State v. Smith

190 P. 107 | Mont. | 1920

Opinion

PER CURIAM.

The defendant was convicted of the crime of sedition and appealed from the judgment.

The information charges that the defendant willfully and feloniously did write, print and publish of and concerning the Montana Council of Defense a statement (which is set forth in the information, but which is too long to be here reproduced), which contained, among other things, the following: “Fortunately they have no legal status or authority. They can fulminate to their heart’s content against anything and everything that menaces their master’s interest, but no one need pay any attention to them.” It is charged that this statement so published was calculated to incite and inflame resistance to the Montana Council of Defense, a duly constituted state authority in connection with the prosecution of the war. Counsel for defendant made 107 assignments of error, but such of these as require special consideration may be grouped under a comparatively few heads. A number of the contentions have been determined adversely to defendant in other sedition cases recently decided.

Upon the voir dire examination, counsel for defendant [1,2] propounded to the juror Ellis this question: “Q. And if, after hearing all of the evidence in this case, there was a reasonable doubt in your mind as to whether or not this article in question was calculated to inflame or incite resistance to the State Council of Defense, would you give the defendant the benefit of the doubt and vote for his acquittal?” An objection by the county attorney was sustained, and the juror was not permitted to answer. The same question was asked the juror Porter, with the same result. In each instance the court erred.

The defendant was prosecuted under the provision of the Sedition Act (Laws Ex. Sess. 1918, Chap. 11), which provides: “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, * * * shall be guilty of the crime of sedition.”

The purpose of the voir dire examination of veniremen is to enable counsel to determine whether there exists a state of mind on the part of any juror which will prevent him from acting with entire impartiality and without prejudice to the substantial rights of either party, which the statute (see. 9261, Rev. Codes) denominates actual bias, and to enable counsel to exercise intelligently the peremptory challenges allowed by law. (State v. Brooks, ante, p. 480, 188 Pac. 942.) The gist of the offense with which the defendant was charged was that the published statement was calculated to incite or inflame resistance to the Montana Council of Defense in connection with the prosecution of the war. It may' be that the error would have been cured if the court had instructed the jury, as it should have done, that in order to justify a conviction they must find from the evidence beyond a reasonable doubt that the statement was calculated to incite or inflame resistance to the Montana Council of Defense in connection with the prosecution of the war; but the court failed to give any instruction upon the subject, and from this omission, and from the ruling upon the question now under consideration, the jurors must have understood that the allegation of the information that the statement was calculated to incite or inflame resistance was an immaterial one, of one upon which it was not necessary for the jury to find. In other words, the effect of the court’s ruling, and its failure to instruct upon this, subject, was to take from the jury the determination of the principal question involved in the trial [3] and to determine it as one of law. It matters not how conclusive the evidence upon any essential element of the charge may appear to be, the constitutional guaranty of trial by jury absolutely precludes the court from assuming that the fact is proved.

Many errors are assigned on the rulings of the trial court in [4-6] the examination of jurors and of witnesses, and in the settlement of instructions, in consistently excluding the theory of the defense that the intent or intention of defendant and his colleague, Dunn, in either writing, printing, uttering or publishing the article in question, is a necessary ingredient of the crime charged. These specifications raise but two questions: (1) As to the admissibility of evidence of the intent to “incite or inflame resistance,” etc.; and (2) as to the intent of the defendant to publish the article, and call for a determination as to what intent, if any, must be established by the state in order to warrant a conviction in sedition cases.

The validity of the Sedition Act was upheld by this court in the ease of State v. Kahn, 56 Mont. 108, 182 Pac. 107, and in that case, and in the later ease of State v. Wyman, 56 Mont. 600, 186 Pac. 1, this court gave the question of intent some consideration, although in neither case was it necessary to go into the matter fully. In the Kahn Case we said: “Sedition 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 [citing 12 Cyc. 148; 8 R. C. D. 62], But the provision of the statute is ‘shall utter language calculated to incite 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.)”

