State v. Musser
| Decision Date | 16 December 1946 |
| Docket Number | 6816 |
| Citation | 110 Utah 534,175 P.2d 725 |
| Court | Utah Supreme Court |
| Parties | State v. Musser Et Al. |
Appeal From District Court, Third District, Salt Lake County; M J Bronson, Judge
Rehearing Denied February 18, 1947.
Joseph White Musser and others were convicted for criminal conspiracy to commit acts injurious to public morals by counselling, advising and urging other persons to practice polygamy, and they appeal.
Decision in accordance with opinion.
Claude T. Barnes, J. H. McKnight, Knox Patterson, Ray S. McCarty and Edwin D. Hatch, all of Salt Lake City, for appellants. Brigham E. Roberts, Dist. Atty., and H. D. Lowry, Asst. Dist Atty., both of Salt Lake City, W. S. Wagstaff, Asst. Atty Gen., and Grover A. Giles, Atty. Gen., for respondent.
By information 33 persons were accused of criminal conspiracy to commit acts injurious to public morals in violation of Sec 103--11--1 (5), U. C. A. 1943. The information in substance charges that between June 1, 1935, and March 1, 1944, in Salt Lake County, State of Utah, the defendants wilfully and unlawfully agreed, combined, conspired and confederated among themselves and with other persons unknown to the district attorney. "to advocate, promote, encourage, urge, teach counsel, advise and practice polygamous or plural marriages and to advocate, promote, encourage, urge, counsel, advise and practice the cohabiting of one male person with more than one woman and in furtherance and pursuance of said conspiracy and to effect the object thereof, did commit the following acts:"
(1) That from June 1, 1935, to March 1, 1944, in Salt Lake County, State of Utah, defendants published and distributed once each month, a pamphlet called "Truth"; (2) that on July 1, 1942, defendants purchased a house at 2157 Lincoln Street in Salt Lake City; and (3) that in 1942 and 1943 in Salt Lake County the defendants attempted to convert Helen Smith to believe in and to live in polygamy. Other overt acts alleged, were not submitted to the jury for consideration.
Defendants moved to quash the information on two grounds only: (a) That it does not charge the commission of any public offense; and (b) that it states matters amounting to legal justification. Independent of any interpretation by counsel, the information suggests that defendants as a group agreed to practice polygamy, a felony. Since an agreement between one man and a plural number of women to practice polygamy, followed by the overt act of polygamous marriage of the persons so agreeing, would constitute the substantive offense of polygamy by the man, a serious question might arise as to whether such an agreement would charge conspiracy. Defendants did not move to quash on the ground that the information is ambiguous, uncertain, or that it charged more than one offense.
If "the" appeared in lieu of "and" in the two places italicized, and "of" appeared after the word "practice" in each instance, the information would read the way the State apparently construes it. From the argument of defendants in assailing the information for failure to state a public offense, it would appear that in spite of the awkward and ambiguous sentence structure, appellants have apparently adopted the construction urged by the State, that the information attempts to charge a consipracy to commit acts injurious to public morals, by an agreement entered into between defendants to advocate, teach, counsel, advise, encourage and urge other persons to engage in the practice of polygamy and the cohabitation of a man with more than one woman.
Since the alleged conspiracy relates to acts injurious to public morals, the primary question to be determined in testing the sufficiency of the information is, Does the advocacy of the practice of polygamy and the urging of other people to engage in such practices within the State of Utah, constitute acts injurious to public morals within the meaning of the conspiracy statute? At the oral argument counsel for appellants contended that advocating the practice of polygamy is merely the expression of an opinion or belief; that such teachings do not constitute acts; that such advocacy consequently could not constitute acts injurious to public morals; and that such expressions of opinion and belief are immune from prosecution under the constitutional guarantees of religious liberty and freedom of speech, and could not properly be the subject of criminal conspiracy. They further contend that in a recent case in the United States district court involving a number of the defendants in this case, (United States V. Barlow et al., D. C, 56 F.Supp. 795), it was held that advocating the practice of polygamy as a religious belief, does not tend to deprave public morals. They also claim that by reason of the fact that the appeal by the government was dismissed by order of the United States Supreme Court, (323 U.S. 805, 65 S.Ct. 25, 89 L.Ed. 642), such decision on such a question became final and conclusive, and is binding on the courts of this state.
In that case some of the defendants here were indicted for conspiracy to violate 18 U.S.C. A. º 334 as amended, which forbids mailing of "obscene, lewd, or lascivious" books, pamphlets, pictures, "or other publication of an indecent character." The defendants were alleged to have published and circulated "Truth" magazine, the publication and distribution of which are charged as overt acts in this case. United States V. Barlow, supra , was dismissed, because in the opinion of the Federal judge the excerpts from said magazine charged in the indictment as nonmailable matters under the Federal statute, were not calculated to "corrupt and debauch the minds and morals" of those into whose hands such publications might come. The opinion relates to the interpretation of the Federal statute, and states that the indictment does not charge an offense against the United States. The opinion does state that editorials in such magazines advocate the practice of polygamy, but while stating that such publication is not subject to prosecution under Federal statutes, the language recognizes that the act in question might well be subject to prosecution under the laws of Utah:
Absent any constitutional limitation on the power of a state to legislate, an adjudication by a Federal court that a specified act does not contravene a Federal statute does not even warrant an inference that such conduct would not violate a state statute. Appellants' contention to the contrary is without merit.
Article III of our State constitution prohibits plural or polygamous marriages. Statutes enacted pursuant thereto, Secs. 103--51--1 and 2, U. C. A. 1943, makes felonious both the practice of polygamy and cohabitation of a man with more than one woman. Such relations are regarded by the law as meretricious. Conduct which induces people to enter into such felonious meretricious relationships, is certainly conduct injurious to public morals. Defendants, however, contend that if a conspiracy could be charged for expression of beliefs and ideas, then every effort to change some obnoxious law or some objectional constitutional provision could be thwarted by a conspiracy charge. There is a vast distinction between advocating a change in the law by appropriate legislation, and urging people to commit acts in violation of the law. Advocating violation of law is not an equivalent of urging repeal of the law.
Admittedly, a person cannot properly be prosecuted for expressing opinions nor for mere beliefs and personal convictions, however peculiar or repugnant they might seem to others. However, conduct condemned by statute may not "be made a religious rite and by the zeal of the practitioners swept into the First [or Fourteenth] Amendment." Murdock V. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 873, 87 L.Ed. 1292, 146 A. L. R. 81. State V. Barlow et al., 107 Utah 292, 153 P.2d 647.
Statutes do not attempt to regulate beliefs, but conduct. Freedom of speech and of religion are not unlimited licenses to do unlawful acts under the labels of constitutional privilege. Expressions and the use of words may constitute verbal acts. Words may ignite and inferno of mob violence. As stated by Mr. Justice Holmes in Schenck V. United States, 249 U.S. 47, 39 S.Ct. 247, 249, 63 L.Ed. 470:
See also Gitlow V. New York, 268 U.S. 652, 45 S.Ct. 625, 630, 69 L.Ed. 1138, wherein the court said:
"That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question."
In Davis V. Beason, 133 U.S. 333, 10 S.Ct. 299, 300, 33 L.Ed. 637, wherein petitioners had been convicted of a conspiracy to obstruct the due administration of the laws of Idaho, the Supreme Court in upholding the judgment said:
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