Ex Parte Frye

• Decision Date: 10 December 1941
• Docket Number: No. 21883.,21883.
• Parties: Ex parte FRYE.
• Court: Texas Court of Criminal Appeals

Page 531

156 S.W.2d 531

Ex parte FRYE.

No. 21883.

Court of Criminal Appeals of Texas.

December 10, 1941.

Commissioners' Decision.

Original proceeding by Jack Frye for a writ of habeas corpus.

Relator remanded to the custody of the sheriff of Harris County.

Mandell & Wright and Elias Gatoura, all of Houston, for relator.

Percy Straus, Jr., of Houston, amicus curiae.

Sewall Myer and Frank Campbell Fourmy, both of Houston, and Joseph A. Padway and Herbert S. Thatcher, both of Washington, D. C., amicus curiae.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

Terrell, Davis, Hall & Clemens and Leroy Jeffers, all of San Antonio, and Rawlings & Sayers, of Fort Worth, amicus curiae for the State.

KRUEGER, Judge.

Relator was indicted by the grand jury of Harris County, charged with a violation of Article 1621b of the Penal Code of this state, as amended by Chapter 100, Acts of the 47th Legislature, Regular Session, Vernon's Ann.P.C. art. 1621b, which reads as follows:

"Section 1. It shall be unlawful for any person by the use of force or violence, or threat of the use of force or violence, to prevent or to attempt to prevent any person from engaging in any lawful vocation within this State. Any person guilty of violating this Section shall be deemed guilty of a felony and, upon conviction thereof, shall be punished by confinement in the State Penitentiary for not less than one year nor more than two (2) years.

"Sec. 2. It shall be unlawful for any person acting in concert with one or more other persons to assemble at or near any place where a `labor dispute' exists and by force or violence prevent or attempt to prevent any person from engaging in any lawful vocation, or for any person, acting either by himself, or as a member of any group or organization, or acting in concert with one or more other persons, to promote, encourage, or aid any such unlawful assemblage. Any person guilty of violating this Section shall be deemed guilty of a felony, and upon conviction thereof shall be punished by confinement in the State Penitentiary for not less than one year, nor more than two (2) years.

"Sec. 3. The term `labor dispute' as used in this Act shall include any controversy between an employer and two (2) or more of his employees concerning the terms or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment.

"Sec. 4. The provisions of this Act shall be cumulative of all other existing Articles of the Penal Code upon the same subject, and in the event of a conflict between existing Articles and the provisions of this Act, then and in that event the provisions, offenses, and punishments set forth herein shall prevail over such existing Articles.

"Sec. 5. If any section, paragraph, clause or provision of this Act is declared unconstitutional, inoperative, or invalid by any Court of competent jurisdiction, the same shall not affect nor invalidate the remainder of this Act.

"Sec. 6. The fact that it is essential that industries of this State be protected from strikes and that all citizens of this State be protected from the use of violence in labor disputes creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days be suspended, and it is hereby suspended, and this Act shall be in full force and effect from and after its passage, and it is so enacted."

A capias was issued for the relator's arrest and he was taken into custody by the sheriff and confined.

On the 24th day of September, 1941, relator applied to this court for a writ of habeas corpus on the ground that he was illegally restrained of his liberty because:

(1) The statute above set out contravenes the equal protection clause of the Fourteenth Amendment to the Constitution of the United States;

(2) That it contravenes Sections 3, 8, 10, 13, 19 and 27 of Article I of the Constitution of the State of Texas, and violates Article 6 of the Penal Code of this state;

(3) That the statute is so indefinitely framed and is of such doubtful construction that it cannot be understood either from the language in which it is expressed or from some other written law of the state and is therefore inoperative as being a denial of due process.

We do not deem it necessary to set out the various constitutional provisions mentioned inasmuch as every one is familiar with them and a mere reference thereto is sufficient for an understanding of the relator's contention. However, we do deem it proper to set out Article 6 of the Penal Code which reads as follows: "Whenever it appears that a provision of the penal law is so indefinitely framed or of such doubtful construction that it can not be understood, either from the language in which it is expressed, or from some other written law of the State, such penal law shall be regarded as wholly inoperative."

