State v. Gibson

• Citation: 189 Iowa 1212,174 N.W. 34
• Decision Date: 26 September 1919
• Docket Number: No. 32777.,32777.
• Parties: STATE v. GIBSON.
• Court: Iowa Supreme Court

189 Iowa 1212

174 N.W. 34

STATE

v.GIBSON.

No. 32777.

Supreme Court of Iowa.

Sept. 26, 1919.

Appeal from District Court, Union County; Homer A. Fuller, Judge.

The defendant appeals from a conviction on an indictment charging that he “did attempt by speech, action, and manner of speaking to incite, abet, promote and encourage hostility and opposition to the government of the state of Iowa and of the United States, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Iowa.” Affirmed.Charles T. Gibson, of Thayer, and E. A. Lee, of Creston, for appellant.

H. M. Havner, Atty. Gen., for the State.

SALINGER, J.

[1] I. One complaint lodged is that, contrary to section 5280 of the Code, the indictment does not enable a person of common understanding to know what was intended. It is conceded that this objection is made here for the first time. It comes too late thus made. And we cannot review it.

[2][3] II. It is contended that the indictmentviolates section 5284 of the Code because it charges the commission of two offenses, to wit, one against the government of the state and one against the government of the United States. The indictment is substantially in the language of the Iowa statute. And the crime is against the state. It can be committed by directing the forbidden acts against the government of the state, that of the United States, or both. The indictment does not charge distinct offenses, but distinct means of accomplishing the one offense.

III. The state presents that certain constitutional questions urged on this appeal cannot be considered because the objection is raised here for the first time. The validity of this objection depends upon what is the status of a criminal statute which violates some provision of the fundamental law. So far as civil cases go, it is very generally held in them that the constitutionality of a statute may not be first raised in the appellate court. Journey v. Dickerson, 21 Iowa, 308;Hass v. Leverton, 128 Iowa, 79, 102 N. W. 811, 5 Ann. Cas. 974, 3 Corpus Juris, § 608, note 73; Ross v. Ins. Co., 93 Iowa, 222, 61 N. W. 852, 34 L. R. A. 466;Hopper v. Railway, 91 Iowa, 639, 60 N. W. 487. And see Sheets v. Ins. Co., 226 Mo. 613, 126 S. W. 413;Hartzler v. Railway, 218 Mo. 562, 117 S. W. 1124;Paul v. Tel. Co., 164 Mo. App. 233, 145 S. W. 99; the Colorado cases of Hill v. Bourkhard, 5 Colo. App. 58, 36 Pac. 1115;Rice v. Carmichael, 4 Colo. App. 84, 34 Pac. 1010, and Mining Co. v. Firstbrook, 36 Colo. 498, 86 Pac. 313, 10 Ann. Cas. 1108;Board v. Fowler, 50 La. Ann. 1358, 24 South. 809.

Our own decisions are in some confusion as to whether some constitutional rights, say trial by a jury of 12, may be waived in a criminal case. This case does not require consideration of that subject. But we have held that where an indictment charges no crime the point may be first raised on appeal. State v. Potter, 28 Iowa, 554. And we said in State v. Daniels, 90 Iowa, 491, 58 N. W. 891:

“We would not, in a criminal case, affirm a judgment when it appears that the defendant is charged with no offense against the laws, though he should in no stage of the proceedings, either in this court or the court below, object on that ground.”

[4] If the fact that the indictment charges no crime can be first urged on appeal, it surely follows that if the statute under which prosecution is had is in law no statute, then the defendant is prosecuted for something that does not constitute a crime, as much so as when he is convicted under an indictment which fails to charge a crime. As said, this brings us to the status of an unconstitutional act. It is held in State v. Tieman, 32 Wash. 294, 73 Pac. 375, 98 Am. St. Rep. 854, that an unconstitutional criminal statute is “never legally enacted.” And in Struthers v. Peckham, 22 R. I. 8, 45 Atl. 742, that, where a requirement precedent in a suit for criminal process has not been met, that may be raised for the first time on appeal. We, therefore, conclude that appellant is entitled to be heard here on his claim that the statute under which he was prosecuted is violative of the Constitution. And we address ourselves next to whether the attack upon the statute is well made.

