MORROW, Judge.
Relator is under indictment for violation of the so-called disloyalty Act, Section 1 of which reads as follows:
“If any person shall, at any time or place within this State during the time the United States of America is at war with any other nation, use any language in the presence and hearing of another person, of and concerning the United States of America, the entry, or the continuance, of the United States of America in the war, or of and concerning the army, navy, or marine corps of the United States of America, or of and concerning any flag, standard, color, or ensign of the United States of America, or any imitation thereof, or the uniform of any officer of the army of the United States of America, which language is disloyal to the United States of America, or abusive in character, and calculated to bring into disrepute the United States of America, the entry or continuance, of the United States of America in the war, the army, navy, marine corps of the United States of America, or any flag, standard, color, or ensign of the United States of America, or any imitation thereof, or the flag, color, standard, or ensign, or the uniform of any officer of the army of the United States of America, or is of such nature as to be reasonably calculated to provoke a breach of the peace, if said in the presence and hearing of a citizen of the United States of America, shall be deemed guilty of a felony, and shall be punished by confinement in the State penitentiary
for any period of time not less than two years, nor more than twenty-five years.” Acts 35th Legislature, 4th Called Session, Chap. 8, p. 13.
Relator applies for a writ of
habeas corpus
and insists that the Act is such an abridgment of free speech as only Congress under its war power might pass, and that even if in any case the subject be one upon which the State might legislate that its authority was ousted when Congress enacted the Espionage law.
The phase of the statute which denounces as a felony the use of the language described in the Act, in the presence of a citizen of the United States, in a manner reasonably calculated to provoke a breach of the peace, conflicts with no federal law nor constitutional guarantee, but observes recognized limitations on the right of free speech. Examples of these limitations are found in ordinances and statutes forbidding addresses in certain public places, the distribution of objectionable printed matter and its transmission through the mails. Smith v. State, 39 Texas Crim. Rep., 320; Ex parte Warfield, 40 Texas Crim. Rep., 414; Cooley’s Const. Limitations, p. 518; Davis v. Mass., 167 U. S. Rep., 43; In Re Anderson, 5 Ann. Cases, 421; Ex Parte Jackson, 96 U. S., 727. • Nor is it obnoxious to the law requiring certainty in defining criminal acts, as instanced in the existing statute defining the offense of breach of the peace, disturbing religious worship, and others in which the character of the language and the place and manner in which it is spoken, and not the intent with which it is used, makes it criminal. The prevention by law of the disturbance of the public order by acts of violence or acts likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet, is a well-known and generally recognized attribute of State government. It is the preservation of a natural right belonging to all members of a political society. Words & Phrases, 2nd. Ed., vol. 1, p. 292; Cyc., vol. 5, p. 1024. In preserving it the police power, which belongs exclusively to the State is exerted. It is not dependent upon the war power, which is exclusive in the federal government, though the fact that war exists and produces unusual conditions does not militate against the power of the State to pass laws to meet these conditions. It has been said that “the police power is, from its nature, incapable of exact definition or limitation because none can foresee every changing condition that may call for its exercise. ’ ’ Ruling Case Law, vol. 6, p. 184. Speaking of the Espionage Act, it is said by the Supreme Court of the United States: “We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their ■ constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting ‘fire’ in a theatre and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such nature as to present a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent.” Schenck v. U. S., 249 U. S., 47; 63 Law Ed., 470.
In time of war when the public mind, by reason of the conflict, is easily excited, when men may be aroused to violence by language and conduct which in times of peace would receive but passing attention, the State, having the right to prevent the violence, has the power to pass a law appropriate to arrest the cause of disturbance.
If construed as creating a substantive offense distinct from that of disturbing the peace, there is serious question as to whether it is in conflict with the Bill of Bights, which declares that "every person shall be at liberty to speak, write or publish his opinion on any subject, being responsible for the abuse of that privilege, and no law shall ever be passed curtailing the liberty of speech.”
This implies that under the law of this State, every person may speak the truth, with good motives with reference to the officers, agencies and policies of the government. Buling Case Law, vol. 6, p. 255.
Doubtless the Federal Congress, under the war power, may curtail the right of free speech during war, yet it , in the Espionage Act, makes the crime depend on the falsity cf the statement and the evil intent of its maker, while the Act in question does not. It is not necessary that it should do so in preventing a breach of the peace, and to that extent we regard it valid.
