The case of Union Mutual Life Ins. Co. v. Thomas, 83 Fed. 803, 28 C. C. A. 96, differs not at all upon this point from the foregoing authorities. However, the quotation from that case, in the majority opinion, has an opposite meaning from that which the majority members believe it to have. Had they understood it they would not have quoted it with approval, or, having so quoted it, would have followed it. Referring to language used by a party to a judicial proceeding and relied upon as being defamatory, it is said in the quotation: "It is perhaps not necessary that it be in all cases material to the issues presented by the pleadings, but it must be legitimately related thereto, or so pertinent to the subject of the controversy that it may, in the course of the trial, become the subject of inquiry." That sentence expresses three separate thoughts: (1) It is not necessary that defamatory language, used by a party to a judicial proceeding, in order to be absolutely privileged, be material to the issues presented by the pleadings; (2) it is necessary that it be legitimately related thereto; or (3) that it be so pertinent to the subject of the controversy that it may, in the course of the trial, become the subject of inquiry. The quotation does not mean that the publication of defamatory language, in such a case, in order to be privileged, must be both legitimately related to and so pertinent to the subject of the controversy that it may, in the course of the trial, become the subject of inquiry. It means, what it says, that it must be one or the other. The foregoing opinion proceeds upon the theory that it must be both, and uses the words "legitimately related” and “pertinent” in a sense which is in direct opposition to the first part of the quotation, to the effect that it is not necessary that such language be material to the issues presented. The language complained of having been published in a judicial proceeding by a party thereto, it is a question for the court to decide, not whether it is incorporated in an affidavit which is drawn with sufficient skill to meet the requirements of our statute governing new trials, but whether the statement complained of was "made with reference" or "had relation" to the application for a new trial. If the answer to this question be in the affirmative, the publication is absolute ly privileged; if the answer be in the negative, it is not because of a provision of our statute making "newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial," a ground for a new trial, but because it is so foreign to the motion for a new trial that it was manifestly injected into the proceedings for the purpose of maligning and defaming appellant, because the lanstatements, which have no relation to, or guage complained of constitutes "libelous connection with, the cause in hand or the subject-matter of the inquiry." In order to show that the members of the majority have taken the erroneous position that this language is actionable merely because it is not stated in such a way as to constitute ground for a new trial, although the words relied on as libelous bear legitimate relation to the motion before the court, I will change, slightly, the language introductory to the portion of the affidavit so relied on and thereby remove every objection which the majority opinion makes to the absolute privilege of its publication. These changes will be additions to the affidavit and will be indicated by italics: "Affiant further says that prior to the trial of this action he had inquired of a number of persons if they would testify as to the value of the said ranch, but of the persons so inquired those who were familiar with the ranch said they were not and refused to testify, and since the trial gave as their reasons therefor that the defendant Dayton was a dangerous man and had the reputation of burning up the property of his neighbors, and that they did not wish to involve themselves in any difficulty with him, as they were afraid he would burn up their property or do them physical violence. It was only after the trial of this action, and the genriage of justice in which the said trial resulted, eral indignation of the public over the miscarthat the plaintiff was able to secure witnesses who were willing to testify as to the value of the said land; that for obvious reasons the plaintiff has not heretofore and does not now disclose the names of such persons." It will not do to say in answer to this that the affidavit, so changed, is false. The demurrer admits it was false as originally drafted. It is true the affidavit is insufficient as a statement of grounds for a new trial. It is also true it, and all matters contained in it, have reference and relation to the motion for a new trial in case of Drumheller v. Dayton, pending, when the affidavit was made, in the court wherein it was filed. It follows that it was absolutely privileged, and that the judgment of the trial court should be affirmed. (Supreme Court of Montana. May 20, 1919.) 1. STATES 4-WAR POWERS OF CONGRESS POWER TO STATE PUNISHMENT OF SEDITIOUS ACT. 10. CRIMINAL LAW TIVE INSTRUCTION. ~807(1)—ARGUMENTA A tendered instruction, argumentative in form, is properly refused. 11. WAR 4-SEDITIOUS UTTERANCES-EVI DENCE-SUFFICIENCY. 12. COURTS 97(6)-PRECEDENTS-CONSTRUC In a prosecution for seditious utterances Grant of war powers to Congress by Const. under Laws 1918 (Ex. Sess.) c. 11, evidence of U. S. art. 1, § 8, construed with article 6, mak-disloyal remarks about rich man's war, sinking laws of United States the supreme law of ing of Lusitania, etc., held sufficient to authorthe land, and article 1, § 10, forbidding state to ize conviction. engage in war unless in imminent danger, is not so exclusive as to prohibit definition and punishment of sedition, as is done by Laws 1918 (Ex. Sess.) c. 11, in view of Const. U. S. Amend. 10, giving states powers not delegated, as state is in duty bound to aid United States in war, as is recognized in Const. Mont. art. 12. § 12. 