Petitioners were tried in a state court under an information
charging them only with a violation of § 2 of a state statute
making it an offense to promote an unlawful assemblage. The trial
court instructed the jury that they were charged with an offense
under §2, and they were convicted. They appealed to the State
Supreme Court, contending, inter alia,
that § 2 was
contrary to the Federal Constitution. Without passing on that
question, the State Supreme Court sustained their convictions on
the ground that the information charged and the evidence showed
that petitioners had violated § 1 of the same statute, which
describes the distinct offense of using force and violence.
Petitioners were denied due process of law, and
the judgment is reversed and remanded to the State Supreme Court
for further proceedings. Pp. 333 U. S.
(a) It is as much a violation of due process to send an accused
to prison following a conviction of a charge on which he was never
tried as it would be to convict him upon a charge that was never
made. P. 333 U. S.
(b) To conform to due process of law, petitioners were entitled
to have the validity of their convictions appraised on
consideration of the case as it was tried and as the issues were
determined in the trial court. P. 333 U. S.
211 Ark. 836, 202 S.W.2d 770, reversed.
Page 333 U. S. 197
MR. JUSTICE BLACK delivered 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. 211 Ark. 836, 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. That question, in the present state of
the record, is the only one we find it appropriate to consider. The
"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 Legislature
Page 333 U. S. 198
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,
] in the County and
State aforesaid, on the 26th day of December, 1945, did unlawfully
and feloniously, acting in concert with eath [sic
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. "
Page 333 U. S. 199
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
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 §
1 [Footnote 2
] does not. Thus,
the petitioners were clearly 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. [Footnote 3
Page 333 U. S. 200
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
"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.
] Yet the State
Supreme Court refused to consider the validity of the conviction
Page 333 U. S. 201
§ 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
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 they were not tried for or found guilty of it. It is as much a
violation of due process to send an accused to prison following
conviction of a charge on which he was never tried as it would be
to convict him upon a charge that was never made. De Jonge v.
Oregon, 299 U. S. 353
299 U. S.
Furthermore, since Arkansas provides for an appeal to the State
Supreme Court and, on that appeal, considers questions raised under
the Federal Constitution, the proceedings in that court are a part
of the process of law under which the petitioners' convictions must
stand or fall. Frank v. Mangum, 237 U.
, 237 U. S. 327
Cf. Mooney v. Holohan, 294 U. S. 103
294 U. S. 113
That court has not affirmed these convictions on the basis of the
trial petitioners were afforded. The convictions were for a
violation of § 2. Petitioners urged in the State Supreme Court that
the evidence was insufficient to support their conviction of a
violation of § 2. They also raised serious
Page 333 U. S. 202
objections to the validity of that section under the Fourteenth
Amendment to the Federal Constitution. [Footnote 5
] None of their contentions was passed upon by
the State Supreme Court. It affirmed their conviction as though
they had been tried and convicted of a violation of § 1 when, in
truth, they had been tried and convicted only of a violation of a
single offense charged in § 2, an offense which is distinctly and
substantially different from the offense charged in § 1. To conform
to due process of law, petitioners were entitled to have the
validity of their convictions appraised on consideration of the
case as it was tried and as the issues were determined in the trial
We are constrained to hold that the petitioners have been denied
safeguards guaranteed by due process of law -- safeguards essential
to liberty in a government dedicated to justice under law.
In the present state of the record, we cannot pass upon those
contentions which challenge the validity of § 2 of the Arkansas
Act. The judgment is reversed and remanded to the State Supreme
Court for proceedings not inconsistent with this opinion.
Reversed and remanded.
The State Supreme Court held that Bean's conviction was based on
insufficient evidence, reversed his conviction, and directed that
the cause be dismissed as to him.
"Section 1. It shall be unlawful for any person by the use of
force or violence, or threat of the use of force or violence, to
prevent or attempt to prevent any person from engaging in any
lawful vocation within this State. Any person guilty of violating
this section shall be deemed guilty of a felony, and upon
conviction thereof shall be punished by confinement in the State
Penitentiary for not less than one (1) year, nor more than two (2)
Act 193, Arkansas Acts of 1943.
A previous conviction of petitioners under an indictment
charging them with a violation of § 1 was set aside by the State
Supreme Court because of the erroneous admission of evidence by the
trial court. Cole et al. v. State,
210 Ark. 433, 196
"Under any reasonable construction, Section 1 creates separate
offenses, as does Section 2, and an indictment that alleges crimes
covered by a part of Section 1 does not impose upon the defendant a
duty to defend under Section 2 or against 'threat' provisions of
Cole v. State,
210 Ark. 433, 196 S.W.2d 582, 586.
The objections pressed in the Arkansas Supreme Court and also
argued here were: (1) that petitioners were deprived of freedom of
speech and assembly by reason of their convictions under § 2; (2)
that their convictions were based upon a statute or charges too
vague and indefinite to conform to due process; and (3) that Act
193 deprived them of the equal protection of the laws by making
certain conduct, which otherwise would have been a misdemeanor, a
felony when committed by striking workmen.