Carr v. State

• Citation: 166 S.E. 827,176 Ga. 55
• Decision Date: 21 November 1932
• Docket Number: No. 9153.,9153.
• Parties: CARR et al. v. STATE.
• Court: Supreme Court of Georgia

176 Ga. 55

166 S.E. 827

CARR et al.

v.STATE.

No. 9153.

Supreme Court of Georgia.

Nov. 21, 1932.

Syllabus by the Court.

Carr and Powers were indicted under Penal Code, § 58, for the offense of an intent to incite insurrection and to abolish, defeat, and overthrow by acts of violence the lawful authority of the state of Georgia, by the introduction and circulation of certain papers, pamphlets, circulars, and writings. The indictment and the grounds of demurrer are stated in the opinion. The court did not err in overruling the demurrer on all grounds.

RUSSELL, C. J., dissenting.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Joe Carr and another were indicted for intending to incite an insurrection and to overthrow by violence the lawful authority of the state, and, to review judgment over-ruling their demurrers, defendants bring error.

Affirmed.

W. A. McOlellan and W. A. McClellan, Jr., both of Macon, and O. O. Hancock, of Atlanta, for plaintiffs in error.

John A. Boykin, Sol. Gen., J. W. Le Craw, and J. H. Hudson, all of Atlanta, for the State.

GILBERT, J.

The exception is to the overruling of demurrers to an indictment charging that Carr and Powers did "with intent to incite insurrection and to abolish, defeat and overthrow by acts of violence the lawful authority of the State of Georgia, " introduce and circulate "certain papers, pamphlets, sheets, circulars and writing for the purpose of inciting insurrection, riot, conspiracy and resistance against the lawful authority of the State of Georgia and against the lives of the inhabitants thereof, to-wit: 'The program of the Communist Party includes the organization of the working class in every phase of life. It leads the struggles of the workers, from the most simple every day demand, clear up to the final struggle for the overthrow of capitalism and the establishment of the workers' government--the proletarian dictatorship. (8) Against bosses' wars. Defend the Soviet Union. (9) Smash the National Guard, the C. M. T. C. and R. O. T. C" The demurrer states that tire indictment is based on Penal Code (1910) § 58, which is as follows: "If any person shall bring, introduce, print, or circulate, or cause to be introduced, circulated, or printed, or aid or assist, or be in any manner instrumental in bringing, introducing, circulating, or printing within this State any paper, pamphlet, circular, or any writing, for the purpose of inciting insurrection, riot, conspiracy, or resistance against the lawful authority of the State, or against the lives of the inhabitants thereof, or any part of them, he shall be punished by confinement in the penitentiary for not less than five nor longer than twenty years." It is contended: (a) That the section is "unconstitutional, null, void and of no force" because it is "too vague, meagre and indefinite to put" defendant on notice of "what act is attempted to be penalized" thereby, (b) That said section "is unconstitutional and is in contravention of the constitutional guaranty of liberty of speech and of the press, " article 1, § 1, par. 15, Civil Code (1910) § 6371, as follows: "No law shall ever be passed to curtail or restrain the liberty of speech, or of the press; any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty." And (c) that the section "is unconstitutional find is in contravention" of the provisions of the Fourteenth Amendment to the Federal Constitution, Civ-il Code (1910) § 6700, "and tends to deprive this defendant of life and liberty without due process of law, " and the law upon which the indictment is based is "contrary to the provisions of" that amendment "and abridges the privileges and immunities of citizens of the United States and tends to deprive said citizens of life, liberty, and property without due process of law." It is obvious that a statute cannot be said to be unconstitutional because "it is too vague, meagre and indefinite to put" defendant on notice of "what act is attempted to be penalized" as contended in the fifth ground of the demurrer. Moreover, the sufficiency of such a ground of demurrer will be discussed hereinafter.

