OPINION PER CURIAM, September 26, 1972:
Judgment of sentence affirmed.
DISSENTING OPINION BY HOFFMAN, J.:
This is an appeal from appellant's conviction for violating the Flag Desecration Act.
Appellant was arrested on May 29, 1970, for wearing a six by eight inch replica of the American Flag sewn on the seat of his pants. The appellant was tried before a jury on September 23, 1970. During the course of the trial, the judge instructed the jury as follows: "In a crime such as the one charged in this case there must exist both the act or the conduct charged, and a criminal intent. To constitute criminal intent it is not necessary that there exists any intent to violate the law, but when a person intentionally does that which the law considers to be a crime, he is acting with criminal intent even though he may not know that his acts or conduct are unlawful." Appellant's attorney filed a general objection to the charge, but did not specifically object to the aforesaid portion of the charge on criminal intent.
In State v. Turner, 78 Wn.2d 276, 474 P.2d 91 (1970), the appellant was prosecuted for violating the Washington flag desecration statute. In essence, the statute declared that: "No person shall publicly mutilate, deface, defile, defy, trample upon or by word or act cast contempt upon any such flag, standard, color, ensign, or shield." State v. Turner, supra, 78 Wash. 2d at 276, 474 P. 2d at 92. During the course of Turner's trial, the judge charged the jury: "It is not required
"In essence, to defile or hold up to contempt is conduct involving moral turpitude. Therefore to sustain a conviction of desecrating the flag as defined by that statute, the acts must have been done knowingly and intentionally with an intent or purpose of defiling or desecrating it or holding it publicly up to contempt. . . .
"Words such as deface, defile, defy or cast contempt upon strongly imply that the described conduct shall be held criminally actionable only when the interdicted conduct is done with an evil design or purpose. If this were not so, the legislature could readily have said otherwise. . . .
"The state to sustain a conviction is obliged . . . to prove that the burning of the flag in public, or the aiding or abetting of it, was done with intent or design or purpose to defile or defy or cast contempt upon the flag and in the absence of such an intent, design or purpose the crime has not been shown." State v. Turner, supra at 281-82, 284, 474 P. 2d at 94-96. (Emphasis added.)
I am in agreement with State v. Turner. Just as the Washington statute, the Pennsylvania statute prohibits
Although the trial judge's instructions to the jury with respect to intent were erroneous, appellant's attorney failed to specifically object to the charge. General exception to a judge's charge to the jury waives all errors in the charge other than those which constitute basic and fundamental error. Commonwealth v. Waychoff, 177 Pa.Super. 182, 188, 110 A.2d 780 (1955). When the court erroneously instructs the jury on an issue which is essential to the defendant's case, there can be no reasonable basis for the defense counsel's failure to object; such an error is basic and fundamental and is reversible. Commonwealth v. Miller, 448 Pa. 114, 123, 290 A.2d 62 (1972). Thus, an improper instruction on what constitutes criminal intent is reversible whenever specific intent is an essential element of the crime. Bloch v. United States, 221 F.2d 786, 788 (9th Cir. 1955); Mann v. United States, 319 F.2d 404, 410 (5th Cir. 1963), cert. denied, 375 U.S. 986 (1964).
I believe that the instruction to the jury on criminal intent was improper and constitutes reversible error.
Appellant's patch worn upon the seat of his pants was a representation of the American Flag. A badge has been defined as "the token of anything." Black's Law Dictionary, 4th Edition (1951). An ornament has been defined as "that which enhances, embellishes, decorates, or adorns." Blairmoor Knitwear Corporation v. United States, 284 F.Supp. 315 (Customs Ct. 1968). The appellant's wearing of the replica of the flag appears to fall within these broad definitions.
For the above reasons, I would vacate the judgment of sentence and grant appellant a new trial.
SPAULDING, J., joins in this dissenting opinion.
I dissent because the statute is overbroad.
Free speech consists of more than mere speaking, for symbolic acts such as the wearing of a black armband, constitute "pure speech" which is protected by the First Amendment. Tinker v. Des Moines Independent School District, 393 U.S. 503, 505-506 (1969). The symbolic significance of flying an American Flag has been recognized, Hodsdon v. Buckson, supra at 533, and this could be considered "pure speech." A flag desecration statute may not be used to punish an individual for mere words. Street v. New York, 394 U.S. 576 (1969); neither may a state attempt to punish an individual for symbolic acts against the flag when those acts constitute "pure speech": "The right of protest includes the right to be derisive, disdainful, contemptuous and even defiant of government and what may be thought to be in a given context its symbols of authority." Parker v. Morgan, 322 F.Supp. 585, 589 (W.D. No. Car. 1971). Some nominally contemptuous acts might, therefore be protected by the First Amendment.
The phrase "cast contempt" is vague especially in light of modern trends. Clothing, furniture, automobiles and other items are now covered by the stars and stripes. "These new informal usages, at variance with traditional flag etiquette, add to the difficulty of interpreting older flag laws which . . . condemn one who treats the flag contemptuously but do not define exactly what is meant." Goguen v. Smith, 343 F.Supp. 161, 164 (D.C. Mass. 1972).
The state has a legitimate interest in protecting the flag from physical harm, but this should be the outermost limit of the state's interest. Parker v. Morgan, supra, at 590. This has been recognized by the Congress of the United States, which enacted a Flag Desecration Act in which "cast contempt" is defined as mutilating, defacing, defiling, burning or trampling upon the flag. Hoffman v. United States, 445 F.2d 226, 227 and 229 (C.A.D.C. 1971). While the American Flag is entitled to protection against desecration, a greater burden of proof may well be imposed where a simulated design of the flag rather than the flag itself is desecrated. Hoffman v. United States, supra, at 229 (note 9); see Parker v. Morgan, supra, at 588.
A penal statute must be strictly construed in a common sense manner. Commonwealth v. Paul, 177 Pa.Super. 289, 292 (1955). Thus, the court must presume that the legislature did not intend an absurd result to arise from the enforcement of the act. Statutory Construction Act, 1937, May 28, P.L. 1019, Art. IV, Section 52 (46 P.S. § 552). A statute should be construed in order to bring the enactment within the scope of the constitution. Commonwealth v. Frank, 159 Pa.Super. 271, 277, 48 A.2d 10 (1946).
In the construction of laws, where general words follow an enumeration of words with a specific meaning, such general words should not be construed to their widest extent but should be construed narrowly in light of the words which preceded them. Black's Law Dictionary, supra. This is the principle of ejusdem generis. Unless this principle is applied, there is no way for a man of common intelligence to understand the scope of the phrase "cast contempt." Words such as deface, defile, mutilate or trample upon connote physical destruction. When these words precede the phrase "cast contempt" in a statute, "cast contempt" should be limited in scope to mean those acts physically abusing the flag. Parker v. Morgan, supra, at 590; State v. Saionz, 23 Ohio App.2d 79, 52 O.O. 2d 64, 261 N.E.2d 135 (1969); State v. Hodsdon, 289 A.2d 635 (Del. Super. Ct. 1972); Statutory Construction Act, 1937, May 28, P.L. 1019, Art. III, Section 33 (46 P.S. § 533).