State v. Spence

Decision Date18 January 1973
Docket NumberNo. 42256,42256
Citation506 P.2d 293,81 Wn.2d 788
PartiesThe STATE of Washington, Appellant, v. Harold Omand SPENCE, Respondent.
CourtWashington Supreme Court

Christopher T. Bayley, King County Pros. Atty., James E. Warme, Deputy Pros. Atty., Seattle, for appellant.

David Allen, Legal Services, Seattle, for respondent.

HALE, Chief Justice.

Defendant was charged in King County Justice Court with unlawfully displaying a flag of the United States upon which he had affixed a design or picture to both surfaces. The Justice Court, sitting without a jury, found him guilty and sentenced him to 90 days' confinement with 60 days suspended. Defendant appealed to the King County Superior Court where a jury found him guilty. On an agreed statement of facts, he appealed the judgment and sentence of 10 days' confinement, suspended, and a fine of $75, and costs entered on the verdict. The Court of Appeals reversed with one judge dissenting (5 Wash.App. 752, 490 P.2d 1321 (1971)); the state obtained review by appeal to this court under Rule on Appeal II--2, and we reverse the Court of Appeals.

That the flag (exhibit No. 3) upon which defendant had taped a picture or diagram was an actual flag of the United States is clear, so acknowledged by both prosecution and defense and so recognized by this court. It measures about 58 inches long and 35 inches wide. On both faces, defendant had outlined in glossy, black plastic 1/2-inch tape a large circular diagram about 19 1/2 inches in diameter, inside of which was laid out in the same plastic tape another symbol resembling a trident.


The trident consisted of a 19 1/2-inch line of plastic tape forming a vertical diameter and two 10-inch lines running from the approximate center on either side of it to intersect the circumference at a point approximately 6 inches from either side of the diameter. The whole design was set in about 4 inches from the top of the flag, 9 1/4 inches from the bottom, and about 6 1/2 inches from either edge. It thus occupied nearly one-half of the entire surface of the flag. Defendant calls it a symbol of peace. He had placed the symbol on both surfaces of the flag and suspended the flag upside down from his apartment window. According to the agreed statement of facts:

The unconstroverted testimony of the state's witnesses, three Seattle police officers, was: they observed a flag with a masking tape peace symbol attached thereto, hanging upside down out of a window at 1006 E. Prospect Street, Seattle, Washington; they entered the main door of the apartment building and were met by the defendant who said, 'I suppose you are here about the flag. I didn't know there was anything wrong with it. I will take it down'; the defendant allowed the officers to enter his apartment where the flag was located; the officers arrested the defendant and seized the flag; the defendant co-operated with the police officers.

The state introduced, and the court admitted, the flag with the masking tape peace symbol. (It was identified as Exhibit No. 3). The state rested its case.

The defendant, Mr. Spence, took the stand and testified on his own behalf. The defendant testified that he put a peace symbol on the flag and displayed it to public view as a protest to the invasion of Cambodia, and the killings at Kent State University, both of which had occurred a few days previously. Mr. Spence said his purpose of putting the peace symbol on the flag was to associate the American flag with peace instead of war and violence. He testified that he choose (sic) masking tape so that the peace symbol could be removed without damaging the flag. He said that he did not know that placing masking tape on a flag was against the law.

Defendant was not convicted of violating the flag desecration statute. RCW 9.86.030. See State v. Turner, 78 Wash.2d 276, 474 P.2d 91 (1970). He was convicted of violating RCW 9.86.020(1) and (2), the alteration or improper use statute, which states:

No person shall, in any manner, for exhibition or display:

(1) Place or cause to be placed any word, figure, mark, picture, design, drawing or advertisement of any nature upon any flag, standard, color, ensign or shield of the United States or of this state, or authorized by any law of the United States or of this state; or

(2) Expose to public view any such flag, standard, color, ensign or shield upon which shall have been printed, painted or otherwise produced, or to which shall have been attached, appended, affixed or annexed any such word, figure, mark, picture, design, drawing or advertisement;

Defendant attacks the constitutionality of RCW 9.86.020(1) on two grounds: (1) that it violates the freedom of speech guarantees of the first amendment to the Constitution of the United States, and article 1, section 5, of the Constitution of the State of Washington, and (2) that the statute is unconstitutionally vague and overbroad when read with RCW 9.86.010, which states:

The words flag, standard, color, ensign or shield, as used in this chapter, shall include any flag, standard, color, ensign or shield, or copy, picture or representation thereof, made of any substance or represented or produced thereon, and of any size, evidently purporting to be such flag, standard, color, ensign or shield of the United States or of this state, or a copy, picture or representation thereof.

