
    Ex parte MECKEL.
    (No. 5081.)
    (Court of Criminal Appeals of Texas.
    May 21, 1919.
    On Motion for Rehearing, March 17, 1920.)
    1. War <&wkey;4 — States may pass laws to prevent disloyal statements during war.
    A state has the power to pass laws making it a felony to utter disloyal statements in the presence of an American citizen while the country is at war which may cause a breach of the peace.
    On Motion for Rehearing.
    2. War i&wkey;4 — -Prohibition of disloyal language subject of federal legislation.
    The prohibition of the use of disloyal language per se as a war measure is a subject of federal legislation, and not within the purview of the regulatory power of the state.
    3. War &wkey;>4 — Disloyalty statute infringes upon exclusive domain of federal legislation.
    The Disloyalty Act infringes upon the exclusive domain of federal legislation, in that the gravamen of the offense is the use of disloyal language, and not breach of the peace.
    4. Constitutional law <&wkey;90 — War <&wkey;4 — Disloyalty Act violative of free speech.
    The Disloyalty Act, prohibiting the use of disloyal talk of such nature as to be reasonably calculated to provoke a breach of the peace while the government is at war, is violative of Bill of Rights, § 8, relating to free speech, freedom of the press, etc.
    Application by Ben BY Meckel for a writ of ' habeas corpus.
    Application granted, and relator discharged.
    Wright & Harris, of San Angelo, and Chas. E. Davidson, of Ozona, for appellant.
    B. F. Looney, Atty. Gen., and C. M. Cure-ton, O. W. Taylor, E. B. Hepdricks, and Alvin M. Owsley, Asst. Attys. Gen., for the State.
   MORROW, J.

Relator is under indictment for violation of the so-called Disloyalty Act, section 1 of which reads as follows:

“If any person shall, at any time or place within this state, during the time the United States of America is at war with any other nation, use any language in the presence and hearing of another person, of and concerning the United States of America, the entry, or the continuance, of tlie United States of America in tiie war, or of and concerning the army, navy, or marine corps of the United States of America, or of and concerning any flag, standard, color, or ensign of the United States of America, or any imitation thereof, or the uniform of any officer of the army of the United States of America, which language is disloyal to the United States of America, or abusive in character, and calculated to bring into disrepute the United States of America, the entry, or continuance of the United- States of America in the war, the army, navy, marine corps of the United States, of America, or any flag, standard, color, or ensign of the United States of America, or any imitation thereof, or the flag, color, standard, or ensign, or the uniform of any officer of the army of the United States of America, or is of such nature as to be reasonably calculated to provoke a breach of the peace, if said in the presence and hearing of a citizen of the United States of America, shall be deemed guilty of a felony, and shall be punished by confinement in the state penitentiary for any period of time not less than two years, nor more than twenty-five years.” Acts 35th Legislature, 4th Called Sess. c. 8, p. 13.

Relator applies for a writ of habeas corpus, and insists that the act is such an abridgment of free speech as only Congress under its war power might pass, and that, even if in any case the subject be one upon which the state might legislate, its authority was ousted when Congress enacted Espionage Law, June 15, 1917, c. 30, 40 Stat. 217.

The phase of the statute which denounces as a felony the use of the language described in the act, in the presence of a citizen of the United States, in a manner reasonably calculated to provoke a breach of the peace, conflicts with no federal law nor constitutional guaranty, but observes recognized limitations on the right of free speech. Examples of these limitations are found in ordinances and statutes forbidding addresses in certain public places, the distribution of objectionable printed matter, and its transmission through the mails. Smith v. State, 39 Tex. Cr. R. 320, 45 S. W. 1013; Ex parte Warfield, 40 Tex. Cr. R. 414, 50 S. W. 933, 76 Am. St. Rep. 724; Cooley’s Const. Limitations, p. 518; Davis v. Mass., 167 U. S. 43, 17 Sup. Ct. 731, 42 L. Ed. 71; In re Anderson, 69 Neb. 686, 96 N. W. 149, 5 Ann. Cas. 421; Ex parte Jackson, 96 U. S. 727, 24 L. Ed. 877. Nor is it obnoxious to the law requiring certainty in defining criminal acts, as instanced in the existing statute defining the offense of breach of the peace, disturbing religious worship, and others in which the character of the language and the place and manner in which it is spoken, and not the intent with which it is used, makes it criminal. The prevention by law of the disturbance of the public order by acts of violence or acts likely to produce violence, or which', by causing consternation and alarm, disturb the peace and quiet, is a well-known and generally recognized attribute of state government. It is the preservation of a natural right belonging to all members of a political society. Words and Phrases, Second Series, vol. 1, p. 292; Cyc. vol. 5, p. 1024. In preserving it the police power, which belongs exclusively to the state, is exerted. It is not dependent upon the war power, which is exclusive in the federal government, through the fact that war exists and produces unusual conditions does not militate against the power of the state to pass laws to meet these conditions. It has been said that—

“The police power is, from its nature, incapable of exact definition or limitation because none can foresee every changing condition that may call for its exercise.” Ruling Case Law, vol. 6, p. 184.

