Syllabus. COLE ET AL. v. ARKANSAS. CERTIORARI TO THE SUPREME COURT OF ARKANSAS. No. 62. Argued November 9, 1949. Decided December 5, 1949. 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 persons, 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. 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. 352–354. 3. The Act is not unconstitutionally vague, and its application in this case did not violate due process of law. P. 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. 354. Thomas E. Harris argued the cause for petitioners. With him on the brief was Arthur J. Goldberg. Opinion of the Court. 338 U.S. Jeff Duty, Assistant Attorney General of Arkansas, argued the cause for respondent. With him on the brief were Ike Murry, Attorney General, and Wyatt Cleveland Holland, Assistant Attorney General. 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, 345 Opinion of the Court. 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. 196.1 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 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. Opinion of the Court. 338 U.S. 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 345 Opinion of the Court. 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 860926 0-50- -29 |