2. CONSTITUTIONAL LAW 90-LIMITATION ON CONGRESS-FIRST AMENDMENT. Const. U. S. Amend. 1, guaranteeing free speech, is a limitation on powers of Congress, and not a restriction on the state. 3. CONSTITUTIONAL LAW 90-FREE SPEECH -SEDITION ACT. TION OF FEDERAL STATUTE. In construing Sedition Act, construction of similar Espionage Act by the Supreme Court of United States, if not conclusive on state court, is entitled to the greatest respect. Appeal from District Court, Carbon County; A. C. Spencer, Judge. Ben Kahn was convicted of seditious utterances, and he appeals. Affirmed. H. C. Crippen, of Billings, for appellant. Sedition Act held not to impair Bill of Helena, for the State. Rights, 10, guaranteeing free speech. 4. WAR 4. LATED." - VALIDITY-INTENT "CALCU Sedition Act, prohibiting in time of war uttering, etc., of language "calculated" to incite resistance to prosecution of war, being purely a statutory offense, in exercise of police power, is valid though intent is not made an ingredient, and if an intent were needed the word "calculated" is broad enough to include intent. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Calculated.] 5. CONSTITUTIONAL LAW 48. STATUTE CONSTRUCTION. In testing validity of statute subject to two constructions, one of which will uphold its validity, while the other will condemn it, the former will be adopted if it can be done without violence to fair meaning of the words. HOLLOWAY, J. The defendant was convicted of the crime of sedition, and has appealed from the judgment and from an order denying his motion for a new trial. The Attorney General insists that the new trial proceedings were not properly before the lower court and that its action thereon is not subject to review. The question raised involves the right or authority of the county attorney, after the statutory time for filing a notice of intention to move for a new trial had expired, to stipulate that the notice might be filed out of time and the motion heard without objection upon that ground. The principal questions presented by appellant may be raised on the appeal from the judgment, and because of this fact, and because of the importance of the case, we reserve our opinion upon the Attorney General's objection. In prosecution for sedition under Laws 1918 The information charges that on March 6, (Ex. Sess.) c. 11, where no restraint was placed 1918, in Carbon county, Mont., the defendant on defendant in his effort to disclose his atti- willfully, seditiously, and feloniously did tude toward the government, exclusion of evi-utter the language following: dence of declaration of defendant, made out of court, as to his loyalty, was proper. "This is a rich man's war, and we have no business in it. They talk about Hooverism 7. CRIMINAL LAW 1056(2) — APPEAL-EX-it's a joke. Nobody pays any attention to it. CEPTIONS-INSTRUCTIONS. As provided by Rev. Codes, § 9271, an instruction not excepted to in trial court cannot be complained of on appeal. It don't amount to anything. The Lusitania was warned not to sail. They were carrying munitions and wheat over for the Allies. The poor man has no show in this war. The sol 8. CRIMINAL LAW 1137(3) — APPEAL-IN-diers are fighting the battles of the rich." VITED ERROR-INSTRUCTIONS. Defendant may not complain of an instruc tion given at his instance. 1. It is the contention of appellant that the act defining sedition (chapter 11 Laws of 9. CRIMINAL LAW 829(1)-REQUESTED IN- the Extraordinary Session, 15th Legislative STRUCTIONS-REFUSAL. Assembly 1918) is unconstitutional in that the A tendered instruction, fully covered by the subject-matter of the act is one national in instructions given, is properly refused. character, with respect to which the Congress For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of the United States alone may legislate. [ in time of war is recognized by express decThe argument proceeds upon the assumption laration of our Constitution. Section 12, that the several states have surrendered to art. 12. In State ex rel. Campbell v. Stewthe general government the exclusive au- art, 54 Mont. 504, 171 Pac. 755, Ann. Cas. thority to define sedition and prescribe pun- 1918D, 1101, we considered this question, and ishment for it. said: The government of the United States is one of delegated powers, but, within the limits prescribed by the Constitution, its authority is supreme. The Constitution of the United States, the laws enacted and treaties made in pursuance thereof, constitute the supreme law of the land, binding upon the courts, anything in the Constitution or laws of the state to the contrary notwithstanding. Article 6, U. S. Constitution. If the people by express declaration, or by necessary intendment, have surrendered to the general government the authority to define sedition, it follows as of course that they themselves may not do so. The converse is equally true: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people." Tenth Amendment, U. S. Constitution. "The United States is at war, and to assist the United States in war is expressly recognized by the Constitution as a proper and probable occasion for the use of state funds. Const. art. 12, § 12. Moreover, this state, as one of the United States, is at war. When aiding the United States, this state but defends itself, and thus exercises the highest attribute, as it obThat in pursuing this public purpose the state, serves the most solemn duty, of sovereignty. through its Legislature, may adopt or prescribe any mode or means reasonably adapted to accomplish such purpose, is too well settled for debate." Of the correctness of that conclusion we entertain no doubt, and, so long as the act in question does not conflict with the provisions of the Constitution of the United States or with the laws enacted in pursuance thereof, it is not open to the objection urged against it. The subject was recently treated