Herndon v. State

CourtSupreme Court of Georgia
Citation176 S.E. 620,179 Ga. 597
Docket Number9871.
PartiesHERNDON v. STATE.
Decision Date28 September 1934

Syllabus by the Court.

1. The original decision as reported in 178 Ga. 832, 174 S.E. 597 explained.

2. This court will not pass upon the constitutionality of an act of the General Assembly unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge.

3. There is no merit in the motion for rehearing.

Error from Superior Court, Fulton County; L. B. Wyatt, Judge.

On motion for rehearing.

Motion denied.

For former opinion, see 178 Ga. 832, 174 S.E. 597.

Ewing C. Baskette, of Nashville, Tenn., and John H. Geer and Benjamin J. Davis, Jr., both of Atlanta, for plaintiff in error.

John A Boykin, Sol. Gen., J. Walter Le Craw, and John H. Hudson, all of Atlanta, and M. J. Yeomans, Atty. Gen., and B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., for the State.

BELL Justice.

Angelo Herndon was convicted of the offense of an attempt to incite an insurrection as defined in Penal Code, § 56, and was given a sentence in accordance with section 57. His motion for a new trial was overruled and the judgment was affirmed by this court in a decision reported in 178 Ga. 832, 174 S.E. 597.

No attack upon the constitutionality of the statute under which he was convicted was made in the court below, and none was attempted in this court prior to the decision referred to and the judgment based thereon. But, during the same term in which the judgment of affirmance was rendered and before the remittitur was forwarded to the clerk of the trial court, the defendant (plaintiff in error) filed a motion for a rehearing, suggesting some constitutional considerations, and being in its material parts as follows:

"Upon the trial of this case in the court below, the trial judge charged the jury (R. 195): '* * * That advocacy however reprehensible morally, is not sufficient to convict the defendant where there is no evidence to indicate that the advocacy would be acted upon immediately. In order to convict the defendant, gentlemen, it must appear clearly by the evidence that immediate serious violence against the State of Georgia was to be expected or advocated.' And also (R. 195) 'that an attempt to commit an act which is, in fact, a crime, is not complete unless the alleged crime is dangerously near completion.'

Thus, as the trial judge construed the statute in question, it does not make criminal every attempt, by persuasion, or otherwise, to induce others to join in combined resistance to the authority of the State, but only such attempts as are intended to bring about such resistance immediately or as are likely under all the circumstances to bring about such resistance immediately.

The jury having returned a verdict of guilty, the plaintiff in error moved for a new trial on the ground that the verdict was contrary to law and the evidence (R. 16), and, his motion for a new trial having been denied, he duly excepted (R. 2).

In construing the statute for the purpose of determining whether the evidence was sufficient to support the verdict, this court said in its opinion (178 Ga. 832, 174 S.E. 609): 'It is immaterial whether the authority of the state was in danger of being subverted or that an insurrection actually occurred or was impending.' And this Court also said (178 Ga. 832, 174 S.E. 610): "Force must have been contemplated, but, as said above, the statute does not include either its occurrence or its imminence as an ingredient of the particular offense charged. Nor would it be necessary to guilt that the alleged offender should have intended that an insurrection should follow instantly or at any given time, but it would be sufficient that he intended it to happen at any time, as a result of his influence, by those whom he sought to incite. It was the intention of this law to arrest at its incipiency any effort to overthrow the state government, where it takes the form of an actual attempt to incite others to insurrection.'

Thus, as this Court construed the statute, every attempt to persuade others to join in combined resistance to the authority of the State is criminal, provided only that the person making the attempt intended forcible resistance to occur at some time, however remote, as the result of his persuasion, however unlikely that his attempt would succeed. It is obvious that this Court's construction of the statute is radically different from that of the trial judge. That means that the statute as applied by the trial court was a very different statute from the statute as applied by this Court.

