Petitioners were convicted of violating § 2 of Act 193 of the
Arkansas Acts of 1943, which makes it 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 person, to
promote, encourage, or aid any such unlawful assemblage."
The State Supreme Court affirmed the conviction, indicating in
its opinion that, as to one charged with violation of the
italicized portion, the statute requires that the accused shall
have aided the assemblage with the intention that force and
violence would be used to prevent a person from working.
Held:
1. Both the trial court and the State Supreme Court construed
the statute as not authorizing a conviction for mere presence in an
assemblage at which unplanned and unconcerted violence was
precipitated by another, and there was no disparity between the
instructions of the trial court and the opinion of the State
Supreme Court in this respect. Pp.
338 U. S.
347-352.
2. As applied to petitioners, the statute did not abridge the
freedom of speech or of assembly guaranteed by the Federal
Constitution. Pp.
338 U. S.
352-354.
3. The Act is not unconstitutionally vague, and its application
in this case did not violate due process of law. P.
338 U. S.
354.
214 Ark. 387, 216 S.W.2d 402, affirmed.
On the remand ordered by this Court in
Cole v.
Arkansas, 333 U. S. 196, the
State Supreme Court again affirmed petitioners' conviction for
violation of a state statute. 214 Ark. 387, 216 S.W.2d 402. This
Court granted certiorari. 337 U.S. 929.
Affirmed, p.
338 U. S.
354.
Page 338 U. S. 346
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,
Page 338 U. S. 347
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.
[
Footnote 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.
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
Page 338 U. S. 348
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
Page 338 U. S. 349
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
Page 338 U. S. 350
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 Arkansas. [
Footnote 2]"
As we have noted in
Cole v. Arkansas, supra, at
333 U. S. 198,
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 willfully, unlawfully and feloniously,
Page 338 U. S. 351
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 the
time of an altercation between Campbell and Williams, such fact
alone would not justify you in finding the defendants or either of
them guilty."
But it is contended that some portions of the opinion of the
Supreme Court of Arkansas apparently "read into" the statute the
requirement that the accused "promoted, encouraged, and aided the
assemblage -- which was unlawful because of its purpose and its
accomplished results," and that it sustained the convictions upon a
conclusion from the evidence that
"the defendants participated, aided, encouraged, and abetted in
an agreement with others to the effect that the workers . . . would
be whipped if they did not agree to quit work."
Petitioners argue that this requirement of purpose and knowledge
was supplied as an additional element by the appellate court, and
that, in so doing, that court departed even further from the
construction of the trial court. But the question was before the
jury in almost the very language petitioners object to as
originating in the State Supreme Court. "You are instructed," said
the trial court. in giving a charge requested by these
petitioners,
"that, before the defendants, or either of them can be convicted
in this
Page 338 U. S. 352
case, you must be 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."
We do not find any such disparity between the instructions and
the opinion of the Supreme Court as is suggested. At most, the
appellate court spelled out what is implicit in the instructions of
the trial court, and both were agreed that the statute authorized
no conviction for a mere presence in an assemblage at which
unplanned and unconcerted violence was precipitated by another.
What we have already said disposes of the contention that this
Act, as applied to petitioners, abridges freedom of assembly. For
this argument too rests on the assumption that this Act penalizes
for mere presence in a gathering where violence occurs. As we have
pointed out, the statutory text does not so read, the charge of the
trial court expressly negatived this construction at the
defendants' own request, and they themselves have complained of the
appellate court that it went even further in this direction.
Accordingly, we are not called upon to decide whether a state
has power to incriminate by his mere presence an innocent member of
a group when some individual without his encouragement or concert
commits an act of violence. It will be time enough to review such a
question as that when it is asked by one who occupies such a
status. Evidently these petitioners, in the minds of the jury, at
least, did not. [
Footnote 3]
For, as we have seen, the case was submitted under a statutory
construction
Page 338 U. S. 353
and charge which forbade conviction without belief that the
petitioners aided the assemblage "for the purpose of preventing
Otha Williams from engaging in a lawful vocation."