In the Wyman Case we said: “The same [that the question was disposed of by the Kahn Case] is true of appellant’s contention that the sedition law is defective, in that it * * * omits the ‘basic element of “intent” altogether’; the Kahn Case laying down the rule that the Sedition Act, being purely statutory, is valid, though intent is not made an ingredient, and that, if the intent were needed, the word ‘calculated’ is sufficiently broad to include intent [quoting the above excerpt from the Kahn Case].”

In the consideration of these eases we might well have omitted the reference to any analogy between “calculated” and “intended,” as having no place in the opinion, and based our conclusion squarely on the principle quoted from Cyc. in the Kahn Case.

While it is true that our statute declares that “in every crime there must be a union or joint operation of act and intent,” the statute is but declaratory of the common-law rule (Bishop’s New Crim. Law, Chap. 18; 16 Corpus Juris, 75), and an exception to this rule, in so-called “statutory crimes” enacted under the police power of the state, is recognized by the great weight of authority. As stated in the Kahn Case: “Our Act is declared to be, and is in fact, a general police regulation.”

The writer on the subject of “Intent,” in 16 Corpus Juris, page 76, disposes of this question as follows: “The legislature * * * may forbid the doing of an act, and make its commission criminal, without regard to the intent or knowledge of the doer; and, if such legislative intention appears, the court must give it effect, although the intent of the doer may have-been innocent [citing cases from a large per cent of the states]. This rule has been generally, although not quite universally, applied in the enforcement of statutes passed in aid of the police power of the state.” A like rule is announced in 12 Cyc. 148; 8 R. C. L. 62.

The legislative intention in the enactment of a statute, if ascertainable, is controlling. “It is both a common-law and a statutory rule of construction of statutes that the intention of the legislature must be discovered, and, if possible, pursued.”' (Power v. County Commrs., 7 Mont. 82, 14 Pac. 658; Lerch v. Missoula Brick & Tile Co., 45 Mont. 314, Ann. Cas. 1914A, 346, 123 Pac. 25.) Happily, in this instance, the wording of the statute itself clearly indicates the intention of the legislature as to the crime charged against this appellant.

An analysis of section 1 of the Act discloses that, while a large number of prohibited acts are embraced within a single section, they naturally fall into eight distinct subdivisions, to-wit:

“Whenever the United States shall be engaged in war, any person * * *

“(1) Who shall utter, print, write or publish any disloyal, profane, violent, scurrilous, contemptuous, slurring or abusive language about the # # * government of the United States, * * * or the soldiers or sailors of the United States; * # *

“(2) Or any language calculated to bring the form of government of the United States, * * * or the soldiers or sailors of the United States, or the flag of the United States, or the uniform of the army or navy of the United States, into' contempt, scorn, contumely or disrepute;

“(B) Or 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;

1 ‘ (4) Or who shall display the flag of any foreign enemy;

“(5) Or who shall by utterance, writing, printing, publication or language spoken, urge, incite or advocate any curtailment of production in this country of any thing or things, product or products necessary or essential to the prosecution of the war in which the United States may be engaged with intent by such curtailment to cripple or hinder the United States in the prosecution of the war;

“(6) Or, * * * shall willfully make or convey false reports or statements ivith intent to interfere with the * * * success of the military or naval forces of the United States, or promote the success of its enemy or enemies;

“ (7) Or * * * shall willfully cause * * * disaffection in the military or naval forces of the United States;

“(8) Or who shall by uttering, printing, * * * publication, language spoken, or by any act or aets, interfere with, •obstruct, or attempt to obstruct, the operation of the national selective draft law or the recruiting or enlistment service of the United States to the injury of the military or naval service thereof, shall be guilty of the crime of sedition.”

Thus dividing the Act into its component parts, it will be readily seen that, as to those subjects falling in subdivisions 1 and 4, the prohibition is against the doing of the act itself, no matter what the intent or what the result thereof may be, while, as to those falling in subdivisions 2 and 3, the legislature also omitted the element of intent, but made the guilt or innocence of the accused depend upon whether the language used was “calculated” to bring about the undesirable results enumerated.

