Cole v. State of Arkansas

• Decision Date: 08 March 1948
• Docket Number: No. 373,373
• Citation: Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948)
• Parties: COLE et al. v. STATE OF ARKANSAS
• Court: U.S. Supreme Court

333 U.S. 196

68 S.Ct. 514

92 L.Ed. 644

COLE et al.

v STATE OF ARKANSAS.

No. 373.

Argued Feb. 4, 5, 1948.

Decided March 8, 1948.

Messrs. David Rein and Joseph Forer, both of Ws hington, D.C., for petitioner.

Messrs. Oscar E. Ellis, of Salem, Ark., and Shields M. Goodwin, of Little Rock, Ark., for respondent.

Mr. Justice BLACKdelivered the opinion of the Court.

The petitioners were convicted of a felony in an Arkansas state court and sentenced to serve one year in the state penitentiary.The State Supreme Court affirmed, one judge dissenting on the ground that the evidence was insufficient to sustain the convictions.Ark., 202 S.W.2d 770, 771[Fastcase Editorial Note: The Court's reference to 202 S.W.2d 770 is short for Cole v. State, 202 S.W.2d 770.].A petition for certiorari here alleged deprivation of important rights guaranteed by the Fourteenth Amendment.We granted certiorari because the record indicated that at least one of the questions presented was substantial, 332 U.S. 834, 68 S.Ct. 217.That question, in the present state of the record, is the only one we find it appropriate to consider.The question is: 'Were the petitioners denied due process of law * * * in violation of the Fourteenth Amendment by the circumstance that their convictions were affirmed under a criminal statute for violation of which they had not been charged'?

The present convictions are under an information.The petitioners urge that the information charged them with a violation of § 2 of Act 193 of the 1943 Arkansas Legis- lature and that they were tried and convicted of violating only § 2.The State Supreme Court affirmed their convictions on the ground that the information had charged and the evidence had shown that the petitioners had violated § 1 of the Arkansas Act which describes an offense separate and distinct from the offense described in § 2.

The information charged: '* * * Walter Ted Campbell, acting in concert with other persons, assembled at the Southern Cotton Oil Company's plant in Pulaski County, Arkansas, where a labor dispute existed, and by force and violence prevented Otha Williams from engaging in a lawful vocation.The said Roy Cole, Louis Jones and Jessie Bean,¹ in the County and State aforesaid, on the 26th day of December, 1945, did unlawfully and feloniously, acting in concert with eath (sic) other, promote, encourage and aid such unlawful assemblage against the peace and dignity of the State of Arkansas.'

The foregoing language describing the offense charged in the information is substantially identical with the following language of § 2 of the Arkansas Act.That section 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 * * * any person from engaging in any lawful vocation, or for any person acting * * * in concert with one or more other persons, to promote, encourage or aid any such unlawful assemblage.'

The record indicates that at the request of the prosecuting attorney, the trial judge read § 2 to the jury.He then instructed them that § 2'includes two offenses, first, the concert of action between two or more persons resulting in the prevention of a person by means of force and violence from engaging in 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.'

The trial court also instructed the jury that they could not convict petitioners unless 'convinced beyond a reasonable doubt that they promoted, encouraged, and aided in an unlawful assemblage at the plant of the Southern Cotton Oil Company, for the purpose of preventing Otha Williams from engaging in a lawful vocation.'This instruction, like the preceding one, told the jury that the trial of petitioners was for violation of § 2, since § 2 makes an unlawful assemblage an ingredient of the offense it defines and § 1² does not.Thus the petitioners were cla rly tried and convicted by the jury for promoting an unlawful assemblage made an offense by § 2, and were not tried for the offense of using force and violence as described in § 1.³

When the case reached the State Supreme Court on appeal, that court recognized that the information as drawn did include a charge that petitioners violated § 2 of the Act.That court also held that the information accused petitioners of 'using force and violence to prevent Williams from working,' and that the 'use of force or violence, or threat of the use of force or violence, is made unlawful by § 1.'For this reason the Supreme Court said that it affirmed the convictions of the petitioners'without invoking any part of § 2 of the Act * * *.'That court accordingly refused to pass upon petitioners' federal constitutional challenges to § 2.It later denied a petition for rehearing in which petitioners argued: 'To sustain a conviction on grounds not charged in the information and which the jury had no opportunity to pass upon, deprives the defendants of a fair trial and a trial by jury, and denies the defendants that due process of law guaranteed by the 14th Amendment to the United States Constitution.'

We therefore have this situation.The petitioners read the information as charging them with an offense under § 2 of the Act, the language of which the information had used.The trial judge construed the information as charging an offense under § 2.He instructed the jury to that effect.He charged the jury that petitioners were on trial for the offense of promoting an unlawful assemblage, not for the offense 'of using force and violence.'Without completely ignoring the judge's charge, the jury could not have convicted petitioners for having committed the separate, distinct, and substantially different offense defined in § 1.⁴Yet the State Supreme Court refused to consider the validity of the conviction under s 2, for violation of which petitioners were tried and convicted.It affirmed their convictions as though they had been tried for violating § 1, an offense for which they were neither tried nor convicted.

No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.In re Oliver, 333 U.S. 257, 68 S.Ct. 499, and cases there cited.If, as the State Supreme Court held, petitioners were charged with a violation of § 1, it is doubtful both that the information fairly informed them of that charge and that they sought to defend themselves against such a charge; it is certain that th...