State v. Kahn , 56 Mont. 108 ( 1919 )

/MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

The defendant was convicted of the crime of sedition, and has appealed from the judgment and from an order denying his motion for a new trial. /

The attorney general insists that the new trial proceedings were not properly before the lower court and that its action thereon is not subject to review. The question raised involves the right or authority of the county attorney, after the statutory time for filing a notice of intention to move for a new trial had expired, to stipulate that the notice might be filed out of time and the motion heard without objection upon that ground. The principal questions presented by appellant may be raised on tbe appeal from the judgment, and because of this fact, and because of the importance of the ease, we reserve our opinion upon the attorney general’s objection.

The information charges that on March 6, 1918, in Carbon county, Montana, the defendant willfully, seditiously and feloniously did utter the language following: “This is a rich man’s war, and we have no business in it. 'They talk about Hoover-ism — it’s a joke. Nobody pays any attention to it. It don’t amount to anything. The ‘Lusitania’ was warned not to sail. They were carrying munitions and wheat over for the Allies. The poor man has no show in this war. The soldiers are fighting the battles of the rich. ’ ’

It is the contention of appellant that the Act defining sedition [1] (Chapter 11, Laws of the Extraordinary Session, 15th Legislative Assembly 1918) is unconstitutional, in that the subject matter of the Act is one national in character, with respect to which the Congress of the United States alone may legislate. The argument proceeds upon the assumption that the several states have surrendered to the general government the exclusive authority to define sedition and prescribe punishment for it.

The government of the United States is one of delegated powers, but, within the limits prescribed by the Constitution, its authority is supreme. The Constitution of the United States, the laws enacted and treaties made in pursuance thereof, constitute the supreme law of the land, binding upon the courts, anything in the Constitution or laws of the state to the contrary notwithstanding. (Article VI, U. S. Constitution.) If the people by express declaration, or by necessary intendment, have surrendered to the general government the authority to define sedition, it follows as of course that they themselves may not do so. The converse is equally true. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.” (Tenth Amendment, U. S. Constitution.)

It is not contended that the exclusive authority to define sedition is conferred upon the Congress by express provision of the Constitution; but it is insisted that the grant of such authority is necessarily implied from the comprehensive language employed in section 8, Article I, in defining the war powers of the general government.. The Congress alone has authority to declare war, to raise and support armies, to provide and maintain a navy, to make rules for the government and regulation of the land and naval fo'rces, and to make all laws necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States or in any department or officer thereof. (Sec. 8, Article I.) A state may not without the consent of Congress engage in war unless actually invaded or in such imminent danger as will not admit of delay. (Sec. 10, Article I.) In conferring upon the general government the powers enumerated above, the intention was made manifest to surrender all war powers, as such, retaining to the states only that moiety of authority necessary to be exerted in the presence of the exigencies mentioned in the concluding clause of section 10 above. (Arver v. United States, 245 U. S. 366, Ann. Cas. 1918B, 856, L. R. A. 1918C, 361, 62 L. Ed. 349, 38 Sup. Ct. Rep. 159.) But it does not follow that because this state may not declare war or engage in war, independently of the general government, it may not aid the government in carrying on a war to a successful conclusion and exert all of its efforts in that behalf. The right and duty of the state to assist in defending the United States in time of war is recognized by express declaration of our Constitution. (Sec. 12, Art. XII.) In State ex rel. Campbell v. Stewart, 54 Mont. 504, Ann. Cas. 1918D, 1101, 171 Pac. 755, we considered this question and said: ‘ ‘ The United States is at war, and to assist the United States in war is expressly recognized by the Constitution as a proper and probable occasion for the use of state funds. (Const., Art. XII, see. 12.) Moreover, this state, as one of the United States, is at war. When aiding the United States, this state but defends itself, and thus exercises the highest attribute, as it observes the most solemn duty, of sovereignty. That in pursuing this public purpose the state, through its legislature, may adopt or prescribe any mode or means reasonably adapted to accomplish such purpose, is too well settled for debate.” Of the correctness of that conclusion we entertain no doubt, and, so long as the Act in question does not conflict with the provisions of the Constitution of the United States or with the laws enacted in pursuance thereof, it is not open to the objection urged against it.

