171 N.Y. 423, People v. Most

Citation171 N.Y. 423
Party NameTHE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN MOST, Appellant.
Case DateJune 10, 1902
CourtNew York Court of Appeals

Page 423

171 N.Y. 423

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.

JOHN MOST, Appellant.

New York Court of Appeal

June 10, 1902

Argued May 26, 1902.

Page 424

COUNSEL

Morris Hillquit for appellant. The conviction of the defendant cannot be sustained under the Constitution of the state. (Cooley on Const. Law [3d ed.], 300, 302; Cooley on Const. Lim. 518; McCulloch v. Maryland, 4 Wheat. 327; 2 Bish. on Crim. Law, 811; De Hart v. People, 26 Hun, 396.) The publication of the article did not openly outrage the public decency. (Bish. on Stat. Crimes,§ 717; Bicknell Crim. Pro. 448, 449; People v. Muller, 96 N.Y. 408.) The publication of the article did not constitute an offense under section 675 of the Penal Code. ( People v. Knatt, 156 N.Y. 302.) The publication of the article was not a punishable offense under the law. ( Ware v. Circuit Judge, 75 Mich. 488.)

William Travers Jerome, District Attorney (Robert C. Taylor of counsel), for respondent. The murderous utterances in the article constitute a breach of the peace. ( People v. Most, 128 N.Y. 108; 1 Bish. on Crim. Law, § 539; People v. Judson, 11 Daly, 1; Reg. v. Vincent, 9 C. & P. 91; Reg. v. Neale, 9 C. & P. 431; Wise v. Dunning, 18 L. T. Rep. 85; Davis v. Burgess, 52 Am. Rep. 828; 4 Am. & Eng. Ency. of Law [2d ed.], 902; 4 Black. Comm. 142; King v. People, 83 N.Y. 587; People v. Muller, 96 N.Y. 408; People v. Thompson, 97 N.Y. 313; Matter of Neagle, 135 U.S. 1.) Defendant was properly convicted under section 675 of the Penal Code. ( People v. Most, 128 N.Y. 108.) The defendant Most's constitutional rights to freedom of speech or of the press have not been invaded. ( People v. Most, 128 N.Y. 108; Cooley on Const. Lim. [ 6th ed.] 516; People v. Croswell, 3 Johns. Cas. 337; Arnold v. Clifford, 2 Sumn. 238; Ex parte Jackson, 96 U.S. 727; Ex parte Rapier, 143 U.S. 110; U.S. v. Harmon, 45 F. 414; 50 F. 921; State v. Blair, 92 Iowa, 28; Matter of Banks, 56 Kans. 242;

Page 425

State v. Van Wye, 136 Mo. 227; State v. McKee, 73 Conn. 18.)

VANN, J.

The defendant was convicted of violating section 675 of the Penal Code, in that on the 7th of September, 1901, at the city of New York, he willfully and wrongfully committed an act which seriously endangered the public peace.

He was the publisher of a weekly newspaper called the 'Freiheit,' and the wrongful act consisted in the publication of an article in that paper advocating and advising revolution and murder. The defendant admitted the publication of the article, but testified that it was written by one Carl Heinzen and first appeared fifty years ago in a paper called the 'Pioneer,' published in Boston. He further testified that he published the article on the same day that President McKinley was shot, and that as soon as he heard of that event, 'thinking it might be taken the wrong way, that some might think that it was published for that occasion,' he 'tried to get the copies back and take it out of circulation.'

The article was very long, but the following extracts will suffice for the purpose of this review. It was entitled 'Murder vs. Murder,' and the opening sentence is as follows: 'As Heinzen said, nearly fifty years ago (this is true even to-day) there are various technical expressions for the important manipulation by which one human being destroys the life of another.' Various definitions of murder follow, and it is stated that the purpose of murder is always the same, 'the destruction of a life that is hostile or a hindrance.' It is then declared in substance that as 'the dominant barbarism,' meaning constituted authority, punishes murder by murder, 'humanity is forced by necessity to use a weapon, to become the murderess of murderers. If murder is permitted to any one person it is also permitted to all, especially to those who practice it for the purpose of destroying the professional murderers or the murderers by the grace of God.'

This ends the first paragraph of the article, which continues without quotation marks, or anything to indicate that the

Page 426

remainder was written except for the purpose of publication in the 'Freiheit.' After a long argument aiming to show that all government is founded on murder the declaration is made: 'We have the representative of murder before us in all forms. There they stand awaiting our judgment and our decision; they tell us with praiseworthy decisiveness, 'We have murdered, we murder and we will murder as long as we can, we will murder in order to rule, just as you must murder in order to become free.' No further dispute on this question, whether murder is an inevitable necessity--we maintain it; no further dispute over the question whether it (murder) is a right--we practice it.'

Then follow, at intervals, sentences an paragraphs of which the following are specimens: 'Does not the whole world still declare that to be government, which is nothing more than murder dominion?'

'Humanity, you have lost your conscience or reason. You recognize it, the victor (meaning government) is right, that is to say, murder is right. You can save your conscience as well as your reason if you abolish murder, by turning it against all murderers so as to bring about the fact that right practices murder. Let murder be our study, murder in every form. In this one word lies more humanity than in all our theories.'

'The greatest of all follies in the world is the belief that there exists a crime against despots and their myrmidons (meaning public rulers and their officers of justice); they are in human society what the tiger is among animals, to spare them is a crime; as despots permit themselves everything, betrayal, poison, murder, etc., in the same way, all this is to be employed against them. Yes, crime directed against them is not only right, but it is the duty of every one who has an opportunity to commit it, and it would be a glory to him if it was successful.'

