Gurein v. State , 209 Ark. 1082 ( 1946 )

The Chief Justice concurs in so much of the opinion, as affirms the judgment as to Gurein and Tapps, but dissents from the holding that there was substantial testimony showing violation of Act 193 by Collins, Overton and Oakley.

ROBINS, J., dissenting. We are dealing here with a criminal statute. It denounces the use of violence, or the threat thereof, to prevent "any person from engaging in any lawful vocation within this state." It does not make felonious such violence or a threat thereof merely because the person committing the violence or making the threat is a striker and the one assaulted or threatened is a strikebreaker; but, before the law is violated, the purpose of such violence or of the threat thereof must be to prevent some person from engaging in his "lawful vocation."

As I read the record in this case there is no proof that the purpose of the violence was to cause Cobb, the prosecuting witness, to desist from his work. In order to find appellants guilty the jury must have presumed that the acts of violence done by appellants were committed with intent to prevent Cobb from working. But it could as well have been presumed that the assault on Cobb was the result of malice toward him because of his strikebreaking activities or enmity toward him for some other reason; and, if such was the motive, the acts of appellants amounted only to an unlawful assault and not to a violation of the statute invoked by the state. As was said by Judge WOOD in Martin v. State, 97 Ark. 212,133 S.W. 598: "Between conflicting presumptions, that which is in favor of the innocence of the accused prevails."

In a prosecution for a felony the state could be required to prove all the material elements of the crime charged, and, in my opinion, this was not done in the instant case.