State v. Sinchuk

• Decision Date: 14 August 1921
• Citation: 115 A. 33,96 Conn. 605
• Court: Connecticut Supreme Court
• Parties: STATE v. SINCHUK et al.

115 A. 33

96 Conn. 605

STATE v. SINCHUK et al.

Supreme Court of Errors of Connecticut.

August 14, 1921

Case Reserved from Superior Court, Fairfield County; William M Maltbie, Judge.

Information charging Tihon Sinchuk and others with violation of chapter 312 of the Public Acts of 1919, entitled " An act concerning sedition," brought to the superior court and reserved for the advice of this court, on the issues of law raised by a demurrer to the information. The superior court is advised to overrule the demurrer and to enter judgment pursuant to the stipulation.

The information charges:

" That on the 14th day of March, 1921, at Bridgeport, in said county, Tihon Sinchuk and Alexander Yavsk, not being citizens of the United States or of the state of Connecticut and residing in said Bridgeport, with force and arms did publicly exhibit or advertise certain disloyal, scurillous or abusive matter concerning the form of Government of the United States and of its flag and certain matter which was intended to bring them into contempt, or which creates or fosters opposition to organized Government, against the peace and contrary to the statute in such case made and provided."

The offenses are charged in the exact language of the statute but no excerpts from the matter complained of are included in the information, and no statement of the facts in the case is contained in the record.

To this information the accused demurred (1) because the information is insufficient in law; (2) because it does not state facts constituting an offense; and (3) because the statute is unconstitutional and void in that it violates sections 2, 5, 6, 9, and 16 of article 1 of the Constitution of Connecticut, section 9 of article 1 of the federal Constitution, and also the Sixth and Fourteenth Amendments thereof. The stipulation reserving the issues of law raised by the demurrer of the accused to the information recites that the cause is ready for plea and final judgment, and it is further stipulated that no question shall be raised by the defendants based upon any informality in the information, or upon any defects therein because of the failure to incorporate in the information specific quotations from the matter complained of. The only questions discussed in argument or on the briefs were those relating to the constitutionality of the statute.

Wheeler, C.J., dissenting.

Homer S. Cummings, State's Atty., and Galen A. Carter, Asst. State's Atty., both of Stamford (Warren F. Cressy, of Stamford, on the brief), for the State.

Walter Nelles, of New York City, and Abe S. Geduldig, of Bridgeport (Isaac Shorr, of New York City, on the brief), for defendants.

BEACH J.

The statute in question is entitled " An act concerning sedition," and on its face it appears to penalize three classes of publications: (1) Disloyal, scurrilous, or abusive matter concerning the form of Government of the United States, its military forces, flag, or uniform; (2) any matter intended to bring them into contempt; (3) or which creates or fosters opposition to organized Government. The demurrer and the stipulation accompanying the reservation waive all defenses except the unconstitutionality of the statute.

The brief for the accused presents this defense in three aspects, which are described as to some extent overlapping; first, because it fixes no ascertainable standard of guilt and amounts to delegation to courts and juries of the legislative function of defining statutory offenses; second, because it oversteps the police power and deprives of liberty without due process of law in penalizing expressions for their character regardless of relation to harmful consequence; third, because it contravenes specific limitations on the police power, namely, the free speech sections, the right of the people to adapt their form of Government in accordance with their opinion, and the right of remonstrance.

