Page:Cole v. State (214 Ark. 387).pdf/3

ARK.]

to the validity of that section under the Fourteenth Amendment to the Federal Constitution. None of their contentions were passed upon by the State Supreme Court. It affirmed their conviction as though they had been tried and convicted of a violation of section 1 when in truth they had been tried and convicted only of a violation of a single offense charged in section 2, an offense which, is distinctly and substantially different from the offense charged in section 1."

The opinion concluded with this directive: "In the present state of the record we cannot pass upon those contentions which challenge the validity of section 2 of the Arkansas Act. The judgment is reversed and remanded to the State Supreme Court for proceedings not inconsistent with this opinion."

When the mandate of the U.S. Supreme Court was filed in this Court, permission was granted for the filing of briefs on the questions presented by the mandate. In these new briefs the defendants (appellants) correctly take the position that the previous opinion of this Court and the holding of the U.S. Supreme Court dispose of all questions except two, which are: (1) the constitutionality of that part of § 2 of said Act 193 which is here involved; and (2) sufficiency of the evidence to sustain the verdicts of conviction under the information previously copied. We proceed to consider these questions.

I. Constitutionality. In assailing the constitutionality of said Act 193, appellants say that the Act is too indefinite to charge an offense, and also that the Act violates provisions of both the State and the Federal Constitutions and Amendments. Section 1 of Act 193 has been upheld by this court in several cases. See Smith and Brown v. State, 207 Ark. 104, 179 S.W.2d 185 and Guerin v. State, 209 Ark. 1082, 193 S.W.2d 997. In Smith and Brown v. State we said:

" The Act here in question is an exact or verbatim copy of the Texas statute, Art. 1621b of Texas Penal Code as amended by Chap. 100, Acts 47th Legislature, Regular Session, Vernon's Ann. P.C. Art. 1621b,