State v. Kasnett

• Decision Date: 17 May 1972
• Docket Number: No. 689,689
• Citation: 30 Ohio App.2d 77,283 N.E.2d 636
• Parties: , 59 O.O.2d 197 The STATE of Ohio, Appellee, v. KASNETT, Appellant.
• Court: Ohio Court of Appeals

Page 77

30 Ohio App.2d 77

283 N.E.2d 636, 59 O.O.2d 197

The STATE of Ohio, Appellee, v. KASNETT, Appellant.

No. 689.

Court of Appeals of Ohio, Fourth District, Athens County.

May 17, 1972.

Syllabus by the Court

1. Wearing the flag of the United States over the anus of the human body is an act of defilement prohibited by R.C. 2921.05.

2. It is a cardinal rule that the Legislature will be presumed to have inserted every part of a statute for a purpose, and to have intended that every part should be carried into effect which includes every section, paragraph, sentence, clause, phrase and word.

Lavelle & Yanity, Athens, for appellant.

Paul J. Gerig, Athens, for appellee.

GRAY, Judge.

This cause is in this court on appeal from a judgment of the Municipal Court of Athens County. The indictment charged that defendant 'unlawfully did publicly defile, deface and cast contempt upon the flag of the United States by having said flag sewn on the seat of his pants, contrary to and in violation of R.C. 2921.05.' Defendant was tried to a jury and was found guilty. A judgment was entered upon the verdict, and defendant filed his notice of appeal and assigned the following errors.

'I. The trial court, in overruling defendant-appellant's pre-trial motion to dismiss for the reason that the affidavit charging defendant-appellant fails to allege facts constituting a crime in Ohio, committed reversible error.

'II. Defendant-appellant's motion to dismiss the case presented to the trial court after the completion of plaintiff-appellee's evidence was erroneously denied.

'A. Ohio Revised Code Section 2921.05, interpreted in accordance with the rules of statutory construction, and in such manner as to satisfy the requirements of the constitutions of the State of Ohio and the United States of America concerning specific statutory definition of criminal conduct, does not cover or proscribe the activity revealed by the evidence herein and held to be unlawful by the lower court.

'B. If the evidence as presented in the instant cause is held to establish a crime under Revised Code Section 2921.05 then said section must be deemed as unconstitutional for its failure to state with sufficient specificity what conduct it proscribes as criminal.

'III. The lower court in accepting the argument of plaintiff-appellee that the wearing of the American Flag upon the his pocket of one's jeans in and of itself is an act of defilement which falls within the coverage of the 'catch-all' phrase 'otherwise cast contempt upon' specifically and erroneously rejected the position of higher authority that these words of Revised Code Section 2921.05 'mean acts of physical destruction or abuse similar in nature to those acts enumerated in such section, i. e. mutilating, burning, etc.'

We will now consider the first assignment of error.

Defile means: To corrupt the purity or perfection of; to debase; to make ceremonially unclean; to pollute; to sully; to dishonor.

Deface means: Mar, injure, or spoil.

Contempt is defined as the act of despising; the feeling with which one regards that which is esteemed low, vile, or worthless; disdain; scorn. Webster's Third New International Dictionary (1961).

The affidavit charged the offense in the words of the statute. R.C. 2941.05 authorizes such procedure.

Judge Matthias, speaking for the court in State v. Yudick (1951), 155 Ohio St. 269 at pages 276, 277, 98 N.E.2d 415, at page 418 said:

'The record discloses that the accused did not request a bill of particulars. It is contended by his counsel that because of details set forth in the indictment an application for a bill of particulars would have been futile. A plea of not guilty by the accused having been entered, the case is governed by the decision of this court in State v. Hutton, 132 Ohio St. 461, 9 N.E.2d 295. The following language in the opinion thereof is pertinent:

"Therefore, if the defendant felt that the affidavit was not sufficiently definite to inform him as to the charge preferred against him, it was his privilege and duty to seasonably request of the prosecutor or the court a bill of particulars setting up more specifically the nature of the offense charged. This he failed to do. Hence the lower courts were correct in holding that the matter was waived when the defendant proceeded to trial."

Since the offense was laid in the affidavit in the terms of the statute, it stated an offense denounced by the laws of Ohio and if for any reason defendant thought that the charge against him was indefinite he should have asked for a bill of particulars. Any objections that defendant might have had were waived by defendant by his going to trial on the affidavit as it was worded.

