Cole v. State, 4448.

Decision Date09 June 1947
Docket NumberNo. 4448.,4448.
PartiesCOLE et al. v. STATE.
CourtArkansas Supreme Court

Appeal from Circuit Court, Pulaski County, First Division; Gus Fulk, Judge.

Roy Cole, Louis Jones, and Jessie Bean were convicted of preventing, by force and violence, a certain person from engaging in work as a laborer, and they appeal.

Judgments as to Cole and Jones affirmed; judgment as to Bean reversed with directions.

Ross Robley and Elmer Schoggen, both of Little Rock, for appellants.

Guy E. Williams, Atty. Gen., and Earl N. Williams, Asst. Atty. Gen., for appellee.

GRIFFIN SMITH, Chief Justice.

The appellants here were appellants in the case decided October 7, 1946. In the former proceeding they were tried on an indictment charging that by the use of force and violence they prevented Otha Williams from engaging in work as a laborer. The charge was based upon a part of § 1 of Act 193 of 1943. Cole et al. v. State, Ark., 196 S.W.2d 582. The judgments were reversed and the causes remanded for a new trial because testimony was erroneously admitted.

On remand the indictment was quashed and the defendants went to trial on information filed by the Prosecuting Attorney. The verdicts were that each should serve a year in the State Penitentiary.

For reversal it is argued (a) that evidence does not support the verdicts; (b) Act 193 cannot be construed to apply to facts presented; (c) Section 2 of Act 193 is unconstitutional and its validity has not been determined; and (d) the defendants' plea of former jeopardy should have been sustained.

First. (d) — This contention cannot be maintained. The defendants were convicted when tried on the indictment — an indictment they alleged was void because of alleged irregularities in the selection of grand jurors. When the causes were remanded the Prosecuting Attorney elected to proceed by information. In so doing he disregarded the indictment: a result the defendants had sought. The principles announced in State of Arkansas v. Clark, 32 Ark. 231, are in point. See also Johnson v. State, 29 Ark. 31, 21 Am.Rep. 154. It is cited in the Clark case. Fox v. State, 50 Ark. 528, 8 S.W. 836, was an appeal from a conviction under an indictment charging false imprisonment. Fox had formerly been indicted for robbery, and acquitted. This Court held that in the circumstances of that case false imprisonment was an ingredient of the robbery charge for which Fox had stood trial and as to which he had been found not guilty; hence there could be but one prosecution. Lee v. State, 26 Ark. 260, 7 Am.Rep. 611, is not contrary. That case was decided when the Constitution of 1868 was in effect, its provision being that "* * * no person after having once been acquitted by a jury, for the same offense, shall be again put in jeopardy of life or liberty". Article 1, § 9. The Constitution of 1874 is: "* * * and no person, for the same offense, shall be twice put in jeopardy of life or liberty". Article 2, § 8. Effect of the case is that dismissal of a valid indictment against one who insists upon trial before a jury then sworn amounted to an acquittal, and a plea of former jeopardy was good against a second indictment for the same offense.

Second. (c)We have heretofore construed applicable provisions or sections of Act 193 as cases involving the legislation were presented. In Smith and Brown v. State, 207 Ark. 104, 179 S.W.2d 185, it was said that the Act was not open to constitutional objections. That statement, of course, was intended to apply to the facts of the appeal then being considered. In Gurein v. State, 209 Ark. 1082, 193 S.W.2d 997, the provisions of the Act formerly dealt with were treated as constitutional upon authority of the Smith-Brown case. To the extent that judicial construction of a Legislative Act would deprive an accused person of equal protection of the law, Amendment Fourteen to the Federal Constitution would be violated; but that question is not involved in the dispute with which we are dealing. Our consideration in this respect is directed to the single proposition that force and violence were employed by two of the defendants.

A literal construction of that part of § 2 of Act 193 making it a felony for any person "acting either by himself, or as a member of any group or organization or acting in concert with one or more other persons, to promote, encourage or aid [in the character of unlawful assemblage there prohibited]" would, it is said, prevent peaceful picketing. The Act does...

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1 cases
  • Cole v. State
    • United States
    • Supreme Court of Arkansas
    • 9 Junio 1947

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