Coming down to subdivisions 5 and 6, we find that the legislature was not unmindful of the element of intent in criminal offenses, and, as to the acts here enumerated, made the intent of the offender the gist of the crime; while, as to those acts included in subdivision 7, they again excluded the question of intent, but made the law applicable to those persons only who commit the forbidden acts “willfully”; and under subdivision 8 they again prohibit the commission of certain acts without regard to intent, but provide for punishment only in case those acts result in actual injury to the military or naval forces of the United States.

It is therefore apparent that, in drafting the Act, the legislature exhibited a nice discrimination in the treatment of the several subjects under consideration, as constituting the crime of sedition, and that, whenever that body deemed a specific intent a necessary ingredient of the crime defined, it had no hesitancy in including it in the definition of the crime; and when it felt, for the peace and safety of society, an act should be prohibited, regardless of the intent of the doer of that act, it had as little hesitancy in excluding that element from its definition. It is clear from this analysis that, as to the acts here complained of, the legislature intended to prohibit the writing, printing, uttering or publication of any language likely to incite or inflame resistance to any duly constituted federal or state authority in the prosecution of the war, regardless of the intent or intention of the offender — to prevent, at all hazards, the results likely to flow from the commission of the act itself.

As it appears that the legislature included the element of intent in the definition of the crime of sedition in certain of the subdivisions indicated, and enumerated all the elements that body considered essential to the crime as defined in the subdivision under consideration, the element of intent was manifestly excluded, as an essential ingredient of the crime as here charged, both by the clear intention of the legislature and under the rule “expressio unhts est exclnsio alterius.” The rule heretofore announced, under which the legislature is conceded to have the authority so to provide, is in conformity with the former decisions of this court and with the great weight of authority throughout the United States.

In the ease of State v. Rechnitz, 20 Mont., at page 491, 52 Pac., at page 265, this court said: “We do not lose sight of the fact that the rule above discussed is not inflexible, and that many acts may become crimes by violation of statutes relating to certain subject matters, and that a statute may be so worded as to make an act criminal without regard to the question of the intent of the person doing such act.”

In the case of Leggatt v. Prideaux, 16 Mont. 205, 50 Am. St. Rep. 498, 40 Pac. 377, this court quoted with approval from Gardner v. People, 62 N. Y. 299, as follows: “The rule on the subject appears to be that in acts mala in se the intent governs, but in those mala proMbita the only inquiry is: Has the law been violated?”

In State v. Gilbert, 141 Minn. 263, 169 N. W. 790, the supreme court of Minnesota, in passing on a statute prohibiting teaching or advocating nonenlistment, etc., said: “The statute makes teaching or advocating nonenlistment or nonaid unlawful. It does not make the intent of the teacher or advocate an ingredient of the offense. The statute is a police regulation, and under it the doing of the forbidden act is a criminal offense, regardless of the intent.”

“There is a well-recognized distinction between acts mala in se and mala prohibita. Under the latter it is well settled that criminal intent forms no part or element of the offense.” (People v. D’Antonio, 150 App. Div. 109, 134 N. Y. Supp. 657; see, also, People v. Werner, 174 N. Y. 132, 66 N. E. 667.) “It is the province of the legislature to determine in the interest of the public what shall be permitted or forbidden, and the statutes contain very many instances of acts prohibited, the criminality of which consists solely in the fact that they aro prohibited, and not at all in their intrinsic quality.” (People v. West, 106 N. Y. 293, 60 Am. Rep. 452, 12 N. E. 610; 16 Corpus Juris, 77, note a.)

The supreme court of Michigan, in upholding a statute forbidding certain acts without regard to the intent, said: “As a rule there can be no crime without a criminal intent; but this is not by any means a universal rule. * * • Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.” (People v. Roby, 52 Mich. 577, 50 Am. Rep. 270, 18 N. W. 365.) This case is cited with' approval in People v. Snowberger, 113 Mich. 86, 67 Am. St. Rep. 449, 71 N. W. 497, where many cases upholding the doctrine are cited, and where it is said: “Generally it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety. If it passes an Act ostensibly for the public health, and thereby destroys or takes away the property of the citizen or interferes with his liberty, it is for the courts to determine whether it relates to and is appropriate to promote such public health. Under the police power, the conduct of individuals and the use of property may be regulated, so as to interfere to some extent with the freedom of the one and the enjoyment of the other. It eannot be doubted that the legislature intended by this Act to protect the public against the harmful consequences of sales of adulterated food, and, to the end that its purpose might not be defeated, to require the seller, at his peril, to know that the article which he offers for sale is not adulterated. As was said by the supreme court of Ohio in State v. Kelly, 54 Ohio St. 166: ‘ If this statute had imposed upon the state the burden of proving ° * * his knowledge of its adulteration, it would have thereby defeated its declared purpose.’ ” (Kelley v. Daily Co., 56 Mont. 63, 181 Pac. 326.)