Subsection A, in the second assignment of errors, has been covered by the discussion of assignment of error No. I.

Defendant next claims that R.C. 2921.05 is unconstitutional. Very recently, Justice Herbert, speaking for the court in Bedford Hts. v. Tallarico (1971), 25 Ohio St.2d 211, 212 said, 267 N.E.2d 802, 803:

'It is well established that courts will refrain from declaring legislation unconstitutional unless the posture of a cause leaves no logical alternative thereto.' See cases cited.

We now advert to assignment of error II B. On the vagueness question, we believe the statute admitted of that degree of reasonable certainty that could constitute a violation, so that it can not be said that a person possessing a reasonable degree of intelligence could not understand what conduct would be disrespectful to the flag and what conduct would not. We are of the opinion that wearing the flag, or part of it, on that part of the clothing covering the human fundament, a part of the human body universally and historically considered unclean, and the object of derision and scorn and the reference to which in a certain tenor is often the source of fighting words, was a clear act of defilement in that the flag was thus dishonored; that the idea of dishonorment was one of the keys to the question of whether the flag was defiled. We must conclude that the use of the word 'defile' in the subject statute was intended to included public conduct which brings shame or disgrace upon the flag by its use for an unpatriotic or profane purpose. It is our opinion that the wearing of a flag on the seat of one's pants, under the circumstances of this case, is a physical act which defiles the flag in violation of R.C. 2921.05. Such a use of the flag would degrade and cheapen it in the eyes of the people, as well as defeat the object of maintaining it as an emblem of national power and honor. Halter v. Nebraska (1907), 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696. Similarly People v. Cowgill (1969), 274 Cal.App.2d Supp. 923, 78 Cal.Rptr. 853, appeal dismissed 396 U.S. 371, 90 S.C. 613, 24 L.Ed.2d 590.

The defendant may have sincere ideological views, but he must find other ways to express them. Whether defendant thinks so or not, a reasonable man would think that the wearing of the flag on the seat of his pants was an act of dishonor.

The following statement, taken from page 41, 27 S.Ct. page 421 of Justice Harlan's opinion in Halter, supra, may sound oldfashioned and out-of-date to some, but we think it worth repeating.

'From the earliest periods in the history of the human race, banners, standards, and ensigns have been adopted as symbols of the power and history of the peoples who bore them. It is not, then, remarkable that the American people, acting through the legislative branch of the government, early in their history, prescribed a flag as symbolical of the existence and sovereignty of the nation. Indeed, it would have been extraordinary if the government had started this country upon its marvelous career without giving it a flag to be recognized as the emblem of the American Republic. For that flag every true American has not simply an appreciation, but a deep affection. No American, nor any foreign-born person who enjoys the privileges of American citizenship, ever looks upon it without taking pride in the fact that he lives under this free government. Hence, it has often occurred that insults to a flag have been the cause of war, and indignities put upon it, in the presence of those who revere it, have often been resented and sometime punished on the spot.'

Defendant maintains that sewing the flag on the seat of his pants is not an act of defilement which falls within the coverage of the 'catch-all' phrase, 'otherwise cast contempt upon.' We reject this contention as the words defile, deface and contempt as used in the statute were used in the affidavit charging the offense. The contemptuous act of defilement and defacement was further described in the indictment by the words, 'having said flag sewed on the seat of his pants.' The above words proscribing the offense have a well defined, well understood and generally accepted meaning, and by their use, an accused is informed of the nature of the act he is alleged to have committed.

Still, the statute's purpose is not to suppress the airing of any idea, but to provide for the preservation of the public peace.

This court also believes that the state has a second interest in punishing the wearing in public of the flag on the seat of one's pants. That interest is the preservation of the flag as a symbol of national unity and to further the ideals and purposes for which our nation was founded.

History has shown that one of the incidents of nationality is the adoption of a national flag or other symbol. Our own country, early in its history, adopted a flag to represent its existence and sovereignty as a nation. The importance of this flag in developing a sense of loyalty to our nation and its ideals from its incipient stages down to the present is without question. When a state enacts legislation, as in this case, to punish the public defilement of the flag that has represented this country throughout its history, the state is...