at length by the Supreme Court of Minnesota, and a statute having the same general purpose in view was upheld. State v. Holm, 139 Minn. 267, 166 N. W. 181, L. R. A. 1918C, 304. In the notes to that case, reported in L. R. A. 1918C, 304, it is said that the conclusion reached seems to be clearly in accord with the interpretation placed by earlier decisions on the federal Constitution and laws of Con [1] It is not contended that the exclusive authority to define sedition is conferred upon the Congress by express provision of the Constitution; but it is insisted that the grant of such authority is necessarily implied from the comprehensive language employed in section 8, art. 1, in defining the war powers of the general government. The Congress alone has authority to declare war, to raise and support armies, to provide and maintain a navy, to make rules for the gov-gress enacted pursuant thereto, although no case of a precisely similar nature has been ernment and regulation of the land and found. naval forces, and to make all laws necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States or in any department or officer thereof. Section 8, art. 1. A state may not without the consent of Congress engage in war unless actually invaded or in such imminent danger as will not admit of delay. Section 10, art. 1. In conferring upon the general government the powers enumerated above, the intention was made manifest to surrender all war powers, as such, retaining to the states only that moiety of authority necessary to be exerted in the presence of the exigencies mentioned in the concluding clause of section 10 above. Arver v. United States, 245 U. S. 366, 38 Sup. Ct. 159, 62 L. Ed. 349, L. R. A. 1918C, 361, Ann. Cas. 1918B, 856. But it does not follow that because this state may not declare war or engage in war, independently of the general government, it may not aid the government in carrying on a war to a successful conclusion and exert all of its efforts in that behalf. The right and duty of the state to assist in defending the United States the several states in the wars in which this In view of the important part played by country has been engaged, we think it cannot be contended successfully that in granting the war powers to Congress the states divested themselves of all authority to aid the general government in time of war. If this state has the power to assist the United States in war, then the means through which the power is exerted is a proper subject of legislative discretion and judgment. conclusion upon this branch of the case is that our Sedition Act does not infringe upon the exclusive war powers of Congress. Our [2, 3] 2. It is urged that the statute violates the guaranty of free speech contained in the Constitution of the United States and in the Constitution of Montana. The first amendment to the Constitution of the United States is a limitation upon the authority of the Congress and not a restriction upon the states. Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 22, 31 L. Ed. 80. Section 10 of our Bill of Rights declares: "No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or (182 P.) publish whatever he will on any subject, being responsible for all abuse of that liberty." Neither Constitution was ever intended to extend immunity for every use or abuse of language. One's words, like his acts, take character from the surrounding circumstances. In time of peace the language employed by this defendant, or language of similar import, might not constitute a crime, and it may be true that it is beyond the power of the Legislature to make its use a crime in time of peace; but, as said by the Supreme Court of the United States: "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right." In every one of the following cases the accused sought refuge behind the guaranty of free speech, but in every instance the appeal for protection of the seditious utterances was denied: Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. 247, 63 L. Ed. decided March 3, 1919; Frohwerk v. United States, 249 U. S. 2014, 39 Sup. Ct. 249, 63 L. Ed. -; Debs v. United States, 249 U. S. 211, 39 Sup. Ct. 252, 63 L. Ed. ―. [4] 3. It is insisted that the statute characterizes certain acts as criminal without reference to the intent. The statute declares that, whenever the United States shall be engaged in war, any person or persons who shall utter, print, write or publish any language calculated to incite or inflame resistance to any duly constituted federal or state authority in connection with the prosecution of the war, etc., shall be guilty of the crime of sedition. Sedition was a crime unknown to the common law; the nearest approach to it was libel of the Constitution or government, but that offense has never been recognized by the states of this Union. Se dition is a purely statutory offense, and our act is declared to be, and is in fact, a general police regulation. 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. 12 Cyc. 148; 8 R. C. L. 62. But the provision of the statute is, "shall utter language calculated to fncite or inflame resistance," etc. Primarily the word "calculate" means to compute mathematically, and it implies power to think, to reason, to plan. In its broader significance it means to intend, to purpose, to design. Century Dictionary; Standard Dictionary. [5] It is a rule of universal recognition that in testing the validity of a statute subJect to two constructions, one of which will uphold its validity while the other will condemn it, the former will be adopted if it can be done without violence to the fair meaning of the words. State v. Alderson, 49 Mont. 29, 140 Pac. 82. Viewed in the light of the context and the broad significance of the term "calculated," it is not a strained construction of this statute to imply intent from the language employed. [6] 4. No restraint was imposed upon the defendant in his efforts to disclose to the jury his attitude