196 P. 992 | Mont. | 1921
Lead Opinion
delivered the opinion of the court.
Appeals by the defendant from a judgment convicting him of the crime of sedition and from an order denying his motion for a new trial.
Omitting the formal parts, the information charges: “That the said Louis L. Fowler, whose true name the county attorney is informed is Joseph Clingenhoefer, on or about the tenth day of April, 1918, at the county of Madison, state of Montana, and when the United States was engaged in war, did wilfully, unlawfully, wrongfully and feloniously utter and publish disloyal, profane, violent, scurrilous, contemptuous, slurring and abusive language about and concerning the soldiers of the United States, by stating with reference to the raising of wheat to feed our soldiers, ‘Let the sons-of-bitches eat hay,’ thereby advocating' the curtailment of production of things and products necessary and essential in the prosecution of the war, with intent by such curtailment to cripple and hinder the United States in the prosecution of the war; and said defendant said, ‘This is not our war; we have no business being in this war; Wilson did not do right in getting us into this war to fight somebody else’s battles’; and defendant said, with reference to the war, ‘If I do any fighting in this war, I will fight the British,’ and further said, referring to a soldier dressed in uniform, ‘Anyone who will wear the uniform of
1. The contention is made that the Act of the legislature
2. It is argued that the facts stated in the information do
3. It is contended that the court erred in refusing to grant
It will be noted that the defendant did not ask time to procure counsel, but merely stated that he was without counsel. Under the circumstances we do not think the court deprived him of any constitutional right, as counsel contends. Having at the time of his arraignment expressly stated that he did not desire counsel to defend him, and having had ample time thereafter to procure counsel and prepare his defense, we do not think he may now insist with good grace that he was not accorded every right to which he was entitled. We are confirmed in this view when we call to mind that he is a man of ample means, which is demonstrated by the fact that he was able to deposit $10,000 in cash for his bail, as well as by the further fact that he is apparently a prosperous farmer, and therefore a man of fair average intelligence, who could appreciate the seriousness of the charge preferred against him. So far as we can judge from what occurred at the time, the defendant did not express a desire for counsel, nor did he in
4. The jury returned the following verdict: “We, the jury
5. It is said that the court imposed an excessive punishment.
6. Contention is made that the verdict is contrary to the evidence. We have read the evidence with the care which the
7. The rest of the fifteen assignments of error argued by counsel are predicated upon the giving of one instruction, several rulings upon questions of evidence, and an order made by the court after judgment, directing the clerk to apply $3,000 of the cash deposited by the defendant for his bail, to the payment
The judgment and order are- affirmed.
Affirmed.
(Decided May 2, 1921.)
Rehearing
On Motion for Rehearing.
[197 Pac. 847.]
delivered the opinion of the court.
In a petition for rehearing, counsel calls attention to the fact that besides the appeals from the judgment and the order denying the motion for a new trial, defendant also took a separate appeal from an order after judgment directing the clerk to apply a portion of the cash deposited by the defendant for bail to the payment of the fine imposed by the judgment. It is true that the appeal from this order was overlooked. The appeals from the judgment and this order were
Counsel insists that the judgment expressly granted the
In view of the fact that the deposit was in the hands of the. clerk, it was his duty, under direction of the court, to apply it in satisfaction of the fine. (Rev. Codes, sec. 9463.) The judgment was pronounced on October 18. On the next day the court, referring to the judgment, made an order as follows: “It is hereby ordered that the said clerk of this court do apply out of the $10,000 in his hands belonging to the said Louis L. Fowler the sum of $3,000 in satisfaction of said fine, which said sum shall be disposed of as follows”: The following part of the order contains directions to the clerk to make disposition of the fine as required by other provisions of the Cqde.
The order having been made after judgment, the defendant