# Cole v. State (210 Ark. 433)/Dissent Smith

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Smith
* Linked cases: 210 Ark. 433 211 Ark. 836 333 U.S. 196 214 Ark. 387 338 U.S. 345
​ SMITH, J. (dissenting). Why should the judgments of conviction in this case be reversed? The constitutionality of the act under which they were convicted is not questioned, but is reaffirmed. The right of a person to refuse to work is not questioned. One who does not wish to work and refuses to do so, has the right also to solicit others to join with him in this refusal. But this right of one not to work, and to solicit others to join him in his refusal, is no more sacred than is the right of another who does wish to work to do so. As the purpose of Act 193 of the Acts of 1943 is to protect the right to work, it does not appear to me to be violative of any provisiom of either our own or the Federal Constitution.
Having the power to protect this right to work, it was the province of the General Assembly to determine how that power should be exercised, and to enact such legislation as was thought reasonably necessary to accomplish this lawful purpose, and it does not appear to me to be in excess of this power, or an abuse thereof, to enact that no one shall by force or violence or threats of violence prevent another from engaging in a lawful occupation.
Section 1 of this Act defines two offenses. The first is by the use of force or violence preventing any person from engaging in any lawful vocation within this state. The second offense is to prevent any person from engaging in any lawful vocation within this state by the threat of the use of force or violence for that purpose. In other words, it is unlawful to prevent one from engaging in any lawful occupation either by using force or violence or by the mere threat to use force or violence.
Proof of threats of violence was admissible for several different reasons. First, they were of themselves a ​form of violence. Webster's New International Dictionary defines violence as follows: "Injury done to that which is entitled to respect, reverence, or observance; profanation; infringement; unjust force; outrage; assault. Broadly, exertion of any physical force considered with reference to its effect on another than the agent, as in effecting an entrance into a house in burglary. Sometimes, in law, the overcoming or prevention of resistance by threats of violence is held to be constructive violence."
Proof of threats was admissible to explain the purpose of the strikers and was admissible also to show the concert of action which proved the existence, of a conspiracy among the strikers to prevent others not on a strike from working.
The defense was interposed that the strikers were attempting merely to persuade those employees not on a strike, to desist from working. But how could this lawful purpose be disproved except by showing what the strikers said they would do and what they did?
What means the testimony recited in the majority opinion that Campbell and others said the very afternoon when the strike terminated in riot, resulting in Campbell's death, tbat they were going to talk to a boy who was working, and if the boy did not talk right they were going to whip him? Why whip the boy if not to stop him from work?
Why was Williams assaulted by Campbell except to prevent Williams from working? Williams and Campbell had had no personal quarrel or altercation. If the striking men were not "after " anyone why should Willie Brown have been told by Roy Cole, one of the strikers, that they were not after him? Does not this remark ex*plain itself, accempanied as it was by the fact that almost immediately after it was made Williams was attacked by another striker and forced to kill his assailant in his necessary self-defense, as the grand jury later found after investigating the facts? What meant the remark of ​Jesse Bean, one of the strikers, and an appellant here, made to Charlie Owen, an employee who did not strike, on the morning of the day Campbell was killed, that he must not cross the picket line, as he would have been compelled to do if he went to work, and that if he did cross it and anything happened it would just happen?
What means the testimony that when Williams attempted to hurriedly leave the plant where he was working, and gave his reason for not stopping, when told to do so, that in response to a signal given by Louis Jones, one of the appellants here, the strikers came from all directions and flocked around like blackbirds? What were the strikers trying to do if not to prevent Williams and others from working, and how better could their purpose be shown than to prove what they said they were going to do before they did it.
If the undisputed testimony does not show the existence of a conspiracy to prevent Williams and others from working, is not the testimony sufficient to support the finding that a conspiracy existed to accomplish this unlawful purpose? If so, all the acts and declarations of any of the conspirators are admissible against all the other conspirators. Gurein v. State, 209 Ark. 1082, 193 S.W.2d 997, and cases there cited.
It is not contended that the testimony is not legally sufficient to sustain the conviction. Indeed that contention could not well be made in view of the facts recited in the majority opinion.
The court gave an instruction reading as follows: "If you believe from the evidence in this case beyond a reasonable doubt that the defendants in Pulaski county and on about the 26th day of December, 1945, willfully, unlawfully and feloniously and by the use of force and violence prevented Otha Williams from engaging in a lawful vocation, you will convict them as charged in the indictment."
This instruction does not permit a conviction upon the mere proof that threats were made, although the Act ​might have been violated in that manner, but requires the finding that appellants "by the use of force and violence prevented Otha Williams from engaging in a lawful vocation."
The undisputed evidence shows that appellants and their co-conspirators did actually prevent Williams from engaging in a lawful occupation. Williams was assaulted and all but killed and as a result of this beating he was confined in a hospital for a period of seventeen days, during all of which time he was Prevented from working. He was unable to resume his work because of the injuries and wounds inflicted upon him: The evidence as to the threats was required to show why this was done, and was therefore admissible in evidence. This is true because the mere beating of Williams while a violation of the law, would not have been violation of the Act. It was essential to show why he was beaten, and proof of the threats was necessary to show that purpose.
There is no error in this record. Not only is the verdict supported by evidence legally sufficient to sustain the conviction, but it is supported by the undisputed evidence when the conduct of Campbell and his co-conspirators is interpreted in the light of the threats made before, and at the time of the assault upon Williams.
I think the judgment should be affirmed and therefore dissent from the reversal of the judgments pronounced upon the verdict.
I am authorized to say that Mr. Justice McHaney concurs in the views here expressed.