Cole v. State of Arkansas, 62

• Decision Date: 05 December 1949
• Docket Number: No. 62,62
• Citation: 70 S.Ct. 172,94 L.Ed. 155,338 U.S. 345
• Parties: COLE et al. v. STATE OF ARKANSAS
• Court: U.S. Supreme Court

338 U.S. 345

70 S.Ct. 172

94 L.Ed. 155

COLE et al.

v STATE OF ARKANSAS.

No. 62.

Argued Nov. 9, 1949.

Decided Dec. 5, 1949.

Mr. Thomas E. Harris, Washington, D.C., for petitioners.

Mr. Jeff Duty, Little Rock, Ark., for respondent.

Mr. Justice JACKSON delivered the opinion of the Court.

In December 1945, 112 of the 117 employees of an oil company, including petitioners, went out on strike. About five o'clock one afternoon, petitioners, with several other strikers, assembled near the plant's entrance. Although a picket line was nearby, these men were not a part of it, and there is no suggestion that their acts were attributable either to the regular pickets or to the union representing them. As the five working employees left the plant for the day, the petitioner Jones called out to one named Williams to 'wait a minute, he wanted to talk to him.' When Williams replied that 'he didn't have time, he was on his way home and he would see him another day,' petitioner Jones gave a signal and said, 'Come on, boys.' Petitioner Cole, who was carrying a stick, told one of the other departing employees 'to go ahead on, that they wasn't after me.' Another striker named Campbell then attacked Williams and was killed in the ensuing struggle. It was further testified that these petitioners and others had that morning discussed talking to the men who were working 'and they agreed that if they didn't talk right, they were going to whip them.' While some of this was contradicted, such is the version which the jury could have found from the evidence.

The present case has had a curiously involved history. Convicted in 1946 of a statutory offense for their participation in the foregoing, petitioners secured a reversal in the Supreme Court of Arkansas for errors in the trial. 210 Ark. 433, 196 S.W.2d 582. Following the retrial petitioners' second conviction was affirmed, 211 Ark. 836, 202 S.W.2d 770; and we granted certiorari and reversed on the ground that the affirmance below had been based upon a section of the statute other than that for violation of which these petitioners had been tried and convicted. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644. ¹ On remand, the State Supreme Court has reconsidered the appeal and has again affirmed in an opinion sustaining the convictions under the section of the statute on which the prosecution was based. 214 Ark. 387, 216 S.W.2d 402. Doubts as to whether the mandate in our earlier decision had been obeyed led us to grant certiorari. 337 U.S. 929, 69 S.Ct. 1496.

It appears on the surface, at least, that the Supreme Court of Arkansas has attempted to comply with our mandate and has now placed its affirmance upon the same section of the statute as that upon which the trial court submitted the case to the jury. The objection to this affirmance is, however, much more subtle and far-reaching than that involved in our previous decision. There it was clear that the Arkansas Supreme Court's affirmance was based upon an entirely different statutory offense from that charged and under which the case was submitted to the jury. It is now claimed that, although they both dealt with the same section of the Act involved, the trial court and the appellate court adopted contrasting interpretations of that section, and that the result was a repetition of the earlier error.

In addition to this contention, that the previous error has been repeated, it is also claimed that the statute now involved violates the Federal Constitution in that it abridges freedom of speech and assembly, and that the charge and statute are too vague and indefinite to conform to due process. All three claims involve serious charges of error, and if any one can be supported, petitioners are entitled to prevail.

Section 2 of Act 193, Acts of Arkansas 1943, provides: 'It shall be unlawful for any person acting in concert with one or more other persons, to assemble at or near any place where a 'labor dispute' exists and by force or violence prevent or attempt to prevent any person from engaging in any lawful vocation, or 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 any such unlawful assemblage. * * *' (Italics supplied.)

In the opinion under review, the Supreme Court of Arkansas has indicated that as to one charged with a violation of the italicized portion, the statute requires that the accused aid the assemblage with the intention that force and violence would be used to prevent a person from working. Petitioners' quarrel, however, is not with this construction. Instead, petitioners contend that in the trial court, as the statute was construed and as the case was submitted to the jury, their convictions rested upon the theory that no more was required than mere presence in a group where unplanned and unconcerted violence was precipitated by another. The requirements of knowledge and intent, they claim were 'read into' the statute for the first time by the appellate court on review, and were absent in the trial court.

It thus becomes apparent that underlying each of the three contentions advanced on behalf of these petitioners is the basic premise that their case was submitted to the jury on the theory that nothing more was needed to convict them than mere presence at an assemblage where violence occurred without their participation, concert, or previous knowledge. This is the foundation, not only of the claim that the trial court and the appellate court adopted contrasting interpretations of the Act they are said to have violated, but also of the claim that application of that Act offends the fundamental rights of speech and assembly protected from state deprivation by the Fourteenth Amendment. Similarly the alleged difference between the trial court and the appellate court in rendering the Act is the basis of the argument that it is constitutionally invalid for vagueness, it being contended here that in this very case the Act has been demonstrated to be susceptible of at least two different interpretations in the Arkansas courts.

Did the trial court authorize the jury to convict for mere presence in an assemblage where unplanned and unintended violence occurred? This is the basis of the plea for reversal and we turn to the record to ascertain whether or not it is justified.

The information on which the petitioners were tried set forth that Campbell in concert with others had assembled at the plant where a labor dispute existed and by force and violence prevented Williams from engaging in a lawful vocation. It then charged that 'The said Roy Cole (and) Louis Jones * * * did unlawfully and feloniously, acting in concert with each other, promote, encourage and aid such unlawful assemblage, against the peace and dignity of the State of Arkansas.'²

As we have noted in Cole v. Arkansas, supra, 333 U.S. at page 198, 68 S.Ct. at page 515, 92 L.Ed. 644, the language employed in the information is substantially identical with that of § 2 of the Arkansas Act.

In explaining the Act, which was read to the jury, the trial court said that it included two offenses, '* * * First, the concert of action between two or more persons resulting in the prevention of a person by force and violence from engaging in a lawful vocation. And second, in promoting, encouraging or aiding of such unlawful assemblage by concert of action among the defendants as is charged in the information here. The latter offense is the one on trial in this case.'

In his second instruction, the trial court charged that '* * * if you further believe beyond a reasonable doubt that the defendants wilfully, unlawfully and feloniously which (while) acting in concert with each other, promoted, encouraged and aided such unlawful assemblage, you will convict the defendants as charged in the indictment.'

Needless to say, the defendants presented no request for a charge that would construe the statute as unfavorable to themselves as they now contend it was construed. To the contrary, an opposite construction was embodied in the defendants' request to charge, all of which, with minor variations, were granted save one which duplicated a charge earlier made by the court. The ninth instruction requested by the defendants and granted by the court, said: 'The court instructs you that mere fact, if you find it to be a fact that the defendants, or either of them, were present at...