State v. Wolf

ME. JUSTICE COOPEE

delivered the opinion of the court.

An information was filed against the defendant below, under Chapter 11 of the Laws of the Fifteenth Extraordinary Session of the Legislative Assembly of 1918. His demurrer to the information was overruled, a trial had, and judgment of .conviction followed. The appeal is from the judgment.

Appellant contends that the overruling of his demurrer, the overruling of his objection to the introduction of any testimony upon the trial, and the denial of his motion in arrest of judgment, were all reversible errors. If the information fails to state a public offense under said Act, the result must be a reversal of the judgment.

The charging part of the information is as follows: “The said Harry Peter Wolf on or about the 2d day of August, A. D. 1918, at the county of Beaverhead, state of Montana, and at a time when the United States was engaged in war, did then and there knowingly, unlawfully and feloniously utter and publish disloyal, profane, violent, scurrilous, contemptuous, slurring and abusive language about the soldiers of the United States and the uniform of the army of the United States, and language calculated to bring the soldiers of the United States and *496 the uniform of the army of the United States into contempt, scorn, contumely and disrepute,” etc.

Appellant insists that, in this state of the pleadings, he is [1] left in doubt, not only as to the time, but the place, as well as the particular statement charged to have been made by him. Substantially his position is that, within so indefinite a period, the time, and opportunity were sufficient for him to have made many statements, any one or more of which the prosecutor might conceive to be within the purview of the statute ; that he is entitled to be advised of the specific words he is alleged to have spoken, in order that he may be able to confront the witnesses and timely and intelligently rebut the charge against him. A careful scrutiny of the record fails to disclose the spoken words the pleader conceived to be the gist of the offense, so that the case proceeded to judgment upon the presumption that the charge in the language of the statute provided a sufficient foundation to support a conviction.

As will presently be seen, our Code provisions (secs. 9147, 9149) are but a paraphrase of the common-law rules covering the requisites of criminal pleading involved here. Section 9147 provides that the indictment or information must 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.” Section 9149: ‘ ‘ The indictment or information must be direct and certain, as it regards: (1) The party charged. (2) The offense -charged. (3) The particular circumstances of the offense charged, when they are necessary to constitute a complete offense. ’ ’ This court has said that an information good at common law is good under the statute. (Territory v. Young, 5 Mont. 242 , 5 Pac. 248 ; State v. Lu Sing, 34 Mont. 31 , 9 Ann. Cas. 344, 85 Pac. 521 .) At common law the rule is that where the definition of the offense contains generic terms, it is not sufficient to allege the species of the crime, but the pleader must descend to particulars. (Bowles v. State, 13 Ind. 427 ; Malone v. State, 14 Ind. 219 ; State v. Bruner, 111 Ind. 98 , 12 N. E. 103 ; United *497 States v. Cruikshank, 92 U. S. 542 , 23 L. Ed. 588; United States v. Carll, 105 U. S. 611 , 26 L. Ed. 1135 [see, also, Rose’s U. S. Notes]; Boyd v. Commonwealth, 77 Va. 52 ; State v. Graham, 38 Ark. 519 ; Burch v. Republic, 1 Tex. 608 ; Kerry v. State, 17 Tex. App. 178, 50 Am. Rep. 122 .)

Sergeant Hawkins, in Ms Pleas of the Crown, eighth edition, [2] volume 2, Chapter 25, section 111, said: “Neither doth it seem to be always sufficient to pursue the very words of the statute, unless by so doing you fully, directly, and expressly allege the fact, in the doing or not doing whereof the offense consists, without the least uncertainty or ambiguity.” In United States v. Simmons, 96 U. S. 360 , 24 L. Ed. 819 , the supreme court of the United States declares the rule thus: ‘ ‘ The accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation' against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense. An indictment not so framed is defective, although it may follow the language of the statute.” (See, also, Evans v. United States, 153 U. S. 584 , 38 L. Ed. 830 , 14 Sup. Ct. Rep. 934; Armour Packing Co. v. United States, 209 U. S. 58 , 52 L. Ed. 681 , 28 Sup. Ct. Rep. 428; United States v. Hess, 124 U. S. 483 , 31 L. Ed. 516 , 8 Sup. Ct. Rep. 571; Foster v. United States, 253 Fed. 481 , 165 C. C. A. 193 ; United States v. Prieth (D. C.), 251 Fed. 946 ; Cochran v. United States, 157 U. S. 290 , 39 L. Ed. 704 , 15 Sup. Ct. 628 [see, also, Rose’s U. S. Notes]; Archibald’s Criminal Practice and Pleading, 291.)