In the case of State ex rel. Rowe v. District Court, 44 Mont. 318, 119 Pac. 1103, this court said: “When an act is in general terms made indictable, a criminal intent need not be shown, unless from the language of the law applicable a purpose to require the existence of such an intent can be discovered [citing eases]. In State v. McBrayer, 98 N. C. 619, 2 S. E. 755, in considering a statute prohibiting a sale of intoxicating liquor, the court said: ‘It is a mistaken notion that positive, willful intent, as distinguished from a mere intent, to violate the criminal law is an essential ingredient in every criminal offense, and' ‘that where there is the absence of such intent there is no offense; this is especially so as to statutory offenses. When the statute plainly forbids an act to be done, and it is done by some, person, the law implies conclusively the guilty intent, although the offender was honestly mistaken as to the meaning of the law he violates. When the language is plain and positive, and the offense is not made to depend upon the positive, willful intent and purpose, nothing is left to interpretation.’ ” After citing many other authorities, the court concludes: “Though in every public offense there must exist a union of intent and act (Rev. Codes, sec. 8112), in statutory offenses, such as this, the intent is conclusively presumed, when it is shown that the statute has been violated.”

•It .is therefore apparent that the intention of the writer of the objectionable article, in deliberately writing the same, or of-the printer, or of those persons who deliberately publish the articles so written or printed, is wholly immaterial and not an ingredient of the crime charged, and therefore the court committed no error in sustaining objections to questions concerning such intent, whether propounded to prospective jurors or to witnesses.

Specifications 70 and 71 are based on the court’s refusal to [7] include in the instructions the provisions of sections 8112 and 8113 of the Revised Codes; instead, the court gave the following, as instruction No. '8: “ The court instructs the jury that in every crime or public offense, there must be a union or joint operation of act and intent, but that in statutory offenses, such as the case on trial, if the state first proves, beyond a reasonable doubt, that the statute has been violated, then the intent above mentioned is conclusively presumed.”

"While, ordinarily, the statutory provisions concerning intent should be given, as offered by the defense, the offered instructions were intended to apply to the intent heretofore discussed, and, as offered for that purpose, the court did not err in its [8] refusal. Instruction No. 8, however, while it follows the language used in State ex rel. Rowe v. District Court, supra, in the statement of a principle of law, is, as an instruction, inapt and incorrect and is misleading to the jury; it does no more than to advise the jurors that, if the. defendant is proven guilty, a guilty intent is “conclusively presumed.” Of.what aid was the instruction to the jury? The question for them to solve was: Did the defendant violate the provisions of the statute ? Its determination involved the questions as to whether the article was published by the defendant and was “calculated” to “incite or inflame resistance,” etc. And if the intent to incite and inflame resistance was the only element of intent which could enter into the commission of the act, it might be said that, though erroneous, the instruction could not have prejudiced the defendant, for it could not then have had any effect on the minds of the jurors in arriving at a verdict.

However, section 7961, Eevised Codes, provides that “the following presumptions, and no others, are deemed conclusive: 1. A malicious and guilty intent, from the deliberate commission of an unlawful act, for'the purpose of injuring another.” While section 7962 provides: “All other presumptions are satisfactory, if uncontradicted. They are denominated disputable presumptions, and may be controverted by other evidence. The following are of that kind: * * * 2. That an unlawful act was done with an unlawful intent.” Now, while a malicious and guilty intent is conclusively presumed from the’ deliberate commission of an unlawful act for the purpose of injuring another, the element of intent which must enter into the commission of the crime here charged, does not come within that classification: i. e., the general intent, viz,, to publish the article in question.

