State v. Davis, Criminal 919

• Decision Date: 12 January 1942
• Docket Number: Criminal 919
• Parties: THE STATE OF ARIZONA, Plaintiff, v. E. V. DAVIS and NAOMI DAVIS, Defendants
• Court: Arizona Supreme Court

120 P.2d 808

58 Ariz. 444

THE STATE OF ARIZONA, Plaintiff, v. E. V. DAVIS and NAOMI DAVIS, Defendants

Criminal No. 919

Supreme Court of Arizona

January 12, 1942

On certification from the Superior Court of the County of Maricopa. J. C. Niles, Judge. Question answered in the affirmative.

Mr Richard F. Harless, County Attorney, and Mr. Harold R Scoville, Deputy County Attorney, for Plaintiff.

Mr Charlie W. Clark, for Defendants.

OPINION

LOCKWOOD, C.J.

E. V. Davis and Naomi Davis, his wife, defendants, were charged by an information filed in the superior court with the crime of contributing to the delinquency of minors. The information, so far as material for the purposes of this case, reads as follows:

"The said E. V. Davis and Naomi Davis... did did then and there, by their wrongful and improper acts and conduct, wilfully and unlawfully encourage and contribute to the delinquency of Thelma Davis and Wayne Davis, who were then and there children under the age of eighteen years, to-wit: of the age of eleven years and nine years respectively, which said wrongful and improper acts on the part of the defendants were as follows, to-wit:

"That the said defendants being then and there adult persons and being the natural parents of the said children, and being members of a religious sect known as Jehovah's Witnesses,... they the said defendants did then and there teach, instruct, direct and command the said Thelma Davis and Wayne Davis not to and to refuse to pledge allegiance to and salute the flag of the United States of America at all times and while they, the said Thelma Davis and Wayne Davis were attending the public schools of the State of Arizona, for the reason that to salute the flag of the United States of America was contrary to the religious belief of the said sect known as Jehovah's Witnesses and the religious beliefs of them, the said defendants and of the said Thelma Davis and Wayne Davis; and they the said defendants then and there well knowing that under and by virtue of the laws of the State of Arizona,... the said Thelma Davis and the said Wayne Davis and all other pupils attending school therein were required to salute the said flag of the United States of America; and the said defendants then and there well knowing that by the refusal of the said Thelma Davis and the said Wayne Davis to salute the flag of the United States of America they, the said Thelma Davis and Wayne Davis would thereupon be lawfully barred and expelled from attendance in the said public school provided for the education of the said children,... and... that the said Thelma Davis and the said Wayne Davis could not in fact in any other manner obtain educational instruction, either at public or private schools as provided by the laws of the State of Arizona.

"That the said minor children acted in obedience to the said instruction of the said defendants to refuse to salute the said flag of the United States, and that the said minor children were on that account and therefor barred and expelled from attendance in the said public schools, and that said minor children cannot otherwise obtain educational instruction as provided by the laws of the State of Arizona;..."

Defendants moved to quash the information on the ground that it did not charge them with a public offense, and the trial court being of the opinion that the question raised was so doubtful and important as to require the decision of this court before further proceedings were had, certified to us the following question: "Does the amended information on file herein state a public offense under Section 43-1008, Arizona Code Annotated, 1939, or under any other law in force in the State of Arizona?"

Section 43-1008, Arizona Code 1939, which defendants are charged with violating, reads so far as material as follows:

"Contributing to delinquency and dependency -- Penalty -- Procedure. -- Any person who shall by any act, cause, encourage or contribute to the dependency or delinquency of a child, as these terms with reference to children are defined by the preceding section, or who shall for any cause be responsible therefor, shall be guilty of a misdemeanor, and upon trial and conviction thereof, shall be punished by a fine not to exceed three hundred and fifty dollars ($350) or by imprisonment in the county jail for a period not exceeding one (1) year, or by both such fine and imprisonment...."

Section 43-1007, Arizona Code 1939, defines a dependent person as follows:

"(a) The words 'dependent person' shall mean any person under the age of eighteen (18) years;...

"17. Who from any cause is in danger of growing up to lead an idle, dissolute or immoral life....

"(c) The term 'delinquency' shall mean any act which tends to debase or injure the morals, health or welfare of a child."

It is contended by the state that the conduct with which defendants are charged tends to debase and injure the morals, health and welfare of the minor children described in the information. If this be true, then upon its face the information does charge a public offense.

Defendants do not question the constitutionality of this statute, or that ordinarily speaking any act which violates it constitutes a misdemeanor, but contend that their conduct does not fall within the prohibition of the statute for the reason that it is their sincere religious belief that to salute the flag of the United States, as required by the school laws and regulations, is an act of idolatry which is forbidden by the second commandment of the Decalogue, which reads, so far as material, as follows:

"4. Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth:

"5. Thou shalt not bow down thyself to them, nor serve them: ..."

They claim that by virtue of the First Amendment to the Federal Constitution they are at liberty not only to believe this, but freely to teach their belief to their children, and that if it be their constitutional right so to teach, they cannot be punished for such an act.

When questions arise under the Federal Constitution, the decisions of the Supreme Court of the United States are absolutely binding upon us, and regardless of what we may think in regard to the reason or logic used by that court, we must bow in obedience to its judgments.

The thing which defendants were charged with doing is that they did "teach, instruct, direct and command" the children to refuse to salute the American flag in the public schools, because it is the sincere religious conviction of defendants that they would violate the command of God in so doing. Unquestionably this belief of defendants is an exercise of religion as protected by the First Amendment, and ordinarily speaking it is held that the Amendment guarantees not only the right of belief, but includes that of peacefully teaching such belief to others.

In the case of Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 1015, 84 L.Ed. 1375, 1381, 1382, 127 A.L.R. 1493, the Supreme Court of the United States had before it the following situation: Two minor children were expelled from the public school of Minersville, Pa., for refusing to salute the national flag, as required by the local board of education. The Gobitis family, like the defendants herein, were affiliated with that religious sect known as Jehovah's Witnesses, and conscientiously believed that saluting the flag was forbidden by the Scripture. The children involved in that case, as in this, had been reared by their parents in this belief, and for this reason refused to salute the flag. Those children, as these, were of an age for which the law made school attendance compulsory but were thus denied a free education in the public schools.

In the Gobitis case the father brought suit, on his own behalf and that of the children, to compel the school authorities to allow his children to continue in attendance at the public schools without complying with the regulation requiring a salute of the flag. The opinion of the court was delivered by Mr. Justice FRANKFURTER. Therein the court discussed at length the general principles governing the First Amendment and their application to the states by reason of the Fourteenth Amendment, and pointed out that the case raised the question of a conflict between the rights of society and those of parents in regard to the education of children. The question as to whether the parents violated any law by teaching the children their peculiar religious belief was not directly before the court, but it stated its conclusions in the following language:

"What the school authorities are really asserting is the right to awaken in the child's mind considerations as to the significance of the flag contrary to those implanted by the parent. In such an attempt the state is normally at a disadvantage in competing with the parent's authority so long -- and this is the vital aspect of religious toleration -- as parents are unmolested in their right to counteract by their own persuasiveness the wisdom and rightness of those loyalties which the state's educational system is seeking to promote....

" A society which is dedicated to the preservation of...