towards this government after it became involved in the war and before the alleged offense was committed. The interest which he had displayed in the soldiers' welfare, in the Red Cross and allied activities, in the campaigns for the sale of liberty bonds and war savings stamps, was pictured graphically, and his general reputation for loyalty to the United States was attested by several witnesses. P. H. Doyle, a newspaper man, was asked whether he had "ever heard any statements which were loyal to this government." An objection was sustained, and counsel for defendant then made the following offer: "The defendant offers to prove by the witness Pat Doyle that the defendant prior to March 6, 1918, and after the U. S. entered the war, frequently discussed the war and the relations of the U. S. towards it, and gave utterances always favorable to the U. S., and spoke favorably of our prosecution of the war and of our soldiers and sailors, and, generally, utterances indicating his loyalty to the U. S. and his loyal intent." The offered evidence was rejected, and error is predicated upon the ruling. The declarations, if made, were made out of court, when the defendant was not under oath nor subject to cross-examination. They do not fall within any exception to the general rule which excludes such evidence and were properly rejected. 2 Wharton's Crim. Evidence, §§ 690-694. [7, 8] 5. Complaint is made that instructions 2 and 16 are contradictory and misleading. Instruction 2 was given at the instance of the state and without objection from defendant, while instruction 16 was given at the instance of the defendant himself. The argument of defendant's counsel upon this assignment is answered by our Code. Section 9271, Revised Codes, provides: "No motion for a new trial on the ground of errors in the instructions given shall be granted by the district court unless the error so assigned was specifically pointed out and excepted to at the settlement of the instructions, as herein provided; and no cause shall be reversed by the Supreme Court for any error in instructions which was not specifically pointed out and excepted to at the settlement of the instructions herein specified, and such error and exception incorporated in and settled in the bill of exceptions as herein provided." State v. Cook, 42 Mont. 329, 112 Pac. 537. [9, 10] 6. Error is predicated upon the refusal of the court to give defendant's offered instruction No. 13 upon the subject of the defendant's reputation for loyalty to this government. The offered instruction is subject to the objection that it is argumentative; but, aside from this criticism, it is sufficient to say that the court gave instruction 10, which fully covers the subject. But counsel argues that instruction 10 deals with the defendant's general reputation rather than with his reputation for loyalty. The only evidence introduced upon the subject related to defendant's reputation for loyalty, and the jury must have understood the instruction as applicable to that evidence alone. Furthermore, instruction 10 was given at the request of defendant, and he cannot now be heard to say that it has to do with a subject which in no way entered into the trial of the case. [11] 7. In discussing the insufficiency of the evidence, counsel for appellant adopts the defendant's version of the transaction, which differs materially from that given by the state's witnesses. The offensive language was employed by the defendant in a conversation between him and T. F. Pollard in the hotel office in Red Lodge. According to the witnesses for the prosecution, defendant used the language substantially as charged in the information and quoted above. Defendant admits that he said: "This is a rich man's war;" "Hooverism is a joke;" "The Lusitania should not have went [gone] over there." He explained fully his meaning in using these expressions, and it was then for the jury to determine whose version of the conversation was correct. Defendant cannot now take refuge behind the argument that whatever he said was a mere chance expression or spontaneous outburst without deliberation. He was warned by Pollard early in the conversation to desist from the use of such language, but persisted, until Pollard called him pro German and other uncomplimentary names. There is ample evidence to justify the verdict, which is, in effect, a finding that the defendant used the language substantially as set forth in the information, and, upon the assumption that he did use that language, then it was for the jury to say further whether the natural tendency and reasonably probable effect of the language was to incite or inflame resistance to a duly constituted federal or state authority in connection with the prosecution of the war. Debs v. United States, above. [12] The Espionage Act of June 15, 1917 (40 Stat. 217, c. 30), was considered in the Schenck and Frohwerk Cases, and the same act as amended was before the court in the Debs Case. The federal act is similar in all respects to our sedition statute, and the construction given to it by the Supreme Court COOPER, J. This appeal is from a judgment of conviction of the confidence game, or "bunco," as denounced in section 8684 of the Revised Codes. The defendants having decided not to assume the risk of going upon the stand in their own defense, the case rests upon the evidence adduced by the state alone, the substance of which is as follows: The complaining witness came from North Dakota to Montana, using as a means of conveyance an automobile which he intended to sell, and, with the proceeds thereof, engage in farming in a small way. On a Saturday evening, about the last of July, 1917, while sitting on a bench in the city park at Great Falls, the defendant Moran came up and took a seat beside him and started a conversation on the topics of the day. In the course of the talk, Adair, the prosecuting witness, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |