State v. Diamond.

• Decision Date: 30 November 1921
• Docket Number: No. 2532.,2532.
• Citation: 27 N.M. 477,202 P. 988
• Parties: STATEv.DIAMOND.
• Court: New Mexico Supreme Court

27 N.M. 477

202 P. 988

STATE

v.DIAMOND.

No. 2532.

Supreme Court of New Mexico.

Nov. 30, 1921.

Syllabus by the Court.

Chapter 140, Laws 1919, interpreted, and held, that the offenses therein enumerated are not confined to acts of violence or force or other unlawful things, but include all acts, peaceful or otherwise, which have for their object the destruction of organized government, or acts antagonistic to or in opposition to such organized government, or acts inciting or attempting to incite revolution against or opposition to such organized government, or the teaching of such doctrines.

The act is held to be unconstitutional as violative of the right of free speech guaranteed by section 17 of article 2 of the state Constitution.

The word “revolution,” as used in the act, held to include all forms of revolution, accomplished by peaceful means or otherwise, and not to be limited to revolution by force of arms.

The act uses words of no determinative meaning, and the language is so general and indefinite as to embrace not only acts properly and legally punishable, but also others which cannot be punished, and it is for this reason void for uncertainty.

Where an act creating a crime is found to be unconstitutional, the question may be raised for the first time on appeal.

Additional Syllabus by Editorial Staff.

To “incite” to revolution is to arouse to action.

Appeal from District Court, Colfax County; Leib, Judge.

Jack Diamond was convicted of attempting to incite revolution and opposition to the organized government of the United States of America and of the State of New Mexico, and he appeals. Reversed and remanded, with directions to dismiss cause and discharge defendant.

Laws 1919, c. 140, preventing the inciting or attempting to incite revolution or opposition to organized government, held unconstitutional.

Edward D. Tittman, of El Paso, Tex., for appellant.

H. S. Bowman, Atty. Gen., and A. M. Edwards, Asst. Atty. Gen., for the State.

PARKER, J.

The appellant, Jack Diamond, was convicted in the district court of Colfax county and sentenced to the penitentiary, from which judgment this appeal is prosecuted.

The indictment charged that--

The defendant “did then and there unlawfully and feloniously attempt to incite revolution and opposition to the organized government of the United States of America and of the state of New Mexico by then and there soliciting members for the Industrial Workers of the World, an organization which has for its purpose and aim the destruction of organized government, federal, state and municipal.”

The statute under which the prosecution was had is chapter 140, Laws 1919, which provides as follows:

“Section 1. That it shall be unlawful for any person or persons, firm or corporation, to commit or perform or to cause to permit or to be performed any act of any kind whatsoever which has for its purpose or aim the destruction of organized government, federal, state or municipal, or to do or cause to be done any act which is antagonistic to or in opposition to such organized government, or incite or attempt to incite revolution or opposition to such organized government.

Any person violating any of the provisions of this act shall be deemed guilty of a felony and upon conviction thereof shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars, or by imprisonment in the state penitentiary for not less than one year nor more than ten years, or by both such fine and imprisonment, in the discretion of the court.

Sec. 2. It shall be unlawful for any person or persons, firm or corporation to advocate or teach, or cause to be advocated or taught, in any manner whatsoever, the doing or performance of any of the acts prohibited by section 1 hereof.”

Counsel for appellant argues that the act is unconstitutional for several reasons, among which is that it violates section 17 of article 2, of the state Constitution, which provides:

“Every person may freely speak, write or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

