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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 572 In Banc. This is an appeal from the judgment of the Circuit Court which adjudged the defendant guilty of the crime of criminal syndicalism, as alleged in an indictment which reads as follows:
"The said Ben Boloff on the 29th day of August A.D. 1930, in the county of Multnomah and state of Oregon, then and there being, did then and there unlawfully and feloniously help to organize, and did voluntarily assemble with a certain society and assemblage of persons, to wit: The Communist party of the U.S.A., and was then and there a member of said society, which society and assemblage of persons was formed to, and did then and there unlawfully and feloniously teach, advocate and affirmatively suggest the doctrine of criminal syndicalism, sabotage, and the necessity, propriety and expediency of doing acts of physical violence and the commission of crime and unlawful acts as a means of accomplishing and effecting industrial ends, political ends, change and revolution, and for profit."
The indictment was founded upon section 14-3, 112, Oregon Code 1930. The judgment of guilt ordered the defendant's incarceration in the Oregon penitentiary for a term of 10 years. Defendant's brief presents and argues eight assignments of error. *Page 573 Since a consideration of the assignments of error will be greatly facilitated through an understanding of the evidence presented by the State, we deem it advisable to set forth the following resume of the principal features developed by the State's evidence. We precede this review with a statement that during the interrogation of the veniremen and during the examination of the State's witnesses, the defendant's attorney voluntarily and freely conceded the defendant's membership in the Communist party, and that he joined the party in Oregon. As a witness in his own behalf, the defendant admitted his membership.
One M.R. Bacon, a police officer in the employ of the city of Portland, testified that for the purpose of gaining information as to the nature and activities of the Communist party, he joined the Portland unit of it March 15, 1930, and was thereafter elected to various offices in the party and its subsidiaries, including a position as secretary and also as a delegate to its Northwest convention held in Seattle, and to its Pacific Coast convention in San Francisco. From his testimony it appeared that the Communist party in the United States has organized this country into more than 20 districts of which Oregon, Washington, and Alaska comprise the twelfth, with headquarters in Seattle. National headquarters are maintained in New York. The Communist party of the United States is a subsidiary of an international organization whose headquarters are in Moscow, Russia. The main program followed by the Communist party of the United States originates in Moscow, and is sent to the Communist party of this country from the Communist International by "thesis and resolutions." The Portland unit, with a membership of approximately 50 listed individuals who pay dues, maintains headquarters *Page 574 at Room 312, Worcester building, where a supply of literature is maintained for sale and distribution. It also has an "underground membership" whose number is unknown to Bacon. The aforementioned room also constitutes the regular meeting place for the Portland membership. Upon its wall is displayed a large red flag bearing the symbols — a scythe and hammer — of Soviet Russia. According to Bacon, Communist party newspapers have a circulation of approximately 250,000 copies in the United States.
Bacon testified that one who desires to join the party is required to sign an application wherein he subscribes to its principles. When his application has been received he is required to return a registration form bearing such information concerning himself as is desired by the local unit. All applicants are required to pledge adherence to the program and statutes of the party and to promise to engage in all of its activities. Bacon testified that no membership card is issued until the officials of the party have become convinced of the applicant's sincerity and good faith. At the time of the defendant's arrest there was taken from his person his membership booklet issued to him by the Communist party in which was recited the fact that he was a member of that organization, having been admitted to membership in January of 1924. Beside this entry was another which stated that he had "entered revolutionary movement, 1922." Upon pages specially provided and headed with the words "Membership Dues for 1930" are 33 dues stamps. Four of these, in the denomination of 50 cents, are marked "8/29, E.N." A later page, headed with the words "Assessment stamps," contains one stamp of the denomination of $1, entitled "7th Convention of the Communist Party of the U.S.A.", and is marked "5/30/30, L.M." In *Page 575 the booklet, which is of a size appropriate for a vest pocket, are five pages entitled "Extracts from the Statutes of the Communist Party of the U.S.A." Omitting parts, we quote from these the following:
"§ 3 — Membership. "1. A member of the Party can be every person from the age of eighteen up who accepts the program and statutes of the Communist International and the Communist Party of the U.S.A., who becomes a member of a basic organization of the Party, who is active in this organization, who subordinates himself to all decisions of the Comintern and of the Party, and regularly pays his membership dues. * * *
"§ 4 — Structure of the Party. "1. The Communist Party, like all sections of the Comintern, is built upon the principle of democratic centralization. These principles are: * * * (c) Acceptance and carrying out of the decisions of the higher Party committees by the lower, strict Party discipline, and immediate and exact applications of the decisions of the Executive Committee of the Communist International and of the Central Committee of the Party. * * * (e) The discussion on basic Party questions or general Party lines can be carried on by the members only until the Central Committee has decided them. After a decision has been adopted at the congress of the Comintern, the Party convention, or by the leading Party committee, it must be carried out unconditionally, even if some of the members or some of the local organizations are not in agreement with the decision. * * *
"§ 12 — Party Discipline. "1. The strictest Party discipline is the most solemn duty of all Party members and all Party organizations. The decisions of the CI and the Party Convention, of the CC and of all leading committees of the Party, must be promptly carried out. Discussion of questions over which there have been differences must not continue after the decision has been made." *Page 576
The above extracts of "statutes" are succeeded by the following:
"What is the Communist Party? "The Party is the vanguard of the working class and consists of the best, most class conscious, most active, the most courageous members of that class. It incorporates the whole body of experience of the proletarian struggle, basing itself upon the revolutionary theory of Marxism and representing the general and lasting interests of the whole of the working class, the Party personifies the unity of proletarian principles, of proletarian will and of proletarian revolutionary action. (From the program of the Communist International.)
"We are the Party of the working class. Consequently, nearly the whole of that class (in time of war and civil war, the whole of that class) should work under the guidance of our Party, should create the closest contacts with our Party. (LENIN.)
"On Discipline. "He who weakens, no matter how little, the iron discipline of the Party of the proletariat (especially during the period of dictatorship), effectually helps the bourgeoisie against the proletariat. (LENIN.)"
Bacon testified that August 29, 1930, at Room 312, Worcester building, a meeting of the local unit was held which was attended by the defendant. It will be recalled that Boloff's membership book records his purchase of four 50-cent stamps August 29, 1930. Bacon testified:
"That meeting was called to select speakers and to appoint members of the Party to take charge of a demonstration, proposed demonstration, to be held under the auspices of the Trade Union — Unemployed Council of the Trade Union Unity League for September 1st, and to see that a defense corps was organized; that was a part of the instructions, or to protect *Page 577 the speakers at the meetings to be held at the Plaza Blocks on September 1st. * * * All Party members were requested to be present and be active in distributing leaflets for that demonstration and to be at the demonstration, to support the speakers and to protect them from police interference in case attempts were made to arrest their speakers."
