(concurring specially).
Although the point was not raised or urged by defendants, either in the trial court or in this appeal, and ordinarily could not be considered, after a careful study of the record and the authorities cited by Judge Brett, I am persuaded, from the reasons set out in his opinion, that the defendants are entitled to a new trial, limited to the failure of the trial court to instruct the jury on the fundamental elements of the crime charged.
And I concur particularly in paragraph 15 of the syllabus, where it is said:
“On a prosecution for unlawful assembly involving a labor dispute, the questions of labor’s rights of peaceful picketing and persuasion, of adoption of and concurrence in a threat made by one, and in the case at bar circumstantial evidence, are fundamental and' the failure of the trial court to so instruct constitutes fundamental and reversible error.”
I cannot agree, however, that there was not sufficient evidence, though circumstantial, believed by the jury, to support conviction of the defendants of the crime charged. I would dwell on this point as an aid in the future disposition of this case. I would quote from the information and set out the statute covering' the offense charged.
The pertinent portion of the information reads:
“On the 11 day of July, A. D. 1956, in Oklahoma County, State of Oklahoma, Oscar Lair, Gordon Bryant, Bill Turner and C. B. Horton, whose more full and correct names are to your informant unknown, then and there being, did then and there wilfully, unlawfully and wrongfully commit the crime of Unlawful Assembly in the manner and form as follows, to-wit:
“That is to say, the said defendants, in the County and State aforesaid, then and there being, did then and there while acting conjointly and together and in consert, wilfully, unlawfully and conjointly assemble in the immediate vicinity of the Ralph McClain residence at 3000 N. W. 19th Street, in Oklahoma City, said County and State, without authority of law, and in a manner adapted to disturb the public peace and excite public alarm, and the said defendants did in fact disturb the public peace and excite public alarm; contrary to the form of the statutes * * * ” etc.
Section 1314 of Title 21 O.S.1951, the statute under which the information was filed, reads:
“Whenever three or more persons assemble with intent or with means and preparations to do an unlawful act which would be riot if actually committed, but do not act toward the commission thereof, or whenever such persons assemble without authority of law, and in such a manner as is adapted to disturb the public peace, or excite public alarm, such assembly is an unlawful assembly.”
*240The above statute was adopted during territorial days from Compiled Laws of Dakota 1887. Counsel for both the defendants and the State agree that there are few cases construing similar statutes, and none have been cited where the issues were parallel to those in the within case. We have read the cases cited by counsel for defendants, but by reason of the factual differences, they have not been of much aid.
The undisputed evidence shows that the defendants were members of Local Teamsters Union No. 886, and that the transfer and storage employees of Oklahoma City who belonged to Local Union 886 were on strike. There were eleven companies on strike, one being the Reliable Van & Storage Company, the booking agent in Oklahoma City for Mayflower.
There is no doubt but that the union people had the right to assemble together, had the right to picket and had the right to talk to Charles Oden, driver of a truck they thought belonged to a company involved in the strike. They did not have the right to threaten and intimidate Oden, or use violence. The law covering this has been ably developed by Judge Brett in his opinion.
The question the jury had for determination was whether the assembled strikers threatened the driver of the Pauls Valley truck, or whether their actions and conduct disturbed the public peace or excited public alarm, under the provisions of 21 O.S.19S1 § 1314, supra.
It would require too much space to set forth and discuss in detail the evidence and circumstances to support my thought that there was sufficient evidence to justify the court in submitting the case to the jury. I will point .out only a few circumstances.
There was competent evidence, supported by other circumstances, to show that some five teamsters, union men, “swarmed” the Pauls Valley truck that was at the Ralph McClain residence at 3000 N. W. 19th Street, Oklahoma City, to move the McClain household goods to Pauls Valley. The defendants were not convinced by the driver of the truck that his employer was not involved in the strike, and the driver was caused to quit loading furniture by reason of their conduct, from about noon until five o’clock, before loading commenced under police protection.
The driver of the Pauls Valley truck identified the defendant Bryant as the man who threatened him. He said: “There were some men come and told me — well, told me to stop.” Said he:
“I was told that the strike was against the long distance movers of Mayflower, which my truck had painted Mayflower, their colors; I assured them it was not an interstate move, it was only a local from Oklahoma City to Pauls Valley, and I believe the accusation was given that it was being booked by a company in Oklahoma City and we were handling it. I assured him it wasn’t.
