# Abernathy v. State

> Alabama Court of Appeals · October 23, 1962 · 42 Ala. App. 149

URL: https://www.frixlaw.com/law-library/cases/9527876

## Case

- **Full name:** Ralph D. ABERNATHY v. STATE
- **Court:** Alabama Court of Appeals
- **Decided:** October 23, 1962
- **Citations:** 42 Ala. App. 149; 155 So. 2d 586; 1962 Ala. App. LEXIS 142
- **Precedential status:** Published
- **Opinion:** Dissent by Cates
- **Judges:** Price, Cates
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9527876

## Opinion text

CATES, Judge
(dissenting).
I must respectfully dissent because, to me, at the trial below, the State did not prove beyond a reasonable doubt that there was a clear and imminent danger of a breach of the peace.
These defendants came to the bus station in protective custody of the militia, i. e., voluntarily escorted for their own safety. To say that as interstate travelers they had a “right” to eat black and white side by side at the bus station lunch counter, may not be a precise statement. Under Boynton v. Virginia, 364 U.S. 454 , 81 S.Ct. 182 , 5 L.Ed.2d 206 , the federal courts call it “unjust discrimination” not to let them so eat.
Has a State a duty to protect a person in the doing of an act which it may not restrain ?
As I read the evidence 1 there was not proof beyond a -reasonable doubt that the sitting down at the lunch counter caused the crowd to gather at the bus station. Nor was there any evidence of even so much as an assault (in legal parlance) at a militiaman. See Ellis v. Pratt City, 113 Ala. 541 , 21 So. 206 .
Holmes said no one has a right to yell “Fire” in a crowded theatre. I fail to see that what the defendants did here was that reckless. There may have been a lighted match, but was there — beyond a reasonable doubt — an open powder keg?
. I am not unmindful of the various witnesses testifying as to “tension,” “electric atmosphere” and “noise” from the crowd. These to me are subjective expressions under the elements of the offense charged. The evidence shows no overt act manifesting the potentiality of the crowd nor the capability of the militia for force and arms.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9527876. Public record. Not legal advice.