It is obvious from the foregoing statement that a proper solution of the questions presented calls for a construction of the statute under which this prosecution was initiated. Consequently the fundamental principle of statutory construction must be kept in mind. Every presumption is in favor of the constitutionality of an act of the legislative body of a state and the courts will not declare it invalid unless, in their judgment, it clearly and unmistakably comes within the inhibition of the Constitution. See Ex parte Mabry, 5 Tex.App. 93; Cooley's Const. Lim., 8th Ed., Vol. 1; page 371; Black's Constitutional Law, 3rd Ed., p. 68, sec. 39; Graves v. Minnesota, 272 U.S. 425, 47 S.Ct. 122, 71 L.Ed. 331; 11 Amer.Jur. p. 792, sec. 130; Fort Smith Light & Traction Co. v. Board of Improvement of Paving District, etc., 274 U.S. 387, 47 S.Ct. 595, 71 L.Ed. 1112.

The authority of the legislature to enact laws designed to prevent crime and to prescribe adequate punishment for a breach thereof is not questioned here. The sole questions presented by the record are: (a) that the statute under which this prosecution is brought denies relator equal protection of the law and (b) curtails his constitutional right of freedom of the press, freedom of speech and freedom of assembly; and furthermore, that the act is so indefinitely framed and of such doubtful construction that it cannot be understood either from the language in which it is expressed or from some other written law of the state.

We shall endeavor to discuss each of the contentions in the order above stated. It seems that the real basis for his first contention is that this statute which makes a person a felon who, by force or violence, prevents or attempts to prevent any person from engaging in any lawful vocation, even though the offending party does not know that the party assaulted is engaged in a lawful occupation, is void for uncertainty.

In support of his contention relator cites us to the case of Ratcliff v. State, 106 Tex. Cr.R. 37, 289 S.W. 1072. In this case the prosecution was initiated under article 1094 of the Penal Code, which did not embrace the words "to prevent or to attempt to prevent" as does the statute in question. Hence that case is of little, if any, aid to us in deciding the questions presented.

In Brill's Cyclopedia of Criminal Law, Vol. 1, p. 174, sec. 86, the rule is stated as follows: "Whether or not a criminal intent is an essential element of a particular statutory offense depends upon the intent of the legislature, to be arrived at by a construction of the statute in question. Of course intent is essential where the legislature has incorporated into the statute a word or words descriptive of the offense which imply the necessity of a mind at fault before there can be a crime."

It seems to be the rule that where the offense is malum in se, the intent is an element of the offense and should be incorporated either by express words or by words which fairly include the word "intent" within their meaning. The statute in question contains words which, when given a common-sense construction, embrace the word "intent" within their meaning. No one could attempt to prevent a person from doing a certain thing unless he had the intent to accomplish that object and unless he knew that the person was doing or was about to do the act sought to be prevented. For example, A could not prevent or attempt to prevent B from committing theft or burglary unless he knew that B was committing or was about to commit the act and that he entertained the intent to prevent it. Hence, A would necessarily have the intent to prevent the commission of the offense by B. Consequently, the language of the statute clearly implies the intent. It is a well-recognized rule of statutory construction that the legislative intent must be ascertained from the legislative act. It is not necessary that certain words which constitute an element of the offense should be employed. It is sufficient if words of like import are used and which convey the same idea or have the same general meaning.

Relator also contends that the statute in question denies him the equal protection of the law and he seeks to illustrate his contention by making the following observation: If A strikes B, who is engaged in a lawful occupation in order to prevent or attempt to prevent him from engaging in a lawful vocation, he is guilty of a felony. Yet, if B strikes A who is not so engaged, he is merely guilty of a misdemeanor. Hence, the unequal protection of the law. To the casual observer this reasoning may seen plausible but a critical analysis will lead one to the discovery of a more far-reaching objective in the two offenses. When B assaults A, who is not engaged in a gainful occupation, the assault is directed primarily against the person, while A, who assaults B, who is engaged in a gainful occupation, the assault is not only directed against the person but against his vocation for the purpose...