State v. Fowler , 59 Mont. 346 ( 1921 )

ME. CHIEF JUSTICE BEANTLY

delivered the opinion of the court.

Appeals by the defendant from a judgment convicting him of the crime of sedition and from an order denying his motion for a new trial.

Omitting the formal parts, the information charges: “That the said Louis L. Fowler, whose true name the county attorney is informed is Joseph Clingenhoefer, on or about the tenth day of April, 1918, at the county of Madison, state of Montana, and when the United States was engaged in war, did wilfully, unlawfully, wrongfully and feloniously utter and publish disloyal, profane, violent, scurrilous, contemptuous, slurring and abusive language about and concerning the soldiers of the United States, by stating with reference to the raising of wheat to feed our soldiers, ‘Let the sons-of-bitches eat hay,’ thereby advocating' the curtailment of production of things and products necessary and essential in the prosecution of the war, with intent by such curtailment to cripple and hinder the United States in the prosecution of the war; and said defendant said, ‘This is not our war; we have no business being in this war; Wilson did not do right in getting us into this war to fight somebody else’s battles’; and defendant said, with reference to the war, ‘If I do any fighting in this war, I will fight the British,’ and further said, referring to a soldier dressed in uniform, ‘Anyone who will wear the uniform of the United States is a damned fool’; and with reference to the purchase of Liberty Bonds, defendant said, ‘I will not buy Liberty Bonds but will dispose of my property, go to South America and let Germany have my money,’ and said with reference to the person who asked him to buy Liberty Bonds, ‘He must think I am a damned fool, to buy Liberty Bonds, and go against my own’; that the language so used by the defendant was calculated to bring the form of the government of the United States, the soldiers of the United States, and the uniform of the army into contempt, scorn, contumely and disrepute, and said language so used by defendant was calculated to incite and inflame resistance to the duly constituted federal and state authority in connection with the prosecution of the war, contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the state of Montana.”

1. The contention is made that the Act of the legislature [1] which defines the crime of sedition and prescribes its punishment (Chap. 11, Laws Extra. Session, Fifteenth Legislative Assembly 1918), is unconstitutional, in that the subject matter of it is one upon which the Congress of the United States alone may legislate. The same contention was made and overruled by this court in the case of State v. Kahn, 56 Mont. 108, 182 Pac. 107. Reference to what was said on this subject in that case is a sufficient answer to the argument now made by counsel.

2. It is argued that the facts stated in the information do [2, 3] not constitute a public offense, in that it is not alleged that the language charged to be seditious was uttered by the defendant either in the presence of or to any person or persons, or at any particular place in Madison county. Besides charging that the defendant did “utter and publish disloyal, profane, violent, scurrilous, contemptuous, slurring and abusive language about and concerning the soldiers of the United States,” following these qualifying words the information sets forth the language used, the place, that is, the county where publication was made, and also the time when the language was used. The allegation that the crime was committed in Madison county is a sufficient allegation of the place. This is sufficient to meet the requirements of the provisions prescribing its form and contents. (Rev. Codes, secs. 9147-9149.) Eliminating all of the other language charged to have been uttered by the defendant, the expression, “Let the sons-of-bitches eat hay,” referring to the raising of wheat to feed our soldiers, comes clearly within the terms of the statute. At the time the words were uttered there were no soldiers for whom wheat was or could be raised in Montana, other than the soldiers of the United States. That the expression comes within the qualifications embodied in the terms “contemptuous” and “slurring” employed in the statute and charged in the information, cannot be questioned. That it was used in the presence of others is' comprehended in the meaning of the word “publish”; for the sense in which this term is ordinarily, understood,—the meaning to be assigned to it here,—is “to make public; to make known to people in general; to divulge, as a private transaction.” (Webster’s International Dictionary.) The discussion of the information in the case of State v. Wyman, 56 Mont. 600, 186 Pac. 1, is applicable to the one in hand. Conceding, however, for present purposes, .that the information is indefinite in that it omits to state the names of the person or persons in whose presence and hearing the statement was made, no objection was made to it in the court below fé] by demurrer under section 9200 of the Revised Codes. By pleading to the information the defendant waived all objections to its sufficiency, “except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, or after the trial, in arrest of judgment.” (Rev. Codes, sec. 9208; State v. Newman, 34 Mont. 434, 87 Pac. 462; State v. Tudor, 47 Mont. 185, 131 Pac. 632; State v. Vinn, 50 Mont. 27, 144 Pac. 773.) The same may be said of the contention, incidentally made, that the information charges more than one offense. (State v. Rodgers, 40 Mont. 248, 106 Pac. 3; State v. Mahoney, 24 Mont. 281, 61 Pac. 647.)

3. It is contended that the court erred in refusing to grant [5] defendant a continuance when the cause was called for trial because he appeared without counsel. The facts in this connection are the following: The defendant was arraigned for his plea to the information on May 11, 1918. At that time he stated to the court that he did not wish to employ counsel to defend him but desired to proceed without counsel. He thereupon entered his plea of not guilty and was admitted to bail in the sum of $10,000, which he gave by depositing with the clerk that amount in cash. On September 9, the court called its calendar and the cause was set for trial at 2 o’clock on October 16. On that day, at the hour fixed, the cause came on regularly for trial, whereupon the defendant stated that he was without counsel to defend him. The court explained to him that he had had ample time to obtain counsel and he must proceed with the trial.