He added that instructions were given to forcibly resist any officer who attempted to interfere with the demonstration.
The same witness swore that the policies and principles advocated by the Communist party were the following:
"They advocate the overthrow of the Government, of our Government — that is, the Government of the United States of America, and all other Governments, that are not Soviet, by revolution, and that is — the principle is advocated at practically all of their meetings. * * * By organizing the workers, as they term them, into the Communist Party and the enlisting in the Army and Navy and teaching soldiers in the Army and sailors in the Navy to turn their guns against their officers, and to destroy them, and to annihilate the Government for the purpose of setting up a Soviet Government, and several times, for instance, in the Party headquarters they make statements many times like this: I remember one time particularly that one of the members by the name of Sanderstrom said, `We will take all of these capitalists and we will line them up against the wall and shoot them and use their bones for fertilizer,' and they actually believed that was the right and proper thing to do. They advocate arming the workers, the working people, for the purpose of destroying the Government. I have heard at meetings on the street — heard that at meetings on the street. * * * In July, 1930, one of the speakers, by the name of O'Hanrahan was speaking on Main Street, between Third and Fourth, and he said, `We tell you workers that you have got to destroy capitalism and we tell *Page 578 you that you have got to take your guns and go out and shoot down the bosses. They use their army and they use their police force against you, and we organize you into the Communist Party for the purpose of destroying them and setting up a workers' and farmers' government. We will take over all the factories and the mills and it can not be done in any other way.' The first of June, 1930, on the corner of Fourth and Burnside, Fred Walker was speaking under the auspices of the Communist Party, and stated that we — `Do we believe in revolution?' He said, `Yes, we believe in revolution; we teach you that you must arm yourselves; you must go out here and destroy capitalism by arming yourselves and fighting the Government; that you must destroy the Government, and that is direct action and we believe in direct action.' At another time, on the corner of Fourth and Burnside, a speaker by the name of J.W. Johnson was speaking under the auspices of the Communist Party and was answering questions. A question was asked him, `What method will the Communist Party use to bring about the revolution?' In answer to that question, he says, `I will answer that question, but,' he says, `Before I answer it,' he says, `I want you to know that the jail doors swing open for me.' He says, `The Government uses force, uses their Army, their militia and their police against you, and we teach you that you will have to use the same force against them to destroy them, in order that you might have a Communist Party, a Communist Society, but you must first set up a Soviet Government.' At another meeting held in September, at 312 Worcester Building, a speaker by the name of Kline, Paul Kline, was speaking, and in urging those present to join the Communist Party, he said, `We do not teach you that you can peaceably take over the government; we enter election campaigns, but not for the purpose of acquiring power. We tell you that you can not acquire power by means of ballots; that it must be done by bullets, and that the revolution will be accomplished by the bullet box and not by the ballot box.'" *Page 579
The witness added:
"An average of twice a week, meetings were held on the street in Portland, from March, the latter part of March, until September, and revolution was advocated in a more or less degree at all of these meetings."
He felt quite certain that Boloff attended at least one of these meetings.
The witness testified that, at the district convention which he attended as an elected delegate,
"We were instructed that we must concentrate upon the organizing in the different shops, mills, and factories, for the purpose of having control of those factories and mills and shops, so that in the event of revolution, or in the event of war, materialists' war, as they call it, that is, from one capitalist nation, as they term it, to another, that sabotage, the preventing of the transporting and manufacture of products necessary for the carrying on of that war, could be done; that they would have control of those industries, and we were further instructed that we must bring into the Party young comrades, young men that were native-born."
He further testified:
"The Communist Party urges very strongly that agitation be carried on within the armed forces of the United States, both the Army and the Navy and the Militia, for the purpose of getting control of the soldiers, the men in those organizations, and they say, `We tell them, we must tell them that instead of fighting for the bosses, for their Government, that they must turn their guns against their Government and against their officers, and go over to the side of the revolution. That during revolution — or that during invasion or war between the Soviet Union and the United States, we will not tell them to use their guns or to run away, to throw their guns away and desert, but we tell them to keep their guns and with as much ammunition as they can get, to go over to the side of the Red Army and fight against their own Army.'" *Page 580
After Bacon had recited the names of several books, leaflets, newspapers, and other publications which were distributed free or were purchasable at local headquarters, 312 Worcester building, he testified that all of the members were urged to read and to study these publications. Several of them were introduced in evidence from time to time, all without objection from the defendant; in fact, with his express approval. One of these booklets is entitled, "The A.B.C. of Communism." The following excerpts are taken from that publication:
"The fight, under such conditions, must end in victory for the working class. Sooner or later there is bound to be a collision between bourgeoisie and proletariat. The bourgeoisie will be hurled from their present commanding position; the proletariat will destroy the robber State and establish in its stead a Communist society of workers. The development of Capitalism, therefore, leads inevitably to the Communist revolution of the Proletariat. * * * It goes without saying that the bourgeoisie will not surrender their position without a fight. * * * The State is an organization. The bourgeois State is a bourgeois organization in which each minister the affairs of the army; and above these are Ministers drawn from the ranks of the rich classes, and so on. When the proletariat fight to acquire power, against what do they fight? Against the bourgeois organization in the first place. When they fight this organization their problem consists in finding that part of their enemy's defenses where their blows will take most effect. But as the chief power of the State lies in the Army, it is necessary, above all things, to undermine and destroy the Army in order to overcome the bourgeoisie. * * * The Army, which marches against the workers at the order of the generals of the bourgeoisie, must be destroyed, even if the last of our countrymen are killed in the process. The revolution means death to them in any case. We have *Page 581 therefore nothing to fear from the destruction of the bourgeois army; and a revolutionary must account it a gain to have destroyed the State apparatus of the bourgeoisie. * * * To say that the revolution can be achieved without civil war is to say that a `peaceful' revolution is possible. Those who believe in the possibility of a `peaceful' revolution, for example, the Mensheviks, who cry out against the waste of civil war, turn from Marx to the pre-scientific Socialists who believe that it is possible to `convert' the capitalists. As well believe that a tiger can be coaxed into feeding on grass and allowing calves to live in peace. Marx was a believer in civil war — that is, the armed struggle of the proletariat against the bourgeoisie. * * * The victory of the proletarian dictatorship can not be achieved without loss and suffering. The civil war, like every other war, demands sacrifices of men and materials. Such sacrifices are inseparable from any revolution. The best of the workers, instead of attending to their work and organizing production, will have to shoulder their rifles and go to the front to defend themselves against the landowners and militarists. Industry will naturally suffer from this. * * * Marx discoursed on that subject in the `Communist Manifesto' which closes with these words: `The Communists disdain to conceal their views and aims. They openly declare that their ends can be attained only by the forcible overthrow of the present system of society. Let the ruling classes tremble before a Communistic Revolution. The proletarians have nothing to lose but their chains. They have a world to win. Proletarians of all lands, unite!' * * * The proletariat must take a lesson from the bourgeoisie: they must destroy the bourgeois Fatherland, and not defend it or help to extend it; and they must defend their own proletarian Fatherland with all their strength, and to the last drop of their blood. * * * That is the danger to the proletariat which lies in the watchword of pacifism. The aim of pacifism is to turn the working class away from the armed fight for Communism.'" *Page 582