“Q. What else was said that you recall? A. I offered to let them see my bill of lading to prove it was booked by my firm, my home firm in Pauls Valley.
“Q. What was said to that? A. Well, I showed my papers to one man. Well, he told me that I had better unload the furniture, and after I showed him, I tried to reason with the man and assure him that I wasn’t involved in the strike, I wasn’t union, and I wasn’t involved. * * * I tried to reason with him and he wouldn’t listen to my reasoning.
“Q. And what did he tell you? A. Well, he said I would get a busted head and my truck turned over.”
When the driver got witnesses and asked Bryant to repeat his threats, he in effect treated the matter lightly, as if a joke, and changed his tactics to tongue-in-cheek politeness. Still, he did not mean to permit the furniture to be hauled.
Mrs. McClain testified that she talked to the defendants and that, “I was just a little bit upset at the time.”
Charles Oden, the driver of the Pauls Valley truck, testified that a vice president *241of the Teamsters’ Union came out, and, said he: “I asked him if the union sanctioned violence and threats, and he told me he wasn’t responsible for his men when they were off duty.”
A study of all the evidence is convincing that the defendants, with the possible exception of the defendant Lair, did not intend to permit the truck to be loaded and make the trip to Pauls Valley, and that the protection afforded by the police and the Highway Patrol is the only thing that prevented violence.
Four union men, shown to have been Bryant, Horton, Turner and Black, parked their car diagonally across the street from the Pauls Valley truck while these men watched that truck. No picket line was put in operation, but such action by the four could not but cause apprehension and fear of momentarily being pounced upon, if the threats had been made as testified to by driver Oden.
Witness Oden testified further:
“Q. When you completed the loading and moved, did anybody go with you? A. We had police escort.
“Q. How far did they go with you ? A. City limits.
“Q. Then what happened? A. Then we had highway patrol escort.
“Q. You arrived in Pauls Valley then, without further violence ? A. No, sir.
“By Mr. Grayson: We object to anything that happened outside the immediate vicinity of 3000 Northwest 19th.
“The Court: Sustained.
“Q. You continued, then to Pauls Valley with highway patrol escort, is that right? A. That’s right.”
The ruling of the court constituted grievous error, as the evidence up to this point supporting the testimony of witness Oden as to threats had been circumstantial and particularly as to the adoption or concurrence in the threats by the co-defendants of Bryant. Judge BRETT’S opinion concedes that if the evidence had developed that further threats had been made by defendants, or violence attempted, then without doubt the evidence would have been sufficient to have supported the verdict, absent other errors.
I am convinced from the evidence that witness Black, a colored union man who testified for the State, was confused in testifying that defendant Lair, vice president of Teamsters’ Local 886, accompanied his co-defendants from the union hall to the scene of the trouble. It is apparent from all the evidence except that of Black that Lair did not arrive at the scene until at least fifteen minutes after Mr. Oden, the Mayflower truck driver, had phoned the union office to send an official out there. The evidence discloses, however, that a union official, Mr. Streeter, was with the first group to arrive, and in a group talked to the truck driver, Oden and that Mr. Streeter left in about five minutes and then Mr. Lair arrived. This thought conflicts, with the testimony of witness Black, as indicated, and it was within the province of the jury to weigh the evidence, and not ours, and this principle prevents the appellate court from setting aside the judgment as to defendant Lair.
I feel impelled to say that in view of the fact that no weapons of any kind were in evidence, and that the evidence to support witness Oden was strictly circumstantial, in absence of light on what happened after the truck got on the way to Pauls Valley, it is difficult to understand how the trial court could assess the maximum fine for a misdemeanor.
There has been a dearth of authority interpreting statutes as ours, and I am in accord with Judge BRETT’S painstaking opinion, which should in the future aid prosecuting officials and the courts in avoiding the errors as found in the within case. I am in agreement except as to the sufficiency of the evidence to make out a case, and believe the defendants are by reason of the error set out entitled to a new trial.