State v. Hartung

Holt, J.

(dissenting).

I dissent. In my opinion, the evidence fails to show a violation of section 3 of chapter 436, p. 765, Laws 1917. It appears that the defendant lived in a small village. He was an elderly man, perhaps with some leisure time. After supper he walked up to one of the stores and took a seat on a chair or box outside the door; another resident of the village seated himself ón the other side of the door. About this time a committee of two came along to solicit subscriptions for the Bed Cross. They entered the store and interviewed the storekeeper, then came out and requested a contribution from defendant. He declined and attempted to justify his so doing by the remarks contained in the indictment. Conceding defendant to be altogether in the wrong from a patriotic standpoint, I do not think the law was ever intended to punish a person for stating his reasons, bad though they be, for refusing to comply with a request to render that aid to the conduct of the war which the government had indicated should be given. It is only when a person designedly teaches or advocates that others shall not aid, or when his utterances, even though veiled and indirect, are such that the jury may find that the necessary result is to teach or persuade citizens not to aid that the law steps in. The remarks of defendant were casual, and were not made in an effort to influence others, but simply as an answer to a request then made of him.

It also seems to me that the cross-examination of defendant concerning his alleged remarks upon being solicited to buy liberty bonds several months after speaking the words upon which he was tried, and the state’s rebuttal contradicting his answers on such cross-examination, trench upon the rules governing the admissibility of testimony in criminal trials.