Blackard v. State, s. 4611-4621

• Citation: 217 Ark. 661,232 S.W.2d 977
• Decision Date: 02 October 1950
• Docket Number: Nos. 4611-4621,s. 4611-4621
• Parties: , 26 L.R.R.M. (BNA) 2638, 18 Lab.Cas. P 66,009 BLACKARD v. STATE and 10 other cases.
• Court: Supreme Court of Arkansas

Page 977

232 S.W.2d 977

217 Ark. 661, 26 L.R.R.M. (BNA) 2638,

18 Lab.Cas. P 66,009

BLACKARD v. STATE and 10 other cases.

Nos. 4611-4621.

Supreme Court of Arkansas.

Oct. 2, 1950.

Petition for Rehearing Withdrawn Nov. 1, 1950.

Yates & Yates, Ozark, Grant & Rose, Fort Smith, for petitioners.

Thomas Harper, Fort Smith, for intervenor.

Ike Murry, Atty. Gen., for the State.

McFADDIN, Justice.

Each of the eleven petitioners seeks, by writ of certiorari, to have this Court quash the Chancery Court order which found each petitioner guilty of contempt and assessed punishment. The contempt proceedings were tried in a consolidated hearing in the Chancery Court; so the eleven petitions for certiorari have been consolidated in this Court.

The contempt proceedings spring from a labor dispute. When the Utah Construction Company (hereinafter called 'Utah') undertook to remove coal from its Ozark-Philpott Mine, a labor dispute arose as to whether the mine would be operated by members of the United Mine Workers of America. On petition of Utah, the Chancery Court issued a temporary order, and later a permanent order (on January 19, 1950), restraining the Union, its members, and all other persons, not only (a) from picketing any and all persons or places so as to interfere in any way with Utah's operation, but also (b) from 'attempting to prevent in any manner by the use of force or otherwise the plaintiff (Utah) from operating its property'. ¹

Sometime after the issuance of the permanent restraining order, the eleven petitioners herein, and also several other parties, were cited for conduct alleged to be in contempt of the Court, and as being in violation of the said restraining order. After a careful, patient and thorough hearing, the Chancery Court found that certain of those cited had not been in contempt, but that each of the eleven petitioners herein was guilty of contempt for violation of the said permanent restraining order. Punishments were assessed as hereinafter stated. From the orders of punishment each of the eleven petitioners invokes certiorari; and the major contention is that the evidence fails to support the Court's finding that a contempt had been committed by any individual petitioner.

At the outset it is appropriate to state some of the rules applicable to such a situation as is here presented:

I. 'Criminal contempt proceedings are those brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its orders. Civil contempt proceedings are those instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of such parties.' Definitions of, and distinctions between, civil contempt and criminal contempt may be found discussed in a number of cases. See Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A., N.S., 874; Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997; In re Nevitt, 8 Cir., 117 F. 448; Wakefield v. Housel, 8 Cir., 288 F. 712; Parker v. United States, 1 Cir., 153 F.2d 66, 163 A.L.R. 379; see 12 Am.Jur. 392, from which the above quoted words have been taken; and see also 17 C.J.S., Contempt, § 5, p. 7.

One of the reasons for the distinction between criminal contempt and civil contempt is because it is generally held that in criminal contempt proceedings the proof must be beyond a reasonable doubt. In the case at bar the proceedings involve criminal contempt; and the trial court held that the proof had to be beyond a reasonable doubt, just as in a criminal case. ² This ruling was correct. See Gompers v. Buck's Stove & Range Co., supra; Michaelson v. United States, 266 U.S. 42, 45 S.Ct. 18, 69 L.Ed. 162, 35 A.L.R. 451; Davidson v. Wilson, 3 Cir., 286 F. 108; and see 12 Am.Jur. 441 and cases there cited. See also Annotation in 49 A.L.R. 975 'Degree of Proof Necessary in Contempt Proceedings'. This ruling gave the petitioners the benefit of every reasonable doubt. We will subsequently discuss whether the evidence was sufficient to establish, beyond a reasonable doubt, the commission of contempt by each petitioner.

