New Mexico state record. (Santa Fe, N.M.) 1914-19??, 1921-12-02
SUPREME COURT RE-
VERSES DECISION IN
FREE SPEECH CASE
ACT WHICH SOUGHT TO CURB
REVOLUTIONARY UTTER
ANCES AGAINST GOVERN
MENT DECLARED UNCONS-
TITUTIONAL
(Bv Guthrie Smith

An important decision, involving the
right of free speech in New Mexico,
has lust been decided by the New
Mexico supreme court, in an opinion
by Justice Parker, Chief Justice Ray
nolds concurring Justice Davis did
not participate.
The case is the state of New Mex
leo, appellee, versus Jack Diamond, ap-
pellant, from Colfax county. Diam
ond was convicted in the district court,
under an Indictment which charged
in substance that he had "unlawfully
and feloniously attempted to incite
revolution and opposition to the or
ganized government of the United
State and the state of New Mexico,
by soliciting members for the Indus
trial Workers of the World, an or
ganization which has for its purpose
and aim the destruction of organic
ed government, federal, state and
municipal"
The supreme court reverses the
Judgment OF the district court, re-
manding the case with directions to
the district court to dismiss the cause
and discharge the defendant. The
act under which the indictment was
returned, chapter l40, laws OF 1919,
is held to be unconstitutional, "as
vioativc of the right of free speech
guaranteed by sections II, of article
II OF the state constitution.
The text of the important act held
to be constitutional follows:
Section |. That it shall be unlaw-
ful for any person or persons, tirm
or corporation, to commit or peri
orm or cause to permit or to be peri
ormed any act of whatsoever kind
which has for its purpose or aim the
destruction of organized government,
federal, state or municipal, or to do or
70 cause to be done any act which
is antagonistic to or i'll opposition to
such organized government, or incite
or attempt to incite revolution or op-
position to such organized govern
Went.
"Any person violating any OF the
provisions Of this act shall be deemed
guilty of a felony and upon convic-
ton thereof shall be punished by a
fine of not less than two hundred
/. dollars nor more than one thousand
dollars, or by imprisonment in the
state penitentiary for not less than one
nor more than ten years, or by both
such fine and imprisonment, in the
discretion of the court
"Section 2. 1t shall be unlawful for
any person or persons, firm or cor
poration to advocate or teach, or cause
10 be advocated or taught, in any man
ner whatsoever, the doing or peri
ormance of any of the acts prohibited
by section hereof"
Reasons for holding the act un-
constitutional are:
"The word revolution as used in
she act, held to include all forms of
revolution, accomplished by peaceful
means or otherwise, and not to be
limited to revolution by force of
arms.
"The act uses words of no deter
rlinative meaning, and the language
is so general and indefinite as to
embrace not only acts properly and
legally punishable, but also others
which cannot be punished. and it is
FOR this reason void for uncertainty.
Where an act creating a crime
is found to be unconstitutional, the
question may be raised for the first
i:me on appeal"
The record of the trial in the dis
:rict court shows that Diamond was
charged with the statement that the
shooting Of the American Legion men
~ Centralia was a good thing. aud
mother that the United States flag
was bolshevism. He denied he had
made such statements.
The supreme court has granted a
iew trial to Jerome Clevenger, con-
sicted of rape in the district court In
san Miguel county, and sentenced to
serve five to seven years in the peni-
1entiary. The opinion is by District
Judge Bratton, of Clovis, Chief JUS
rice Reynolds concurring. Justice Dav-
is did not participate.
Cevenger was convicted recently,
after sensational charges that he had
been guilty of the alleged offense up
on Daisey Agnes Madole. He was a
railroad man, and his fellow workers
demanded that he be relieved from
;he service, which demand was COM
7.lied with.
In reversing the judgment OF the
district court, and remanding the cause
.or new trial, the supreme court
1olds:
Il. A witness may be interrogsted
1pon cross-examination concerning
specific acts of moral misconduct. and
wrongdoing, to affect the credibility
Of such witness and the weight to be
given to his or her testimony. but eN-
frinsic or Independent evidence regard
ing such matters is not admissible.
q Evidence reviewed, and held
that the prosecutrix is not corrobor-
ated as is required in a case OF this
character, and therefore, there IS not
sufficient evidence to sustain the ver-
dict.
~3 In a case of this kind, it is
error to refuse a proper rendered
instruction OF a cautionary charac-
ter advising the jury OF the nature
Of the case, the case with which an
accusation of this kind may be lodg-
ed and the difficulty of defending
against the same, and the necessity
and extent of resistance required OF
the prosecutrix, as well as the force
used to overcome the same. where
no proper instruction covering the
subject IS contained IN the court ,