State v. Wyman
| Decision Date | 17 December 1919 |
| Docket Number | 4379. |
| Citation | 186 P. 1,56 Mont. 600 |
| Parties | STATE v. WYMAN. |
| Court | Montana Supreme Court |
Appeal from District Court, Custer County; A. C. Spencer, Presiding Judge.
R. L Wyman was convicted of sedition, and from judgment of conviction and from order denying motion for new trial, he appeals. Affirmed.
H. J Haskell, of Glendive, and Henry C. Smith, of Helena, for appellant.
S. C Ford and Frank Woody, both of Helena, and Otto Gerth, of Great Falls, for the State.
On the 23d day of April, 1918, the county attorney of Dawson county filed an information against appellant, in which it is alleged that on the 15th day of March, 1918, at the county of Dawson and state of Montana, the said R. L. Wyman committed the crime of sedition, as follows:
"That said R. L. Wyman did then and there, while the United States was engaged in war, willfully, unlawfully, and feloniously state to divers persons and utter the following language calculated to bring the soldiers of the United States into contempt, scorn, contumely, and disrepute: The said defendant did then and there willfully, unlawfully, and feloniously say to divers persons and in the presence of divers persons, in speaking of the atrocities reported to have been committed by the German soldiers in the present war, that our soldiers would act in the same way and commit the same atrocities as have been reported of the German soldiers, and that the soldiers of the United States army are no better than the German soldiers, and that his nephew, Owen, who was then a soldier in active service in the army of the United States, like a great many other soldiers from this country who are now in the service, would never have gone into the service if they had not been compelled to go, and that the said defendant did then and there, while the United States was engaged in war, willfully, unlawfully, and feloniously state to divers persons and in the presence of divers persons and utter the following disloyal, contemptuous, and slurring language about the form of government of the United States: The said defendant did then and there willfully, unlawfully, and feloniously state to divers persons and in the presence of divers persons that he would just as soon live under the Kaiser's government as under the government of the United States," etc.
Having entered his plea of not guilty, appellant was permitted, on the day of trial, to withdraw his plea and file a general and special demurrer to the information, which demurrer was by the court overruled, and appellant again entered his plea of not guilty and thereupon proceeded to trial on the information. He was convicted of the crime of sedition, as charged in the information, and judgment pronounced that he serve an indeterminate term of not less than six years nor more than twelve years at hard labor in the state's prison. Thereupon he moved for a new trial, which motion was by the court denied, and appealed from the judgment of conviction and from the order of the court denying his motion for a new trial.
At the outset the Attorney General moved this court to dismiss both the appeal from the judgment of conviction and the appeal from the order, on technical grounds, but inasmuch as counsel for appellant has, in part, supplied the deficiencies complained of, by the filing of an amended transcript on appeal, and in view of the gravity of the charge and the severity of the sentence imposed, the motion and the objections therein contained will be disregarded, and the cause disposed of on its merits, to the end that, should it appear that the appellant was not lawfully convicted, he shall not unjustly suffer the severe penalty imposed upon him.
1. The first contention of appellant is that the Sedition Act (Acts Extra Sess., 15th Leg. Assem. 1918, c. 11) attempted to deal with a subject exclusively within the jurisdiction of the Congress of the United States, and was therefore unconstitutional. The question was fully covered and finally disposed of by this court in the case of State v. Kahn, 56 Mont. ***, 182 P. 107.
2. The same is true of appellant's contention that the Sedition Law is defective in that it fails or omits the "basic element of 'intent' altogether"; the Kahn Case laying down the rule that the Sedition Act, being purely statutory, is valid, though intent is not made an ingredient, and that, if the intent were needed, the word "calculated" is sufficiently broad to include intent. The court well said:
"It is elementary that for the preservation of the peace, the safety of the people, and the good order of society, the Legislature may prohibit certain acts, and attach a penalty for disobedience, without including any evil intent as an ingredient of the offense other than the general intent implied from a violation of the statute." State v. Kahn, supra, citing 12 Cyc. 148; 8 R. C. L. 62.
3. The next contention of appellant presents a question more difficult of solution. Counsel adroitly argues that the language attributed to appellant charges only that our soldiers might or would do certain things; that there is nothing in the information to show to what atrocities attributed to the German soldiers appellant referred, and that the acts which it was reported the German soldiers had committed might, conceivably, be committed by our soldiers without bringing them into contempt, contumely, scorn, or disrepute; that the government was not concerned with what a man thought or as to what his opinion of future events might be. The consideration of this contention will be considerably simplified by a reading of the charging part of the information, from which it readily appears that the pleader did not deal with any doubtful expression. The word "might" does not appear in the alleged statement made by appellant, nor does any equivalent for that word, but the charge is a plain, direct statement that appellant did say that the American soldiers would commit the same atrocities as it was reported the German soldiers had committed.
We agree with counsel that the government was not, during the war, concerned with what a man thought so long as he kept his thoughts to himself, but the government was vitally concerned with every man's expressed opinions concerning our soldiers, the conduct of the war, and the form of our government. It was the duty of every man, while our country was at war, to show his loyalty for his country, or, failing in that duty, to hold his peace, that his disaffection should not spread to others.
It is true, as suggested by counsel, that Wyman did not say that our soldiers had committed atrocities; but what he did say-his "opinion," if you will-was that "our soldiers would commit the same atrocities as those reported to have been committed by the German soldiers."
The information is perhaps weak in that the pleader did not set out the atrocities reported to have been committed by the German soldiers, that it might be determined from an inspection of the information what atrocious acts defendant prophesied our soldiers would commit; but it must be remembered in this connection that the phrase used in the information "in speaking of the atrocities reported to have been committed by the German soldiers in the present war" is merely parenthetical, and is no part of the alleged seditious utterance of appellant.
The law requires that the information contain "a statement of the facts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended." Rev. Codes, § 9147. It must be direct and certain as regards the offense charged and the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. Section 9148. In submitting the information under consideration to the test laid down in the foregoing statutes, does it measure up to these requirements?
Omitting from the reading of the information the entire parenthetical phrase, have we still an information which states the crime charged in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, and is it direct and certain as regards the offense charged? We would then have an information charging that the defendant did say that our soldiers would commit the same atrocities as those reported to have been committed by the German soldiers, and that the soldiers of the United States army are no better than the German soldiers. What does such a charge against the American soldiers mean?
Turning to the accepted definition of the word used, we find that "atrocious" is defined as "outrageously or wantonly wicked, criminal, vile or cruel; extremely heinous hence horrible, shocking." "Atrocity": "Great cruelty or reckless wickedness; enormity of crime; heinousness." Standard Dictionary. Suppose, then, we substitute for the word used by appellant its equivalent or equivalents; we have the charge that the defendant did say...
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