Franz v. Commonwealth

186 S.E.2d 71, 212 Va. 587, 1972 Va. LEXIS 213

• Court: Supreme Court of Virginia
• Decided: January 17, 1972
• Docket: Record 7705
• Status: Published

Opinions

Harrison, J.,

delivered the opinion of the court.

Edward D. Franz, Jr. was granted a writ of error to a final judgment entered by the court below finding him guilty of unlawfully mutilating, defiling and defacing an American flag, and sentencing him to serve 12 months in the city jail, with 9 months conditionally suspended.

Section 18.1-425 of the Code of Virginia provides that:

“No person shall publicly burn with contempt, mutilate, deface, defile, trample upon, or by word or act cast contempt upon any such flag, standard, color, ensign or shield.”

On the evening of October 8, 1968, about midnight, Lt. Roy A. Price, a member of the police department of Virginia Commonwealth University, was making his nightly rounds. At that time he observed Franz and three to five others in the radio room located in the basement of the Student Center Building. Franz was wearing a red, white and blue vest, which article of clothing the officer suspected was made from an American flag. Investigation by Price and other officers ultimately resulted in the arrest of defendant under a warrant charging that he violated Code § 18.1-425.

There was testimony that prior to this occurrence an American flag had been removed from the University’s 'flag standard. Defendant, age 20, a first-year student at the University, testified that he found a colorful red, white and blue vest, along with remnants of a flag, all balled up in a trash barrel behind a dormitory. He removed the vest and remnants to his room and said that upon examination he realized they came from a flag. He said that the only time h’e wore the vest was on the occasion when he was observed by Price. In walking to and from the radio room defendant wore a top coat which completely covered the vest. Defendant’s explanation for wearing the vest was that he thought it “cool” and that it was “appealing”.

Defendant was studying art in the University’s Department of Design. Witnesses described him as a former Cub Scout, a former Boy Scout, active in his church, a loyal American citizen, and as one who worked well with colors, forms and objects.

Defendant’s assignments of ’error present only one issue and that goes to the sufficiency of the evidence to sustain his conviction. Defendant argues that the Commonwealth failed to show that the acts complained of were committed publicly; that a flag was used; or that the acts complained of were done with contempt.

The act of Franz in wearing the vest in the radio room of a public university, a place frequented by students and others who have business there, and which is visible to persons passing on the outside, is plainly an act publicly done.

There was credible evidence from which the court found that the material and vest found by defendant on the premises of the University were originally a flag of the United States.

However, we cannot say that the Commonwealth has shown that the flag was “defiled” by defendant. There is no evidence that Franz removed the flag from the standard, placed it in the trash can, mutilated it or converted it into a Vest. Admittedly he wore the vest. It was an indiscreet, immature and thoughtless act. In doing this he showed a lack of proper respect for the flag, poor taste and poor judgment. But we do not believe the evidence shows he did this to express his contempt for the flag or that he intended thereby to defile or dishonor it.

His explanation that the overall color scheme of the vest fascinated and appealed to him, and that he thought it “cool”, is not a very satisfactory one for his act. Nevertheless, when considered along with other evidence, it is consistent with his disclaimer of contemptuousness or of any intent to dishonor the flag.

The couritry which is symbolized by the American flag has evolved a system of justice under which every man accused of a criminal offense is presumed to be innocent, and every fact necessary to a conviction must be proved beyond a reasonable doubt. The evidence establishing guilt must not only be consistent with the guilt of the accused, but must exclude every reasonable hypothesis of his innocence.

Cloaking the defendant with these presumptions, as he is entitled to be, we conclude that the evidence is not sufficient to sustain his conviction. Accordingly, the judgment of the lower court is reversed and the warrant dismissed.

Dismissed.