222 Pa. Super. 511 | Pa. | 1972
Dissenting Opinion
Dissenting Opinion by
This is an appeal from appellant’s conviction for violating the Flag Desecration Act.
Appellant was arrested on May 29, 1970, for wearing a six by eight inch replica of the American Flag sewn on the seat of his pants. The appellant was tried before a jury on September 23, 1970. During the course of the trial, the judge instructed the jury as follows: “In a crime such as the one charged in this case there must exist both the act or the conduct charged, and a criminal intent. To constitute criminal intent it is not necessary that there exists any intent to violate the law, but when a person intentionally does that which the law considers to be a crime, he is acting with criminal intent even though he may not know that his acts or conduct are unlawful.” Appellant’s attorney filed a general objection to the charge, but did not specifically object to the aforesaid portion of the charge on criminal intent.
In State v. Turner, 78 Wash. 2d 276, 474 P. 2d 91 (1970), the appellant was prosecuted for violating the Washington flag desecration statute. In essence, the statute declared that: “No person shall publicly mutilate, deface, defile, defy, trample upon or by word or act cast contempt upon any such flag, standard, color, ensign, or shield.” State v. Turner, supra, 78 Wash. 2d at 276, 474 P. 2d at 92. During the course of Turner’s trial, the judge charged the jury: “It is not required
“In essence, to defile or hold up to contempt is conduct involving moral turpitude. Therefore to sustain a conviction of desecrating the flag as defined by that statute, the acts must have been done knowingly and intentionally with an intent or purpose of defiling or desecrating it or holding it publicly up to contempt. . . .
“Words such as deface, defile, defy or cast contempt upon strongly imply that the described conduct shall be held criminally actionable only when the interdicted conduct is done with an evil design or purpose. If this were not so, the legislature could readily have said otherwise. . . .
“The state to sustain a conviction is obliged ... to prove that the burning of the flag in public, or the aiding or abetting of it, was done with intent or design or purpose to defile or defy or cast contempt upon the flag and in the absence of such an intent, design or purpose the crime has not been shown.” State v. Turner, supra at 281-82, 284, 474 P. 2d at 94-96. (Emphasis added.)
I am in agreement with State v. Turner. Just as the Washington statute, the Pennsylvania statute pro
Although the trial judge’s instructions to the jury with respect to intent were erroneous, appellant’s attorney failed to specifically object to the charge. General exception to a judge’s charge to the jury waives all errors in the charge other than those which constitute basic and fundamental error. Commonwealth v. Waychoff, 177 Pa. Superior Ct. 182, 188, 110 A. 2d 780 (1955). When the court erroneously instructs the jury on an issue which is essential to the defendant’s case, there can be no reasonable basis for the defense counsel’s failure to object; such an error is basic and fundamental and is reversible. Commonwealth v. Miller, 448 Pa. 114, 123, 290 A. 2d 62 (1972). Thus, an improper instruction on what constitutes criminal intent is reversible whenever specific intent is an essential element of the crime. Bloch v. United States, 221 F. 2d 786, 788 (9th Cir. 1955) ; Mann v. United States, 319 F. 2d 404, 410 (5th Cir. 1963), cert. denied, 375 U.S. 986 (1964).
I believe that the instruction to the jury on criminal intent was improper and constitutes reversible error.
Appellant’s patch worn upon the seat of his pants was a representation of the American Flag. A badge has been defined as “the token of anything.” Black’s Law Dictionary, 4th Edition (1951). An ornament has been defined as “that which enhances, embellishes, decorates, or adorns.” Blairmoor Knitwear Corporation v. United States, 284 F. Supp. 315 (Customs Ct. 1968). The appellant’s wearing of the replica of the flag appears to fall within these broad definitions.
For the above reasons, I would vacate the judgment of sentence and grant appellant a new trial.
June 24, 1939, P. X. 872, section 211, as amended, August 8, 1967, P. L. 201, section 1 (18 P.S. §4211).
“Whoever . . . publicly or privately mutilates, defaces, defiles, or tramples upon, or casts contempt either by words or act upon, any such flag, standard, color or ensign, is guilty of a misdemeanor . . . .” June 24, 1939, P. L. 872, section 211, as amended, August 8, 1967, P. L. 201, section 1 (18 P.S. §4211).
In both Turner and the instant ease, the trial judge in effect instructed the jury that the defendant should be convicted if he committed the alleged physical act. Even though the trial judge in the instant ease instructed the jurors that the appellant could not bo convicted unless he possessed the requisite intent, the judge dissipated the effect of this instruction by stating that intent exists if the physical act has been performed.