In his brief filed in this case, the Attorney General says:
"A consideration of this section of the law discloses that its primary and fundamental purpose is to prevent breaches of the peace by making it an offense during war time to use such language as is there described and of such a nature as to be reasonably calculated to provoke a breach of the peace. It is true that in this section, without enumerating various kinds and character of disloyal language, the printed act reads, ‘or is of such a nature as to be reasonably calculated to provoke a breach of the peace if said in the presence and hearing of a citizen of the United States. ’ It is entirely clear, we think, that the word ‘or’ has been unthoughtedly or unintentionally used for the word ‘and’ and that in reality the word ‘and’ is meant and, under well known rules of construction, should be substituted for, the word ‘or.’ Witherspoon v. Jernigan, 97 Texas, p. 98: Boss v. Terrell, 99 Texas, 502. (This rule is often applied to criminal statutes when it will not result in making them more severe. Williams v. State, 137 S. W. Rep., 927, Ann. Cases, 1913A, p. 1056; Kirk v. State, 150 S. W. Rep., 83, Ann. Cases 1913D, p. 1239; State v. Hooker, 22 Okla., 712; State v. Long, 141 S. W. Rep., 1099; Lewis, Sutherland, on Statutory Construction, see. 368; Endlieh on Interpretation of Statutes, see.
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MORROW, Judge.
Relator is under indictment for violation of the so-called disloyalty Act, Section 1 of which reads as follows:
“If any person shall, at any time or place within this State during the time the United States of America is at war with any other nation, use any language in the presence and hearing of another person, of and concerning the United States of America, the entry, or the continuance, of the United States of America in the war, or of and concerning the army, navy, or marine corps of the United States of America, or of and concerning any flag, standard, color, or ensign of the United States of America, or any imitation thereof, or the uniform of any officer of the army of the United States of America, which language is disloyal to the United States of America, or abusive in character, and calculated to bring into disrepute the United States of America, the entry or continuance, of the United States of America in the war, the army, navy, marine corps of the United States of America, or any flag, standard, color, or ensign of the United States of America, or any imitation thereof, or the flag, color, standard, or ensign, or the uniform of any officer of the army of the United States of America, or is of such nature as to be reasonably calculated to provoke a breach of the peace, if said in the presence and hearing of a citizen of the United States of America, shall be deemed guilty of a felony, and shall be punished by confinement in the State penitentiary
for any period of time not less than two years, nor more than twenty-five years.” Acts 35th Legislature, 4th Called Session, Chap. 8, p. 13.
Relator applies for a writ of
habeas corpus
and insists that the Act is such an abridgment of free speech as only Congress under its war power might pass, and that even if in any case the subject be one upon which the State might legislate that its authority was ousted when Congress enacted the Espionage law.
The phase of the statute which denounces as a felony the use of the language described in the Act, in the presence of a citizen of the United States, in a manner reasonably calculated to provoke a breach of the peace, conflicts with no federal law nor constitutional guarantee, but observes recognized limitations on the right of free speech. Examples of these limitations are found in ordinances and statutes forbidding addresses in certain public places, the distribution of objectionable printed matter and its transmission through the mails. Smith v. State, 39 Texas Crim. Rep., 320; Ex parte Warfield, 40 Texas Crim. Rep., 414; Cooley’s Const. Limitations, p. 518; Davis v. Mass., 167 U. S. Rep., 43; In Re Anderson, 5 Ann. Cases, 421; Ex Parte Jackson, 96 U. S., 727. • Nor is it obnoxious to the law requiring certainty in defining criminal acts, as instanced in the existing statute defining the offense of breach of the peace, disturbing religious worship, and others in which the character of the language and the place and manner in which it is spoken, and not the intent with which it is used, makes it criminal. The prevention by law of the disturbance of the public order by acts of violence or acts likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet, is a well-known and generally recognized attribute of State government. It is the preservation of a natural right belonging to all members of a political society. Words & Phrases, 2nd. Ed., vol. 1, p. 292; Cyc., vol. 5, p. 1024. In preserving it the police power, which belongs exclusively to the State is exerted. It is not dependent upon the war power, which is exclusive in the federal government, though the fact that war exists and produces unusual conditions does not militate against the power of the State to pass laws to meet these conditions. It has been said that “the police power is, from its nature, incapable of exact definition or limitation because none can foresee every changing condition that may call for its exercise. ’ ’ Ruling Case Law, vol. 6, p. 184. Speaking of the Espionage Act, it is said by the Supreme Court of the United States: “We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their ■ constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting ‘fire’ in a theatre and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such nature as to present a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent.” Schenck v. U. S., 249 U. S., 47; 63 Law Ed., 470.
