(dissenting.)
I dissent. Defendant’s offensive and uncalled for remarks which started the brawl did not constitute a violation of the law. And I do not think that his mere affirmative answer to the question put to him, during the altercation, whether he approved the sentiments expressed in public addresses by certain persons some weeks previous constitutes a violation of the statute.
A reargument having been granted and made, the following opinion was filed on August 1, 1919:
PER CuRIAm.In this case a reargument was granted and the matters urged on the reargument have again been considered with the result that we adhere to our former decision except in the respect hereinafter stated.
We are satisfied that the constitutional guaranties relating to freedom of speech did not secure to defendant the right to teach or advocate that citizens should not aid the Government in the prosecution of the war. Since the filing of our former opinion, the Supreme Court of the United States has had these constitutional provisions under consideration in cases arising under the Federal Espionage Act, and the decisions of that court fully sustain our own decisions. In Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. 247, 63 L. ed. 470, involving a prosecution under the Federal law, the court say:
*487“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. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hinderanee to its effort that their utterance will not be endured so. long as men fight and that no court could regard them as protected by any constitutional right.” Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. 249, 63 L. ed. 561, is to the same effect.
We are also satisfied-that the court ruled correctly in admitting in evidence what was said and done at the public meeting in Kenyon. Debs v. United States, 249 U. S. 211, 39 Sup. Ct. 252, 63 L. ed. 566.
The majority of the court, however, are of opinion that by reason of the peculiar circumstances of this case, the question as to whether the language used by defendant in his altercation in the barber shop constituted teaching,and advocating that citizens of this state should not aid the United States in prosecuting the war against the public enemies, should be submitted to another jury.
The judgment is reversed and a new trial granted.