Joyce v. United States

• Decision Date: 26 October 1971
• Docket Number: No. 23784.,23784.
• Parties: Thomas Wayne JOYCE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

454 F.2d 971 (1971)

Thomas Wayne JOYCE, Appellant, v. UNITED STATES of America, Appellee.

No. 23784.

United States Court of Appeals, District of Columbia Circuit.

Argued December 18, 1970.

Decided October 26, 1971.

As Amended December 2, 1971.

Certiorari Denied February 28, 1972.

COPYRIGHT MATERIAL OMITTED

Mr. Joel A. Forkosch, New York City, for appellant.

Mr. John Ellsworth Stein, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry and John F. Evans, Asst. U. S. Attys., were on the brief, for appellee.

Before FAHY, Senior Circuit Judge, and MacKINNON and ROBB, Circuit Judges.

Certiorari Denied February 28, 1972. See 92 S.Ct. 1188.

MacKINNON, Circuit Judge:

Following the Declaration of Independence the Continental Congress, finding the Nation in need of a national flag to symbolize its unity and independence, on June 14, 1777 adopted the following resolution:

Resolved, that the flag of the United States be 13 stripes alternate red and white, that the Union be 13 stars white in a blue field representing a new constellation.¹

There is a legend that George Washington, who with Betsy Ross is generally credited with participating in the formulation of the design of the flag, said of its colors:

We take the stars and blue union from heaven, the red from our mother country separating it by white stripes, thus showing we have separated from her, and the white stripes shall go down to posterity representing liberty.²

Other famous citizens of the United States have described the place of the Stars and Stripes in our national life. Justice Holmes in a history of Chief Justice Marshall said:

The flag is but a bit of bunting to one who insists on prose. Yet, thanks to Marshall and the men of his generation —and for this above all we celebrate him and them—its red is our lifeblood, its stars our world, its blue our heaven. It owns our land. At will it throws away our lives.³

The United States Supreme Court in Halter v. Nebraska, 205 U.S. 34, 43, 27 S.Ct. 419, 422, 51 L.Ed. 696 (1907) in an opinion by Justice Harlan said:

The flag is the symbol of the Nation\'s power, the emblem of freedom in its truest, best sense. It is not extravagant to say that to all lovers of the country it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression.

In a Flag Day speech President Woodrow Wilson expressed his sentiments concerning the American flag as follows:

I know of nothing more difficult than to render an adequate tribute to the emblem of our nation. For those of us who have shared that nation\'s life and felt the beat of its pulse it must be considered a matter of impossibility to express the great things which that emblem embodies.

* * * * * *

The flag of the United States has not been created by rhetorical sentences in declarations of independence and in bills of rights. It has been created by the experience of a great people, and nothing is written upon it that has not been written by their life. It is the embodiment, not of a sentiment, but of a history, and no man can rightly serve under that flag who has not caught some of the meaning of that history.

His tribute indicated his deep feeling for our Nation, its history and the principles which had motivated its actions.

Probably the most moving description of what the American Flag symbolizes to us as a nation was expressed, not by one who was native-born, but by the Honorable Franklin K. Lane, who was born a Canadian citizen in one of its maritime provinces and became a citizen of the United States through his father's naturalization. On Flag Day, 1914, before the employees of the Department of Interior in Washington, D. C., Lane, then Secretary of the Interior, delivered his famous oration on "Makers of the Flag." He envisioned the flag as the embodiment of the nation's past accomplishments and its future hopes. He saw all Americans as the "makers of the flag":

The work that we do is the making of the flag.

I am not the flag; not at all. I am but its shadow.

I am whatever you make me; nothing more.

I am your belief in yourself, your dream of what a people may become.

* * * * * *

But always I am all that you hope to be, and have the courage to try for.

I am song and fear, struggle and panic, and ennobling hope.

I am the day\'s work of the weakest man, and the largest dream of the most daring.

I am the Constitution and the courts, statutes and the statute-makers, soldier and dreadnaught, drayman and street sweep, cook, counselor, and clerk.

I am the battle of yesterday and the mistake of tomorrow.

I am the mystery of the men who do without knowing why.

I am the clutch of an idea and the reasoned purpose of resolution.