It will be noted that the defendant did not ask time to procure counsel, but merely stated that he was without counsel. Under the circumstances we do not think the court deprived him of any constitutional right, as counsel contends. Having at the time of his arraignment expressly stated that he did not desire counsel to defend him, and having had ample time thereafter to procure counsel and prepare his defense, we do not think he may now insist with good grace that he was not accorded every right to which he was entitled. We are confirmed in this view when we call to mind that he is a man of ample means, which is demonstrated by the fact that he was able to deposit $10,000 in cash for his bail, as well as by the further fact that he is apparently a prosperous farmer, and therefore a man of fair average intelligence, who could appreciate the seriousness of the charge preferred against him. So far as we can judge from what occurred at the time, the defendant did not express a desire for counsel, nor did he intímate to the court that he would procure counsel if he should be allowed time to do so. The court had no assurance that if he should be granted time he would be more assiduous than he had been since he had entered his plea or since he had been notified of the setting of the cause for trial. The Constitution guarantees every defendant the right to be heard by himself, as well as by counsel. It is held by the courts, however, that this right is different in its nature from the right of trial by jury. The guaranty of the latter is prohibitive in character and cannot be waived. (State v. Koch, 33 Mont. 490, 85 Pac. 272; State v. Maine, 27 Conn. 281; State v. Yoes, 67 W. Va. 546, 140 Am. St. Rep. 978, 68 S. E. 181; Thompson on Trials, sec. 2149.) The right to appear by counsel is a personal privilege to be availed of by the accused at his pleasure, and, if he is sui juris and not laboring under any disability, he may act as his own counsel. If he elects to do -this—being-able financially to employ counsel—he is not entitled to a new trial on the ground that he was not represented by counsel. (Barnes v. Commonwealth, 92 Va. 794, 23 S. E. 784; State v. Williams, 45 La. Ann. 736, 12 South. 932; R. C. L. 83 and cases cited supra.) Section 9188 of the Revised Codes declares that the defendant must be informed of his right to counsel. If he desires but is unable to employ one, the court must appoint one for him, but when he, as here, has notified the court that he does not desire counsel, he indicates his election to rely upon his own skill and ability, and the court may proceed with the trial in the ordinary way. Under these circumstances we think nothing short ,of a refusal of an application to the court by the defendant for time to procure counsel, disclosing a substantial reason why he has not done so, would be a sufficient reason to justify a conclusion that the court has violated his constitutional rights.

4. The jury returned the following verdict: “We, the jury [6] in the above-entitled action, find the defendant, Louis L. Fowler, guilty of the crime of sedition in manner and form as charged in the information and fix and assess his punishment at the discreation of the court.” The contention is made that it is rendered so defective by the misspelling of the word “discretion” that judgment should not be rendered upon it. There can be no doubt what the jury intended, viz., to find the defendant guilty as charged, and to leave the punishment to be fixed by the court. Section 9330 of the Revised Codes authorizes this to be done. If it be conceded, however, that the latter part of the verdict is unintelligible, this may be omitted entirely, leaving a categorical finding of guilty of the crime as charged in the information. Under section 9330, supra, it was the duty of the court to eliminate this part of the verdict and to assess the punishment which in its discretion it thought proper, within the limits prescribed by the statute. (In re Collins, 51 Mont. 215, 152 Pac. 40; Ex parte Gomez, 52 Mont. 189, 156 Pac. 1078.) There is no merit in the contention.

5. It is said that the court imposed an excessive punishment. [7] It adjudged the defendant to pay a fine of $3,000 and to undergo imprisonment in the state prison for a term of not less than four nor more than eight years. The statute declares that “every person found guilty of the crime of sedition shall be punished for each offense by a fine of not less than $200 nor more than $20,000, or by imprisonment in the state prison for not less than one year nor more than twenty years, or by both such fine and imprisonment.” It is apparent that the penalty inflicted upon the defendant is well within the utmost limit to which the court could go. There was no error. After reading the evidence, keeping in mind that the defendant was not represented by counsel, we are inclined to the opinion that the penalty involved was severe. Nevertheless, this is a matter with which this court has nothing to do. If the defendant desires relief in this regard, he should apply to the executive ■department of the government, in which is lodged the power of commutation or pardon.

6. Contention is made that the verdict is contrary to the evidence. We have read the evidence with the care which the importance of this case to the defendant requires. . We find that it is amply sufficient to sustain the verdict.

7. The rest of the fifteen assignments of error argued by counsel are predicated upon the giving of one instruction, several rulings upon questions of evidence, and an order made by the court after judgment, directing the clerk to apply $3,000 of the cash deposited by the defendant for his bail, to the payment [8] of the fine. No objection was made to the instruction nor was any made to the inti’oduction of any of the evidence. These assignments based upon error in the instruction and in the rulings upon questions of evidence, therefore, cannot be considered. The order directing the clerk to appropriate a part of the cash bail to the payment of the fine is not reviewable on appeal from the judgment, nor is it a matter which arose on the motion for a new trial.

The judgment and order are- affirmed.

Affirmed.

Associate 'Justices Reynolds, Cooper, Holloway and Galen concur.

(Decided May 2, 1921.)