Cf. Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968) ; Commonwealth v. O'Brien, 312 Pa. 543, 168 A. 244 (1933) ; Commonwealth v. Milliner, 219 Pa. Superior Ct. 359, 281 A. 2d 763 (1971) ; Commonwealth v. Banks, 216 Pa. Superior Ct. 405, 268 A. 2d 230 (1970).
“This section does not apply to . . . ornamental picture, or badges, ... on any of which shaU be printed, painted, or placed said flag, or representation thereof . . . .” June 24, 1939, P. L. 872, section 211, as amended, August 8, 1967, P. L. 201, Section 1 (18 P.S. §4211).
In Miller, the trial judge improperly charged the jury with respect to the affirmative defense of self defense. The Supreme Court of Pennsylvania held that this constitutes basic and fundamental error.
I need not determine the appellant’s constitutional claims, but I believe the following should be noted: The words of a penal statute must be sufficiently explicit to allow those subject to the enactment to understand what conduct is proscribed. Due process of law is violated where the statute is so vaguely worded that “men of common intelligence must necessarily guess at its meaning and
Free speech consists of more than mere speaking, for symbolic acts such as the wearing of a black armband, constitute “pure speech” which is protected by the First Amendment. Tinker v. Des Moines Independent School District, 393 U.S. 503, 505-506 (1969). The symbolic significance of flying an American Flag has been recognized, Hodsdon v. Buckson, supra at 533, and this could be considered “pure speech.” A flag desecration statute may not be used to punish an individual for mere words. Street v. New York, 394 U.S. 576 (1969); neither may a state attempt to punish an individual for symbolic acts against the flag when those acts constitute “pure speech”: “The right of protest includes the right to be derisive, disdainful, contemptuous and even defiant of government and what may be thought to be in a given context its symbols of authority.” Parker v. Morgan, 322 F. Supp. 585, 589 (W.D. No. Car. 1971). Some nominally contemptuous acts might, therefore be protected by the First Amendment.
The phrase “cast contempt” is vague especially in light of modern trends. Clothing, furniture, automobiles and other items are now covered by the stars and stripes. “These new informal usages, at variance with traditional flag etiquette, add to the difficulty of interpreting older flag laws which . . . condemn one who treats the flag contemptuously but do not define exactly what is meant.” Goguen v. Smith, 343 F. Supp. 161, 164 (D.C. Mass. 1972).
The state has a legitimate interest in protecting the flag from physical harm, but this should be the outermost limit of the state’s interest. Parker v. Morgan, supra, at 590. This has been recognized by the Congress of the United States, which enacted a Flag Desecration Act in which “cast contempt” is defined as mutilating, defacing, defiling, burning or trampling upon the flag. Hoffman v. United States, 445 F. 2d 226, 227 and 229 (C.A. D.C. 1971). While the American Flag is entitled to protection against desecration, a greater burden of proof may well be imposed where a simulated design of the flag rather than the flag itself is desecrated. Hoffman v. United States, supra, at 229 (note 9); see Parker v. Morgan, supra, at 588.
In the construction of laws, where general words follow an enumeration of words with a specific meaning, such general words should not be construed to their widest extent but should be construed narrowly in light of the words which preceded them. Black’s Law Dictionary, supra. This is the principle of ejusdem generis. Unless this principle is applied, there is no way for a man of common intelligence to understand the scope of the phrase “cast contempt” Words such as deface, defile, mutilate or trample upon connote physical destruction. When these words precede the phrase “cast contempt” in a statute, “east contempt” should be limited in scope to mean those acts physically abusing the flag. Parker v. Morgan, supra, at 590; State v. Saionz, 23 Ohio App. 2d 79, 52 O. O. 2d 64, 261 N.E. 2d 135 (1969) ; State v. Hodsdon, 289 A. 2d 635 (Del. Super. Ct 1972) ; Statutory Construction Act, 1937, May 28, P. L. 1019, Art. III, Section 33 (46 P.S. §533).
Dissenting Opinion
I dissent because the statute is overbroad.
Goguen v. Smith, 343 F. Supp. 161 (D.C. Mass. 1972).
Cf. Street v. New York, 394 U.S. 576 (1969) ; dissent in United States v. Crossom, 462 F. 2d 96 (9th Cir. 1972).
Lead Opinion
Opinion
Judgment of sentence affirmed.