From "Communist International," another of the above mentioned publications, we quote:
"The conquest of power by the proletariat does not mean peacefully `capturing' the ready-made bourgeois State machinery by means of a parliamentary majority. The bourgeoisie resorts to every means of violence and terror to safeguard and strengthen its predatory property and its political domination. * * * Hence, the violence of the bourgeoisie can be suppressed only by the stern violence of the proletariat. The conquest of power by the proletariat is the violent overthrow of bourgeois power, the destruction of the capitalistic State apparatus (bourgeois armies, police, bureaucratic hierarchy, the judiciary, parliaments, etc.) and substituting in its place new organs of proletarian power, to serve primarily as instruments for the suppression of the exploiters. * * * When the revolutionary tide is rising, when the ruling classes are disorganized, the masses are in a state of revolutionary ferment, the intermediary strata are inclining towards the proletariat and the masses are ready for action and for sacrifice, the Party of the proletariat is confronted with the task of leading the masses to a direct attack upon the bourgeois State. This it does by carrying on propaganda in favor of increasingly radical transitional slogans (for Soviets, workers' control of industry, for peasant committees for the seizure of the big landed properties, for disarming the bourgeoisie and arming the proletariat, etc.). * * * This mass action includes: a combination of and demonstrations; a combination of strikes and armed demonstrations and finally, the general strike conjointly. * * * The Communists disdain to conceal their views and aims. They openly declare that their aims can be attained only by the forcible overthrow of all the existing social conditions. Let the ruling class tremble at a Communistic revolution."
From "The State and Revolution," another of the above mentioned publications, we quote:
"We have already said above and shall show more fully at a later stage that the teaching of Marx and *Page 583 Engels regarding the inevitability of a violent revolution refers to the capitalist State. It can not be replaced by the proletarian State (the dictatorship of the proletariat) through mere `withering away', but, in accordance with the general rule, can only be brought about by a violent revolution. * * * The substitution of a proletarian for the capitalist State is impossible without violent revolution. * * * All former revolutions helped to perfect the machinery of Government, whereas now we must shatter it, break it to pieces. * * * Such a course of events compels the revolution `to concentrate all the forces of destruction' against the State, and to regard the problem as one not of perfecting the machinery of the State, but of breaking up and annihilating it. * * * We have but to overthrow the capitalists, to crush with the iron hand of the armed workers the resistance of these exploiters, to break the bureaucratic machine of the modern State — and we have before us a highly technically-fashioned machine freed of its parasites, which can quite well be set going by the united workers themselves, hiring their own technical advisers, their own inspectors, their own clerks, and paying them all, as, indeed, every `State' official, with the usual workers' wage. * * * With such an economic groundwork it is quite possible, immediately, within twenty-four hours, to pass to the overthrow of the capitalists and bureaucrats, and to replace them, in the control of production and distribution, in the business of apportioning labor and products, by armed workers, or the people in arms. * * * Until the entire State organization is destroyed, the struggle will not end. That is its aim. * * * The Marxists recognize that when once the proletariat has won political power it must utterly break up the old machinery of the State, and substitute for it a new machinery of organized armed workers, after the type of the Commune. * * * The essence of revolution is not that a new class shall govern by means of the old governmental machinery, but that it shall smash up this machinery and govern by means of a new machine. * * * We are working *Page 584 for a complete destruction of the old machinery of government, in such a way that the armed workers themselves shall be the government, which will be a very different thing."
From the "Communist Manifesto", another of the above mentioned manuscripts, we quote:
"The Communist revolution is the most radical rupture with traditional property-relations; no wonder that its development involves the most radical rupture with traditional ideas. * * * In short, the Communists everywhere support every revolutionary movement against the existing social and political order of things."
From "`Left' Communism", another of the above publications, we quote:
"Undoubtedly, the leaders of opportunism will have recourse to all the tricks of bourgeois diplomacy, will appeal to the help of bourgeois governments, to priests, police, courts, in order to prevent Communists from entering the Trade Unions, by all and every means to put them out, to make their work inside these organizations as unpleasant as possible, to insult, hound and persecute them. It is necessary to be able to withstand all this, to go the whole length of any sacrifice, if needbe, to resort to strategy and adroitness, illegal proceedings, reticence and subterfuge, to anything in order to penetrate into the Trade Unions, remain in them, and carry on Communist work inside them, at any cost. * * * But those who can not coordinate illegal forms of the struggle with legal ones are very poor Revolutionists. It is not at all difficult to be a good Revolutionist once the Revolution has broken out — when all and everyone joins the Revolution from mere enthusiasm, because it is the fashion. * * * It costs the proletariat labor, great labor, and I may say excruciating pains, after the victory to rid itself of these pseudo-Revolutionists. But it is far more difficult, and yet more valuable, to know how to be a Revolutionist, even when conditions are yet lacking *Page 585 for direct, general, truly mass and truly revolutionary action; to be able to defend the interests of the Revolution by propaganda, agitation and organization, in non-revolutionary institutions and oftentimes in downright reactionary surroundings, among masses incapable of immediately understanding the necessity for revolutionary methods. To be able to find, to sense, to determine the concrete plan of still incomplete revolutionary methods and measures, leading the masses to the real, decisive, final, great revolutionary struggle — this is the chief problem of modern Communism in Western Europe and America."
From "The Communist Nucleus," another of the aforementioned publications, we quote:
"Our Party is a militant organization of the working class, and it is our aim that in each shop, factory, large store, etc., a Communist nucleus should be established that will consist of the most conscious vanguard devoted to the proletarian revolution. * * * We repeat that to win over the toiling youth and not to permit the bourgeoisie and its lackeys (from priests to `socialists') to poison their understanding with chauvinistic, religious or reformist nonsense, to organize them as a squad in the proletarian revolutionary army is the joint task of the Y W L and the Party."