In support of the first of these propositions the defendants rely mainly on U.S. v. L. Cohen Grocery Co., 255 U.S. 81, 41 Sup.Ct. 298, 65 L.Ed. 516, holding that section 4 of the Lever Act (U. S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, § 3115 1/8 ff), penalizing the making of " any unjust or unreasonable rate or charge, in handling or dealing in or with any necessaries," was unconstitutional because it did not fix any ascertainable standard of guilt, and did not inform persons accused of violation thereof of the nature and cause of the accusation against them. To the same effect are International Harvester Co. v. Kentucky, 234 U.S. 216, 34 Sup.Ct. 853, 58 L.Ed. 1284; Collins v. Kentucky, 234 U.S. 634, 34 Sup.Ct. 924, 58 L.Ed. 1510; American Seeding Machine Co. v. Kentucky, 236 U.S. 660, 35 Sup.Ct. 456, 59 L.Ed. 773. These last cases arose under statutes forbidding combinations to fix a price greater or less than the " real value" of the article dealt in; and the attempt was to determine criminality by asking the court or jury to say what the real value of the article would have been had the combination not existed. On the other hand, a criminal statute is not unconstitutional merely because it throws upon men the risk of rightly estimating the effect of their conduct upon a condition of fact, e. g., what is " undue restraint" of trade (Nash v. U. S., 229 U.S. 373, 33 Sup.Ct. 780, 57 L.Ed. 1232); whether their conduct is " reasonably calculated" to restrain trade ( Waters-Pierce Oil Co. v. Texas, 212 U.S. 86, 29 Sup.Ct. 220, 53 L.Ed. 417); whether their language tends to encourage or advocate an actual breach of the law (Fox v. Washington, 236 U.S. 273, 35 Sup.Ct. 383, 59 L.Ed. 573); or whether a newspaper is " principally made up on criminal news" (State v. McKee, 73 Conn. 18, 46 A. 409, 49 L.R.A. 542, 84 Am.St.Rep. 124). And coming closer to the point, we have upheld a statute which penalized the publication of " any offensive, indecent, or abusive matter concerning any person." State v. Pape, 90 Conn. 98, 96 A. 313. Of this statute we said that it must be construed consistently with the principles of the common law governing the publication of all defamatory matter and with the constitutional provision that in all actions of libel the truth shall be a defense.

Applying the principles underlying these authorities to the present case, we think the statute is not fairly open to the objection that it fixes no ascertainable standard of guilt. The phrase " disloyal, scurrilous or abusive matter" is confined specifically to the form of Government of the United States, its military forces, flag, or uniform, and the principles of the common law governing the publications of defamatory matter, in so far as they are applicable, furnish all the analogies necessary to define the nature and cause of this branch of the accusation. Whether the publication in question was with intent to bring the form of Government of the United States and its flag into contempt is an issue of fact such as is presented in most criminal prosecutions. Whether the publication creates or fosters opposition to organized Government is also an issue of fact no more uncertain than the question whether a publication is obscene.

The second objection is that the act penalizes expression for its character regardless of relation or harmful consequence. This objection, both in its form and in the mode in which it was presented in argument and on the brief, stands by itself and does not involve the third objection above stated. It deals, not with the alleged violation of any specific limitation on the exercise of the police power, but with the reasonableness of the prohibition as measures for the public peace and safety. It may be admitted that the publication of matter concerning the form of the federal Government which is merely scurrilous or abusive is not necessarily a direct incitement of disobedience to any other law, but it is not necessary to look outside of the statute itself to find a legal basis for criminality, because the act itself is the declaration of the General Assembly that the publication of the prohibited forms of expression does endanger the public peace and safety. This declaration it has power to make unless the court can see that it is plainly unfounded. State v. McKee, 73 Conn. 18, 24, 46 A. 409, 49 L.R.A. 542, 84 Am.St.Rep. 124. We have no doubt that a sufficient probability of danger to the public peace and safety arises from publications concerning the Government of the United States and of its flag which would come within the common-law definition of defamatory matter to justify the statute so far as its first two clauses are concerned. Defamatory publications seem as dangerous to the public welfare when addressed to the national Government as when addressed to an individual. State v. Pape, supra. As to the final clause of the statute, it is idle to say that anarchistic propaganda are harmless in law.

We come now to the question, which also underlies the objections already discussed, whether the statute contravenes any specific provisions of the Bill of Rights or of the federal Constitution. Section 2 of the Bill of Rights provides:

" That all political power is inherent in the people, and all free Governments are founded on their authority, and instituted for their benefit; and that they have at all times an undeniable and indefeasible right to alter their form of Government in such manner as they may think expedient."

This section is plainly inapplicable to the defendants. The information alleges and the demurrer admits that the defendants are not " citizens of the United States or of the state of Connecticut." The right affirmed by this section is the right of the people to alter " their form of Government." It is because it is their own and instituted by themselves for...