This brings us to the consideration of specification 66, the [9-11] defendant’s offer to prove that he did not “on August 16, 1918, or at any other time, intend to publish, write, print, or utter the editorial entitled ‘The State Council Again,’ or any other article of similar import.” The “deliberate commission”, of an act necessarily includes the intent to commit the act. The presumption that “an unlawful act was committed with an unlawful intent” is disputable, and, considered as evidence, “may be controverted by other evidence.” While the publication of the article entitled “The State Council Again” might be punishable under subdivision 3 of section 1, as heretofore divided, a conviction could be had only if the act was deliberately or intentionally .committed, and, although the intent to publish the article might be drawn from the surrounding facts and circumstances, if the defendant was in the possession of facts from which the jury might have reasonably drawn the conclusion that he did not intend to publish the article at all, as, for example, that it was published without his knowledge or against his express command, or through the negligence or misconduct of an employee, those facts should have gone to the jury, to be weighed against the disputable presumption of intent arising from the commission of the act. This the court did not permit, but, without discrimination, sustained objections to all questions concerning any intent whatsoever. Thereupon defendant made his offer, and the court, consistently, sustained the state’s objection. The objection should have been overruled, and the facts, if any the defense had, admitted, to be considered under appropriate instructions on the subject. The court’s failure to do so was erroneous.

Specification No. 100 predicates error on the court’s refusal [12] to give offered instruction 38, which, if properly drawn to cover the question just discussed, would have been proper; but, as it appears from the testimony that Smith was the vice-president of the company publishing the article, a greater burden was upon him than that defined in the proposed instruction. We apprehend that “mere failure to prevent its publication” would not exonerate the accused, had he known of the proposed publication in time to prevent it, and therefore the court was justified in refusing the proposed instruction.

In specification No. 102, the appellant urges that the court [13-16] erred in giving instruction No. 4, which reads as follows: “You are instructed that the crime of sedition as applied to this case is complete if you find from the evidence, beyond a reasonable doubt, that at the county of Lewis and Clark, state of Montana, at any time subsequent to February 22, 1918, and prior to the filing of the information herein, and while the United States be engaged in war, the defendant did unlawfully, willfully, wrongfully, feloniously, and seditiously do or commit any of the following acts, to-wit: Utter, or write, Or print, or publish any language calculated to incite or inflame resistance to any duly constituted state authority in connection with the prosecution of the war. ” It is urged that the instruction does not properly apply to the facts; that there is no evidence that the defendant did utter, write, or print any language, but was responsible, if at all, only for the publication; and that the instruction does not confine the issues to language ■calculated to incite or inflame resistance to the Montana Council of Defense.

While the instruction is approximately a correct statement of an abstract rule of law, and would have been harmless, had it been followed by other instructions applying that law to the facts in this case, the record discloses no such instructions, while the instruction given advises the jurors that they may find the defendant guilty if they find that he had, at any time between February 22, 1918, and the date of the filing of the information, uttered, written, printed or published, in Lewis and Clark county, any language calculated to incite or inflame resistance to any duly constituted state authority in connection with the prosecution of the war. “Although an instruction may state a correct principle of law, if it is not based upon or in conformity with the issues or facts raised or supported by the evidence, it is erroneous.” (16 Corpus Juris, 1043, and note.) “In reading the statute, it is error for the court to read that portion thereof which does not define the crime charged, but ■defines another and distinct crime, unless he expressly limits the application of the statute to the charge.” (12 Cyc. 614, and note.)

In determining the correctness of instructions, the rule is that they must be examined in their entirety, and where, as a whole, they correctly state the law and where those instructions general in their nature, are by specific instructions limited to the facts in the case, error cannot be predicated on an incomplete er too general instruction. (State v. Brooks, 23 Mont. 146, 57 Pac. 1038; Territory v. Hart, 7 Mont. 489, 17 Pac. 718.) We have searched the record in vain for an instruction limiting the •one under consideration to the facts of this case.