From the July, 1929, issue of "The Communist," another of the aforementioned publications, we quote:
"We do not indulge in the social-democratic twaddle about disarmament. We will not tell the soldiers in the army to throw away their guns and run home. We tell them to hold their guns in their hands and use them against their own capitalist oppressors. When faced with an imperialist war as an accomplished fact we must be able to popularize definite revolutionary slogans among the armed forces. In case of a war between imperialist nations we raise the slogan of fraternization with the soldiers of the opposing army, refusal to obey commands of officers, mutinies, and other forms of disruptive work. In case of a war *Page 586 against the Soviet Union our main slogan will be different. We will then urge the soldiers in the imperialist armies to desert the army and with their guns and as much ammunition as they can get, go over to the side of the Red Army against the imperialist forces. While the capitalists prepare for another imperialist war, we prepare to utilize the difficulties for capitalism arising out of such a war in order to initiate the next stage of the world revolution. We realize that such a conflict requires careful preparation under the leadership of a determined Bolshevik party."
From the March, 1929, issue of "The Communist," we quote:
"The dictatorship of the proletariat is a resolute, persistent struggle, sanguinary and bloodless, violent and peaceful, military and economic, pedagogical and administrative, against the forces and traditions of the old society. The force of habit of the millions and tens of millions is a formidable force. Without a party of iron-tempered strength, without a party possessing the confidence of all that is honest in the given class, without a party capable of observing the disposition of the masses and of influencing them, the conduct of such a struggle is impossible. To defeat the great centralized bourgeoisie is a thousand times easier than to defeat `millions and millions of small owners (bosses) who in their daily imperceptible, intangible but democratizing activities achieve the very results desired by the bourgeoisie, which restore the bourgeoisie. Whoever in the least weakens the iron discipline of the Party of the proletariat (especially during its dictatorship) aids in fact the bourgeoisie against the proletariat."
From "The Communist International," one more of the above publications, we quote:
"Most serious attention should be paid to the practical side when organizing strikes; even the most trivial detail should not be neglected, as, with the ruling classes highly organized as they are, we can not organize *Page 587 strikes by agitation alone; a most thorough, persistent and all-round preparation is therefore necessary. The chief factors in this activity should be * * *. In the present stage of the international labor movement, strikes should infallibly be accompanied and supplemented by demonstrations which include the unemployed workers. The ruling classes are reacting to working-class revolutionary demonstrations with increasing nervousness. They are resorting more and more frequently to mass arrests, baton charges, and shooting. For the time being, the proletariat is not yet able to undertake the task of an armed struggle for the streets. But this by no means signifies that the workers should quit the streets under pressure of the armed forces of the ruling classes. * * * Powerful revolutionary demonstrations repulsing the police oppression, undismayed by the laws of the bourgeois state, should act as a stern warning against the war plans of the bourgeoisie. During the previous two campaigns the workers created the following main forms of preparation for the demonstration: * * * (3) As a rule the demonstrators should rally outside their own factory; (4) Each group of demonstrators should have its own (factory) defense force; (5) The defense corps should also take steps to hold up and disorganize the movement of police automobiles; (6) Demonstrators as a rule should avoid collisions with big forces of police and should disperse as they approach, and assemble in another place; small police detachments should not be allowed to hold up demonstrations; (7) Preparations for the demonstrations should be accompanied by intensive propaganda work among policemen and their families. * * * August 1st and March 6th aroused the whole capitalist state apparatus to action. The capitalist world must be shaken still more thoroughly by the political strikes and demonstrations of the First of May, 1930. This May Day should be marked by the conquest of the streets by the workers; should challenge the threats of capitalist terror; and should deal a forceful blow at the main stronghold of capitalism — international *Page 588 social-fascism. If the First of May demonstrations achieve these results — and the Communist Parties should strive for this with all their strength — then May the First, 1930, will go down as an important step forward in the development of the working-class offensive — in the fight against capitalist wage attacks, against imperialist wars, and in support of the U.S.S.R."
Bacon testified that the Communist party teaches the working men to organize the employees in the shops and factories, especially in the key industries, so that the party may be able to control such industries and be able to stop production in the event of a war between this country and the Soviet Union. He added that the membership was taught to cripple an industry by the use of sabotage in the event of a strike. The witness further testified:
"The policy of street demonstrations was to hold demonstrations, and if possible to have any fights with police — for instance, on our demonstration that was held here by the Communist Party on May 1, 1930, I was elected as a member of the bail committee, a committee of one, to keep out of the demonstration. In case any of the members were arrested, it was my duty to see that they were bailed out. * * *"
The witness testified that the party expects the arrival of the revolution at the following time:
"The Communist Party teaches that they must conduct an economic war, and that when enough workers get out of work and are hungry, by reason of the upset of economic conditions, that they are ripe for organization and are willing to fight, and they have no set time that I know of for the final end — the bringing about of the final part of their revolution. They claim that the revolution, of course, is being accomplished, is working out towards bringing about the violent overthrow, which is the final stage of revolution. * * *" *Page 589
The witness added that the party in expectation of the near approach of the violent conflict advocates the arming of working men thus:
"They speak of the people of the armed revolution, and they have stated at different times — for instance, in July, one of the speakers, J.W. Johnson, was a speaker at Fourth and Burnside, and he stated that `You won't have to worry about arms and to worry about getting the guns, about where to get the guns, when the time comes for a revolution.' He says, `There will be plenty of guns for you and there will be plenty of ammunition, and all you got to do is to organize into the Communist Party and you won't have to worry about where the arms come from. You will have plenty of them. They will be furnished you."
W.B. Odale, a member of the Portland police department, testified that he heard Moore, Walker, Levitt, and Johnson, all of whom had been identified by Bacon as members of the Communist party, authorized to speak in its behalf, deliver speeches in public places in the city of Portland in 1930, and that all of them urged the working men in their audiences to join the Communist party in support of the revolutionary movement. He further testified that in some of these speeches the speaker declared that the contemplated revolution could not be achieved without the use of violence.
Mr. Raphael P. Bonham, district director, United States Immigration Service, testified that he was familiar with the doctrines of the Communist party, which fact the defendant conceded. Without objection from the defendant, the witness testified that the Communist party advocated a revolutionary change in the form of the government of the United States "by an armed revolution." He added:
"It is their theory that the only way that the dictatorship of the proletariat can be established is by *Page 590 the abolishment of the capitalist system, and that the capitalist system and the Government is one, and therefore to reach the capitalists, so-called, they must destroy the Government, and the only way that the Government can be conquered and destroyed is by an armed uprising, a revolution. * * * Their plan is to organize the workers, so-called, and their sympathizers, and to teach them the theory of the organization, so that they may be better revolutionists, to put them into all the war-essential industries, into the American Army and Navy, into the National Guards, into every industry essential to the successful carrying out of war, and then at the opportune time, to turn upon their own government and seize the reins of government."