Speaking of the Espionage Act, it is said by the Supreme Court of the United States:

“We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. * * * The most stringent protection of free speech would not protect a man in falsely shouting ‘Eire!’ in a theater and causing a panic. * * * The question in every case is whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. 247, 63 L. Ed. 490.

■In time of war, when the public mind, by reason of the conflict, is easily excited, when men may be aroused to violence by language and conduct which in times of peace would receive but passing attention, the state, having the right to prevent the violence, has the power to pass a law .appropriate to arrest the cause of disturbance.

If construed as creating a substantive offense distinct from that of disturbing the peace, there is serious question as to whether it is in conflict with the Bill of Rights, which declares that—

“Every person shall be at liberty to speak, write or publish his opinion on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech.”

This implies that under the law of this state every person may speak the truth with good motives with reference to the officers, agencies, and policies of the government. Ruling Case Law, vol. 6, p. 255.

Doubtless the federal Congress, under the war power, may curtail the right of free speech during war; yet it, in the Espionage Act, makes the crime depend on the falsity of the statement and the evil intent of its maker, while the act in question does not. It is not necessary that it should do so in preventing a breach of the peace, and to that extent we regard it valid.

In his brief filed in this case the Attorney General says:

“A consideration of this section of the law discloses that its primary and fundamental purpose is to prevent breaches of the peace by making it an offense during war time to use such language as is there described and of such a nature as to be reasonably calculated to provoke a breach of the peace. It is true that in this section, without enumerating various kinds and character of disloyal language, the printed act reads, ‘or is of such a nature as to be reasonably calculated to provoke a breach of the peace if said in the presence and hearing of a citizen of the United States.’ It is entirely clear, we think, that the word ‘or’ has been unthoughtedly or unintentionally used for the word ‘and’ and that in reality the word ‘and’ is meant, and, under well-known rules of construction, should be substituted for the word ‘or.’ Witherspoon v. Jernigan, 97 Tex. 98, [76 S. W. 445]; Ross v. Terrell, 99 Tex. 502, [90 S. W. 1098]. This rule is often applied to criminal statutes when it will not result in making them more severe. Williams v. State [99 Ark. 149] 137 S. W. 927, Ann. Cas. 1913A, 1056; Kirk v. State [126 Tenn. 7] 150 S. W. 83, Ann. Cas. 1913D, 1239; State v. Hooker, 22 Okl. 712 [98 Pac. 964]; State v. Long, 141 S. W. 1099 ; Lewis’ Sutherland on Statutory Construction, § 368; Endlich on Interpretation of Statutes, § 303. In other words, in order to charge this offense, the pleader must not only charge that the defendant was guilty of using disloyal language such as is previously enumerated in the section, but must charge that the language, in addition, is of such a nature as to be reasonably calculated to provoke a breach of the peace. In section 2 of the act this is quite clear, because the word ‘and’ is used in a similar capacity instead of the word ‘or.’ By reference to the caption of the act it will also be seen that the construction we suggest is a correct one, because the caption, after givirig the substance of section 1, relating to disloyal language, states directly that such language must be ‘of such a nature as to be reasonably calculated to provoke a breach of the peace.’ Section 8, which is the emergency clause, is in harmony with the construction and interpretation we here suggest; for it declares that the cause of the emergency is ‘that there are many breaches of the peace and other disturbances of public order and safety arising, due to the evils sought to be remedied by this act.’
“The construction here suggested is the one which has been adopted by the pleader in drawing the indictment upon which the relator is held in custody. The elements, then, of an offense under the state act are that the language used must not only be disloyal, but must be reasonably calculated to provoke a breach of the peace, if ‘said in the presence and hearing of a citizen- of the United States.’ Clearly, then, the purpose of this section of the act is to prevent breaches of the peace, and it appears to he drawn in much the same manner as article 1020 of the Penal Code of the state.”

We adopt this construction, and order the application for habeas corpus dismissed.

On Motion for Rehearing.

LATTIMORE, J.

Our Assistant Attorney General contends that in considering the language of section 1, c. 8, Acts of the Fourth Called Session of the Thirty-Fifth Legislature, commonly called the “Disloyalty Act,” the last word “or” in said section, should be read “and,” and that the word “if” in the fourth line from the end oil said section should be read “when” or “in ease that.” We see no objection to such construction, and agree thereto. Said section is set out at length in the original opinion, and will not be here reproduced.

For the sake of brevity, we will use the expression “forbidden language” in this opinion on rehearing as comprehending all language used in the presence and hearing of another person in time of war, which language is disloyal to the United States, etc., or abusive in character, and calculated to bring into disrepute the United States, etc., and is of such nature as is reasonably calculated to provoke a breach of the peace in case that it be used in the presence and hearing of a citizen of the United States; in other words, we will use the expression “forbidden language” as containing all the elements of the offense prohibited by said section.

