Wright v. State

• Decision Date: 04 March 1918
• Docket Number: 202
• Citation: 201 S.W. 1107,133 Ark. 16
• Parties: WRIGHT v. STATE
• Court: Arkansas Supreme Court

201 S.W. 1107

133 Ark. 16

WRIGHT v. STATE

No. 202

Supreme Court of Arkansas

March 4, 1918

Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; reversed.

Judgment reversed and cause remanded.

E. H McCulloch, A. A. McDonald, Hiner & Hiner and Covington & Grant, for appellant.

1. The demurrer should have been sustained. The indictment charges more than one offense. Kirby's Digest, sections 2525, 2522, 2526, 2528, 5492; 22 Cyc. 376; 64 Ark. 231; 100 Id. 591; 83 Id. 244; 45 Id. 62. See also 21 Ark. 183; 34 Cyc. 1782.

2. The verdict is contrary to the law and the evidence. Defendant's instruction No. 1 should have been given. Mere lawful picketing is not unlawful. Martin Mod. Law of Labor Unions, §§ 168-9; 105 Ark. 32.

3. The court should have given instruction No. 9. 105 Ark. 32.

4. It was error to refuse Nos. 10 and 13. They are the law. 71 Ark 495. Also in refusing Nos. 14, 15 to 19, 21, 22.

5. It was error to give No. 1 for the State. Also Nos. 4 and 5.

6. The juror Brockington was biased and prejudiced.

7. It was error to exclude Grady Manning's testimony. 53 Ark 387; 110 Id. 402-409. See also 22 Cyc. 388.

John D Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee; Oglesby, Cravens & Oglesby, of counsel.

1. The demurrer was properly overruled. Besides the State elected to prosecute under section 2525. 84 Ark. 139; 77 Id. 426. The indictment follows the language of the statute. 111 Ark. 217.

2. The verdict is sustained by the evidence.

3. There is no error in the instructions. 77 Ark. 418; 125 Id. 260; 105 Id. 32.

4. No error in refusing to withdraw the case from the jury on account of alleged bias of juror Brockington. Vanhouser v. Butler, 131 Ark. 404; 104 Ark. 606, 615; 120 Id. 193.

5. There was no error in excluding Manning's testimony. Dean v. State, 130 Ark. 322. See also 48 Ark. 34; 72 Id. 420; 125 Id. 47; 45 Id. 62; 57 Id. 5; Speer v. State, 130 Ark. 457.

STATEMENT OF FACTS.

On the 22d day of September, 1917, the grand jury of Sebastian County, Fort Smith District, returned an indictment against J. H. Wright in two counts. J. H. Wright was mayor of the city of Fort Smith, and the first count was drawn under section 2525 of Kirby's Digest, which provides what shall constitute a riotous assembly in a city or town and the duty of the mayor and other officers to disperse the same. The second count was based upon section 2522 of Kirby's Digest, which provides for the arrest of rioters who shall have refused to disperse upon proclamation being made in the manner provided by the statute. The facts are as follows:

The telephone company at Fort Smith had sixty-three girls employed in their office. On the 19th day of September, 1917, all except four or five of the girls walked out of the office and went on a strike. For several days these girls and a number of their friends and sympathizers gathered about the building shouting and making considerable noise. During all this time more than twenty people were assembled, and for much of the time there were nearly two hundred of them. It was shown by the witnesses for the State that these people attempted to climb up the fire escape of the building and that they seriously interfered with those at work therein by yelling. and making loud noises; that they attempted to dig up the gas pipe running into the office and finally did dig it up; that on one morning they attempted to carry some groceries into the building for the use of the employees at work there and that the crowd assembled took a part of these provisions from them and threw them into the street. It was shown that the crowd finally cut the water off from the building and by force prevented some of the employees from going in there to work. Evidence was also adduced by the State tending to show that the defendant was present and saw them dig up the gas main and that he knew about the crowd trying to prevent employees from entering the telephone building to work.