Under the trial judge's construction, the evidence was insufficient to support the verdict of guilty unless it was proved either that the plaintiff in error attempted to persuade others to engage in immediate forcible resistance to the authority of the State or that the plaintiff in error should have foreseen under the circumstances that forcible resistance was likely to result immediately. Under this Court's construction of the statute, the evidence was sufficient to support the verdict if it was proved that the plaintiff in error intended that forcible resistance to the State's authority should occur at any time whatever as the result of his persuasion, however unlikely that result under the circumstances.

The rigid and narrow construction of the statute by this Court necessarily raises the question whether the statute as construed and applied by this Court to the facts of this case was repugnant to the due process clause of the Fourteenth Amendment to the Federal Constitution. This question was obviously material to a decision of the appeal of the plaintiff in error because if the statute as construed by this Court is unconstitutional the judgment of guilty rendered by the court below could not be lawfully affirmed.

Moreover, no precedural obstacle is present to prevent consideration and determination of the constitutionality of the statute in question as construed and applied by this Court. That question originated in this Court, and the plaintiff in error was not required to anticipate, nor could he have anticipated, while the case was in the trial court, that this Court would construe and apply the statute differently and even more strictly than it had been construed and applied in the trial court. Neither by an exception to the trial judge's charge, on the ground that the statute as construed by the trial judge was unconstitutional, nor by any conceivable assignment of error could the plaintiff in error have raised in the trial court the question of the constitutionality of the statute as it was subsequently construed and applied by this Court.

That question was therefore not only material to a decision of the appeal of the plaintiff in error but it is properly before this court, since it originated here and is now called to the attention of this Court by the plaintiff in error at the first opportunity for so doing. The plaintiff in error respectfully submits that under the decisions of the Supreme Court of the United States in Schenck v. U.S. , 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470; Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108; and Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484, the statute as construed applied by this Court is repugnant to the due process clause of the Fourteenth Amendment. This constitutional question was first presented by the decision of this Court and should be considered by it before making a final determination of the appeal of the plaintiff in error.

The plaintiff in error respectfully submits that this court should grant a rehearing of the appeal so that the Court may now consider and decide the question whether the statute as construed and applied by it is constitutional."

1. The language used by this court should be considered with the usual reasonable implications. The phrase "at any time" as criticized in the motion for rehearing was not intended to mean at any time in the indefinite future, or at any possible later time, however remote. An activity now could hardly be expected to be the direct producing cause of an insurrection after the lapse of a great period of time, and it was not the purpose of this court to suggest that as to the mental requisite any such intent would be a sufficient ingredient of an attempt to incite an insurrection. On the contrary, the phrase "at any time" was necessarily intended, and should have been understood, to mean within a reasonable time; that is, within such time as one's persuasion or other adopted means might reasonably be expected to be directly operative in causing an insurrection. Accordingly, the statements by this court as quoted in the motion for rehearing are to be accepted in the following sense: Force must have been contemplated, but the statute does not include either its occurrence or its imminence as an ingredient of the particular offense charged. Nor would it be necessary to guilt that the alleged offender should have intended that an insurrection should follow instantly or at any given time, but as to this element it would be sufficient if he intended that it should happen at any time within which he might reasonably expect his influence to continue to be directly operative in causing such action by those whom he sought to induce. This statement considered with what was said in the original decision represents the view of this court as to the proper construction of the statute under consideration, and under the statute as thus interpreted, we say, as before, that the evidence was sufficient to authorize the conviction.

In view of what has been said above, it would seem that all...

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  • Herndon v. State, 9871.
    • United States
    • Supreme Court of Georgia
    • September 28, 1934
    ...179 Ga. 597176 S.E. 620HERNDON.v.STATE.No. 9871.Supreme Court of Georgia.Sept. 28, 1934.Syllabus by the Court. 1. The original decision as reported in 178 Ga. 832, 174 S. E. 597, explained. 2. This court will not pass upon the constitutionality of an act of the General Assembly unless it cl......

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