No attempt was made to prove that Smith either wrote, or printed the article complained of in Lewis and Clark county, and he could be convicted, if at all, only of its publication, in that county; and, of course, he could not be convicted on proof of the writing, printing, uttering or publication of any article other than that set ' out in the information, no matter how vicious or seditious such article might have been. In a prosecution of this nature, proof of other acts are admissible for certain purposes; but, under such an instruction as we are considering, the accused might be convicted of the commission of any act of a similar nature, though the proof utterly failed to establish his guilt of the crime charged. That this cannot be is elementary. An information must charge but one offense, and the accused can be convicted only of the offense so charged. As was stated in the case of State v. Gaimos, 53 Mont. 118, 162 Pac. 596: “When the information fixes a date, and the evidence shows an act of the character charged as a crime at that time, the state cannot be allowed to claim a conviction under that information for a similar act at some other time.”

In the absence of an instruction directing the jury to return a verdict based upon the specific offense charged in the information, instruction No. 4 was prejudicially erroneous. “An instruction should be so explicit and so closely connected with the facts of the case as to enable the jury to apply the law to the facts. It must present the law substantially and correctly and in such a way that it will be understood by the jury.” (12 Cyc. 645; Ritte v. Commonwealth, 18 B. Mon. (Ky.) 35; Farrar v. State, 29 Tex. App. 250, 15 S. W. 719; Ashlock v. State, 16 Tex. App. 13.)

In instruction No. 17 the court advised the jury that “It is not necessary to prove all three of the acts mentioned, to-wit, write, print, publish; but it is sufficient if the state proves any one of these, viz., that the defendant wrote, or that the defendant printed, or that the defendant published the language complained of in Lewis and Clark county, Montana.” In so far as it covers the subject, the instruction correctly stated a general proposition of law; but, as there was no evidence adduced and no contention on the part of the prosecution that the defendant either wrote or printed the article complained of, the instructions should have been limited to the question of publication in Lewis and Clark county.

“The sufficiency and correctness of instructions must be determined with reference to the evidence, and therefore a charge whieh asserts correctly an abstract proposition of law, but is not applicable to the evidence, or which is based upon the assumption of the existence of material facts of whieh there is no evidence, should not be given.” (12 Cyc. 651.) In the absence of any evidence tending to prove that the defendant either wrote or printed the article complained of in Lewis and Clark county, it was error to instruct the jury that he could be convicted of either writing or printing the article. Such an instruction could serve no good purpose, and, in the absence of evidence on whieh to base it, the instruction should not have been given, as it could only tend to mislead and confuse the jury.

Error is predicated upon the court’s ruling permitting the [17] witness Winters to testify from a transcript made by him of his shorthand notes concerning proceedings had before the State Council of Defense, upon the ground that the notes, and not the transcript, constituted the best evidence. The witness, however, stated that his original notes had not been preserved, and, in effect, that the transcript was an accurate reproduction of translation thereof. As said by the supreme court of Indiana, in the case of Bass v. State, 136 Ind. 165, 36 N. E. 124: “When the official stenographer is called, * * * his shorthand notes must be translated, either by himself or someone else who is able to do so. It being necessary that they should be translated, we think it wholly immaterial whether it is done orally or in writing. In this case it was done in writing. There is no claim that it was not done correctly. We think the court did not err in permitting Spencer [the stenographer] to read a transcript of the evidence.” (See, also, Barber v. State, 64 Tex. Cr. 96, 142 S. W. 577; Mackmasters v. State, 83 Miss. 1, 35 South. 302; State v. Gentry, 86 Kan. 534, 121 Pac. 352; Fletcher v. State, 20 Wyo. 284, 123 Pac. 80.)

It is true that the county attorney did not lay a very complete foundation for the introduction of the testimony, and it also appears that, when the defendant’s attorney sought to question the witness concerning the accuracy of the transcript, the court refused to permit it. As the case must be reversed on other grounds, it is not necessary to go into this matter in detail. While it is better practice for the stenographer to read from his notes, we can see no objection to permitting him to testify from the transcript, in the event a sufficient foundation is laid establishing his ability to report the testimony accurately, the accuracy of the notes and transcript, allowing the defendant to inquire fully into the matter to test the stenographer’s competency and accuracy, with the right to insist upon the production of the original notes if such are in existence, and, if necessary, to require the stenographer to read from his notes, to test the accuracy of the transcript. A liberal cross-examination should be permitted, and, if timely application is made, the defendant should be permitted the right to ask preliminary questions to test the accuracy of the notes and transcript.