In time of war when the public mind, by reason of the conflict, is easily excited, when men may be aroused to violence by language and conduct which in times of peace would receive but passing attention, the State, having the right to prevent the violence, has the power to pass a law appropriate to arrest the cause of disturbance.
If construed as creating a substantive offense distinct from that of disturbing the peace, there is serious question as to whether it is in conflict with the Bill of Bights, which declares that "every person shall be at liberty to speak, write or publish his opinion on any subject, being responsible for the abuse of that privilege, and no law shall ever be passed curtailing the liberty of speech.”
This implies that under the law of this State, every person may speak the truth, with good motives with reference to the officers, agencies and policies of the government. Buling Case Law, vol. 6, p. 255.
Doubtless the Federal Congress, under the war power, may curtail the right of free speech during war, yet it , in the Espionage Act, makes the crime depend on the falsity cf the statement and the evil intent of its maker, while the Act in question does not. It is not necessary that it should do so in preventing a breach of the peace, and to that extent we regard it valid.
In his brief filed in this case, the Attorney General says:
"A consideration of this section of the law discloses that its primary and fundamental purpose is to prevent breaches of the peace by making it an offense during war time to use such language as is there described and of such a nature as to be reasonably calculated to provoke a breach of the peace. It is true that in this section, without enumerating various kinds and character of disloyal language, the printed act reads, ‘or is of such a nature as to be reasonably calculated to provoke a breach of the peace if said in the presence and hearing of a citizen of the United States. ’ It is entirely clear, we think, that the word ‘or’ has been unthoughtedly or unintentionally used for the word ‘and’ and that in reality the word ‘and’ is meant and, under well known rules of construction, should be substituted for, the word ‘or.’ Witherspoon v. Jernigan, 97 Texas, p. 98: Boss v. Terrell, 99 Texas, 502. (This rule is often applied to criminal statutes when it will not result in making them more severe. Williams v. State, 137 S. W. Rep., 927, Ann. Cases, 1913A, p. 1056; Kirk v. State, 150 S. W. Rep., 83, Ann. Cases 1913D, p. 1239; State v. Hooker, 22 Okla., 712; State v. Long, 141 S. W. Rep., 1099; Lewis, Sutherland, on Statutory Construction, see. 368; Endlieh on Interpretation of Statutes, see. 303.) In other words, in order to charge this offense, the pleader must not only charge that the defendant was guilty of using disloyal language such as is previously enumerated in the section, but must charge that the language, in addition, is of such a
nature as to be reasonably calculated to provoke a breach of the peace. In section 2 of the act this is quite clear, because the word ‘and’ is used in a similar capacity instead of the word ‘or.’ By reference to the caption of the act it will also be seen that the construction we suggest is a correct one, because the caption, after giving the substance of Section 1, relating to disloyal language, states directly that §uch language must be ‘of such a nature as to be reasonably calculated to provoke a breach of the peace.’ Section 8, which is the emergency clause, is in harmony with the construction and interpretation we here suggest, for it declares that the cause of the emergency is ‘that there are many breaches of the peace and other disturbances of public order and safety arising, due to the evils sought to be remedied by this act.’
“The construction here suggested is the one which has been adopted by the pleader in drawing the indictment upon which the relator is held in custody. The elements, then, of an offense under the State act, are that the language used must not only be disloyal, but must be reasonably calculated to provoke a breach of the peace, if ‘said in the presence and heáring of a citizen of the United States. Clearly, then the purpose of this section of the act is to prevent breaches of the peace, and it appears to be drawn in much the same manner as Article 1020 of the Penal Code of the State. ’ ’
We adopt this construction and order the application for habeas corpus dismissed.
Dismissed.