State v. Turner

• Decision Date: 03 September 1970
• Docket Number: No. 40096,40096
• Citation: 474 P.2d 91,78 Wn.2d 276
• Parties: , 41 A.L.R.3d 493 The STATE of Washington, Respondent, v. Floyd Wayne TURNER, Jr., Appellant.
• Court: Washington Supreme Court

Page 276

78 Wn.2d 276

474 P.2d 91, 41 A.L.R.3d 493

The STATE of Washington, Respondent, v. Floyd Wayne TURNER, Jr., Appellant.

No. 40096.

Supreme Court of Washington, En Banc.

Sept. 3, 1970.

[474 P.2d 92] Philip L. Burton, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Neal Shulman, Gerald M. Lorentson, Deputy Pros. Attys., Seattle, for respondent.

HALE, Associate Justice.

Found guilty by a jury of violating the Uniform Flag Law (Laws of 1919, ch. 107, p. 259; RCW 9.86), defendant appeals the sentence of 6 months in jail and a $500 fine.

The statute then in effect declared:

No person shall publicly mutilate, deface, defile, defy, trample upon or by word or act cast contempt upon any such flag, standard, color, ensign or shield.

Uniform Flag Law, RCW 9.86.030. ¹

The amended information charged that the defendant, on May 12, 1967:

did willfully and unlawfully and directly and indirectly aid, abet, assist, counsel, encourage, advise and induce another to publicly mutilate, deface, defile and defy a flag of the United States of America, and publicly, by word or act cast contempt upon said flag by doing the following acts, to-wit: Holding a flag of the United States of America while another set fire to and destroyed said flag by burning.

(Italics ours.)

Defendant's arrest stemmed from a report to Seattle police by Mr. Louis C. Scott, a Seattle apartment house manager, who testified that about 6 p.m., May 12, 1967, some of his tenants complained about noise from across the street and wanted to know 'what I was going to do about the noise out there.' The noise, he said, came from the headquarters of what was known as CAMP, or Central Area Motivation Project. CAMP is an organization having to do with the social and economic rehabilitation of a large economically depressed area in Seattle's central district. From his apartment window, Mr. Scott had seen a number of people gradually assemble in the yard fronting the CAMP headquarters building. He said some carried baskets of what he thought was food, and others had musical instruments. He thought 'the people who assembled there in large numbers dressed differently than normally.' He heard music from inside the CAMP building and saw someone passing out yellow balloons to children in the yard. He noticed the defendant because, as he said, 'he was the only person in the group who carried a flag.'

About 10:30, a curious thing happened. He said:

a red pickup truck came in and brought a piano, an upright piano, parked it right in front of my window Noise from the piano smashing induced Mr. Scott to call the police again, and they arrived to observe the piano debris being loaded and hauled away. After that, Mr. Scott observed the event for which the defendant was charged. Looking through his binoculars, he saw the defendant hold an American flag while another individual set it afire:

just a little bit south of it. And there several men came and unloaded it on the ground, carried it across the street to this CAMP Center, carried it up the stairs, up the first three steps there. Carried that piano up these steps and right up here on the sidewalk. Then they proceeded to knock that piano apart. Q. Did they use anything to do this? A. There appeared to be, I rather think from the way the men swung, possibly a couple of sledgehammers and probably axes, was what they used to knock the piano apart. Q. Was it completely knocked apart? A. Yes. Each time they hit the piano everyone would yell. The splinters were flying and it made quite a din there. Q. Did the defendant take part in the destruction of this piano? A. No, I didn't notice him doing that.

But after a little bit then the two men moved together and the defendant held the flag while this other gentleman lit it with a lighter and he held the flag until it burned. And when it got hot enough and the heat intense enough, he dropped it. He pushed it away and it lit towards the other man's feet. Q. You mean the defendant dropped it? A. Yes.

Several Seattle police officers corroborated Mr. Scott's testimony in part, saying that they had seen Turner carrying an American flag that evening; other officers said that later in the week they had heard defendant say he had burned an American flag and would repeat the act at a later time.

Since the record does not show what was said before or after the flag burning, the defendant's actual intent, design or purpose in holding the flag while another set fire to it can only be inferred or guessed at.