Defendant said that the diagram stood for peace. It depicted his protest against the invasion of Cambodia by American troops, and the killing of students at Kent State University when a unit of the Ohio National Guard fired upon them during a student demonstration. Both the invasion of Cambodia, an American military action undertaken by United States forces as an operation of the Vietnam war, and the shootings at Kent State had occurred shortly prior to the events of this case. Defendant said that he was unaware that taping the symbol upon and displaying the flag was against the law. He did not contend, however, that he was unaware that the cloth upon which he affixed the symbol was an actual flag of the United States of America.

As to his knowledge of the law, that point is readily determined by the long-standing and basic principles upon which our legal system depends, that all sane persons are presumed to know the law and are in law held responsible for their free and voluntary acts and deeds. 21 Am.Jur.2d Criminal Law § 94 (1965).

Defendant first contends that the prosecution failed to supply evidence and the court refused to instruct that an element of the offense charged was criminal or evil intent, and that, therefore, he should have been acquitted because of the state's failure to prove an element of the crime charged. He cites, Inter alia, State v. Turner, Supra, a flag burning and desecration case maintained under RCW 9.86.030. That holding, in our view, does not support defendant's position, but contrarily militates against it, for it is based upon the fundamental distinctions between conduct proscribed as malum prohibitum and conduct malum in se.

In Turner, the defendant was charged under RCW 9.86.030 (amended in Laws of 1969, 1st Ex.Sess., ch. 110, p. 823), with flag desecration by burning, and we held that intent to desecrate was an element that must be established by the prosecution. Under RCW 9.86.020, however, under which the complaint here is laid, evil intent or design is not an element. A violation is complete when one knowingly places any word, figure, mark, picture, design, drawing or advertisement upon the flag of the United States, or flies a flag so marked. All that is required to complete the offense is to knowingly perform the prohibited act, and it is immaterial--except for consideration of punishment--whether the act was done with an evil motive or an exalted one. The question of criminal intent or evil purpose, therefore, does not arise in this case for the charge was laid not under the flag desecration statute, which has been held to define an offense malum in se, but rather was brought under the flag alteration or improper use statute (RCW 9.86.020), defining offenses malum prohibitum, and requires no proof of evil or criminal intent or design, but only that the act was voluntarily and knowingly done. Cf. State v. Turner, Supra; Desecration of the flag of the United States; penalties, 18 U.S.C. § 700 (Supp.1972).

The object to which defendant affixed the tape symbol was an actual flag of the United States. 4 U.S.C. § 1 (1927). It conformed to the official design prescribed in 4 U.S.C. § 1 (1927), as augmented by executive orders of the President adding additional stars for additional states admitted into the Union (4 U.S.C. § 2 (1927)). It was thus a flag of the United States within the protective provision of 4 U.S.C. § 3 (1927), prohibiting the printing, painting, attaching or affixing any word, figure, mark, picture, design, drawing or advertisement upon, or displaying a flag so adorned within the District of Columbia, a statute quite similar in language to that now before us.

Defendant contends that the statute is unconstitutionally overbroad and vague, made so by RCW 9.86.010, which relates to such things as standards, colors, ensigns or shields. Although defendant might profess doubts as to what these latter devices are, there is no doubt but that the statute adequately informed him with reference to the article he used--an actual American flag. The prohibited conduct whereof defendant was charged, we think, was described in the statute and in the complaint in language sufficiently clear and concise as to be comprehended by a person of ordinary understanding. (A)lmost any word or phrase may be rendered vague and ambiguous be dissection with a semantic scalpel.

Harlan, Justice, concurring in the result in Cole v. Richardson, 397 U.S. 238, 240, 90 S.Ct. 1099, 1101, 25 L.Ed.2d 275 (197...

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