Further, he swore that the Communists advocate the use of street meetings as a means of solidifying the working class in opposition to the Government and believe that the demonstrations and strikes will grow in intensity until they finally develop the longed-for revolution. He added that the party advocates resistance to peace officers. He further testified that the Communist party aims "to bring about an armed revolution at the very first opportunity." Upon cross-examination, Bonham mentioned a large number of Communist publications which he had purchased at Communist party headquarters, and, being further pressed, read extracts from them. We shall not quote these extracts since their substance is not substantially different from the preceding quotations, except the following, taken from "The Sharpening of Imperialist Antagonisms": "An oppressed class that does not endeavor to possess arms and to learn to use them, would deserve to be treated as slaves." From "The International Labor Unions" he read:
"In this connection, it is important to keep in mind that the development of class consciousness among the workers is inseparable from the understanding that *Page 591 capitalism and the capitalist state are an identity, and that struggle against capitalism must, of necessity, be struggle against the capitalist state."
From "The Platform of the Class Struggle" he read:
"The Young Communist League does not limits its activity to the framework of `legality' ordained by the bourgeoisie. In its struggle against capitalism, the Young Communist League is continually compelled to combine its open legal activity with illegal and semi-legal work. * * * The work in the armed forces, which is a major task, must be extended and placed on a permanent basis. The program of soldiers' and sailors' demands must be improved so that it will really express their daily needs. Special activity must be carried on among the young workers in war industries, navy yards, ammunition centers, chemical plants and ports. The work in the C.M.T.C., other militarist and semi-militarist organizations, must be intensified."
The witness brought to a close his reading of excerpts from the various publications with the declaration that none of the Communist literature advocates a revolution by ballot, but always "by bullet."
The first assignment of error challenges a ruling of the Circuit Court which overruled the defendant's objections to an inquiry propounded to the aforementioned Odale, a witness for the State, concerning the substance of a speech delivered by the aforementioned Levitt in the Plaza blocks of Portland in August of 1930. Levitt, as we have already mentioned, had been described by Bacon as a member of the Communist party, authorized by it to speak in its behalf. The defendant objected to the portion of Odale's testimony wherein he stated (concerning Levitt's speech): "In response to questions as to how the revolution would be accomplished, Levitt said it would have to be accomplished by the use of — by the usual means of warfare." *Page 592
The purpose to which the State applied the challenged testimony was to establish its contention that the Communist party was a society which taught and advocated criminal syndicalism and the propriety of committing acts of physical violence as a means of accomplishing industrial-political ends and a revolution in the structure of our government.
Disposing of this assignment of error, it will be observed that Bacon, Odale, and Bonham had testified, without objection, to the substance of many other speeches made by speakers authorized to speak on behalf of the Communist party. Bacon told of having heard O'Hanrahan, Walker, Johnson, Kline, and others address assemblies of people in Portland, declaring that a revolution was in the offing, and that the working class must use armed violence to bring about a successful conclusion. He also testified that he heard a speaker on behalf of the Communist party declare: "You won't have to worry about arms. * * * There will be plenty of guns for you and there will be plenty of ammunition. * * * They will be furnished you." Bonham testified that he had heard several Communist speakers advocate revolution and mention violence in connection with it. Odale, before quoting from Levitt, gave the substance of two or three other inflammatory speeches made by the Communist speakers which he had heard. All of this testimony was received without objection of any sort from the defendant. It will also be observed that Levitt's remarks, as repeated by Odale, were very similar to the paragraphs taken from Communistic literature which we have quoted. In fact, the literature advocated the contemplated revolution in terms more violent than the language used by Levitt, and was far more specific in its *Page 593 reference to physical violence than was Levitt's language. It will also be recalled that a supply of this literature was maintained at Communist party headquarters in Portland and was sold or distributed at that place and at street gatherings. It will be further recalled that all of this literature was received in evidence without any objections whatever from the defendant; in fact, in many instances the defendant invited or encouraged the receipt of this evidence. There can be no question of the competency of this proof, and of the court's right to use it for the purpose of determining the character of the organization of which the defendant was a member: State v. Laundy, 103 Or. 443 (204 P. 958, 206 P. 290); State v. Pettilla, 116 Wash. 589 (200 P. 332); State v. Lowery, 104 Wash. 520 (177 P. 356). From the latter case, we quote:
"The defendant next complains that the court erred in receiving evidence tending to sustain the recitals in the information. This complaint is directed to some twenty-six exhibits offered and received in evidence over the defendant's objection. They consist of various written propaganda issued by the Industrial Workers of the World, much of which is inflammatory in character, and some of which had been taken from the person of the defendant at the time of his arrest. All these documents were sufficiently proven to have been issued under the authority of the Industrial Workers of the World, and were admissible for the purpose of showing the aims, objects and methods of that organization, and to prove the assertion that the organization was bent on forcibly, violently and anarchistically overturning and overthrowing the government of the United States. This was all admissible against the defendant, there having been introduced evidence sufficient to go to the jury establishing that the defendant himself was not only associated with, but was a member of such organization. The defendant claims that he is not responsible for the recitals contained in the *Page 594 exhibits. That is beside the question, because the defendant made these doctrines his own by accepting membership in the organization by which they were promulgated, and an exposition of whose principles they represent. They were also admissible on the theory that they were declarations of co-conspirators engaged with the defendant in the furtherance of an unlawful purpose."
In determining whether the court erred in the reception of the challenged testimony, the familiar rule governing the effect of alleged error comes to mind, that is, the admission of objectionable evidence is not cause for reversal where substantially the same evidence has been previously received without objection (Tyler v. Moore, 111 Or. 499 (226 P. 443);Meier Frank Co. v. Mitlehner, 75 Or. 331 (146 P. 796); Bluev. Portland Railway Light Power Co., 60 Or. 122 (117 P. 1094); or where the fact involved has been previously fully established by other evidence which is competent (Reid v. Yellow Cab Co.,131 Or. 27 (279 P. 635, 67 A.L.R. 1); L.B. Menefee Lumber Co. v.MacDonald, 122 Or. 579 (260 P. 444); Meridinial Co. v. Moeck,121 Or. 133 (253 P. 525); State v. White, 48 Or. 416 (87 P. 137); Siglin v. Coos Bay Co., 35 Or. 79 (56 P. 1011, 76 Am. St. Rep. 463); or if the fact involved has already been established by competent evidence and the challenged evidence is only cumulative in character; Christensen v. Reid, 116 Or. 554 (240 P. 1113, 241 P. 1009); Smith v. National Surety Co., 77 Or. 17 (149 P. 1040). See generally 4 C.J., Appeal and Error, §§ 2954, 2955 and 2956.