Examining our former opinion, we observe the following statement:

“The phase of the statute which denounces as a felony the use of the language described in the act, in the presence of a citizen of the United States, in a manner reasonably calculated to provoke a breach of the peace, conflicts with no federal law nor constitutional guaranty, but observes recognized limitations on the right of free speech.”

It will thus be seen that it was assumed in said opinion that the language denounced by the act in question must be of such kind as is reasonably calculated to provoke a breach of the peace and also language uttered in the presence and hearing of a citizen of the United States; and it was with that in mind that the opinion was written. In this motion for rehearing, however, relator stresses the fact that one of his main contentions was that the language of said section is such that its necessary purpose is the punishment of the use of disloyal language, when uttered in time of war, and not the prevention of broaches of peade, and that the scope of said section is such as to punish the user of forbidden language, when uttered- in the presence of another person, irrespective of whether said other person be a citizen of our country or otherwise. Keeping this contention before us, we have carefully reviewed the entire matter.

The original opinion justifies and upholds the statute involved only upon the hypothesis that it requires that the forbidden language be used in tbe presence and bearing of a citizen of tbe United States, in wbieb case, sucb language being reasonably calculated to provoke a breach of tbe peace, tbe state’s exercise of its police power in preventing breaches of tbe peace fairly embraces tbe passage of a statute of this kind. It seems to be conceded in tbe opinion that, if tbe provisions of said section 1 of tbe Disloyalty Act are such as that a prosecution will lie when tbe forbidden language is used in tbe presence and bearing of some person other than a citizen of tbe United States, tbe necessary object of tbe statute would then seem to be, not to prevent breaches of tbe peace, but to prevent tbe use of disloyal language in time of war, and that in sucb case tbe statute could not be upheld. The prohibition of tbe use of disloyal language per se as a war measure, is admittedly tbe subject of federal legislation, and not within tbe purview of the regulatory power of the states.

If the prohibitions of tbe statute in question can be violated by tbe use of the forbidden language at any other time or place than in the presence and bearing of a citizen of tbe United States, sucb statute would be viola-tive of the provisions of section 8 of our Bill of Rights, which guarantees liberty of speech, and of tbe press, and tbe right to show the truth of any alleged státement or publication, as justification.

Tbe state would not have the power to interdict tbe use of the forbidden language except in tbe exercise of tbe police power, but in tbe exercise of that power it could forbid tbe uttering of the disloyal language in tbe presence of any person, whether a citizen of tbe United States or not, provided only that it was done in tbe state of Texas under circumstances reasonably calculated to provoke a breach of the peace. On tbe present bearing we are convinced that, giving tbe language used in tbe statute its true meaning, it could not be held to denounce a breach of tbe peace, but that its purport is to denounce as a felony tbe use of tbe disloyal language described. It cannot make tbe use of the language per se a felony, for tbe reason stated in the original opinion that every person may speak tbe truth with good motives with reference to tbe officers, agencies, and policies of tbe government. Tbe state may cir-' cumscribe tbe circumstances under which these utterances may be made, but it cannot ’Prohibit them without offending against tbe provision of tbe Bill of Rights declaring:

“Every person shall be at liberty to speak, write or publish bis opinion on any subject, being responsible for tbe abuse of that privilege; and no law shah ever be passed curtailing the liberty of speech.”

Let us scrutinize said section, using so much of same as is necessary to make plain tbe point involved, and we see that it requires that the- accused use tbe forbidden language in time of war, as stated in tbe opening clause of said section, “in tbe presence and bearing of another person,” that said language must be disloyal to tbe United States, or abusive in character, and calculated to bring tbe United States into disrepute, and that said language be of sucb nature as to be reasonably calculated to provoke a breach of tbe peace, in case that same be said in tbe presence and bearing of a citizen of tbe United States, in which case such person shall be guilty of a felony, etc.

Again, if we may be permitted to transpose tbe phrases of tbe above, it would appear as follows:

“If any person in time of war, in the presence and hearing of another person * * * use any language * * * which language * * * is of such nature as that in case it is said in the presence and hearing of a citizen of the United States, it is reasonably calculated to provoke a breach of the peace, such person shall be guilty of a felony,” etc.

It seems too clear for discussion further, that tbe gravamen of tbe offense thus created is tbe use of language of sucb nature as that in case it is uttered in tbe presence of a citizen of our country it would likely cause a breach of tbe peace, and that tbe terms of said section are so framed as to penalize one who utters language of sucb nature, whether or not same be used under circumstances or in sucb presence as to make same reasonably provocative of a breach of tbe peace.

We believe that tbe reasoning of tbe original opinion is correct, and that its bolding would have been different if tbe language of said section bad been construed or analyzed; and, also believing that said section is violative of section 8 of our Bill of Rights, and therefore unconstitutional, tbe judgment of dismissal heretofore entered is set aside, and it is now ordered that tbe relator be discharged. 
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