People v. Burman , 154 Mich. 150 ( 1908 )

Carpenter, J.

(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 there 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 court reserved his decision upon this motion until the conclusion of the case. He then compelled the people to elect, and they elected 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 to 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 election 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. Section 3100, 1 Comp. Laws, provides that, on appeal to the circuit court from a conviction for the “violation of any ordinance,” the “proceedings * * * shall be the same as on appeal in criminal cases cognizable by justices of the peace.” In the latter cases it is provided (section 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 tried 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 street upon 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-socialists, 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 violence.”

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 not 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 been 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 red flag, the emblem of their order, and that the ordinance prohibiting it — which ordinance defendants are not charged with violating— was invalid. That ordinance apparently 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 a red flag — and this would be a question which, would arise upon the validity of said ordinance — we are not called upon to determine, and we ought not and will not attempt to determine in this case. [The question here is not whether the defendants have in general a right to parade with a red flag. It is this: Had they such right, when they knew that the natural and inevitable consequence was to create riot and disorder? Defendants knew this red flag was hated by those to whom it was displayed, because it was believed to represent sentiments detestable to every lover of our form of government. They knew that it would excite fears and apprehension, and that by displaying it they would provoke violence and disorder. Their right to display a red flag was subordinate to the right of the public. They had no right to display it when the natural and inevitable consequence was to destroy the public peace and tranquility. It is idle to say that the public peace and tranquility was disturbed by the noise and violence, not of defendants, but of those whose sentiments they offended. When defendants deliberately and knowingly offended that sentiment, they were responsible for the consequences which followed, and which they knew would follow. It is also idle to say that these others were wrongdoers in manifesting in the manner they did their resentment at defendants’ conduct. This merely proves that they and defendants were joint wrongdoers; that they, as well as defendants, violated the ordinance in question. \The object of this proceeding is not to redress the grievance of these other wrongdoers, but it is to redress the grievance of the public whose rights they and defendants jointly invaded. The guilt of their associate wrongdoers does not lessen defendants’ responsibility. It is sufficient to say that defendants by their conduct did “aid, countenance, and assist in making a riot, noise, and disturbance,” and therefore violated Ordinance No. 10 of the city of Hancock. This reasoning is sustained by authority. Says Chief Justice Champlin, speaking for the entire court in People v. Johnson, 86 Mich. 177 (13 L. R. A. 163):

“ In general terms the offense [breach of the peace] is a violation of public order, a disturbance of 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 propagating their views they may commit a crime or violate any constitutional law or valid municipal ordinance.

Defendants rely upon the Frazee Case, 63 Mich. 396. There the petitioner, who had taken part in a Salvation Army parade, had violated an ordinance of which the court said:

“ 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 the following quotations from that opinion:

“ There may be times and occasions when such assemblies may for a while be dangerous in themselves because of inflammable conditions among the population. * * * It is only when political, religious, social, or other demonstrations create public disturbances or operate 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 they will.”

Other complaints are made. They need no special attention. They are all answered either by an application of the principles herein stated, by other elementary principles of law, or by a proper construction of the record.

The judgment is affirmed.

Grant, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.