State v. Smith

• Decision Date: 01 December 1920
• Docket Number: 4450.
• Citation: State v. Smith, 58 Mont. 567, 194 P. 131 (Mont. 1920)
• Parties: STATE v. SMITH.
• Court: Montana Supreme Court

194 P. 131

58 Mont. 567

STATE v. SMITH.

No. 4450.

Supreme Court of Montana

December 1, 1920

Appeal from District Court, Custer County.

Janet Smith was convicted of sedition, and, from judgment of conviction and from an order denying a motion for new trial she appeals. Reversed and remanded.

Sharpless Walker and W. C. Packer, both of Miles City, for appellant.

S. C Ford, Atty. Gen., for the State.

MATTHEWS J.

On October 11, 1918, Janet Smith was convicted of the crime of sedition and sentenced to an indeterminate term of not less than five nor more than ten years' imprisonment. She appeals from the judgment and from an order denying her a new trial.

The information herein charges that--

"At the county of Custer, state of Montana, on or about the 1st day of June, 1918, and during a state of war existing between the United States and Germany, the defendant did, unlawfully willfully, wrongfully, seditiously and feloniously, utter disloyal, false and contemptuous language, * * * calculated to incite and inflame resistance to the duly constituted state and federal authorities in connection with the war, which language was in substance as follows, to wit."

Then follows a number of alleged seditious utterances, but as the prosecution was required to, and did, elect on which charge it would rely for a conviction, we are not concerned with other than the single charge that she stated:

"She wished to goodness the people would revolt and that she would shoulder a gun and get the President the first one."

No demurrer, either general or special, was interposed; but, on the opening of the state's case, counsel for the defendant objected to the introduction of any evidence in support of the charge, on the ground, among others, that "the information does not state facts sufficient to constitute a crime or public offense."

1. On the court's action in overruling this objection, defendant predicates error. The objection that the facts stated do not constitute a public offense may be taken either by demurrer or at the trial, under a plea of not guilty, or after the trial, in arrest of judgment. Section 9208, Rev. Codes.

The sufficiency of the information is to be tested by applying the rules laid down in section 9156, Revised Codes, declaring, in effect, that an information is sufficient if it can be understood therefrom that the act charged as an offense is set forth in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, and is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction, according to the right of the case. State v. Bloor, 20 Mont. 582, 52 P. 611.

"If it be borne in mind that the common law is in force in this state, except so far as it has been supplanted by our Codes, the conclusion cannot be escaped that the provisions of the Penal Code cited, * * * and others germane to the subject, while dispensing with mere matters of form, still require all the substantial allegations necessary under the common-law rule." State v. Beesskove, 34 Mont. 41, 50, 85 P. 376, 377.

In elucidation of the common-law rule as to "certainty," the author on the subject in Cyc. has this to say:

" Certainty.--Being free from doubt; absence of doubt; a clear and distinct setting down of facts so that they can be understood both by the party who is to answer the matters stated against him, the counsel who are to argue them, the jury who are to decide upon their existence, and the court who are (is) the judges (judge) of the law arising out of them. While it has been said that we have no precise idea of the signification of the word, which is as indefinite in itself as any word that can be used, a distinction has long been made between three manner of certainties: (1) To a common intent; (2) to a certain intent in general; (3) to a certain intent in every particular."

And in the notes appended, we find:

"The first intent is sufficient in bars which are to defend the party and excuse himself; the second is required in indictments, counts, replications, etc., because they are to accuse or charge the party; the third is rejected in law. (Citations.) Certainty to a common intent describes the mode of statement in which words are used in their ordinary meaning, although by argument or inference they may be made to bear a different one. (Abbott's Law Dictionary.) Certainty to a certain intent, in general, is held to mean, what upon a fair and reasonable construction may be called certain, without recurring to possible facts, which do not appear. (Citing cases.)" 6 Cyc. 727.

And, in regard to pleading statutory offenses, the rule is well stated in 22 Cyc. p. 335, as follows:

"The general rule is that the charge must be so laid in the indictment as to bring the case precisely within the description of the offense as given in the statute, alleging distinctly all the essential requirements that constitute it. Such facts must be alleged that, if proven, defendant cannot be innocent."

Here we have the charge that the defendant said that--

"She hoped to goodness the people would revolt, and that she would shoulder a gun and get the President the first one."

Does such a charge meet with the requirements above announced? In reading the charge, in order to say that a crime has been committed in making the statement attributed to the defendant, we must infer that she spoke of the people of the United States, and presume that her reference to "the President" was directed at the President of the United States. It may be that the evidence to be introduced, the facts and surrounding circumstances, the whole of the conversation in which the statement was made, would clearly establish the fact that such was the case, and the inference may be reasonable and the presumption so indulged in may be fairly drawn from the alleged statement. But in the pleadings in criminal cases, inferences, however reasonable, cannot be drawn upon to aid the pleader, and no presumption can, for this purpose, be indulged in, as the legal presumption in criminal cases is that the defendant is innocent.

In Oregon, under a statute similar to ours, an information was filed attempting to charge the crime of robbery, but failed to state positively that the defendants were the persons who used force and fear to secure the money taken, and the court said:

"It may be inferred, from the statement * * * 'that the said money was then and there unlawfully and feloniously taken from the person of the said William Dompire,' that, since it had been charged in the first clause that the defendants 'did then and there unlawfully and feloniously take from the person of William Dompire' certain moneys, the defendants were the persons charged with using force and fear to secure the money. * *

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