State v. Mitchell

• Citation: 288 N.E.2d 216,32 Ohio App.2d 16
• Parties: , 61 O.O.2d 9 STATE of Ohio, Appellee, v. MITCHELL, Appellant.
• Decision Date: 14 March 1972
• Court: United States Court of Appeals (Ohio)

Page 16

32 Ohio App.2d 16

288 N.E.2d 216, 61 O.O.2d 9

STATE of Ohio, Appellee, v. MITCHELL, Appellant.

Court of Appeals of Ohio, Tenth District, Franklin County.

March 14, 1972.

Syllabus by the Court

1. The First Amendment to the United States Constitution and the Ohio Constitution, Section 11, Article I, guaranteeing freedom of speech, do not confer upon an individual the right to publicly mutilate, burn, destroy, defile, deface, trample upon, or otherwise cast contempt upon the flag of the United States.

2. R.C. § 2921.05, prohibiting such acts, is not vague; prohibits only acts not speech; is constitutional; and does not violate either the First or Fourteenth Amendments to the United States Constitution or the Ohio Constitution, Section 11, Article I.

3. Wearing the flag of the United States sewn on the seat of the pants may be found to constitute acts of defilement of the flag, casting contempt upon the flag, and, when the wearer is seated, trampling upon the flag in violation of R.C. 2921.05.

James J. Hughes, City Atty., Daniel W. Johnson City Prosecutor, and Donald H. Rathbun, Columbus, for appellee.

Donald L. Feinstein, Columbus, for appellant.

TROOP, Presiding Judge.

Dewey Mitchell, III, was charged with and convicted of a violation of R.C. § 2921.05 in the Franklin County Municipal Court. A 'decision' was rendered by the trial court (the trier of the facts) which is reflected in the judgment entry of conviction and sentence, filed November 3, 1971. This appeal is taken from such judgment.

The affidavit filed by the police officer against Mitchell avers that the accused, on January 1, 1971, 'did unlawfully desecrate the American flag and did case contempt on flag by having it sewn or embroided (sic) to the seat of his pants with part of it in crotch area.'

The statute allegedly violated reads, in pertinent part, as follows:

'* * * No person shall manufacture or have in possession an article of merchandise upon which is placed or attached a contemptuous representation of such flag, standard, color, or ensign, or publicly mutilate, burn, destroy, defile, deface, trample upon, or otherwise cast contempt upon such flag, standard, color or ensign.

'* * *

'As used in this section 'flag,' 'standard,' 'color,' or 'ensign' includes any flag, standard, color, or ensign or a picture or representation thereof, made of or represented on any substance, and purporting to be a flag, standard, color, or ensign of the United States, or this state or a picture or representation thereof, upon which is shown the colors, the stars, and the stripes in any number thereof, or which might appear to represent a flag, standard, color, or ensign of the United States or of this state.'

Counsel for the defendant, appellant herein, bottoms this appeal on three assignments of error. Reduced to their lowest terms, they are as follows: The trial court erred (1) in finding that the affidavit did state an offense under R.C. § 2921.05, (2) in finding that section constitutional on its face, and (3) in finding the section constitutional as applied to the defendant in this particular case and in the situation in which he was when arrested.

Defendant was stopped by a police officer for a loud muffler. The customary check by the officer revealed an existing warrant for Mitchell's arrest which caused him to be moved to the nearby cruiser and 'patted down,' in the course of which the officer saw what he 'deemed' to be a flag 'on the seat of his britches.' This produced the 'desecration' charge.

At trial, the officer described the flag as 6 9 with seven red and six white stripes, and containing in the blue field 36 white 'dots' embroidered through the pants.

The defendant took the stand in his own behalf and explained that he had covered a hole in his jeans with an 'iron on patch,' and then embroidered the patch with his wife's new sewing machine, trying to make the colors represent a flag 'as closely as I could.' He admitted that he was trying 'to actually produce the American flag' to 'the best of my ability.'

In further explanation he urged that its 'pretty stylish to wear patriotic colors,' and added that 'no contempt was intended.' The witness elaborated as follows: '* * * it was close to the flag, but I didn't make it exact.'