Defendant, taking the stand in his defense, denied that he held a flag while another set fire to it; he denied that he participated in any way in a flag burning. He said he had been actively working in Seattle for several civil rights He left the CAMP area with others, he said, in a pickup to get the piano. When he returned, he did notice that someone was carrying an American flag. He said he was not aware that anyone had burned a flag there until a friend later told him he had heard on the radio that someone by the name of Turner had been arrested for burning an American flag. That, he said, was the first he'd heard of the flag burning at the CAMP Center. He testified that he never had a flag in his hand at the gathering that night. On cross-examination, he said that, because policemen later followed him around and, as he expressed it, were harassing him, he mentioned that he might burn a flag but had never said he had burned one and was simply making conversation. Defendant estimated the crowd as consisting of approximately 50 people--25 in a circle in the yard and the remainder on the porch.

organizations which he described by their capitalized first letters as 'CORE, NACP (sic) and SNICK.' He was not, he said, a member of these organizations but sympathized with their aims and intended to help them. CORE, he said, meant Congress of Racial Equity, which stood for civil rights. He said the same about NAACP, National Association for the Advancement of Colored People. He was, he said, a helper of an organization whose purpose was to bring an end to war, called 'The Committee to End the War in Vietnam,' for which he had passed out leaflets and whose parade and demonstrations he had joined. He named a number of other groups and organizations which he had tried to help. He said he was a Dukhobor. ²[474 P.2d 94] ] Interpreting some Russian writing on the back of his jacket which the state's witnesses had referred to, defendant said it said 'Dukhobor;' he explained that he had been raised a Dukhobor and had learned to speak Russian and Chinese because many of the Dukhobors do not speak English. He testified that he was present in the yard of the CAMP Center on May 12th.

Defendant makes eight assignments of error, but we need discuss only one because it evokes the major and You are instructed that it is not required that you find that the defendant intended to violate the law. You are only required to find that the defendant performed the physical act charged.

determinative issue of the appeal. The assignment arises from his exception to instruction No. 8 which said:

The question raised by the challenge to this instruction is whether intent to desecrate the flag, as distinguished from a mere intent to do the physical acts charged, is an element of the crime defined by the Uniform Flag Law, RCW 9.86.030. If intent to defile, deface and mutilate the flag, or intent to cast contempt upon it by the commission of the acts charged, I.e., publicly burning or aiding in the public burning, must be proved, then the conviction cannot stand. If, however, the flag statute as then in effect, RCW 9.86.030, belonged to that class of statutes defining crimes mala prohibita rather than mala in se, then the judgment should be affirmed. City of Seattle v. Gordon, 54 Wash.2d 516, 342 P.2d 604 (1959); State v. Lindberg, 125 Wash. 51, 215 P. 41 (1923).

Although the legislature and the state's political subdivisions under the police power may in some circumstances declare certain acts, conduct or omissions criminal without regard to the intent or knowledge of the actor, guilty knowledge will be deemed an essential ingredient if the defined crimes involve moral turpitude. 22 C.J.S. Criminal Law § 30 (1961). This distinction is seen in the innumerable ordinances, statutes and resolutions which define crimes mala prohibita. Legislation prohibiting offenses mala prohibita, if properly enacted within the police power, is usually upheld and conviction sustained without proof of evil intent or in some instances without proof even of an intent to violate them. Many penal laws, for example, relating to pure food and drugs, labeling, weights and measures, building, plumbing and electrical codes, fire protection, air and water pollution, sanitation, highway safety and numerous other areas, in the exercise of the police power may be phrased and enforced as laws mala prohibita and may require neither proof of intent to do a wrong nor knowledge that the wrong will be done.

But as we read the flag desecration statute applied either to a principal or to one who aids and abets in its violation, it does not define crimes mala prohibita but rather offenses mala in se. In essence, to defile or hold up to contempt is conduct involving moral turpitude. Therefore, to sustain a conviction of desecrating the flag as defined by that statute, the acts must have been done knowingly and intentionally with an intent or purpose of defiling and desecrating it or holding it publicly up to contempt.

Our conclusion that the flag desecration statute under consideration, Uniform Flag Law, Laws of 1919, ch. 107, p. 256; RCW 9.86.030, was one defining crimes mala in se as distinguished from those mala prohibita, is, we think, supported in part by the absence of any provision in the statute that to be actionable the prohibited acts must be done with intention to or under circumstances tending to provoke public disturbance,...