State v. Freeman

• Decision Date: 07 March 1936
• Docket Number: 32478-32480.
• Citation: 143 Kan. 315,55 P.2d 362
• Parties: STATE v. FREEMAN. SAME v. EWING. SAME v. MOSER.
• Court: Kansas Supreme Court

55 P.2d 362

143 Kan. 315

STATE v. FREEMAN.

SAME v. EWING.

SAME v. MOSER.

Nos. 32478-32480.

Supreme Court of Kansas

March 7, 1936

Syllabus by the Court.

Act penalizing prohibiting anonymous publications criticizing candidate's personal character or political action held not invalid as containing more than one subject not clearly expressed in title (Rev.St.1923, 25--1714; Const. art. 2, § 16).

1913 act could not be attacked on ground of insufficiency of title after it was adopted in 1923 revision of statutes (Laws 1923 c. 144, § 1; Const. art. 2, § 16).

Act prohibiting anonymous publications criticizing candidate's personal character or political action held not to violate section of state bill of rights respecting liberty of press and libel (Rev.St.1923, 25--1714; Const.Bill of Rights, § 11).

State act prohibiting anonymous publications criticizing candidate's personal character or political action held not to violate constitutional amendment prohibiting Congress from abridging freedom of speech or of press (Rev.St.1923 25--1714; Const. U.S. Amend. 1).

Information for distributing anonymous circulars criticizing candidate held not quashable for failure to state that election was called or had at which alleged circular was distributed (Rev.St.1923, 25--1714, 62--1012).

Information for distributing anonymous circulars criticizing candidate alleging that offense was committed on, -- day of November 1934, held not quashable for failure to allege specific date (Rev.St.1923, 25--1714, 62--1006).

Circular criticizing candidate which stated that it was ordered and paid for by another candidate's friends, without disclosing their names, residences, or street numbers, violated statute prohibiting anonymous publications criticizing candidate (Rev.St.1923, 25--1714).

1. R.S. 25--1714, does not contravene section 16 of article 2, of the Constitution of the state of Kansas, nor section 11 of the Kansas Bill of Rights, nor the First Amendment to the Constitution of the United States.

2. A circular or poster alleged to have been distributed or posted in the course of a political campaign, examined, and held, not to comply with the requirements of R.S. 25--1714 prohibiting anonymous publications, criticizing personal character or political action of a candidate for public office.

3. Time is not an indispensable ingredient of an offense in violation of the provisions of R.S. 25--1714 and an information charging the commission of the offense on the -- day of November, 1934, is sufficiently definite.

4. Courts take judicial notice of general election laws, and the dates of general elections. The information in question was not fatally defective by reason of its failure to state an election was called and had, at which the alleged circular was distributed.

Appeals from District Court, Nemaha County; C. W. Ryan, Judge.

Proceedings by the State against R. E. Freeman, Melvin Ewing, and Fern Moser, respectively. From a ruling sustaining separate motions to quash the respective informations, the State appeals.

Reversed.

Lloyd S. Miller and W. E. Archer, both of Hiawatha, for appellees.

WEDELL Justice.

This is a consolidated appeal of three separate criminal actions. The prosecutions were all based on the same statute (R.S. 25--1714). The appeals all raise the correctness of the ruling sustaining separate motions to quash the respective informations. The slight difference in the separate informations will be referred to later. The motions to quash are similar and will be treated together. R.S. 25--1714 reads: "Anonymous publication criticizing personal character or political action of candidate. Whoever intentionally writes, prints, posts or distributes, or causes to be written, printed, posted, or distributed, a circular or poster which is designed or tends to injure or defeat any candidate for nomination or election to any public office, by criticizing his personal character or political action, unless there appears upon such circular or poster in a conspicuous place either the names of the chairman and secretary or of two officers of the political or other organization issuing the same, or some voter who is responsible therefor, with his name and residence, and the street and number thereof, if any, shall be punished by imprisonment for not more than six months. (L.1913, ch. 189, § 5; April 30.)"

The information in each case was substantially the same, the only difference being that the words, "write, print," were omitted in the information in cases Nos. 32479 and 32480, and the information in case No. 32478 contained two counts, the second count being the same as the first, except that it charged R. E. Freeman caused the anonymous publication to be written, posted, and distributed.

