Cummings v. State

• Decision Date: 25 January 1943
• Docket Number: 35155.
• Citation: 194 Miss. 59,11 So.2d 683
• Court: Mississippi Supreme Court
• Parties: CUMMINGS v. STATE.

11 So.2d 683

194 Miss. 59

CUMMINGS v. STATE.

No. 35155.

Supreme Court of Mississippi

January 25, 1943

G C. Clark, of Waynesboro, Grover C. Powell, of Atlanta, Ga and Hayden C. Covington, of Brooklyn, N. Y., for appellant.

Greek L. Rice, Atty. Gen., by Geo. H. Ethridge, Asst. Atty. Gen for appellee.

ROBERDS, Justice.

This case is controlled by the opinion this day handed down in the case of Taylor v. State, Miss., 11 So.2d 663.

We desire to again emphasize, as we tried to emphasize in that case, that the Mississippi statute does not attempt to coerce, control or direct, in the slightest degree, the conscience or religious beliefs of any person. So far as that statute is concerned, one may believe in and worship a Divine Being, or any ideal or thing the worshiper may think divine, under the name of Jehovah, or any other name; or, on the other hand, he is free to worship satan, a golden calf, any animal or thing, or any image of anything, real or imaginary. What the statute does prohibit is the going about into the homes and among the people, and, by affirmative teaching and action, attempting to persuade the people, at this tragic time, to have disrespect for and disloyalty towards the flag and the state and the nation, and to evince an attitude of disobedience to the laws of the land, thereby undermining the war efforts of the state and national governments. The statute does not command any one to salute the flag or do anything else; it simply demands that people shall not engage in certain affirmative activities which the sovereign state, through its legislature, has determined are harmful to other people and to the public welfare and to the defensive war efforts of the state and nation.

Appellant was indicted for doing the things prohibited by the statute, and the jury found on sufficient evidence that he did them.

Affirmed.

GRIFFITH, Justice (concurring).

Teaching that to salute the national flag is an act of idolatry, and that the consequences of such an act is eternal damnation, is a pointed symptom of the disease which lies at the bottom of the subversive and destructive doctrines which this appellant and his co-workers are seeking to spread in our state in this time of war, the result of which means everything to us as a state and nation. We must look behind technical obscurities and to the substance of things. If appellant may maintain the right so to teach among the civilian population, he has the same right to teach it and urge it among the soldiers and marines wherever access may be had to them; and if our soldiers were to refuse to salute the flag wherever unfurled, and particularly when the military regulations require them to do so, then we would have an army and a navy which would be entitled to no respect at home or abroad; and whoever teaches that which, if followed, would bring our armed forces into such disrespect ought well to be in the penitentiary, as the statute appropriately declares.

ALEXANDER Justice (dissenting).

Appellant was convicted under an indictment which charged him with distributing a book entitled "Children" which it was alleged "reasonably tended to create an attitude of stubborn refusal to salute, honor or respect the flag or Government of the United States or of the State of Mississippi." The statute under which it is drawn is Chapter 178, Laws of 1942, which is set forth in the controlling opinion in the companion case of Taylor v. State, Miss., 11 So.2d 663, decided this day. The evidence was restricted to and the conviction based upon the alleged teaching that members of the sect to which appellant belonged could not, consistently with their beliefs, perform the ceremony of a salute to the flag. To one unsympathetic with the mysticism of its creed, it can, and perhaps often is, divested of its religious aspect and thereupon attacked as mere subtle political propaganda. The record does not justify a conclusion that appellant's adherence to its teachings, whether blind or rational, was not sincere. It is clear that the advocacy of the doctrine of non-salute is allegedly based upon an interpretation of scripture. The book was written long before this Nation entered the present war. Both the book and the appellant himself, while professing allegiance to and respect for the flag, conceded the right of non-adherents to follow their own convictions. A careful reading of this book fails to impress me that it teaches dishonor to the flag but respect for a faith.

My interest in and inquiry of the matter is therefore confined to two propositions: (1) Does the literature come within the condemnation of the statute, and (2) if so, is the appellant, the sincerity of whose advocacy thereof is conceded, protected against its compulsions by United States Constitution, amendment Articles 1 and 14, and by Mississippi Constitution, Section 13.