As defined by the Arkansas Supreme Court, an unlawful assembly
the aiding of which is prohibited is
". . . one where persons acting in concert have assembled in an
attempt to prevent by force or violence some other person from
engaging in a lawful occupation."
Certainly the Act before us does not penalize the promotion,
encouragement, or furtherance or peaceful assembly at or near any
place where a labor dispute exists, nor does it infringe the right
of expression of views in any labor dispute.
Quite another question is involved when one is convicted of
promoting, encouraging, and aiding an assemblage the purpose of
which is to wreak violence. Such an assemblage has been denominated
unlawful by the Arkansas legislature, and it is no abridgment of
free speech or assembly for the criminal sanctions of the state
Page 338 U. S. 354
to fasten themselves upon one who has actively and consciously
assisted therein.
Similarly, we find no merit in petitioners' contention that the
Arkansas statute is unconstitutionally vague, so that its
application in this case violated due process of law. Here again,
the premise upon which the argument is presented to us is that the
two Arkansas courts differed in construing the statute, and we are
asked to conclude from this fact that the test of definiteness
which criminal statutes must meet under the due process clause,
International Harvester Co. v. Kentucky, 234 U.
S. 216,
234 U. S. 223,
has not been met. Since we cannot assume that the two courts were
at odds in their interpretation of the statute, we find it
unnecessary to explore the question as to whether such discrepancy,
if it existed, would constitute a basis for concluding that the
constitutional standards have not been achieved. We think that § 2,
Act 193, Acts of Arkansas 1943, fairly apprises men of ordinary
intelligence that for two or more to assemble and by force or
violence prevent or attempt to prevent another from engaging in any
lawful vocation constitutes an unlawful assemblage, and that the
promotion, encouragement or aiding thereof is unlawful.
Judgment affirmed.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
[
Footnote 1]
Act 193, Acts of Arkansas 1943, provides in pertinent part:
"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. . . ."
"Section 2. 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. . . ."
The Supreme Court of Arkansas had affirmed the petitioners'
convictions on the basis of § 1 of the above statute, although, as
we observed, both the information drawn against the petitioners and
the charge to the jury referred in unmistakable terms to a
violation not of § 1, but of § 2. Accordingly, we reversed, holding
it a violation of due process for the appellate court to appraise
and affirm petitioners' convictions on considerations other than
those governing the case as it was tried and as the issues were
determined in the trial court.
[
Footnote 2]
The entire information was as follows:
"Comes Sam Robinson, Prosecuting Attorney within and for Pulaski
County, Arkansas, and, in the name, by the authority, and on behalf
of the Arkansas information, gives accusing Roy Cole, Louis Jones,
and Jessie Bean of the crime of felony, committed as follows
to-wit: on the 26th day of December, A.D.1945, in Pulaski County,
Arkansas, 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 each
other, promote, encourage and aid such unlawful assemblage, against
the peace and dignity of the Arkansas."
[
Footnote 3]
One witness, whom the jury was entitled to believe, testified as
follows:
"Q. You say you were down at the tent that morning?"
"A. Yes, sir."
"Q. When these defendants here, Louis Jones and the others, were
in a discussion, and were talking about talking to the men that
were working?"
"A. Yes, sir."
"Q. And they agreed that, if they didn't talk right, they were
going to whip them?"
"A. Yes sir."
Facts demonstrating the consummation of this plan were given to
the jury by the testimony of another witness. As the men not on
strike were leaving the plant, petitioner Jones, according to the
witness, called upon Williams
". . . to wait a minute, he wanted to talk to him, and Otha told
him he didn't have time, he was on his way home and he would see
him another day."
"Q. Did he do anything else?"
"A. He gave a signal and said 'Come on, boys.' . . ."
"Q. What happened after Louis Jones gave the signal and said
'Come on boys'?"
"A. They flew up like blackbirds and came fighting."