STATE v. FOX. 185
Nov. 1912 Statement of Case.
[No. 10451. Department Two. November 29, 1912.]
THE STATE OF WASHINGTON, Respondent, v. JAY FOX,
Appellant. «1»
CONSTITUTIONAL LAW - CIVIL RIGHTS - FREEDOM OF SPEECH AND OF
THE PRESS. Rem. & Bal. Code, SS 2564, prohibiting the editing of
any printed matter tending to encourage disrespect for law, is
not unconstitutional as abridging the right of free speech and of
the press; since the legislature has power to punish abuse of the
right.
CRIMINAL LAW - OFFENSES - CERTAINTY - STATUTES - CONSTRUCTION.
Rem. & Bal. Code, SS 2564, providing punishment for any person
who edits printed matter which shall "tend to encourage
disrespect for law" is not objectionable as uncertain in defining
the nature of the crime.
CRIMINAL LAW - TRIAL - RIGHT TO SPEEDY TRIAL - DISMISSAL - GOOD
CAUSE FOR DELAY. Under Rem. & Bal. Code, SS 2312, providing for
the dismissal of a cause if not tried within sixty days after
information flied, unless good cause to the contrary be shown, a
dismissal is properly denied where the defendant filed a
demurrer, and on the hearing thereof his counsel required more
time than the court had at its disposal, and the arguments and
trial were for that reason delayed for the accommodation of the
defendant.
CRIMINAL LAW - APPEAL - HARMLESS ERROR - EVIDENCE - QUESTION
FOR COURT. In a prosecution for editing printed matter tending
to encourage disrespect for the law, it is not prejudicial error
that certain improper evidence was received to prove that the
article tended to have that effect, where the printing was
admitted and clearly on its face had that effect and incited the
commission of crime; since it became the duty of the court to
instruct the jury what the effect of the article was as a matter
of law.
Appeal from a judgment of the superior court for Pierce
county, Chapman, J., entered February 6, 1912, upon a trial
and conviction of editing printed matter tending to
encourage disrespect for law. Affirmed.
Jas. J. Anderson, for appellant.
J.L. McMurray, A.O. Burmeister, and G.C. Nolte, for
respondent.
«1» Reported in 127 Pac. 1111.
186 STATE v. FOX.
Opinion Per MOUNT, C.J. 71 Wash.
MOUNT, C.J. - The appellant was convicted upon a charge
of editing printed matter tending to encourage disrespect for
law. He was sentenced to a term of two months in the county
jail of Pierce county. He appeals from that judgment, and
assigns several errors, which we shall briefly notice.
This prosecution is based upon Rem. & Bal. Code, SS 2564,
which provides as follows:
"Every person who shall willfully print, publish, edit, issue,
or knowingly circulate, sell, distribute or display any book,
paper, document, or written or printed matter, in any form,
advocating, encouraging or inciting, or having a tendency to
encourage or incite the commission of any crime, breach of
the peace or act of violence, or which shall tend to encourage
or advocate disrespect for law or of any court or courts of
justice, shall be guilty of a gross misdemeanor."
The defendant was accused of editing an article entitled
"The Nude and the Prudes," which was published in "The
Agitator," a small paper issued and circulated in Pierce
county. Its publication appeared on July 1, 1911. The
appellant apparently concedes that the article does tend to
encourage disobedience and disrespect for law, for it clearly
does so. But he argues that the statute is unconstitutional
because it abridges the right of free speech and of the press,
and also because the statute is uncertain. While the
constitutions of the United States and of this state guarantee
the right to freely speak, write and publish upon all subjects,
it is not meant thereby that persons may with impunity
advocate disregard of law; or, as said in People v. Most, 171
N.Y. 423, 64 N.E. 175, 58 L.R.A. 509:
"While the right to publish is thus sanctioned and
secured, the abuse of that right is excepted from the protection
of the constitution, and authority to provide for and punish
such abuse is left to the legislature. The punishment of those
who publish articles which tend to corrupt morals, induce
crime or destroy organized society, is essential to the security
of freedom and the stability of the state."
STATE v. FOX. 187
Nov. 1912 Opinion Per MOUNT, C.J.
This is the rule, and the statute under consideration is not
repugnant to the constitutional provisions relating to
freedom of speech and of the press.