II. The correct procedure to obtain a review by this Court of the judgment of the trial court in a contempt case is by certiorari, just as is here invoked. See Whorton v. Hawkins, 135 Ark. 507, 205 S.W. 901. In McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448, 451, we said: 'The office of the writ (of certiorari) is merely to review the errors of law, one of which may be the legal sufficiency of the evidence.' See also Bertig Bros. v. Independent Gin Co., 147 Ark. 581, 228 S.W. 392.

III. On review by this Court in such proceedings by certiorari, we do not try the criminal contempt case de novo, despite any such language so intimating as contained in Jones v. State, 170 Ark. 863, 281 S.W. 663. Rather, we review the evidence just as we would in an appeal in any criminal case. The trial court in the first instance, in a criminal contempt proceeding, must find the cited person guilty beyond a reasonable doubt. Then, on certiorari proceedings this Court reviews the record to determine whether the evidence, when given its full probative force, is sufficient to sustain the finding of the trial court. See Stewart v. United States, 8 Cir., 236 F. 838; Binkley v. United States, 8 Cir., 282 F. 244; Davidson v. Wilson, 3 Cir., 286 F. 108; and In re Oriel, 2 Cir., 23 F.2d 409.

So much for the general rules. With these rules in mind we have examined the record herein concerning each of the eleven petitioners. The main insistence of the petitioners is that the evidence is insufficient to support the finding of the Chancery Court; and this insistence makes necessary a review of the salient evidence regarding each contemnor. Evidence was presented concerning three or more separate incidents. We will discuss the case as it relates to each petitioner.

(a)--The contempt by the petitioner, Woodrow Thompson, consisted of threatening an employee, William Almond, who at all times was employed by Utah at its Ozark-Philpott Mine. Almond testified that after the permanent injunction had been granted, Woodrow Thompson approached him and said: 'I hope every damn one of you have to work for 50cents a day. * * * We're after you. * * * If you go back out there and go to work, I'm going to get your----.' Certainly these statements, if made by Thompson, were in contempt of the injunction because they constituted threatening an employee of Utah; but it is insisted by Thompson that he made no such statements, and several witnesses who professed to have heard the entire conversation said that Thompson did not make the said remarks. With the evidence in conflict, it became a matter for the trial court--with the same prerogative in this case as a jury has in a criminal case--to determine which testimony to believe. We will subsequently discuss this matter of credibility.

(b)--The contempt by the petitioner, Matt Snider, consisted of attempting to intimidate Jack Morton, an employee of Utah. Morton testified that Snider approached him when the two were alone. Morton testified of Snider: 'Q.--He came on out to the car and he said, 'You think you've got a good job, do you?--and used a few cuss words; he said, 'You think you've got a pretty God-damned good job, do you?', and I said, 'Yes, fair', and he said, 'Well, you're just putting guys like me out of work', and I said, 'Well, I can't help that. I've got to make a living', and he went ahead to say, 'You won't work out there long', and I said, 'Why?', and he said, 'Well,'--he said, 'guys like me are going to stop you', and I said, 'You are?', and I said, 'Well, as long as they let me work, I'm going to work out there', and he just went ahead cussing and left a cussing. He said I wasn't going to work out there very long, or nobody else work out there very long.' Snider denied that he had such a conversation with Morton; and Snider was supported by several witnesses who testified that if any such conversation had taken place, they would have heard it. What we have previously said about the case against Woodrow Thompson applies with equal force to the case against Matt Snider; and we will later discuss the matter of credibility.

(c)--The contempts by each of the remaining nine petitioners arose from their efforts to prevent Ed Willey and his truck drivers from hauling shale to the Utah mine from a pit located twelve or fourteen miles away. That this shale was necessary for Utah's continued operation was definitely established. Petitioner Ogalvie at one time had a contract for his trucks to haul the shale and he either surrendered the contract or lost it. At all events, Ed Willey was under contract for his trucks to haul the shale. One disinterested witness (Chester Emil) testified that Ogalvie told him that Ogalvie would not deliver the shale because it was not a Union job, and that if...