[5][6] IV. It is presented that the statute violates the guaranty of article 1, § 7, of the Constitution of the state that all may speak, write, and publish their sentiments on all subjects, being responsible for the abuse of that right, and that no law shall be passed to restrain or abridge the liberty of speech or of the press. The constitutional guaranty itself qualifies the immunity by a plain indication that, while the right is given, the abuse of that right is not to be tolerated. The framers of our Constitution were laboring for the good of the commonwealth. They did not intend to protect what might destroy the state. It was not intended that the right to free speech included the right to promote sedition. One who utters a slander or publishes a libel cannot shield himself behind the privilege of free speech. We decline to hold that he who uses his tongue for the purpose of annihilating a free government may so be shielded.

V. The next contention is that the title of the statute is condemned by the Constitution. The title challenged is, “An act relating to offenses against the state of Iowa and providing for punishment for violation thereof.” Acts 37th Gen. Assem. c. 372. The statute has three substantive sections. The first is, that if any person shall excite an insurrection or sedition, etc., or shall attempt by writing, speaking, or other means to do this, a prescribed punishment shall attach. The second is that any one who shall, in public or private, by any mode or means including speech and writing, advocate the subversion and destruction by force of the government of the state or of the United States, or who shall by such methods or any methods incite, abet, promote, or encourage hostility or opposition to either government, shall suffer a prescribed punishment. The third prescribes a punishment for becoming a member of any association, etc., formed to incite, abet, promote or encourage such hostility or opposition, or attending upon any meeting or council having that object, or soliciting others so to do, or in any manner aiding, abetting, or encouraging any such organization in the propagation or advocacy of such a purpose.

[7][8] The argument is that the act creates an offense against each of said governments, and provides punishment for so offending against either, and that the title fails to mention either government, though each are separate and distinct entities. We have already held that the act does not make separate offenses as against the state and the nation, respectively, and charges but a single offense, and that, an offense against the state. So much of the objection to the title, then, as rests upon this claimed duality fails for want of sound premise, if for no other reason. But we are not saying that the title would be insufficient if this statute created two distinct offenses. In State v. Brown, 103 Tenn. 449, 53 S. W. 727, the title was “An act to raise the age of consent from ten to twelve years and to prescribe punishment for carnal knowledge of females over 12 years and under 16.” The title was held to be sufficient, though it is conceded it was broad enough to include two or more grades of crime. And it was further held to be no objection to the act that it treated of different offenses and prescribed different punishments for them, and that it did not invalidate it to have a further provision that all persons aiding or abetting in the commission of the two offenses named in another part of the act should be deemed joint principals and punished as such. In State v. Taylor, 34 La. Ann. *978, the title was, “An act relative to crimes and offenses.” The statute denounces several acts as crimes and offenses, and prescribes a punishment for each. It is said that while the title was not artistically expressed the constitutional provisions must not be strained into a requirement to reproduce nearly the whole act in the title, as would be the case if, as contended, every crime and every punishment denounced had been specifically referred to in the title. The concluding holding is that the statute treats of no other subject but crimes and offenses, and that such subject is covered by such title. In Peache v. State, 63 Ind. at page 401, the title was, “An act defining certain felonies and prescribing punishment therefor.” The attack was that no subject is expressed or embraced in the title because the particular felonies defined are not in the title designated by their particular name. The court held the title to be sufficient. In Cook v. Marshall County, 119 Iowa, 384, 93 N. W. 372, 104 Am. St. Rep. 283, the title was, “An act to revise, amend and codify the statutes in relation to crimes and their punishment.” We held that this was sufficient for a statute providing for the assessment of a tax against any person dealing with cigarettes, and the real property within or whereon the same are sold, and the manner of collecting such tax.

[9] Judge Brewer says, in Woodruff v. Baldwin, 23 Kan. 491, that on the authority of Bowman v. Cockrill, 6 Kan. 335, “The breadth and comprehensiveness of a title is a matter of legislative discretion.” This, confined to proper limits, works, of necessity, that on a challenge of the sufficiency of the title the interpretation should be liberal, and that is the unanimous voice of authority. See Cook v. County, 119 Iowa, at page 398, 93 N. W. 372, 104 Am. St. Rep. 283,State v. Hutchinson, 168 Iowa, 1, 147 N. W. 195, L. R. A. 1917B, 198, and State v. Taylor, 34 La. Ann. *978. It was said in the Woodruff Case, supra, that under this rule the courts must do nothing to prevent or embarrass ordinary legislation. The construction is to be liberal, and not critical or technical....