The first utterance in the Federal Bill of Rights forbids the prohibiting of the free exercise of religion. Such prohibition is made effective against state action by the 14th Amendment. In the Bill of Rights of our own State Constitution, the right of freedom of speech and of the press is declared "sacred". Mississippi Constitution, Sections 13 and 18.

In this connection, it is sufficient that certain primal verities of personal liberty be recognized by their mere mention. Freedom of conscience and of the press, purchased in the cruel coinage of persecution survived oppression and suppression, and after breaking down the last barriers of an exercise conceded only under license, they emerged triumphant in the purpose of the founders of our republic who had sought shores where the pursuit of happiness would be unhindered by ecclesiastical or political restraints. Religious views are not vouchsafed by the leniency of the state but upon natural indefeasible rights of conscience. Bloom v. Richards, 2 Ohio St. 387, 390; Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; State v. Greaves, 112 Vt. 222, 22 A.2d 497; Zimmerman v. Village of London, D.C., 38 F.Supp. 582. The founders thereupon made solemn declaration of such rights as being held not at the behest of the state but as endowments of their Creator and as such, unalienable because inherent. Such rights therefore antedated governments which in turn were instituted among men to secure them. Chance v. Mississippi Textbook, etc., Board, 190 Miss. 453, 200 So. 706; Sullens v. State, 191 Miss. 856, 4 So.2d 356. It was made clear that the government was held to derive its just power from the consent of the governed. Whereupon, the people of the United States ordained their Constitution for the lofty purpose, among others, to insure domestic tranquillity, and to preserve these blessings of liberty not only to themselves but to posterity of which appellant is now a part.

Even as the several states reserved all powers not granted to the national government (U. S. Constitution, Article 10), so the citizens reserved all powers not granted to the state (Mississippi Constitution, Article 3, Secs. 5, 32). Liberty remained the sovereignty of the people. It includes all rights held to be unalienable so that in examining the issue here involved, it is as important to examine whether the state has infringed the creed of appellant as to determine whether his creed has violated the laws of the land.

A consonance between creed and conduct is one of the ends sought in the pursuit of happiness, which in the last analysis is the ultimate goal of the citizen and is a prerequisite to both individual and national tranquillity and the blessings of liberty. Whitney v. People of State of California, 274 U.S. 357, 375, 47 S.Ct. 641, 71 L.Ed. 1095; Cooley, Constl.Lim. 8th Edn., p. 3. Even the safety of the republic as the supreme law must be acknowledged to rest not alone upon its power for a common defense against outside forces but upon maintaining the general welfare. In this pursuit of personal happiness, life is its condition and liberty is the avenue of its achievement. The courts must preserve it intact as a dependable causeway lest by its collapse it become a barricade. Even as liberty is guarantied to the people, the courts must in turn guaranty life to this liberty. This happiness may not be allowed to be pursued over the crushed convictions of others whose contentment is dependent upon their right to indulge their own beliefs despite their novelty or absurdity. Happiness like disloyalty can not be judicially defined. Each must remain an abstraction subject to definition by the individual. The dilemma with which the courts are often confronted in such cases as we now have is that they are apt to seek to define objectively things which are of necessity purely subjective. Pound, Law and Morals, p. 107. There is no prescription for either which the law can write. In the words of a familiar maxim, liberty is the power of doing what the law permits. Law is found to be a means to restrain or regulate liberty, and in this sense what the law does not forbid it sanctions. As hereafter discussed, the state can regulate conduct but not creed; it can fetter the hand but not the heart. Pound, op. cit. supra, p. 68; 4 Bl.Com. 21; Commonwealth v. Kennedy, 170 Mass. 18, 48 N.E. 770.

So that it is not only the disability of the state to control conscience but the impropriety that it should attempt to do so which has been recognized in our laws and judicial decisions. The right in the name of conscience to "affirm" instead of "swear" in all oaths, to object to active combat military service, and the disqualification for jury service in capital cases are illustrations. If it be urged that these exemptions are recognized by positive s...