The subject was recently treated at length by the supreme court of Minnesota, and a statute having the same general purpose in view was upheld. (State v. Holm, 139 Minn. 267, L. R. A. 1918C, 304, 166 N. W. 181.) In the notes to that case, reported in L. R. A. 1918C, 304, it is said that the conclusion reached seems to be clearly in accord with the interpretation placed by earlier decisions on the federal Constitution and laws of Congress enacted pursuant thereto, although no case of a precisely similar nature has been found.

In view of the important part played by the several states in the wars in which this country has been engaged, we think it cannot be contended successfully that in granting the war powers to Congress the states divested themselves of all authority to aid the general government in time of war. If this state has the power to assist the United States in war, then the means through which the power is exerted is a proper subject of legislative discretion and judgment. Our conclusion upon this branch of the case is that our Sedition Act does not infringe upon the exclusive war powers of Congress.

2. It is urged that the statute violates the guaranty of free [2] speech contained in the Constitution of the United States and in the Constitution of Montana. The first amendment to the Constitution of the United States is a limitation upon the authority of the Congress and not a restriction upon the states. (Spies v. Illinois, 123 U. S. 131, 31 L. Ed. 80, 8 Sup. Ct. Rep. 22.) Section 10 of our Bill of Rights declares: “No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty.” Neither Constitution was ever intended to extend immunity for every use or abuse of language.. One’s words, like his acts, take character from the surrounding circumstances. In time of peace the language employed by this defendant, or language of similar import, might not constitute a crime, and it may be true that it is beyond the power of the legislature to make its use a crime in time of peace; but, as said by the supreme court of the United States: “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.” In every one of the following cases the accused sought refuge behind the guaranty of free speech, but in every instance the appeal for protection of the seditious utterances was denied: Schenck v. United States, 249 U. S. 47, 63 L. Ed. 289, 39 Sup. Ct. Rep. 247, decided March 3, 1919; Frohwerk v. United States, 249 U. S. 204, 63 L. Ed. 306, 39 Sup. Ct. Rep. 249; Debs v. United States, 249 U. S. 211, 63 L. Ed. 309, 39 Sup. Ct. Rep. 252.

3. It is insisted that the statute characterizes certain acts as [3-5] criminal without reference to the intent. The statute declares that, whenever the United States shall be engaged in war, any person or persons who shall utter, print, write or publish any language calculated to incite or inflame resistance to any duly constituted federal or state authority in connection with the prosecution of the war, etc., shall be guilty of the crime of sedition. Sedition was a crime unknown to the common law; the nearest approach to it was libel of the Constitution or government, but that offense has never been recognized by the states of this Union. Sedition is a purely statutory offense, and our Act is declared to be, and is in fact, a general police regulation. It is elementary that for the preservation of the peace, the safety of the people, and the good order of society, the legislature may prohibit certain acts, and attach a penalty for disobedience, without including any evil intent as an ingredient of the offense other than the general intent implied from a violation of the statute. (12 Cyc. 148; 8 R. C. L. 62.) But the provision of the statute is, “shall utter language calculated to incite or inflame resistance,” etc. Primarily the word “calculate” means to compute mathematically, and it implies power to think, to reason, to plan. In its broader significance it means to intend, to purpose, to design. (Century Dictionary; Standard Dictionary.)

It is a rule of universal recognition that in testing the validity [6] of a statute subject to two constructions, one of which will uphold its validity while the other will condemn it, the former 'will be adopted if it can be done without violence to the fair meaning of the words. (State ex rel. General El. Co. v. Alderson, 49 Mont. 29, 140 Pac. 82.) Viewed in the light of the context and the broad significance of the term ‘ ‘ calculated, ” it is not a strained construction of this statute to imply intent from the language employed.