An 'iron on patch' used to repair a hold in one's jeans ordinarily falls short of being an earthshaking event, but, the transformation of the patch into a 'representation' of an American flag inflates the repair chore to momentous proportions, especially when the offender elects to use such repair as a vehicle to challenge the flag desecration statute as infringing upon his constitutional right of free speech. The importance of the principles involved is evidenced by the diligence of defense counsel, who examined and suggests that this court review decisions in 54 reported cases, from the Supreme Court of the United States to trial courts of all kinds, as well as pertinent code sections and a law journal article.

The time consumed in digging out such a quantity of authority, and digesting it moves far beyond the practical limits of a reviewing court of appeals. This situation appears to be a new phenomenon in the modern judicial society. In this instance, the indigent defendant received legal services, supplied at the trial level and on appeal by the legal aid and defender society, which could only have been purchased by very wealthy men. The irony of the situation is that middle-class folks who could not afford to hire counsel for such a defense effort pay the taxes to foot the bill. This court cannot, within the limits of time, review every case cited, but must rely upon those that seem to be pertinent and illustrative of facets of the problem presented.

Before discussing the assignments of error proffered by the defendant, it might be helpful to review the pertinent constitutional provisions which should be in the background as the review progresses. The First Amendment to the Constitution of the United States reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'

It is well to note that the term 'freedom of expression,' frequently found in the decisions of courts as something afforded protection under the amendment, is not, in fact, found in the language quoted.

The language used in the Ohio Constitution, Section 11, Article I, is different and considered by this court preferable. It is as follows:

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

Again, what the provision protects is limited. It states one may 'freely speak, write, and publish his sentiments,' but is responsible for abuses. Laws may not restrain or abridge 'speech' or 'the press.' No reference is made to any other form of 'expression,' such as 'symbolic speech.'

Counsel for defendant, for his first assignment of error, urges that the trial court erred in finding that the affidavit filed against Mitchell stated an offense under R.C. § 2921.05, because:

(A) The words of the statute 'otherwise cast contempt' do not by themselves state an offense (B) The legislative amendment adding 'otherwise' meant something other than a 'physical act';

(C) There was no allegation or proof of criminal intent.

A familiar doctrine used in statutory construction, the existence of which counsel for the defendant acknowledges, is ejusdem generis. Counsel, however, refuses to accept the doctrine as appropriate to the instant statutory enactment-the subject of his first assignment of error.

The words (in R.C. § 2921.05) 'publicly mutilate, burn, destroy, defile, deface, trample upon or otherwise cast contempt,' form a typical ejusdem generis pattern. The 'and any other' and 'or otherwise' inclusions in statutes are many and varied. This court considered at great length the phrase 'and any other compound,' and the application of the doctrine of ejusdem generis as it applied to such phrase, in an unpublished decision in State v. Bailey, Case Nos. 10002-3, June 22, 1971 (cert. denied November 19, 1971). In the decision, reference was made to 50 Ohio Jurisprudence 2d 302, Section 320, Sutherland, Statutory Construction, 3 Ed., Volume 2, and to a variety of decisions of Ohio courts. At page five, the decision quotes at length from both texts. The import of the doctrine is well expressed by language from the Ohio Jurisprudence 2d text, at page 303, as follows:

'* * * such terms as 'other,' 'other thing,' 'others,' or 'any other,' when preceded by a specific enumeration, are commonly given a restricted meaning, and limited to articles, things, or matters of the same nature as those previously described.'

An examination of the statutory language (R.C. § 2921.05) indicates that an 'otherwise' act must be physical and of the same basic nature as 'defile,' 'deface,' 'trample upon,' to note the terms closest to the word 'otherwise.'

To attach a representation of a flag to the crotch seam of a pair of jeans is to 'defile,' in the common usage of the term, an accepted definition being 'to make dirty,' and is a far cry from the use made by a patrolman who wears it on the sleeve of his blouse or attached to a shirt covering his breast. In that location on the defendant's pants, it is effectively 'trampled upon' by the posterior of the wearer, as effectively in fact as if it were under his feet.

The legislative intent in inserting the word 'otherwise' is clearly shown by the nature of the acts specifically set out in the statute, just preceding such word. There is no valid reason to refuse to apply the doctrine of ejusdem generis to...