People v. Most

• Decision Date: 10 June 1902
• Parties: PEOPLE v. MOST.
• Court: New York Court of Appeals Court of Appeals

171 N.Y. 423

64 N.E. 175

PEOPLE

v.MOST.

Court of Appeals of New York.

June 10, 1902.

Appeal from supreme court, appellate division, First department.

John Most was convicted of a misdemeanor, and from an order of the appellate division (75 N. Y. Supp. 591) affirming a judgment of a court of special sessions (73 N. Y. Supp. 220) he appeals. Affirmed.Morris Hillquit, for appellant.

William Travers Jerome, Dist. Atty. (Robert C. Taylor, of counsel), for the People.

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 50 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 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 and 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 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 wish the means. If we wish the life of the peoples, we must wish for the death of their enemies. If we wish for humanity, we must wish for murder.’

‘We say, murder the murderers, save humanity, through blood and iron, poison and dynamite.’

Section 675 of the Penal Code provides, among other things, that ‘a person who willfully and wrongfully commits any act * * * which seriously disturbs or endangers the public peace * * * for which no other punishment is expressly prescribed by this Code, is guilty of a misdemeanor.’ Two questions are presented for decision: (1) Did the publication of the article in question constitute a crime under section 675 of the Penal Code? (2) Did the conviction of the defendant violate the constitutional guaranty of freedom of the press?

So far as the meaning, intent, and effect of the article involve a question of fact, we are concluded by the concurrent action of the courts below; but the simple interpretation of the paper, without regard to extraneous facts, presents a question of law for us to decide. While the application intended, or any hidden or ambiguous meaning which may be discovered by reading between the lines, or by the aid of surrounding circumstances, may involve a question of fact, the obvious and natural meaning is to be determined as a question of law. If the article advocates revolution and murder, it is not important that it should have been written by the defendant, but it is sufficient if he adopted the words of another to express his wishes. If he intended to convey the idea that the entire article was written by Heinzen, he nevertheless adopted it by the statement in parentheses, which was his own, that ‘this is true even to-day.’ He thus indorsed the sentiments expressed and ratified the advice given. Moreover, the tone and tenor of his statements, arguments, and exhortations apply to the present time, and call for action on the part of his readers without delay. The article was published without quotation marks, and without comment, criticism, or dissent; and a fair reading thereof leaves the impression upon the mind that only the opening sentence or sentences were written by Heinzen, and that the remainder was the work of the publisher. This conclusion is strengthened by the internal evidence that the writing was of recent origin, such as the use of the word ‘dynamite,’ which occurs twice, yet that word was not in use 50 years ago, when Heinzen is alleged to have written his dissertation on murder. Tit. ‘Dynamite,’ Worcest. Dict. (Ed. 1859); Webster, (Ed. 1864); Encyc. Brit. (Ed. 1878); Alden's Cyc.; Murray's New Oxford Dict.; Harper's Book of Facts; Townsend's Manual of Dates. The object of the article, as we interpret it, was not to criticise or...