south-north cross walk free, that the defendants were not blocking half of the south-north cross walk, they were standing in the west part of the cross walk where they should be standing assuming they were going south, they were not blocking the east-west cross walk at all? Now, where was the crowd that was blocking?
“A. They were all standing on the sidewalk.
“Q. You mean the crowd?
“A. That’s right, including the defendant.
“Q. Now, you placed the defendants where you have the X. Now, the crowd is what we are interested in now, the crowd they were blocking, where were they?
“Mr. Walker: We object. There has been no testimony that there was a crowd that was being blocked; the testimony is there was a crowd blocking the moving trafile.
“Q. Are these defendants charged then with assembling the crowd or something? Who were they blocking? Where were the persons they were blocking, these two defendants here?
“A. They were blocking half of the sidewalk causing the people walking east to go into the street around them.
“Q. The people walking east along what street?
“A. Along 2nd Avenue.
“Q. Along this way (indicating)?
“A. That’s right.
“Q. The people walking along 2nd Avenue from west to east had to go around them?
“A. That is true.
“Q. While they stood there?
“A. That is true.
“Q. And you observed that for a minute or minute and a half?
*98“A. That is true.
“Q. And then you went out and you required them to move on. Did you speak directly to the Defendant Shuttlesworth?
"A. I spoke to the people standing assembled there.
“Q. They all moved but him, is that correct?
“A. Not on the first request they didn’t all move. Some began to move.
“Q. Well, all had moved by the time you made the arrest?
“A. Except Shuttlesworth.
“Q. Nobody was standing there but Shuttlesworth?
“A. Nobody was standing; everybody else was in motion except the Defendant Shuttlesworth, who had never moved.
“Q. Was he talking to you during this time?
“A. He made a statement to me on two occasions when I informed him to move on on three occasions.
“Q. Did he ask you where you wanted him to move?
“A. No.
“Q. Did you tell him where to move?
“A. I did not.
“Q. You didn’t arrest anybody but Shuttlesworth?
“A. Not at that time.” (R. 27-28.)
Officer C. W. Hallman, who observed the above after having been called over by Officer Byars, testified on direct examination as follows:
“Q. About how many was in the group at that time, if you know?
“A. I would say five or six. It could have been more or less.
“Q. What happened to the group then, if anything?
“A. All of them dispersed except Shuttlesworth.
“Q. What happened after that?
“A. Officer Byars told him he was under arrest for blocking the sidewalk and placed him under arrest.” (R. 59-60.)
See Appendix hereto.