If we should concede that the challenged testimony was inadmissible it would necessarily follow from the application of the above rule that no prejudicial error was committed when defendant's objection was *Page 595 overruled, but we do not believe that the evidence was inadmissible. The statute which the State contended the defendant had violated provides:
"Any person * * * who shall be or become a member of, or organize or help to organize, or solicit or accept any person to become a member of, or voluntarily assemble with any society or assemblage of persons which teaches, advocates, or affirmatively suggests the doctrine of criminal syndicalism, sabotage, or the necessity, propriety or expediency of doing any act of physical violence or the commission of any crime or unlawful act as a means of accomplishing or effecting any industrial or political ends, change or revolution or for profit, is guilty of * * *." (§ 14-3, 112, Oregon Code 1930.)
We quote from State v. Pettilla, 116 Wash. 589 (200 P. 332), wherein the court passed upon a similar objection in a case based upon Washington's criminal syndicalism statute:
"The rule is: * * * that witnesses may testify as to statements and speeches and declarations made by members of the organization, or in their presence, at recognized meetings of the organization or assemblages of the organization in their various headquarters or halls, or in such places and on such occasions as are proven to have received the sanction and countenance of the organization, and that the witnesses may also testify as to conversations in which are revealed the principles and teachings, the purposes and objects of the organization, with members of the organization whose membership is shown by competent testimony, and whose membership is proven to be of such a character as to show it carried with it the authority of the organization to make such declarations as to its purposes, objects, principles and teachings."
No one contended that Levitt was not an authorized speaker for the Communist party. *Page 596
Laws such as the above partake of the nature of criminal conspiracy statutes: Whitney v. California, 274 U.S. 357 (47 S. Ct. 641, 71 L. Ed. 1095); State v. Lowery, 104 Wash. 520 (177 P. 355). The effect of one's entry into a conspiracy is to make the acts and the declarations of his associates, while engaged in the furtherance or execution of the common design, his own acts and words even though he was unaware of the identity of the co-conspirator who actually performed the desired act or uttered the necessary declaration: Spies v. The People, 122 Ill. 1 (12 N.E. 865, 17 N.E. 898, 3 Am. St. Rep. 320); State v. Milo,126 Or. 238 (269 P. 225); State v. Lewis, 51 Or. 467 (94 P. 831);State v. Ryan, 47 Or. 338 (82 P. 703, 1 L.R.A. (N.S.) 862); § 9-226, subd. 6, Oregon Code 1930; and State v. Lowery, supra.
The rule just stated can be readily applied to the case at bar. It will be observed from the evidence which we have quoted that the question propounded to Odale, and to which the defendant objected, was preceded by other evidence which showed that the defendant had voluntarily become a member of the Communist party in 1924; that his membership card stated that he had joined the revolutionary movement in 1922; that the same card contained excerpts from the statutes of the party declaring that the organization is of a revolutionary character; that each member of it must submit himself without reserve to the will of the organization, and especially to that of the ruling committees, so that the common goal could be achieved; that in the hall where the local unit met a large red flag of a character commonly regarded as signifying revolutionary purposes was prominently displayed; that August 29, 1930, at a meeting held in that room, *Page 597 with the defendant present, plans were made for a demonstration upon the streets of Portland and provision was made for overcoming anticipated police interference; that at the aforementioned place a variety of Communist literature was kept, sold, and distributed; that this literature was intended to foment revolution in the social, economic, and legal structure of our country; that the literature advocated the use of physical violence; and that several members of the party who were authorized to speak in its behalf made similar declarations in the above described meeting hall, and in addressing their audiences in public places in Portland. The above evidence warrants a conclusion that when Boloff joined the above organization he became a member of an illegal enterprise which was seeking to achieve unlawful purposes in unlawful ways through the joint efforts of the entire membership. (Compare Whitney v.California, supra, State v. Lowery, supra, and State v.Laundy, 103 Or. 443 (204 P. 958, 206 P. 290). The organization which he joined was, in fact, a conspiracy with a nation-wide membership. Different duties were assigned to the individual members; some contributed dues; others schemed and planned; some exhorted the membership; some addressed public gatherings; others edited Communistic publications; others distributed the literature, etc. From time to time all were expected to join in street demonstrations, foment strikes, and in other manners create dissatisfaction among working men, strife between employer and employee, and to induce the thought in the minds of employees that the government is the instrumentality of the "capitalist class" — the alter ego of "the bosses."
The plan further contemplated that the dissatisfaction and hate created would develop a condition propitious *Page 598 for revolution. At the opportune moment the revolution was to be called into effect just like Spies and his associates in Spiesv. The People, supra, expected to usher in their revolution by publishing the magic word "Ruhe" in the Arbeiter-Zeitung. The law, as we have seen, is well established that when men join such an organization with knowledge of its plans and purposes, each becomes liable for the words and acts of all put forth within the scope of the contemplated line of action. In the present instance, as the above evidence discloses, Boloff must have known the illegal purposes which the Communist party sought to serve. The general character of that party has been given such wide publicity that it is reasonable to assume, in the absence of evidence to the contrary, that any person of mature years and understanding would, after four years of membership in it, glean sufficient information about it to put him upon inquiry as to its illegal activities. (Compare People v. Flanagan, 65 Cal. App. 268 (223 P. 1014.)) Besides Boloff, who was born in Russia and remained a citizen thereof, naturally could be expected to possess knowledge of the nature of the Communist party. We, therefore, conclude that the challenged testimony was admissible and summarize our reasons as follows: (1) The evidence shows that the defendant was a member of the Communist party with knowledge of its unlawful plans. The rules relating to conspiracies are therefore applicable to his situation and vicariously charge him with responsibility for Levitt's declaration; (2) The substance of Levitt's remarks had been proved without objection by competent testimony coming from numerous other sources. Even if his statement was inadmissible, the error was nonprejudicial by reason of the rule previously stated. *Page 599
The second and fifth assignments of error, since they are controlled by the same principles of law, can be readily considered together. Each complains because the trial judge excluded items of evidence offered by the defendant without waiting for an objection from the State. In the first of these rulings the court held immaterial, and hence inadmissible, a page of the Oregon Journal, a Portland newspaper, which contained an editorial commenting upon the earnings of the American Telephone Telegraph Company and its operation in Portland, through a subsidiary without a franchise. In the second ruling, the judge interrupted a lengthy discourse by one of defendant's witnesses after she had completed her answer to a question propounded by defendant's counsel. The argument in support of these claims of error does not urge that admissible testimony was excluded. Contentions of the type now advanced are undeserving of patient treatment. To subscribe to any proposition that the trial judge can not exclude, upon his own initiative, an item of evidence manifestly inadmissible is to reduce the status of one who should be the chief official in the administration of justice to the condition of a mere automaton which moves and speaks only when put into action by others. Thus the judge instead of being a judicial officer would be reduced in rank to that of a mere moderator — presiding and announcing results but unable otherwise to participate. Clearly these assignments of error possess no merit. A number of authorities cited in the footnote at 16 C.J., Criminal Law, p. 885, § 2219, are in harmony with this conclusion. In Rex v. Powell, 27 B.C. 252, the Court of Appeals quoted with approval the following language taken from Rex v.Brooks, 11 O.L.R. 525: "It was argued that no objection was taken by counsel, *Page 600 and that is true, but if a mistake is made by counsel that does not relieve the judge in a criminal case from the duty to see that proper evidence only is before the jury." It should be unnecessary to buttress this conclusion with other support, but we add that after the court had ruled inadmissible the copy of the newspaper the district attorney tardily presented an appropriate objection in support of the court's ruling, and that the court's action in stopping the witness, who had continued to speak after having answered the question, had been preceded by objections made by the district attorney to like previous conduct upon her part.