"The first count of the information in case No. 32478 was and is in words and figures as follows (omitting the caption):

"I, Harry A. Lanning, the undersigned County Attorney of said county, in the name and by the authority and on behalf of the state of Kansas, come now here and give the court to understand and be informed, that on the *** day of November, A.D.1934, in said county of Nemaha and State of Kansas, one R. E. Freeman did then and there unlawfully, maliciously and intentionally write, print, post and distribute a circular or poster in words and figures as follows, to-wit:

"'$100.00 Short.'

"Extract from a Statement on File.

"Gentlemen: In March of 1932, We, the undersigned went before the State Highway Commission, the Board in assembled meeting. J. E. Wilcox introduced Mr. Lou Hilt, Commissioner of Nemaha County, and others to Mr. Helvering and others of the Board in assembled session. Mr. Hilt said to the Board and to Mr. Helvering, 'Mr. Wilcox has been telling us up in Nemaha County what the State Highway Commission would do to help Bancroft to have a gravel road north to No. 9, a distance of 2 3/4 miles.'

"Mr. Helvering said to Mr. Hilt. 'Mr. Wilcox and others were before this Board in our February meeting. We listened to his argument and decided that they were probably deserving of a gravel road and I have investigated it since and find the road is badly needed. I told Mr. Wilcox then that if the road was put in condition for gravel that the State would gravel it without cost to the County. I tell you the same.'

"Then Mr. Hilt asked Mr. Helvering and the Board how much gravel the State would put on to the mile. Mr. Helvering asked Mr. Buck what would be right. Mr. Buck said, '400 yards to the mile.' Mr. Helvering said, 'That's O. K.'

"I, the undersigned was at the above meeting in March and heard the above agreements as written above, and the following named men were also present: J. E. Wilcox, Bancroft; O. M. Wells, Bancroft; J. A. Hanks, Dem. Precinct Comm., Wetmore; J. E. Roderick, A. P. Lanham, Rep. Precinct Com., Wetmore, Kans.; Lewis Hilt, Bern, Kans., Co. Commissioner.

"I, the undersigned resident and taxpayer of Nemaha County, Kansas, freely and willingly state that on November 17, 1933, the State Highway Commission had decided

to put 400 cu. yd. of gravel per mile free of charge to the county upon the road situated on the west line of Wetmore township between Bancroft and state Highway No. 9 that Lewis Hilt, County Commissioner of the First District, Nemaha County, entered my office and offered to put on 300 cu. yd. of gravel per mile but it would cost $100.00 cash in advance.

"[Signed] J. E. Wilcox

"Subscribed and sworn to before me this 26th day of October, 1934.

"A. H. Fitzwater, Notary Public.

"My commission expires June 9, 1937.

"We, the undersigned taxpayers of Nemaha County, Kansas, certify by our signatures that we were some of the signers of the subscription blank to raise $100.00 cash to meet the demand of Lewis Hilt in getting our road gravelled.

"J. E. Wilcox.

"M. Wesley.

"Nick Henery.

"W. G. Bouse.

"W. E. Geren.

"We, the undersigned taxpayers of Nemaha County, Kansas, certify by our signatures that on November 27, 1933, we interviewed Mr. Mills, County Commissioner of Nemaha County, to ascertain why we should pay Mr. Lewis Hilt $100.00 cash in advance and get only 300 Cu. Yd. of gravel per mile and were told by him that neither he nor the third Commissioner, Mr. Kramer, knew anything about the $100.00 cash in advance, but they understood we were to get 400 Cu. Yd. of gravel per mile free of charge to the county.

"J. E. Wilcox.

"Nick Henery.

"1. Who wanted the $100.00?

"2. Why should a public official try to do this?

"3. Do you, Mr. Voter, want this type of official?

"(This Circular Ordered and Paid for by R. E. Freeman's friends) --which said circular or poster was designed and tended to injure and defeat one Lewis Hilt, the said Lewis Hilt then and there being a candidate for election to public office, namely, County Commissioner of Nemaha County, Kansas, by criticizing his personal character and political action, without there appearing upon said circular or poster, in a conspicuous place, or any other place, either the names of the chairman and secretary or of two officers of the political or other organization issuing the same or some voter who was responsible therefor, with his name and residence, all contrary. ***"

One of the grounds of the motions to quash was R.S. 25--1714 contravenes section 16 of article 2 of the Constitution of the state of Kansas in that it contains more than one subject not clearly expressed in the title. R.S. 25--1714 is a part of chapter 189, of the Laws of 1913. The title of that act is: "An Act relating to elections and amending general sections 3261, 3270, 3271, 3273, of the General Statutes of 1909, and providing additional safeguards for the protection of elections and providing penalties for...