# Johnson v. State (204 Ark. 476)/Opinion of the Court

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* Opinion of the Court
* Dissenting Opinion Smith
​Holt, J. On information charging that appellant, Joe Johnson, "did unlawfully, willfully and publicly exhibit contempt for the flag of the United States," he was tried, convicted and his punishment assessed at "a fine of $50 and imprisonment in the county jail for a period of 24 hours." For reversal here, appellant alleges that the evidence was not sufficient to warrant his conviction and that the trial court erred in refusing to so instruct the jury in accordance with instruction No. 1 requested by appellant.
Section 2941 of Pope's Digest, upon which the information was base d, provides in part "Whoever . . . shall in any manner . . . or by word or act publicly exhibit contempt for the flag . . . of the United States . . . shall be deemed guilty of a misdemeanor and on conviction shall be punished by a fine not exceeding $100, or imprisonment for not more than thirty days, or both."
The evidence, upon which the jury found appellant guilty, is to the following effect:
Mrs. Nell Cooper was in charge of the Welfare Commissary at Marshall, Arkansas, when appellant came to procure commodities for himself, his wife and eight children. We quote the following from her testimony: "He came in the commissary on the first day of the period, and we had quite a crowd in there, and I had been told that he was drawing for more people than he really had in family, and also that he wouldn't salute the American flag, and I first asked him about a rumor that he was drawing for more than he had members in his family, and he says, 'That is just talk, I do have that many.' I thought it was hardly possible he would say he had more than he had, and I didn't give much faith to the rumor. ​And I says, 'It is also rumored that you don't believe in saluting the flag. Is there anything in that?' And I didn't demand. I asked him—merely requested him. I says, 'just to quiet the rumor, salute that flag.' And he said he would die before he would, and turned to the people there and says, 'You can't get anything here unless you salute the flag. It don't have eyes and can't see, and has no ears and can't bear, and no mouth and can't talk,' and says, 'It doesn't mean anything to me. It is only a rag.' And I says, 'You can't talk that way here.' And he kept on talking, and I first told him I would call one of the boys and ask him to be put out, but he left. . . . He was addressing the other people who were waiting for commodities. . . . When I asked him—I didn't demand, but I asked him—he turned and walked directly under the flag, and was facing the people outside. . . . I don't know whether he touched it or not, but his hand was in touching distance of the flag, and he reached toward the flag. . . . It wasn't any higher than his head. . . . I know who was in the commissary. I was angry, and I couldn't say who was there at the time."
Ogle Horton testified (quoting from appellant's reply brief): "I didn't understand all the conversation. He got under the flag and reached up and got hold of it and says, 'It don't mean anything to me. It's got no eyes and can't see, no ears and can't bear, no mouth and can't speak."
Appellant testified: "The Bible says not to bow to anything up in the Heaven or on the earth or in the earth, or anywhere. We are supposed to bow to God and God only. . . . It says in the Bible not to even salute your friend, but to call him by name, says, 'Claim thy friend by name.'" It was his conviction that to salute the, flag or any other like emblem would be contrary to the Bible. He did not show disrespect for the flag. "I believe in everything it stands for." He denied that he had spoken disrespectfully of the flag or had exhibited contempt for it in any manner.
​The trial court very clearly and, properly instructed the jury that appellant could not be convicted for refusing to salute the flag of the United States; that he was within his constitutional rights to refuse to 'salute the flag if he did not deSire to do so. Appellant's instruction No. 2 given by the court is in this language:
"You are instructed that before you can find the defendant guilty under this charge, you must find from the evidence and beyond a reasonable doubt that he did or said something or some things in an affirmative sense, manifesting a contempt for the flag; it is not sufficient that he merely refused or failed to salute the flag when directed to do so by the prosecuting witness, Mrs. Cooper, or failed or refused to do any other thing directed by her. To constitute the crime with which he is charged required some voluntary action or statement on his part in contempt of the flag."
The question, therefore, presented here is not whether appellant was within his constitutional rights in refusing to salute the flag, but did the evidence warrant the jury in finding the appellant guilty of "publicly exhibiting contempt for the United States flag" in violation of the provisions of the statute, supra.
It seems to us that it would be difficult to imagine a state of facts under which contempt for the flag could be more convincingly demonstrated in public than in the circumstances here. The strange and unnatural conduct of this man at the very time he was receiving, from the hands of a most generous government, supplies to aid him in sustaining a large family, may not be explained away on the grounds of ignorance or religious beliefs.
It is one thing to be given the privilege of refusing to salute the flag, but quite another when one by word or act publicly exhibits contempt for the flag. Here appellant after refusing to salute the flag, as was his privilege, proceeded to address a large number of people and tell them that the flag meant nothing to him and was only a "rag." Webster's dictionary defines "rag" as "A waste piece of cloth torn or cut off, a shred or tatter, ​something resembling or suggesting a rag or rags and considered of little worth or service;—used contemptuously, jocularly, or ironically as of a flag, newspaper, etc." We think appellant's statement clearly evinces contempt for the flag within the terms of the statute in question.
The Supreme Court of the United States in Minersvale School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375, 27 A.L.R. 1419, recently said: "The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution. This court has had occasion to say that '. . . the flag is the symbol of the Nation's power, the emblem of freedom in its truest, best sense. . . ; it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression.' Halter v. Nebraska, 205 U.S. 34, 51 L.Ed. 696, 27 S.Ct. 419, 10 Ann. Cas. 525.
"The religious liberty which the Constitution protects has never excluded legislation of general scope not directed against doctrinal loyalties of particular sects. Judicial nullification of legislation cannot be justified by attributing to the framers of the Bill of Rights views for which there is no historic warrant. Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities . . ."
It is our view on the testimony presented that appellant has violated the plain terms of the statute in question and the jury was warranted in finding him guilty as charged. Accordingly the judgment is affirmed.