The third assignment of error contends that the court erred when it refused permission to the defendant to introduce in evidence the aforementioned copy of the Oregon Journal. The offer was made during the cross-examination of W.B. Odale, the witness for the State already described. It is not contended that the editorial could have proved or disproved any item of the indictment, but the defendant argues that he desired to use it "to test the credibility of respondent's witness." His offer of proof accompanying the tender stated that the newspaper "gets to the question as to whether or not the U.S. is a capitalistic government; (2) that the witness Odale testified on direct examination that he is familiar, to a certain extent, with the teachings of the Communist party * * * and upon cross-examination the defense claims the right to ask the witness Odale whether or not the Communist party teaches the contentions set forth in the editorial." The defendant does not argue that the affairs of the telephone company were in any way involved in this case, and, of course, does not contend that Boloff or the Communist party wrote the editorial, endorsed it or accepted it as a text. We know of no authenticity *Page 601 attached to the editorial which would give it the status of a standard for determining the accuracy of Odale's testimony. A careful comparison of his testimony with the editorial fails to reveal that he testified to any fact or matter mentioned in the editorial. Hence, again, the latter could not have served as a comparison for determining the credibility of Odale. But, apart from all this, the issue for the jury's determination was not the profits of the telephone company and its right to operate in Portland without a franchise, but the problem whether the organization in which the defendant admitted membership employed and taught criminal syndicalism and the propriety of using violence for the purpose of gaining industrial and political ends. The court was guilty of no abuse of the discretion which it possesses in determining the extent of cross-examination when it declined to permit the introduction of the newspaper.
In the fourth and sixth assignments of error the defendant contends that the Circuit Court erred when it overruled his motions for a directed verdict; one of these motions was made at the conclusion of the State's evidence and the other came when both parties rested. We have already set forth a resume of much of the evidence presented by the State. In support of the plea of not guilty, the defendant depended largely upon the testimony of others. These testified, at times somewhat equivocally, that the Communist party does not advocate the use of violence, sabotage, and criminal syndicalism. They also denied that the party advocated the destruction of property, especially property useful as implements of production. They also declared that neither the defendant nor anyone else could bring about a revolution; that would come, they testified, as the result of natural laws already in operation, unless *Page 602 the capitalistic class obstructed the approaching result. They defined at length what they termed "the materialistic conception of history." The defendant testified that he had joined the Communist party because it constitutes "the working class organization" and because "they try to get better conditions." He denied knowledge of the meaning of criminal syndicalism and disclaimed a belief in the propriety of sabotage. He denied that he had ever committed any act of violence. Otherwise, he made no denial of knowledge that the Communist party teaches and advocates acts of the above character, nor any of the imputations made against that organization by the State's witnesses. Apart from the above, he made no contention that he was unfamiliar with the character of that society.
In support of the motion for a directed verdict, the defendant argues: (1) that the evidence failed to prove that the defendant "is personally guilty of anything"; (2) that the evidence failed to prove that the Communist party taught the doctrine of criminal syndicalism; and (3) that the Criminal Syndicalism Act, if applied to the facts in this case, is violative of the first and fourteenth amendments to our Federal constitution.
Disposing of these contentions, it is our opinion that in order to justify a verdict of guilt it was not necessary that the evidence should show that the defendant was guilty of anything more personal than his mere status of being a member of an organization of the type prohibited by section 14-3,112, Oregon Code 1930. We quote from State v. Laundy, 103 Or. 443 (204 P. 958, 206 P. 290), where Mr. Justice HARRIS, after pointing out that the original Criminal Syndicalism Act of this state (1919 Session Laws, p. 25) penalized *Page 603 only the act of one who shall "become a member of" a society which teaches criminal syndicalism, said: "The Legislative Assembly, which convened next after the assembly that passed chapter 12, Laws of 1919, reenacted the criminal syndicalism statute and that body of lawmakers was careful to make it unlawful to be a member, for the law now reads: `who shall be or become a member of, or organize or help to organize * * *'". And from Whitney v. California, 274 U.S. 357, which is a case wherein the Criminal Syndicalism Act of California was applied to one who had become a member of the Communist party, we quote:
"By enacting the provisions of the Syndicalism Act, the State has declared, through its legislative body, that to knowingly be or become a member of or assist in organizing an association to advocate, teach or aid and abet the commission of crimes or unlawful acts of force, violence or terrorism as a means of accomplishing industrial or political changes, involves such danger to the public peace and the security of the State, that these acts should be penalized in the exercise of its police power. * * * The essence of the offense denounced by the Act is the combining with others in an association for the accomplishment of the desired ends through the advocacy and use of criminal and unlawful methods. * * * That such united and joint action involves even greater danger to the public peace and security than the isolated utterances and acts of individuals is clear."
The proof in the case at bar showed that the defendant did something more than merely to join an organization which advocated violence. His membership book shows that he had already joined a revolutionary movement before identifying himself with the Communist party. It also shows that he consistently contributed to the party substantial sums of money; that he attended the meetings of the local unit; and that *Page 604 he remained in the meeting of August 29, 1930, when the use of violence against the public authorities of Portland was advocated and planned. This portion of the argument in support of a directed verdict is without merit.