In the tenth edition of Wharton’s Criminal Procedure, section 251, volume 1, the rule is stated thus: “Where words are the gist of the offense, they must be set forth in the indictment with the same particularity as libel; as, for instance, in an indictment for scandalous or contemptuous words spoken to a magistrate in the execution of his office, or for blasphemous, or seditious or obscene or abusive words, or for perjury.” See, also, the opinions of the United States circuit court of appeals for the ninth circuit, in the cases of Foster v. United States, *498 supra, and Collins v. United States, 253 Fed. 609 , 165 C. C. A. 637 , interpreting the Federal Espionage Act (Act June 15, 1917, Chap. 30, 40 Stat. 217 ), a statute similar in its terms to the Act now under consideration.

As declared by Mr. Bishop, in 1 Criminal Procedure, fourth edition, section 331: “The facts in allegation must be the primary and individualizing ones.” Moreover, section 16 of Article III of our Constitution guarantees the defendant in all criminal cases the right, upon demand, to be informed of the nature and cause of the accusation. The nature of the thing, as required in that instrument, is its essential character — the attributes that make the thing it is, distinct from others.

A general allegation, such as the one now before us, reveals none of the ingredients of the particular act to distinguish it from any of the many acts denounced in the statute. The charging part of the information is not even what it purports to be — a literal statement of the words of the statute. It is couched in such general terms as to cover several distinct matters for which punishment may be inflicted. Words particularizing the offense are wanting, and we are left unable to visualize the effect of its averments, or to determine their sufficiency to carry the stigma ascribed to them by the pleader.

The gravamen of the charge is the use of language [3] “calculated to bring the soldiers of the United States and the uniform of the army of the United States into cohtempt, scorn, contumely and disrepute,” and, with that purpose in view, it is charged that appellant “did then ánd there knowingly, unlawfully and feloniously utter and publish” not only disloyal, but “profane, violent, scurrilous, contemptuous, slurring and abusive language” concerning the soldiers of the United States and the uniform of the army of the United States. The particular words the prosecutor ultimately selected to prove the offense are left entirely to our imagination; and, so far as the record shows, the defendant himself was left completely in the dark, before the trial, as to what statements, if any, he was obliged to meet in his defense. As was said by Mr. Justice *499 Holloway in State v. Griffith, ante, p. 241, 184 Pac. 220 , speaking for this court: “The Sedition Act is an emergency war measure, designed to secure to the general government the utmost assistance possible in its prosecution of the world war, by restraining acts or speech reasonably calculated to incite or inflame resistance to the duly constituted authorities exercised to mobilize the resources of the country and exert them in the most effective manner. Every Act denounced by the statute has such a direct and immediate relationship to the prosecution of the war that in the very nature of things it is reasonably calculated to hamper the efforts of the government, impede its progress, or defeat its purpose.” Whether or not the words actually spoken did in fact run counter to the spirit and purpose of the law, and were so pleaded as to create a distinct issue of law and fact, is purely a question-for the court to determine upon the face of the information. The defendant was entitled to have squarely before him the specific language characterizing his remarks as being either disloyal, profane, violent, scurrilous, contemptuous, slurring, abusive or as otherwise variously set forth in the Act, and intending to bring into contempt, scorn, contumely and disrepute either the soldiers of the United States, or the uniform of the army of the United States.

The constitutional and statutory guaranties heretofore adverted to, requiring direct and certain allegations in criminal pleadings, are merely declaratory of the ancient common-law rule that no one shall be held to answer an information or indictment, unless the crime be charged with precision and fullness, to the end that the defendant may have ample opportunity to make his defense and avail himself of his conviction or acquittal in a subsequent proceeding for the same offense. Further than that, it is essential that the particular offense be adequately identified and charged in such a manner as to enable the court to determine its sufficiency in law to constitute the offense prohibited by the statute.

*500 The information is therefore defective in failing to set out the particular circumstances necessary to constitute a complete offense under section 9149 of the Revised Codes, and the judgment is reversed. The defendant is ordered discharged from custody.

Reversed.

Mr. Chief Justice Brantly and Associate Justices Holloway and Hurly concur.