The article which is the basis of the charge against the [18] defendant appeared as an editorial in the “Weekly Bulletin” of August 16, 1918. Upon the trial, with the witness Winters on the stand testifying concerning certain statements made by the defendant before the State Council of Defense, which were reported stenographically by the witness, Winters read from a transcript of his notes the following, to which objections were made and overruled: “Q. ‘Were you responsible afterward for publishing the statement that you knew nothing about this order that appeared in the August 3 issue, I think it was, or September 3? Mr. Smith: Yes. Mr. Campbell: In ■black type? Mr. Smith: Yes; Mr. Dunn wrote it. I asked him to write it. Mr. Campbell: You are absolutely responsible personally? Mr. Smith: Personally responsible. Mr. Campbell : For the editorial that Mr. Dunn wrote and the denial of the fact that you had ever received notice? Mr. Smith: Yes, sir.’ ” Later, a motion to strike this testimony from the record was made, upon the ground that the same did not refer to the publication constituting the offense with which the defendant was charged. In connection with the motion the defendant’s attorney said: “That does not refer to the editorial here in question. The County Attorney: We submit that it does. The Court: Yes. I overrule the motion to strike.”

From a reading of the testimony above set forth, it plainly appears that defendant admitted his responsibility for writing the editorial of September 3; but the court and county attorney assumed that the defendant admitted responsibility for writing the editorial of August 16. The introduction of this testimony standing by itself, and the refusal of the court to strike the same, might be regarded as harmless error; but in view of the court’s instruction numbered 4, in which the jury were advised that the crime was complete if the defendant wrote, printed or published “any language,” etc., the testimony should have been excluded. In addition, the error was emphasized by the remarks of the county attorney and the court’s affirmation of the same in the words used in denying the motion to strike, thereby leading the jury to believe that the defendant, before the State Council of Defense, admitted his responsibility for printing the language set forth in the information.

W. F. Dunn, a witness for the defendant, was asked on [19] cross-examination if he had not been convicted of sedition, and over objection was required to answer and answered in the affirmative. Complaint is made of the court’s ruling, but it was clearly correct. (See. 8907, Rev. Codes.)

Finally, it is urged that the evidence is insufficient to sustain the verdict. It is to be remembered that the constitutional [20,21] guaranty of free speech and free press was not suspended by the war, and that no one lost his right to criticise either men or measures. It is only for an abuse of the liberty that one may be called to account for his language, either in peace or in war. Under the stress of war the legislature may define the limits of liberty of speech and make punishable the use of language which in time of peace it would be powerless to restrain, and this is just what was done by the enactment bf the Sedition Act. Under that provision of the statute now before us, it was declared that the use of language calculated to incite or inflame resistance to a duly constituted federal or state authority in connection with the prosecution of the war constituted an abuse of the liberty of speech and press and a crime against the commonwealth.

Though the information charges that the editorial in question was written, printed and published in Lewis and Clark county, there is not any evidence that it was either written or printed here. Eliminating those elements of the charge, and the material allegations of the information now to be considered are: (1) That the editorial was published in Lewis and Clark county; (2) by the defendant; and (3) that it was calculated to incite or -inflame resistance to the Montana Council of Defense in connection with the prosecution of the war. The defendant’s plea of not guilty put in issue every one of those allegations and imposed upon the prosecution the burden of proving every one of them by competent evidence, beyond a reasonable doubt. [22] The allegation that the editorial was published in Lewis and Clark county was indispensable, in order to give the court of that county jurisdiction to try the case, for the Constitution (Article III, section 16) secures to everyone accused of crime the right to “a speedy, public trial by an impartial jury of the county or district in which the offense is alleged -to have been committed,” subject only to the right to a change of venue. This is one of the fundamental guaranties of our Bill of Bights, intended to be honored by its observance, and not defeated by any subterfuge.

