State v. Hotham

• Decision Date: 09 July 1973
• Citation: 307 A.2d 185
• Parties: STATE of Maine v. Daniel A. HOTHAM.
• Court: Maine Supreme Court

Page 185

307 A.2d 185

STATE of Maine v. Daniel A. HOTHAM.

Supreme Judicial Court of Maine.

July 9, 1973.

Donald H. Marden, Kennebec County Atty., Augusta, for plaintiff.

Berman, Berman & Simmons, P. A. by Jack H. Simmons, Lewiston, for defendant.

Before DuFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

WEBBER, Justice.

The appellant was convicted of a violation of 17 M.R.S.A., Sec. 3701 which in pertinent part provides:

'Whoever makes, publishes or sends to another any communication, written or oral, containing a threat to injure the person or property of any person shall be punished * * *.'

It is suggested that the statute may suffer from unconstitutional vagueness and overbreadth. The answer to this contention lies in the construction we have placed upon the statute and particularly in the meaning we have assigned to the key word 'threat' as used therein. In Haynes, Petitioner v. Robbins (1962) 158 Me. 17, 21, 177 A.2d 352, 354 we said, 'The language is plain and understandable. The intent of the Legislature is equally clear that it intended to make it a crime for one to make, publish or send to another any communication, written or oral, containing a threat to injure the person or property of that person.' In State v. Cashman (1966-Me.) 217 A.2d 28, 29 we provided a detailed definition of 'threat' as here used and emphasized the criteria that (a) the words used must impart 'menace of destruction or of injury,' (b) that the threat may be by innuendo or suggestion; (c) that in determining whether the words used constitute a true 'threat,' the circumstances under which the threat is uttered and the relations between the parties may be taken into consideration; and (d) that the threat must be such as would ordinarily create alarm. We drew upon State v. Boyer (1963) 2 Conn.Cir. 288, 198 A.2d 222, 225 for the phrase, 'A threat is always an indication of probable evil to come, whether at once or at some certain or uncertain time in the future; * * *,' and added thereto our own phrase that a statement which constitutes a threat is 'pregnant with the promise of evil.' Finally in State v. Lizotte (1969-Me.) 256 A.2d 439 we approved instructions to a jury which contained, in addition to an accurate paraphrasing of the criteria discussed above in this opinion, certain additional refinements. In effect the jury was told that the words used should constitute 'the declaration of an apparent determination to carry them into execution;' that it is the reasonable and natural effect upon and understanding of the ordinary hearer which is controlling rather than the specific intent and motive of the one making the threat; that words which should properly be understood as idle talk or jesting do not constitute the crime, and that 'the gist of this whole offense is the possibility of inducing fear in the mind of another person to his disquiet.' To these elements of definition, we added these sentences:

'The essence of an oral threat is that it is a verbal act and if that act is of such a nature as to convey the menace to an ordinary hearer, the statute is violated. No more does it matter whether or to what degree the threat engenders fear or intimidation in the intended victim. Some men are braver than others and less easily intimidated. We do not ask whether or not this defendant succeeded in frightening a police officer. We ask only whether or not he used words which would under the circumstances then existing be heard by an ordinary person as being spoken not in jest but as carrying the serious promise of death.'

Although these words obviously had particular application to the Lizotte facts, facts which as will be seen closely resemble those in the instant case, the principles of law implicitly stated apply generally to threats. In the light of the meaning of the word 'threat' as thus defined and the construction we have thus given to Sec. 3701, the argument that the statute is vague or overbroad must fail.

It is further suggested that a 'threat' within the meaning of the statute may encompass pure speech protected by the First Amendment to the United States Constitution. The Supreme Court has repeatedly held that not all speech enjoys constitutional protection. Beauharnais v. People (1951) 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (libelous utterances); Roth v. United States (1957) 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (obscenity as limited and defined); Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (fighting words). The Chaplinsky Court noted that unprotected speech includes 'the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.' Such expressions do not 'in any proper sense' communicate 'information or opinion safeguarded by the Constitution.' A state statute which contains language broad enough to reach protected speech will be struck down as unconstitutional on its face unless the state court has by construction limited the reach of the statute...