313 Mass. 223 | Mass. | 1943
There was evidence tending to show the following: On the evening of the day named in each of these three complaints the defendant was on a public street in Brockton with her niece, one Betty M. Simmons, a girl in her ninth year, of whom the defendant was the custodian. Both the defendant and the child belonged to a religious sect known as “Jehovah’s Witnesses” and as such regarded themselves as “ordained ministers” of God. Betty carried a “magazine bag” on which was printed “Watchtower explains the Theocratic Government” “5¡í a copy.” In the bag were copies of the religious publications “Watchtower” and “Consolation.” Betty held up a copy of each in her hand. She testified that she was “taking contributions” of five cents for each magazine, or more “if people should give more”; that she was not selling them; that on that night she did not receive any contributions or give any magazines away; that when she had received “contributions” she gave all the money to the defendant; and that the defendant had given her the bag and the magazines. The defendant admitted at the trial that she had given Betty the bag and the magazines and testified that she told Betty “where to stand.”
There was also evidence from which it could have been found that on the evening in question the defendant, when asked by the supervisor of attendance to give him Betty’s name, refused to do so, although she knew he was such officer and that he desired the name to aid in the enforcement of the law. There was evidence that the supervisor insisted that he did not already know Betty’s name; that during the interview he said that he had a right to arrest the defendant; and there was evidence that on a previous occasion he had explained to her that it was against the law to allow children on the street selling magazines.
General Laws (Ter. Ed.) c. 149, § 69, as amended by St. 1939, c. 461, § 7, provides in part 'that “No boy under twelve and no girl under eighteen shall sell, expose or offer for sale any newspapers, magazines, periodicals or any other articles of merchandise of any description, or exercise the trade of bootblack or scavenger, or any other trade, in any street or public place.” Section 77 provides that §§ 69 to 73 shall be enforced by supervisors of attendance and police officers and vests the former with “full police powers for the purpose.” Section 79 provides in part that any person “who refuses to give” to a supervisor of attendance “such information as may be required for the proper enforcement of sections sixty to seventy-four, inclusive, shall be punished . . . .” Section 80 provides that “Whoever furnishes ... to any minor any article of any description with the knowledge that the minor intends to sell such article in violation of any provision of sections sixty-nine to seventy-three, inclusive . . . shall be punished . . . Section 81 provides that “Any . . . cus
One Perkins, supervisor of attendance of the schools of Brockton, made these three complaints against the defendant charging respectively that on December 18, 1941, at Brockton the defendant (first complaint, for violation of § 79) “did refuse to give to George S. Perkins, attendance officer of said Brockton, certain information, to wit: the name and age of Betty M. Simmons, a minor under the age of eighteen years, such information being required for the proper enforcement of the law”; (second complaint, for violation, of § 80) “did furnish to one Betty M. Simmons, a girl under the age of eighteen years, certain articles, to wit: magazines, she, the said Sarah Prince well knowing that the said Betty M. Simmons was to sell the said magazines unlawfully”; and (third complaint, for violation of § 81) “was the custodian of Betty M. Simmons, a minor, and did permit the said Betty M. Simmons to work contrary to law.” Upon appeal to the Superior Court the complaints were tried by a judge without a jury, who found the defendant guilty on all three complaints.
The questions presented in various forms by the defendant’s exceptions and argued before us are whether there was any evidence to warrant the findings that the defendant had violated the statutes as charged, and whether on their face, or as applied in these cases to the facts that could warrantably be found, the statutes underlying the three complaints are unconstitutional.
The defendant’s contention that the statutes involved do not apply to her activities and those of Betty rests in general upon the argument that these statutes were aimed at the regulation of street trades of well known types commonly carried on by children for money, and that they were not intended to regulate the distribution without profit of religious publications by those who regard the spreading of their beliefs in this way as a command of God and hence as a religious and moral duty. We are not convinced that this
We are of opinion that these statutes as here construed do not infringe upon the constitutional guaranties of freedom of the press and of religion. Under our constitutional system freedom of the press and freedom of religion are rightly accorded a highly preferred position in the struggle of competing interests, but it does not follow that the channels through which these freedoms are exercised may not be affected and regulated in some degree by enactments under the constitutional powers of government designed to promote the public health, safety or welfare. The statutes under which these prosecutions are brought are ■ derived from sections first enacted as part of St. 1913, c. 831. That statute was entitled “An Act to regulate the labor of minors.” Its title correctly indicates its content. It contains many sections obviously intended to protect children against hazardous occupations, to insure that they shall not be permitted to work in particular trades or processes or at hours considered detrimental to the health or morals of minors of various ages, and to secure proper school attendance. Certain sections are devoted to “Street Trades.” These provisions belong to a type of legislation long regarded as within the duty of the State to protect the health,
The defendant makes the further contention as to the first complaint (for refusing to give the attendance officer the name and age of Betty Simmons) that she is now to be punished for refusing to furnish evidence against herself. This contention requires examination. Article 12 of the Declaration of Rights of the Commonwealth provides in part that “No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself.” In Emery’s Case, 107 Mass. 172, at page 182, Mr. Justice Wells, speaking with the approval of all members of this court, said that the clause “or furnish evidence against himself” “may be
The result here reached under the circumstances of this case does not mean that a witness can refuse to testify to every fact, harmless in itself, which by any possibility might in the course of further investigation lead to the discovery of other facts and so finally to the unearthing of some evidence having a tendency to incriminate him. This decision rests upon the facts of this case and upon the direct connection between the question asked and the securing of the evidence required to convict upon the second and third complaints, so that here if the defendant had answered it could truly have been said that she herself had helped to furnish the incriminating evidence.
It does not necessarily follow from what has been said that the duty of keeping records of, or of disclosing, certain specified acts, or of disclosing the mere identity of the actor or of the instrumentality employed by him, imposed by certain statutes upon persons engaged in certain occupations or persons accepting licenses or others, where the duty is not dependent upon any criminal quality in the facts required to be recorded or disclosed, violates the Constitution. Thus statutes imposing a penalty upon the driver of a motor vehicle who goes away after an accident without making known his name and the number of his vehicle (see G. L. [Ter. Ed.] c. 90, § 24, as amended) have
The result is that the defendant’s exceptions are sustained in the first case (under § 79) and are overruled in the other cases.
So ordered.