The appellant also argues, and cites numerous cases to the
effect, that a statute creating an offense must be certain, and
that, where the law is uncertain, there is no law. This is no
doubt the rule. We are satisfied it has no application to the
statute under consideration. The statute provides: "Every
person who shall willfully . . . edit . . . any . . .
paper . . . or printed matter . . . advocating . . .
the commission of any crime . . . or which shall tend to
encourage disrespect for law . . . shall be guilty of a
gross misdemeanor." It is argued that the phrase "or
which shall tend to encourage disrespect for law" is entirely
uncertain. But it has been held that a criminal statute is
not void for uncertainty because it denounces acts which
"tend," or are "reasonably calculated," to bring about
prohibited results. Waters-Pierce Oil Co. v. Texas, 212 U.S.
86.
The act here charged is the editing of an article or printed
matter tending to encourage disrespect of law or incite the
commission of crime. There can be no doubt about the
meaning of the article which defendant edited, or that it
tended to incite the commission of crime. The article is not
a criticism of the law, but was calculated to, and did, incite
the violation of law; and there can be no doubt that any
reasonable person informed against under the law, as defendant
was, would immediately know the exact character of the
offense with which he was charged. We think the information
and the statute are definite and certain as to the elements of
the crime charged. The demurrer was therefore properly
overruled.
It is also argued that the court erred in refusing to
dismiss the action because it was not brought on for trial within
sixty days after the information was filed. The information
was filed on August 23, 1911. On September 13, the defendant
188 STATE v. FOX.
Opinion Per MOUNT, C.J. 71 Wash.
filed a general demurrer to the information. This demurrer
was noticed for hearing on the 16th day of September.
The trial court apparently did not hear the argument
upon the demurrer at that time. On October 25, 1911, the
defendant filed a motion to dismiss, upon the ground that the
action had not been brought to trial within sixty days after
the information was filed. At the same time, defendant filed
an affidavit stating the time when the information was filed,
and that a demurrer had been filed thereto and noticed for
hearing upon a day fixed by the rules for such hearing; that
it had been carried upon the motion calendar and had not
been heard, and that the defendant had at all times been
ready to argue the demurrer. The affidavit further stated
that other parties charged with crime, upon informations
which were filed subsequent to the date of the information
against the defendant, had been brought to trial. The trial
court denied this motion, and recited in the order denying the
same that "good cause existed for not bringing said cause on
for trial within sixty days after the filing of the information,
inasmuch as defendant requested more time to present
arguments on the demurrer interposed by defendant to the
information herein than the court had at its disposal."
Thereafter on November 6, 1911, the demurrer was heard and
overruled. The statute provides that, if a defendant whose
trial has not been postponed upon his own application be not
brought to trial within sixty days after information filed, the
court shall order it to be dismissed unless good cause to the
contrary be shown. Rem. & Bal. Code, SS 2312. It is
apparent from the record that the delay was caused by the
defendant. He had filed a demurrer to the information, and
when the demurrer came on for hearing, his counsel required
more time to present his argument upon the demurrer than
the court had at its disposal. The arguments and the trial
were for that reason delayed, for the accommodation of the
defendant if not upon his own application. This was a
sufficient reason for denying the motion.
GUST v. GUST. 189
Dec. 1912 Syllabus.
Complaint is also made that the court erred in receiving
certain evidence to the effect that there were more prosecutions
for indecent exposure after the publication of the article
than there were before that time. It is claimed that the
records of the justice of the peace were the best evidence of
that fact, and that such evidence was improper and prejudicial.
This evidence was not prejudicial because, when the editing
and publication of the article were proved or admitted,
it was the duty of the court to instruct the jury, as a matter
of law, what the effect of the article was. That was a question
of law and not of fact. It clearly upon its face incited
the commission of crime and disrespect of law relating to
indecent exposure of the person, and whether it did so as a
matter of fact was therefore not prejudicial. Any other rule
would require proof that an article advocating the commission
of crime had actually incited persons to commit a crime,
before a conviction could be had for the publication of such
articles.
There is no error in the record, and the judgment is
therefore affirmed.
MORRIS, MAIN, ELLIS, and FULLERTON, JJ., concur.