Page:Cole v. State (210 Ark. 433).pdf/7

 "So far as you know, neither of the three defendants struck you? A. If they did I didn't know it. If they hit me I didn't know it."

Bishop Jackson (under another indictment on a charge of using violence, but not yet tried) testified that the morning of December 26th be went to the headquarters tent used by the strikers and saw Bean, Jones, and others there. He heard "someone" say "they" were going to talk to a boy who was working and if he didn't talk right they would give him a whipping. In the evening he went with Campbell to the foot of Ninth street and together they approached "the boys" who were doing picket duty. He saw Jones. Bean had been there, but had left. Cole came up. He had a stick. "The boys from the mill started to cross the street to go to the street car. Just then one of the strikers told than they wanted to talk to them. One said he didn't have time and the boys from the mill kept on walking". This witness did not know what the strikers did because, when Wilhams and Campbell began fighting, he caught a street car to go home. On cross-examination be asserted that neither of the defendants assaulted anyone or used violence. All of the witnesses were introduced by the State.

The State argues that "this threat which Owens testified to was a part of the whole picture and was a part of the conspiracy, and under the holding in Gurein v. State this type of testimony was competent."

Quoting from the Gurein case, the State emphasizes that part of the opinion that says " if a conspiracy exists to do an unlawful act, any and all acts of any one of the conspirators in furtherance of the conspiracy is admissible against all person shown to be parties to the conspiracy". It is then said in the State's brief: "The facts in that case appear to us to be identical to those in the case at bar".

If it be assumed that, in practical effect, facts here and in the Gurein case were similar, still we havd not disposed of differences between the information and the indictment. In the Gurein case it was alleged that