{ "id": 8720452, "name": "I.V. CHAPMAN and Alvin Hugh PEARSON v. STATE of Arkansas", "name_abbreviation": "Chapman v. State", "decision_date": "1974-12-23", "docket_number": "5809", "first_page": "415", "last_page": "421", "citations": [ { "type": "official", "cite": "257 Ark. 415" }, { "type": "parallel", "cite": "516 S.W.2d 598" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "204 Ark. 376", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1444184 ], "weight": 2, "year": 1942, "opinion_index": 0, "case_paths": [ "/ark/204/0376-01" ] }, { "cite": "479 S.W. 2d 873", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1972, "opinion_index": 0 }, { "cite": "252 Ark. 505", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1630118 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/252/0505-01" ] }, { "cite": "206 Ark. 998", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485003 ], "weight": 2, "year": 1944, "opinion_index": 0, "case_paths": [ "/ark/206/0998-01" ] }, { "cite": "100 S.W. 2d 676", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1937, "opinion_index": 0 }, { "cite": "193 Ark. 426", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411142 ], "year": 1937, "opinion_index": 0, "case_paths": [ "/ark/193/0426-01" ] }, { "cite": "439 P. 2d 651", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1968, "opinion_index": 0 }, { "cite": "67 Cal. Rptr. 547", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1968, "opinion_index": 0 }, { "cite": "315 U.S. 568", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 374637 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/us/315/0568-01" ] }, { "cite": "379 U.S. 536", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11731584 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/us/379/0536-01" ] } ], "analysis": { "cardinality": 665, "char_count": 10262, "ocr_confidence": 0.896, "pagerank": { "raw": 2.978474276604461e-07, "percentile": 0.8508428483668353 }, "sha256": "d9008a00648b84810f15cc0792540a5af021948519c115c8b23729783d8ce2ba", "simhash": "1:bbe6de874d0c1e54", "word_count": 1765 }, "last_updated": "2023-07-14T15:16:07.797047+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "I.V. CHAPMAN and Alvin Hugh PEARSON v. STATE of Arkansas" ], "opinions": [ { "text": "George Rose Smith, Justice.\nThe two appellants were charged by information with having urged a riot and with having urged others to commit acts of violence by destroying property, in violation of Ark. Stat. Ann. \u00a7 41-1445 (Supp. 1973). After a long trial both defendants were found guilty, the jury fixing Chapman\u2019s punishment at a $500 fine and three years\u2019 confinement and Pearson\u2019s punishment at a $500 fine. We find it necessary to discuss only five of the nine points for reversal that are argued.\nI. The appellants first question the constitutionality of the statute, which reads in pertinent part as follows:\nSection 41-1445. Every person who, with the intent to cause a riot, does an act or engages in conduct which urges a riot, or urges others to commit acts of force or violence, or the burning or destroying of property, and at a time and place and under circumstances which produce a clear and present and immediate danger of acts of force or violence or the burning or destroying of property, is guilty of a felony and upon conviction shall be subject to [specified fines or imprisonment or both].\nSection 41-1446. This Act shall not apply to, nor in any way affect, restrain or interfere with, otherwise lawful activity engaged in by or on behalf of a labor organization or organizations by its members.\nCounsel contend that the statute is so broad and so vague as to deny due process of law and that the exemption of labor union activity is so discriminatory as to deny the equal protection of the laws. Among the principal cases relied upon are Cox v. Louisiana, 379 U.S. 536 (1965), and Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).\nWe hold the statute to be constitutional. The same arguments with respect to a California statute that is in every material respect a verbatim copy of the Arkansas act were unanimously rejected by the Supreme Court of California in People v. Davis, 67 Cal. Rptr. 547, 439 P. 2d 651 (1968). There the court, in a carefully reasoned opinion, said in part: \u201cTo persons of ordinary understanding, the urging of others to acts of force or violence or to burn or destroy property ... is neither similar nor comparable to speech which merely stirs to anger, invites public dispute, or brings about a condition of unrest. * * * The term \u2018clear and present danger\u2019 has long been used by the courts to distinguish between constitutionally permissible limitations on speech and limitations which run afoul of the constitutional guaranties. * * * There is no unconstitutional vagueness in charging an accused with knowledge of the meaning or import of such a phrase as applied to his acts or conduct, by speech or otherwise, if he \u2018urges a riot, or urges others to commit acts of force or violence, or the burning or destroying of property.\u2019 \u201d\nThe court also disposed of the equal protection conten\u00bb tion by pointing out that the second paragraph of the statute merely declares the intent of the legislature \u201cthat the provisions of the first paragraph are not to be construed to prohibit lawful labor union activity of a character which does not fall within the conduct described in the first paragraph.\u201d Without quoting further from the California court\u2019s excellent opinion, it is sufficient for us to say that we entirely agree with that court\u2019s reasoning and adopt its discussion as our own.\nII. We find the evidence amply sufficient to sustain the convictions. On March 16, 1972, racial strife in Arkadelphia resulted in fighting and property damage at one of the schools. Late that afternoon a crowd of 200 or more black citizens gathered outside the courthouse and jail, apparently because only black students had been arrested in connection with the incidents at the school. There was much testimony to show that the two defendants actively aroused the emotion of the crowd, particularly by leading them in chants such as \u201cWhup, whup, whup \u2019em up against the side of the head\u201d and \u201cLet our people go.\u201d Eventually the angry mood of the crowd erupted into violence. Rocks were thrown, one officer describing them as \u201cquite a hail of rocks.