this year, accompanied by friends, he lunched at Corey's Restaurant in Liberty. According to Duncombe, during the course of the meal the conversation turned to Vietnam and patriotism in general; when discussion became heated he went outside to his automobile and "in an attempt to display [his] patriotism"[3] brought back an American flag which he had purchased in Mexico. The flag had been made into a poncho or serape with a slit in the center so that the wearer could drape the material over his shoulders. Duncombe put on the garment and reentered the restaurant; the meal and the conversation continued. There was no disturbance and no one took exception to his attire.
On March 15, defendant Kleinman, the Police Justice of Liberty, issued a warrant for plaintiff's arreston an information charging him with the crime of "causing [sic] contempt by act upon the flag of the United States of America"[4] in violation of § 1425. The warrant was based upon the affidavits of three local citizens who merely stated in substance that they had seen Duncombe in Corey's Restaurant on March 7 while he was wearing a garment fashioned out of the American flag.
Duncombe was arrested the same day, and brought before Police Justice Kleinman where, in the presence of the complainants and the police officers, he was persuaded to plead guilty to the information. He was immediately sentenced to sixty days in the County Jail, or alternatively, to thirty days and a fine or penalty of $50.[5] Plaintiff paid his fine and was incarcerated