1. The sixth and seventh grounds of the demurrer attacking the statute on constitutional grounds will be discussed together. The briefs of both plaintiffs in error and defendant in error contain many citations. Naturally, on such a subject many views have been expressed by law writers and courts. We think it unnecessary to discuss these citations in detail, since the whole subject has been authoritatively considered and decided by the very highest authority. We quote from the opinion in the case of Gitlow v. People of State of New York, 268 U. S. 652, 665, 45 S. Ct. 625, 629, 69 L. Ed. 1138, as follows:

"The Manifesto, plainly, is neither the statement of abstract doctrine nor, as suggested by counsel, mere prediction that industrial disturbances and revolutionary mass strikes will result spontaneously in an inevitable process of evolution in the economic system. It advocates and urges in fervent language mass action which shall progressively foment industrial disturbances and through political mass strikes and revolutionary mass action overthrow and destroy organized parliamentary government. It concludes with a call to action in these words: 'The proletariat revolution and the Communist reconstruction of society--the struggle for these--is now indispensable. * * * The Communist International calls the proletariat of the world to the final struggle !' This is not the expression of philosophical abstraction, the mere prediction of future events; it is the language of direct incitement.

"The means advocated for bringing about the destruction of organized parliamentary government, namely, mass industrial revolts usurping the functions of municipal government, political mass strikes directed against the parliamentary State, and revolutionary mass action for its final destruction, necessarily imply the use of force and violence, and in their essential nature are inherently unlawful in a constitutional government of law and order. That the jury were warranted in finding that the Manifesto advocatednot merely the abstract doctrine of overthrowing organized government by force, violence and unlawful means, but action to that end, is clear. For present purposes we may and do assume that freedom of speech and of the press--which are protected by the First Amendment from abridgement by Congress--are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U. S. 530, 543, 42 S. Ct. 516, 66 L. Ed. 1044, 27 A. L. R, 27, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question. It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. 2 Story on the Constitution (5th Ed.) § 1580, p. 634; Robertson v. Baldwin, 165 U. S. 275, 281, 17 S. Ct. 326, 41 L. Ed. 715; Patterson v. Colorado, 205 U. S. 454, 462, 27 S. Ct. 556, 51 L. Ed. 879, 10 Ann. Cas. 689; Fox v. Washington, 236 U. S. 273, 276, 35 S. Ct. 383, 59 L. Ed. 573; Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 63 L. Ed. 470; Frohwerk v. United States, 249 U. S. 204, 206, 39 S. Ct. 249, 63 L. Ed. 561; Debs v. United States, 249 U. S. 211, 213, 39 S. Ct. 252, 63 L. Ed. 566; Sehae-fer v. United States, 251 U. S. 466, 474, 40 S. Ct. 259, 64 L. Ed. 360; Gilbert v. Minnesota, 254 U. S. 325, 332, 41 S. Ct. 125, 65 L. Ed. 287; Warren v. United States, 106 C. C. A. 156, 183 F. 718, 721, 33 L. R. A. (N. S.) 800. Reasonably limited, it was said by Story in the passage cited, this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic. That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question. Robertson v. Baldwin, supra [165 U. S.] page 281 (17 S. Ct. 326) ; Patterson v. Colorado, supra [205 U. S.] page 462 (27 S. Ct. 556) [51 L. Ed. 879, 10 Ann. Cas. 689]; Fox v. Washington, supra [236 U. S.] page 277 (35 S. Ct. 383) ; Gilbert v. Minnesota, supra [254 U. S.] page 339 (41 S. Ct. 125) ; People v. Most, 171 N. Y. 423, 431, 64 N. Ed. 175, 58 L. R. A. 509; State v. Holm, 139 Minn. 267, 275, 166 N. W. 181, L. R. A. 1918C, 304; State v. Hen-nessy, 114 Wash. 351, 359, 195 P. 211; State v. Boyd, 86 N. J. Law, 75, 79, 91 A. 586; State v. McKee, 73 Conn. 18, 27, 46 A. 409, 49 L. R. A. 542, 84 Am. St. Rep. 124. Thus it was held by this Court in the Fox Case, that a State may punish publications advocating and encouraging a breach of its criminal laws; and, in the Gilbert Case, that a State may punish utterances teaching or advocating that its citizens should not assist the United States in prosecuting or carrying on war with its public enemies. And, for yet more imperative reasons, a State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. These imperil its own existence as a constitutional •State. Freedom of speech and press, said Story, supra, does not protect disturbances to the public peace or the attempt to subvert the government. It does not protect publications or teachings which tend to subvert or imperil the government or to impede or hinder it in the performance of...