The allegation that the published editorial was calculated to [23] incite or inflame resistance to a, duly constituted federal or state authority in connection with the prosecution of the war was equally necessary in order to state a public offense. In our judgment, the word “calculated” was used advisedly and with appreciative discrimination. After a more critical examination and analysis of the statute, we are satisfied that it -was intended to be understood ,to mean “likely to- produce a certain effect, whether intended or not.” The observations heretofore made upon the subject “intent” render further discussion of this matter unnecessary.

The only evidence in support of the allegation that the editorial was published in Lewis and Clark county was given by Mr. Will A. Campbell, who testified that he was a subscriber to the “Bulletin”; that he received his copy of the paper containing the editorial in the due course of the mail, at his office in Helena; that the paper came to him inclosed in a separate wrapper; that he read the editorial in this county; and that he was then a member of the Montana Council of Defense. The [24] attorney general directs our attention to an admission made by the defendant before the Council of Defense on September 9, 1918, to the effect that the “Bulletin” had subscribers in Lewis and Clark county; but the evidence discloses that the witness referred to the “Bulletin,” then issued as a daily paper, and evidence of the extent of the circulation of the “Daily Bulletin” on September 9 would not constitute evidence of the circulation of the “Weekly Bulletin” on August 16.

We may assume, for the purposes of this appeal, that the evidence is sufficient to show a publication of the editorial in Lewis and Clark county, using the term “publication” in the broad sense of divulgation, promulgation or making known-. But it is not every abusive or even libelous statement that [25] constitutes sedition. The language of this editorial might be published in time of war under such circumstances that would not make it a crime. (Frohwerk v. United States, 249 U. S. 204, 208, 63 L. Ed. 561, 39 Sup. Ct. Rep. 249.) To illustrate from this record: It appears from the evidence that Mr. Gampbell exhibited the editorial to the county attorney, and that afterward it was reprinted in the “Helena Independent,” a newspaper of which Mr. Campbell is the guiding genius. In each instance there was a publication, but not sucha publication as constituted a crime. In other words, to bring the publication under the condemnation of the statute, it must - have occurred under such circumstances that the language thus ■published was calculated to incite or inflame resistance to a duly constituted federal or state authority in connection with the prosecution of the war. Whether it was or was not calculated to have had that effect was a question of fact to be determined by the jury (State v. Kahn, above) from all the surrounding facts and circumstances, including the manner and extent of publication, as well as the inherent quality of the language itself.

So far as this record discloses, the defendant was not responsible for the editorial becoming known to any person in Lewis and Clark county, other than Mr. Campbell, who was then a [26] member of the Montana Council of Defense. Can it be said, then, that in the hands of Mr. Campbell alone the published editorial was calculated to incite or inflame resistance to the council? Who but Mr. Campbell could be incited or inflamed to resistance, and is it within the range of probabilities that he would be incited to resist the very organization of which he was a member? We think not.

In the purpose sought to be accomplished and in the means employed to effectuate that purpose, our Sedition Act is not unlike the espionage statute (U. S. Comp. Stats. 1918, Comp. Stats. Ann. Supp. 1919, secs. 20212a-20212h) passed by the Congress of the United States, and concerning a prosecution under that statute the supreme court of the United States said: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” (Schenck v. United States, 249 U. S. 47, 63 L. Ed. 470, 39 Sup. Ct. Rep. 247.) Applying that rule and paraphrasing the language of this court in State v. Kahn, above, could the jury find from the evidence, beyond a reasonable doubt, that the natural tendency and reasonably probable effect of the editorial, in the hands of Mr. Campbell alone, was to incite or inflame resistance to the Montana Council of Defense in connection with the prosecution of the war? The bare statement of the proposition would seem sufficient for its own complete refutation.

In failing to prove that the defendant was responsible for the editorial being made known in Lewis and Clark county to any person other than a member of the Montana Council of Defense the state failed to prove the offense charged in the information. For the reasons given, the judgment is reversed, and the cause is remanded to the district court of Lewis and ■Clark county for a new trial.

Reversed and remanded.

Mr. Chief Justice Bbantly, being absent, takes no part in the foregoing decision.