Hess v. State

Concurring Opinion

Prentice, J.

Although I dissented in the case of Whited v. State (1971), 256 Ind. 386, 289 N. E. 2d 149, my dissatisfaction therein was not with the statement of the law by the majority but rather with its application to the facts of that particular case. In the case at bar, the evidence discloses to me that the conduct of the appellant was illegal, as tested by the standards of that case and also by the “clear and present danger” test of Brandenburg v. Ohio (1969), 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 and Terminiello v. Chicago (1949, 337 U.S. 1, 69 S. Ct. 894, 93…