On the other hand, the defendant in positive terms denied that he knew of the gas main being taken up or that employees of the telephone company were prevented from going into the building to their usual work or that the employees already at work there were disturbed by loud and unusual noises of the crowd assembled near the building. He also testified that he had warned the assembled crowd, and particularly the striking telephone girls, against any violence of any kind or the attempted destruction of property.

The testimony of the defendant was corroborated by people who composed a part of the crowd assembled around the telephone office and by many of the telephone girls who went on the strike. They all testified that the defendant warned them particularly against any acts of violence, and said that he was not there when the gas or water mains were dug up and that he was not present when the employees were prevented from entering the building of the telephone company or when the provisions that were being carried into the building were taken from those carrying them and thrown into the street.

The jury returned a verdict of guilty against the defendant and assessed his punishment at a fine of $ 250. The defendant has appealed.

OPINION

HART, J., (after stating the facts)

The record shows that after the defendant was convicted and an order of removal from office had been made, an election was called and held to fill the vacancy caused by his removal. The defendant became a candidate for this office at the election and was defeated. A motion is made by the State to dismiss this appeal on that account. It is contended that he is assuming an inconsistent position by appealing. We do not agree with counsel in this contention. There was a judgment against the defendant for the fine and costs imposed and he had a right to appeal to reverse that judgment, if the trial court committed any errors prejudicial to his rights which were properly preserved for review in this court. His conduct in running again for the same office at an election called to fill the vacancy caused by his removal was a collateral matter and had no connection whatever with his prosecution of the appeal in this case.

It is contended by counsel for the defendant that the indictment charges more than one offense and that a demurrer to it should have been sustained. The State was required to elect under which count of the indictment it would proceed and elected to prosecute the defendant under section 2525 of Kirby's Digest. The section reads as follows:

"When persons to the number of twenty or more are unlawfully or riotously assembled in a city or town, the sheriff of the county and his deputies, and the other peace officers and magistrates of such city or town, together with the mayor or other chief officers of the city or town, must go among the persons assembled, or as near as possible, and in the name of the State command them to disperse.

We do not deem it necessary to set out the indictment at length, but we have compared it with the section of the statute just quoted and the offense is charged substantially in the language of the statute itself. The language of the statute describes the offense with certainty and in such cases it is sufficient to charge the offense in the words of the statute which creates it. Holland v. State, 111 Ark. 214, 163 S.W. 781.

It is also insisted that the testimony is not legally sufficient to warrant the verdict. In testing its sufficiency, the evidence must be considered in the light most favorable to the State. The evidence established that on the 19th day of September, 1917, the girls employed in the office building of the telephone company of Fort Smith, went out on a strike. During the afternoon they and their friends to the number of about one hundred persons assembled around the building. During the early hours of the night the crowd increased to several hundred people. From that time until the 26th inst. there was continuously a crowd around the building of from fifty to three hundred persons. During this time the electric wires furnishing light to the telephone building were cut out and the gas pipes which supplied the building were also cut. The assembled crowd made considerable noise and at times prohibited employees from entering the building and took provisions which they were carrying into the building from them. There was also evidence adduced by the State which tended to show that the defendant was present on one night and saw the crowd digging up the gas main and that he knew that the crowd attempted to prevent employees from entering the building. This testimony was legally sufficient to warrant the verdict.

The defendant assigns as error the refusal of the court at his request to instruct the jury that if it found from the evidence that his failure to go among the crowd assembled and in the name of the State command them to disperse because of lack of knowledge that the crowd was assembled for the purpose of unlawfully preventing the telephone company's employees from entering the building, that it should find him not guilty. This instruction was properly refused. The court is not required to repeat instructions. It is substantially the same as instruction No. 5, given at the request of the defendant, in which the jury were expressly told that unless they believed from the evidence beyond a reasonable doubt "that the defendant, J. H. Wright, knew that said persons were unlawfully or riotously assembled at said place and with such knowledge he did wilfully and knowingly fail, refuse or neglect to go among the said twenty or more persons so assembled, or as near them as possible, and in the name of the State command them to disperse, and unless you so find you...