'The laws of despots are nothing but the dictates of the sword, their property is nothing less than plunder, their punishment is nothing less than murder; no one can become

Page 427

a criminal as far as their 'laws' are concerned; on their murder heads a revolutionist can only become a liberator of humanity. In all struggles between reaction (meaning government) and revolution, it goes without saying that reaction is the attacking party, revolution is nothing more than a necessary defense. Murder as a necessary defense is not only permissible, but it is sometimes a duty toward society when it is directed against a professional murderer.'

'We know our enemies, we know them all personally in every place; there is absolutely no more excuse if they were again spared. * * * Let the people execute the judgment. The way of humanity leads over the summit of barbarism. This is just the law of necessity dictated by reaction. We cannot go around it as we do not wish to renounce the future. If we wish the design, we must also...

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  • 98 P. 281 (Kan. 1908), 15,335, Coleman v. MacLennan
    • United States
    • Kansas Supreme Court of Kansas
    • November 7, 1908
    ...guilty of a crime against humanity, and naming poison and dynamite as agencies to be employed in murder and destruction. ( People v. Most, 171 N.Y. 423, 64 N.E. 175, 58 L. R. A. 509.) Constitutional government may also under its police power take reasonable steps to protect the morals of th......
  • 54 Misc.2d 277, Cherno v. Bank of Babylon
    • United States
    • July 7, 1967
    ...and quiet of the community', ibid., at p. 303, 261 N.Y.S. p. 344; People v. Chesnick, 302 N.Y. 58, 60, 96 N.E.2d 87, 88; People v. Most, 171 N.Y. 423, 429, 64 N.E. 175, 177, 58 L.R.A. 509. Thus, when in the course of repossession, the conditional vendee received a black eye, it was a questi......
  • 204 P. 958 (Or. 1922), State v. Laundy
    • United States
    • Oregon Supreme Court of Oregon
    • February 28, 1922
    ...States, 249 U.S. 47, 39 Sup.Ct. 247, 63 L.Ed. 470; Frohwerk v. United States, 249 U.S. 204, 39 Sup.Ct. 249, 63 L.Ed. 561; People v. Most, 171 N.Y. 423, 64 N.E. 175, 58 L.R.A. 502; State v. Holm, 139 Minn. 267, 166 N.W. 181, L.R.A.1918C, 304; State v. Hennessy, 114 Wash. 351, 195 P. 211; Sta......
  • 74 N.E.2d 45 (Ill.App. 1 Dist. 1947), 44062, City of Chicago v. Terminiello
    • United States
    • Illinois Court of Appeals of Illinois
    • June 25, 1947
    ...held that such language does not constitute a breach of the peace unless it tends to incite immediate violence. People v. Most, 171 N.Y. 423, 427, 64 N.E. 175, 58 L.R.A. 509; City of St. Louis v. Slupsky, 254 Mo. 309, 318, 162 S.W. 155, 49 L.R.A.,N.S., 919; State v. Steger, 94 W.Va. 576, 57......
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90 cases
  • 98 P. 281 (Kan. 1908), 15,335, Coleman v. MacLennan
    • United States
    • Kansas Supreme Court of Kansas
    • November 7, 1908
    ...guilty of a crime against humanity, and naming poison and dynamite as agencies to be employed in murder and destruction. ( People v. Most, 171 N.Y. 423, 64 N.E. 175, 58 L. R. A. 509.) Constitutional government may also under its police power take reasonable steps to protect the morals of th......
  • 54 Misc.2d 277, Cherno v. Bank of Babylon
    • United States
    • July 7, 1967
    ...and quiet of the community', ibid., at p. 303, 261 N.Y.S. p. 344; People v. Chesnick, 302 N.Y. 58, 60, 96 N.E.2d 87, 88; People v. Most, 171 N.Y. 423, 429, 64 N.E. 175, 177, 58 L.R.A. 509. Thus, when in the course of repossession, the conditional vendee received a black eye, it was a questi......
  • 204 P. 958 (Or. 1922), State v. Laundy
    • United States
    • Oregon Supreme Court of Oregon
    • February 28, 1922
    ...States, 249 U.S. 47, 39 Sup.Ct. 247, 63 L.Ed. 470; Frohwerk v. United States, 249 U.S. 204, 39 Sup.Ct. 249, 63 L.Ed. 561; People v. Most, 171 N.Y. 423, 64 N.E. 175, 58 L.R.A. 502; State v. Holm, 139 Minn. 267, 166 N.W. 181, L.R.A.1918C, 304; State v. Hennessy, 114 Wash. 351, 195 P. 211; Sta......
  • 74 N.E.2d 45 (Ill.App. 1 Dist. 1947), 44062, City of Chicago v. Terminiello
    • United States
    • Illinois Court of Appeals of Illinois
    • June 25, 1947
    ...held that such language does not constitute a breach of the peace unless it tends to incite immediate violence. People v. Most, 171 N.Y. 423, 427, 64 N.E. 175, 58 L.R.A. 509; City of St. Louis v. Slupsky, 254 Mo. 309, 318, 162 S.W. 155, 49 L.R.A.,N.S., 919; State v. Steger, 94 W.Va. 576, 57......
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1 firm's commentaries
  • A Primer On UCC Article 9 Sales
    • United States
    • JD Supra United States
    • May 2, 2014
    ...likely to produce violence, or which by causing consternation and alarm, disturbs the peace and quiet of the community.” People v. Most, 171 N.Y. 423, 64 N.E. 175 (1902). Hence, the secured creditor is well-advised to consider discontinuing a self-help repossession attempt upon the least bi......