I am no more than what you believe me to be, and I am all that you believe I can be.

I am what you make me, nothing more.

I swing before your eyes as a bright gleam of color, a symbol of yourself, the pictured suggestion of that big thing which makes this nation. My stars and stripes are your dream and your labors. They are bright with cheer, brilliant with courage, firm with faith, because you have made them so out of your hearts. For you are the makers of the flag and it is well that you glory in the making.⁴

While he had not known tyranny in the land of his birth, the ennobling thoughts he expressed about the flag are also shared by many millions of our foreign-born citizens who appreciate its myriad blessings from dire personal experience. It may well be that our naturalized citizens are more truly appreciative of the benefits of citizenship under our flag than some of our native-born who do not properly evaluate the worth of their American heritage.

Throughout our history as a nation the flag has been our symbol in many wars, foreign and domestic. It has proudly led our troops in battle and reverently draped the caskets of those who fell. It has signified our national presence on battleships, airplanes, school houses and army forts, and been raised triumphantly in battle on far distant mountain peaks. It was planted on the moon by the Apollo 15 astronauts and one of them, Colonel James B. Irwin, U. S. Air Force, in his historic speech to a Joint Session of Congress on September 9, 1971 said:

The proudest moment of my life was when I saluted our American flag that we had planted on the plain at Hadley-Apennine on the moon.

117 Cong.Rec.H 8225 (daily ed. Sept. 9, 1971). Even today brave submariners carry it on silent patrol in those dangerous depths beneath the world's seas where with their atomic might they daily preserve the liberty of the free world. It flies over the Nation's Capitol, the Supreme Court, at all our national cemeteries throughout the world and at our Tomb of the Unknown Soldier in Arlington National Cemetery. Wherever it flies it signifies the presence of the United States of America. To the oppressed and downtrodden of many lands, who yearn for the liberty and freedom of conscience and opportunity that this Nation offers, it is a shining beacon of hope. Today millions of our citizens look upon it with reverence and refer to it affectionately as Old Glory.

However, there are a few who are not appreciative of the blessings it represents, who are intolerant of the finest representative government in the world and who seek to abuse and desecrate the flag because it is our nation's symbol. To prohibit such misuse of the flag every state legislature has enacted laws making flag desecration a criminal offense. On July 5, 1968, Congress enacted a similar statute:

§ 700. Desecration of the flag of the United States; penalties.

(a) Whoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it shall be fined not more than $1,000 or imprisoned for not more than one year, or both. 18 U.S.C. § 700(a) (1970) (Added by Act of July 5, 1968, Pub.L. 90-381, § 1, 82 Stat. 291).

In doing so Congress was motivated by the same attitudes toward the flag as are held by millions of our citizens and which were so well articulated by President Wilson, Justice Holmes, the Honorable Franklin K. Lane, the Supreme Court and by many others.

I The Charge

By an Information filed in the Court of General Sessions for the District of Columbia appellant Joyce was charged with violating this statute as follows:

Thomas Wayne Joyce . . . did on or about January 20, 1969 commit the crime of desecrating the flag of the United States, in that he knowingly cast contempt upon a flag of the United States by publicly mutilating, defacing, defiling, burning and trampling upon it,⁵ in violation of section 700 of Title 18 U.S.Code . . . .

The allegation of the foregoing acts in the conjunctive is the proper way to allege several acts constituting a single offense committed in violation of a single statute. To charge the offense in the disjunctive (as it appears in the strict language of the statute), that the accused did one thing "or" the other, would make the indictment bad for uncertainty, so it is necessary to connect them with the conjunctive "and" before evidence can be admitted as to more than one act. Then a conviction follows if the testimony shows the accused to be guilty of any one of the acts charged.⁶ This favors the accused for he will be charged with only one offense and a judgment on a general verdict of guilty upon that count will bar further prosecution on all matters alleged therein.

The Events of Inauguration Day

On Inauguration Day 1969, at about 11:10 A.M. at the corner of 15th Street and Pennsylvania Avenue, N.W. in the District of Columbia, on the route for the Inaugural Parade a short block from the White House grounds, appellant Joyce was standing on the street corner with two women at the rear of a crowd "where everybody was...