[1] 1. It is apparent from the terms of the statute, considered as a whole, that the offenses enumerated are not confined to acts of violence or force or other unlawful things, but include all acts, peaceful or otherwise, which have for their object the destruction of organized government, or acts antagonistic to or in opposition to such organized government, or acts inciting or attempting to incite revolution against or opposition to such organized government, or the teaching of such doctrines. In this particular this statute is unique. Under its terms no distinction is made between the man who advocates a change in the form of our government by constitutional means, or advocates the abandonment of organized government by peaceful methods, and the man who advocates the overthrow of our government by armed revolution, or other form of force and violence. Both are alike guilty. It prohibits alike the creation of public opinion by argument and persuasion, and the compulsion of action by the people by force of arms, intimidation, sabotage, or other criminal or illegal means. And we are not at liberty to supply by intendment the element of force and violence which would render the statute free from the objection raised to it. To do so would be to insert words in the statute which are not there and which would entirely change its meaning This is not allowable, especially in statutes creating crimes, where the rule of strict construction must be applied. State v. Armijo, 19 N. M. 345-349, 142 Pac. 1126.

[2] 2. In State v. Tachin, 92 N. J. Law, 270, 106 Atl. 145, the New Jersey court had before it a somewhat similar question to the one at bar. The statute of New Jersey (P. L. 1918, p. 130) provided in section 1 of the act punishment for inciting, or, by writing, speech, or other means, attempting to incite, “insurrection or sedition.” Section 2 of the act provided that--

“Any person who shall advocate, in public or private, by speech, writing, printing, or by any other means, the subversion or destruction by force of the government of the United States, or of the state of New Jersey, or attempt by speech, writing, printing, or in any other way whatsoever to incite or abet, promote or encourage hostility or opposition to the government of the United States, or of the state of New Jersey, shall be guilty,” etc.

Section 3 of the act prohibited membership in any society formed for the purpose of inciting, abetting, promoting, or encouraging hostility or opposition to the government of the United States, or of the state of New Jersey.

In the case before the court the defendant was charged with a violation of section 2 of the act by reason of a speech in which it was urged he attempted to incite hostility and opposition to the government of the United States. The section was challenged as unconstitutional upon the ground that it invaded the constitutional guaranty of the right of free speech. The majority of the court construed the section to the effect that the words “hostility or opposition to the government of the United States, or of the state of New Jersey,” meant such hostility and opposition as involved the “subversion or destruction by force” of those governments, and held that the statute, as thus construed, was constitutional. The court states, however, that if the statute punished hostility or opposition to the government without force, the statute would be unconstitutional. Two vigorous dissents were filed in this case, which are reported in 93 N. J. Law, 485, 108 Atl. 318. In one of these opinions sections 2 and 3 of the act are condemned on the ground that they violate the right of free speech, the freedom of the press, and the freedom of assembly guaranteed by the federal Constitution and the Constitution of New Jersey. Sections 2 and 3 of this same act came before the New Jersey court again in State v. Gabriel, 112 Atl. 611. The court adhered to the former construction of section 2 of the act, but held section 3 to be unconstitutional, and said:

“At the close of the trial counsel for defendant moved that the court direct that the defendant be acquitted on this indictment, because the statute upon which it rested is unconstitutional, and this we think is sound. Under the Constitution and Bill of Rights the Legislature cannot make it criminal to belong to a party organized or formed for the purpose of encouraging hostility or opposition to the government of the United States or of this state, unless the hostility or opposition includes a purpose to overthrow or subvert such government. The constitutionality of the second section of the act was sustained in State v. Tachin, 92 N. J. Law, 269, 106 Atl. 145, because that section provides that the hostility or opposition prohibited involved subversion and destruction by force. While by the section under consideration it is made a crime to be a member of a society organized or formed for the purpose of encouraging hostility or opposition to the federal or state government, not to subvert or destroy them by force, and would apply to any citizen who sought a change in the form of government by a most peaceful means. * * * In our judgment so long as an organization formed for the purpose reserved in the paragraph of the constitution referred to confines its purpose to peaceful hostility or opposition and does not advocate or indicate a purpose to overthrow or subvert the existing government by force, but only by constitutional methods, the right of the members of such society to assemble together and consult for the common good is protected by the bill of rights.”

In Iowa they have an act very similar to the New Jersey act, and which is chapter 372, Laws 1917. Section 1 prohibits the inciting of “insurrection or sedition.” Section 2 of...