\u201d There were no personal injuries, but an unspecified number of windows were broken in buildings and in automobiles. Although many police officers had been present all along, the two defendants were not arrested until after the incidents of violence and property destruction. There is an abundance of testimony in the record to support the jury\u2019s conclusion that the two defendants were guilty of acts falling squarely within the prohibitory language of the statute; that is, that they urged others to commit acts of violence and property destruction.\nIII. We must sustain the appellants\u2019 contention that their defense was or may have been prejudiced by the trial court\u2019s critical remarks, in the presence of the jury, about the conduct of the defendants\u2019 attorneys. Unfortunately, there was friction between the trial judge and defense counsel almost from the beginning of the litigation. One attorney was cited for contempt of court (and found not guilty by the trial judge), and there are references to an order by which the trial judge attempted to disbar the defense law firm from practicing in the circuit court.\nMost of the conflicts between court and counsel took place outside the presence of the jury, but there were other instances \u2014 two in particular \u2014 that were witnessed by the jury. The first incident occurred when a defense attorney, Mr. Mays, was introducing photographs that had been taken by the State. Confusion understandably arose, because the prosecution had intended to introduce the pictures and had put State\u2019s Exhibit Numbers on the back of them. We quote from the record:\nQ. Now, may \u00cd ask you one question; do you know whether these pictures were taken \u2014\nMr. Mathis: May I see the photographs?\nMr. Mays: This is State\u2019s No. 4.\nMr. Mathis: No, this is Defendants\u2019 No. 5.\nMr. Mays: I know it\u2019s Defendants\u2019 No. 5, but on it, it says State\u2019s No. 4.\nMr. Mathis: Sir?\nMr. Mays: it says State\u2019s No. 4 on the back here, your Honor.\nThe Court: Now, Mr. Mays, you know how to conduct yourself in court. These are photographs. They are your exhibits. They are not State\u2019s No. 4.\nMr. Mays: I understand.\nThe Court: You understand?\nMr. Mays: Yes, sir.\nThe Court: Now, you either conduct yourself with propriety in this court, or I will deal with the matter at a later date.\nWe merely observe that the photograph was in fact marked on the back as a State\u2019s Exhibit, that the statements made by Mays were correct, and that we discern no basis for the court\u2019s implication that Mays had not conducted himself with propriety.\nThe second incident occurred while another defense attorney, Mr. Walker, was questioning a police officer:\nQ. So up to the point where he took his shirt off, in your judgment, he had not done anything to cause you to arrest him?\nThe Court: The witness will not answer the question. It is repetitious. It is not a matter for the judgment of this witness, but it is a matter from all the facts that the jury will determine.\nMr. Walker: Your Honor, I respectfully suggest that this witness has arrest authority.\nThe Court: Every citizen has arrest authority, Mr. Walker. Now, let\u2019s move on.\nMr. Walker: Would you note our exceptions?\nThe Court: Yes, sir.\nMr. Walker: Did you note our offer of proffer to the court?\nThe Court: Yes, sir.\nMr. Walker: Would his Honor rule on our request to proffer?\nThe Court: Overruled.\nMr. Walker: Note our exceptions.\nThe Court: Yes, sir. And the court will also note your dilatory tactics.\nCounsel\u2019s motion for a mistrial, made outside the hearing of the jury, was then overruled.\nThe motion should have been granted. As we said in Western Coal & Mining Co. v. Kranc, 193 Ark. 426, 100 S.W. 2d 676 (1937), and repeated in McAlister v. State, 206 Ark. 998, 178 S.W. 2d 67 (1944): \u201cNo principle is better settled than that a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which might tend to influence the minds of the jury.\u201d\nIn the case at bar the trial judge\u2019s reprimand in each instance was unnecessarily severe and critical, as there had been no conduct on the part of counsel calling for such a rebuke. Our settled rule is that error is presumed to be prejudicial unless we can say with confidence that it was not. Vaughn and Wilkins v. State, 252 Ark. 505, 479 S.W. 2d 873 (1972). Here we cannot conscientiously say with assurance that the trial court\u2019s remarks had no prejudicial effect upon the jury\u2019s consideration of the case.\nIV. We find no abuse of discretion in the trial court\u2019s refusal to grant a change of venue, the evidence being in conflict. Bailey v. State, 204 Ark. 376, 163 S.W. 2d 141 (1942). Moreover, in seeking a change of venue counsel stressed the fact that at the time of trial racial tension in the county still existed, because the riot had occurred only a month before the case was tried. Owing to the court reporter\u2019s physical inability to transcribe the testimony promptly, the record was not filed in this court until two years after the trial. Consequently, the state of public feeling may be entirely different upon a retrial of the case. If not, the request for a change of venue may be reasserted.\nV. In the only other alleged error that is likely to recur upon a new trial, counsel insist that the court should have told the jury that the assemblage in front of the courthouse would be presumed to be lawful unless and until it was shown that the law enforcement officials instructed the crowd to disperse. The statutes relied upon, Ark. Stat. Ann. \u00a7\u00a7 42-207, 42-209, and 42-211 (Repl. 1964), merely impose upon the officers a duty to attempt to persuade the assembled persons to disperse. Their failure to take that action certainly does not convert a riot into a peaceable and lawful assembly.\nReversed.", "type": "majority", "author": "George Rose Smith, Justice." } ], "attorneys": [ "Walker, Kaplan & Mays, P.A., for appellants.", "Jim Guy Tucker, Any. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "I.V. CHAPMAN and Alvin Hugh PEARSON v. STATE of Arkansas\n5809\n516 S.W. 2d 598\nOpinion delivered December 23, 1974\nWalker, Kaplan & Mays, P.A., for appellants.\nJim Guy Tucker, Any. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee." }, "file_name": "0415-01", "first_page_order": 450, "last_page_order": 456 }