(after stating the facts). When the trial commenced, the complaint had two counts. The second count is set forth in this opinion. The first count merely charged.that the defendants “ did then and thеre make, aid, abet, countenance, and assist in making a disturbance, to the annoyance and disturbance of citizens and travelers, contrary to, and in violation of, Ordinance No. 10.” Defendants’ counsel asked that the people be compelled to elect between these two counts. The trial сourt reserved his decision upon this motion until the conclusion of the case. He then compelled the people to elect, and they eleсted to proceed under the second count. It is now contended that they were entitled to have this election made at the beginning of the trial. It is sufficient tо say of this contention that the defendants were not injured by the action of the trial judge. The trial proceeded precisely as it would had the electiоn been made at an earlier time.
2. The trial judge denied the application of defendants for a separate trial. It is contended that this was error. Sеction 3100, 1 Comp. Laws, provides that, on appeal to the circuit court from a conviction for the “violation of any ordinance,” the “procеedings * * * shall be the same as on appeal in criminal cases cognizable by justices of the peace.” In the latter cases it is provided (sectiоn 11,956, 3 Comp. Laws) that joint defendants “shall be tried separately or jointly in the discretion of the court.” The decision of the trial judge that these defendants should be triеd jointly is not, therefore, open to review in this court.
3. The people were permitted to prove—
“ That the general public of the city of Hancock, the citizens, and travelers on Quincy street [the streеt upon*155 which the defendants paraded], regarded the red flag as an emblem of anarchy and a danger signal to the government and all law-abiding citizens.”
Witness Dr. J. E. Scallon testified:
“ The red flag in the popular mind of the citizens of Hancock represents, practically, anarchy, whether the party calls itself socialists, anarchist-soсialists, democrat-communists, or whatnot. In the popular mind they are considered Reds.
“Q. What do you mean by ‘ Reds ? ’
“A. Men organized to destroy the present forms of government by violencе.”
This testimony was objected to as immaterial, incompetent, and irrelevant. The counsel making this objection said “the point we make here is how the people regarded the red flag has nothing to do with it.” We are asked now to say that this testimony was erroneously admitted. It is said that the testimony is immaterial. We think this objection untenable. The gist of the offense of defendants is that they infuriated the local public by carrying these flags in the parade. The existence of that sentiment was therefore a very material fact, and that was the fact which this testimony tended to prove. The point is now made that the witnesses who gave this testimony did nоt show themselves qualified to give it. The objection made by the counsel did not suggest, and would not naturally suggest, this point to the trial judge. Nor do we think that it was well taken if it had bеen clearly made.
4. It is insisted that a verdict should have been directed in defendants’ favor. Their counsel urge that they had a right to parade and display the rеd flag, the emblem of their order, and that the ordinance prohibiting it — which ordinance defendants are not charged with violating— was invalid. That ordinance apрarently was general in its nature, and forbade the display of a red flag in any parade whatever. Whether or not there might be occasions when defendants had a lawful right to parade with
“ In general terms the offense [breach of the peace] is a violation of public order, a disturbance оf the public tranquility, by any act or conduct inciting to violence, or tending to provoke or excite others to break the peace.”
See, also, State v. White, 18 R. I. 473. lit does not avail defendants to say that they have a right to propagate their political views. That right is not denied. But we do deny and emphatically deny that in proрagating their views they may commit a crime or violate any constitutional law or valid municipal ordinance.
Defendants rely upon the Frazee Case,
“ It left practically within the unlimited discretion of the mayor * * * the power of determining whether processions shall be allowed.”
This ordinance was held void. That the reasoning of that case does not apply to this is clearly shown by thе following quotations from that opinion:
“ There may be times and occasions when such assemblies may for a while be dangerous in themselves because of inflаmmable conditions among the population. * * * It is only when political, religious, social, or other demonstrations create public disturbances or oрerate as nuisances, or create or manifestly threaten some tangible public or private mischief, that the law interferes. A.nd, when it interferes, it does so because of the evil done, or apparently menaced, and not because of the sentiments or purposes of the movement, if not otherwise unlawful; and things absolutely unlawful are not made so by local authority, but by general law. * * * It is lawful to provide for dealing with the mischief, but it is not lawful to go beyond reasonable measures and precautions in anticipating it. * * * These processions might, no doubt, become nuisances, as any others might do so, but it cannot be assumed that thеy will.”
The judgment is affirmed.