Our previous review of the evidence clearly shows that the second subdivision of the defendant's argument is based upon a misconception of the facts; the proof with much cogency indicates that the Communist party taught and advocated the use of violence, crime, and sabotage as proper instrumentalities in the winning of industrial and political ends.
The third subdivision of the argument (that the act is invalid due to an alleged conflict with the first and fourteenth amendments to the Federal constitution) encounters adjudicated cases of controlling importance. In State v. Laundy, supra, this court held that the Criminal Syndicalism Act does not violate the constitutional provisions just mentioned. Our sister state to the north has held to like effect: State v. Hennessy,114 Wash. 351 (195 P. 211). Another recent decision is State v.Moilen, 140 Minn. 112 (167 N.W. 345, 1 A.L.R. 331). In Whitneyv. California, 274 U.S. 357, the identical argument that counsel submits to us was carefully considered and held ineffective, as was also done in Commonwealth v. Widovich, 295 Pa. 311 (145 A. 295). The defendant rests his argument entirely upon the remarks of Mr. Justice Brandeis in his specially-concurring decision in Whitney v. California, supra, wherein he held that the right of free speech and of assembly can be restricted only when the limitation is necessary to protect the State from imminent destruction or from serious injury. He, however, found that the conduct of Miss Whitney and her associates threatened danger to the state in such an imminent and *Page 605 serious manner that the application of the Act to her case did not violate any safeguards guaranteed to her by the fourteenth amendment. He also pointed out that if the defendant believed that the application of the Act to her conduct violated any provision of the fourteenth amendment, due to the absence of imminent threats of danger to the State, she could have requested special findings from the jury. In Schenck v. United States,249 U.S. 47 (39 S. Ct. 247, 63 L. Ed. 470), the court pointed out:
"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."
For a discussion see 76 Penn. Law Rev. 198. The evidence in the present case persuades us that the defendant and his associates in the Communist party were engaged in acts of serious consequence which contemplated the immediate use of violence and crime.
We conclude that the motion for a directed verdict was properly denied.
This leaves for determination only the instructions to the jury. Three of the defendant's requested instructions were rejected; assignments of error are predicated upon these rulings. The defendant also bases a claim of error upon an instruction which the court gave in response to an inquiry by a juror.
The first of defendant's proposed instructions states that it would not be a crime under the Criminal Syndicalism Act to "teach, advocate and affirmatively suggest the doctrine of criminal syndicalism, sabotage and the necessity, propriety and expediency of doing acts of physical violence and the commission of crime *Page 606 and unlawful acts as an end in themselves." The court properly rejected this proposed instruction. The "ends in themselves" must have had some purposes, and if the purposes were political or industrial they would fall within the prohibitions of the act. However, the court's instructions fully, carefully, and in language clearly understandable, expounded the meaning of the act.
The next requested instruction is based upon the court's refusal to instruct as follows:
"The Court instructs the jury that an honest mistake on the part of one who has become a member of an unlawful organization as to its nature and purposes is a defense. Therefore I instruct you that even if you should be convinced beyond a reasonable doubt and to a moral certainty that the defendant is guilty beyond a reasonable doubt and to a moral certainty of all the material allegations in the indictment, you must then inquire as to whether the defendant made an honest mistake as to the nature and purposes of the Communist Party of the U.S.A. when he joined that organization. And if there is a reasonable doubt in your mind, from all the evidence in the case, that the defendant Ben Boloff did not honestly understand the nature and purposes of the organization he joined, a verdict of not guilty must be returned."
It will be observed that the requested instruction predicated the question of guilt and of innocence as of the time "when he joined that organization." As we have previously seen, the act prohibits not only an entry into the membership but also a continuance therein. There was ample evidence to indicate that, after joining, the defendant must have become aware of the purposes of the organization, and as we have seen he did not deny such knowledge after the State had submitted its proof. We, therefore, conclude that the requested instruction was properly refused. *Page 607
The third requested instruction recited:
"The court instructs the jury that it is the theory of the Communist Party of the U.S.A. that change and revolution are inevitable by virtue of the operation of social and economic forces formulated into a theory known as the materialistic conception of history."
Continuing, the requested instruction declared that the Syndicalism Act does not render the teaching of such a theory a crime. It will be observed that the defendant thereby requested the court to adopt his construction of the evidence and pass it on to the jury as one which they must accept. The instruction was properly rejected.
The instruction given, to which the defendant excepted, informed the jury that criminal syndicalism as defined by our statute could be committed by teaching revolution and acts of violence against the sovereignty of the Federal government and of the other states, as well as against the government of Oregon. The defendant seems to believe that this instruction was tantamount to saying that a crime committed in any other state could be punished in this state. His construction of the court's language, we believe, is erroneous. The court's interpretation of the statute, as announced in the instruction, declared that an individual who in the state of Oregon advocated the use of violence as a means of effecting political and industrial changes in other states violated our Criminal Syndicalism statute. This interpretation was without error: The State v. Berquist,109 Kan. 368 (199 P. 101).
Defendant's brief closes with a protest — in capital letters — that the penalty imposed was too severe, and pictures him as an ignorant, hard-working sewer digger who had never previously been charged *Page 608 with a crime. In order to impose justly a penalty which will fit the demands of the situation the trial judge should take into account the nature of the defendant's moral training, his ethical environment, and his knowledge of the established principles of right and wrong. After having endeavored to acquaint ourselves with this defendant's background as it is meagerly revealed by the evidence, and taking account of the fact that much of the aforementioned literature bears the name and address of American publishing houses (in Eastern states) which apparently operate without molestation from the prosecuting officers, and that some of this literature is entered as second-class matter by the postoffice officials, it is difficult to understand why this humble offender who obviously occupies an obscure place in life should receive a penalty which is almost the maximum. Benjamin Franklin once declared, "Punishment inflicted beyond the merit of the offense is so much punishment of innocence." Were the scant information which we have concerning the defendant's past sufficient to produce certainty in our minds that the penalty is too severe, we might be justified in giving heed to this final plea, but, under the circumstances, we are compelled to resort to the rule that the nature of the penalty is intrusted, in the first instance, to the discretion of the trial judge, and, finally, to the mercy of the chief executive. It must be borne in mind, however, that the conviction of the defendant has been sustained by reason of proof which showed that the organization of which he was an active member, the Communist party, threatened immediate danger, through violence, to our industrial and governmental status.
It follows from the foregoing that the judgment of the circuit court must be affirmed.
BROWN, CAMPBELL and KELLY, JJ., concur. *Page 609