4. No restraint was imposed upon the defendant in his efforts [7] to disclose to the jury his attitude toward this government after it became involved in the war and before the alleged offense was committed. The interest which he had' displayed in the soldiers’ welfare, in the Red Cross and allied activities, in the campaigns for the sale of liberty bonds and war savings stamps, was pictured graphically, and his general reputation for loyalty to the United States was attested by several witnesses. P. H. Doyle, a newspaper man,, was asked whether he had “ever heard any statements which were loyal to this government.” An objection was sustained, and counsel for defendant then made the following offer: ‘ ‘ The defendant offers to prove by the witness Pat Doyle that the defendant prior to March 6, 1918, and after the United States entered the war, frequently discussed the war and the relations of the United States toward it, and gave utterances always favorable to the United States, and spoke favorably of our prosecution of the war and of our soldiers and sailors, and, generally, utterances indicating his loyalty to the United States and his loyal intent.” The offered evidence was rejected, and error is predicated upon the ruling. The declarations, if made, were made out of court, when the defendant was not under oath nor subject to cross-examination. They do not fall within any exception to the general rule which excludes such evidence and were properly rejected. (2 Wharton on Criminal Evidence, secs. 690-694.)

5. Complaint is made that instructions 2 and 16 are contradictory and misleading. Instruction 2 was given at the instance [8] of the staté and without objection from defendant, while instruction 16 was given at the instance of the defendant himself. The argument of defendant’s counsel upon this assignment is answered by our Code. Section 9271, Revised Codes, provides:,

“No motion for a new trial on the ground of errors in the instructions given shall be granted by the district court unless the error so assigned.was specifically pointed out and excepted to at the settlement of the instructions, as herein provided; and no cause shall be reversed by the supreme court for any error in instructions which was not specifically pointed out and éxcepted to at the settlement of the instructions herein specified, and such error and exception incorporated in and settled in the bill of exceptions as herein provided.” (State v. Cook, 42 Mont. 329, 112 Pac. 537.)

6; Error is predicated upon the refusal of the court to give defendant’s' offered instrúction No. 13 upon the subject of the defendant’s reputation for loyalty to this government. The [9] offered instruction is subject to the objection that it is argumentative; but, aside from this criticism, it is sufficient to say that the court gave instruction 10, which fully covers the subject.

But counsel argues that instruction 10' deals with the [10] defendant’s general reputation rather than with his‘reputation for loyalty. The only evidence introduced upon the subject related to defendant’s reputation for loyalty, and the jury must have understood the instruction as applicable to that evidence alone. Furthermore, instruction 10 was given at the request of defendant, and he cannot now be heard to say that it has to do with a subject which in no way entered into the trial of the case.

7. In discussing the insufficiency of the evidence, counsel for [11] appellant adopts,the defendant’s version of the transaction, which differs materially from that given by the state’s witnesses. The offensive language was employed by the defendant in a conversation between him and T. F. P-ollard in the 'hotel office in Red Lodge. According to the witnesses for the prosecution, defendant used the language substantially as charged in the information and quoted above. Defendant admits that he said: “This is a rich man’s war”; “Hooverism is a joke.” “The ‘Lusitania’ should not have went [gone] over there.” He explained fully his meaning in using these expressions, and it was then for the jury to determine whose version of the conversation was correct. Defendant cannot now take refuge behind the argument that whatever he said was a mere chance expression or spontaneous outburst without deliberation. He was warned by Pollard early in the conversation to desist from the use of such language, but persisted, until Pollard called him pro-German and other uncomplimentary names. There is ample evidence to justify the verdict, which is, in effect, a finding that the defendant used the language substantially as set forth in the information, and, upon the assumption that he did use that language, then it was for the jury to say further whether the natural tendency and reasonably probable effect of the language was to incite or inflame resistance to a duly constituted federal or state authority in connection with the prosecution of the war. (Debs v. United States, above.)

The Espionage Act of June 15, 1917 (40 Stat. 217, Chap. 30), [12] was considered in the Schenck and Frohwerk Cases, and the same Act as amended was before the court in the Debs Case. The federal Act is similar in all respects to our sedition statute, and, the construction given to it by the supreme court of the United States, if not conclusive upon us, is entitled to the greatest respect. Without entering upon a further discussion, we content ourselves with a reference to those recent cases as expressing our views upon the Act in question.

The defendant appears to have been accorded a fair and impartial trial. The record presents no reversible error.

The judgment and order are affirmed./

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Cooper concur.