Petition for rehearing denied January 12, 1932 ON PETITION FOR REHEARING (7 P.2d 775) In Banc. The petition for a rehearing and the arguments advanced in its support have caused us to consider once more all of the issues presented by this appeal.
At the outset it may be well to take note of the provisions of the Criminal Syndicalism Act (§ 14-3,112, Oregon Code 1930) applicable to the charge made by the indictment. A reference to the acts and conduct which it prohibits will bring to mind more clearly the issues awaiting our attention. It will also *Page 611 be well to recall that it is the province of the legislature to declare what acts are injurious to the public welfare and to prohibit them by legislative enactment as crimes. When the legislature has spoken, judicial consideration of its enactments is limited to an inquiry whether the constitutional rights of the citizen have been invaded. If they have not, the statute must be sustained and effect must be yielded to it by the courts, even though the latter may seriously disagree with the wisdom of such enactments. A legislative act creates a rule for all; it is not an order or command to some individual; it is permanent, not transient. A law is universal in its application; not a sudden order to and concerning a particular person. The Act under consideration 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 a felony * * *."
Reduced to simple terms, the above law makes it criminal for any one to join or hold a membership in any society which teaches or advocates crime, sabotage or violence as a means of effecting a change or revolution in industry or government.
Defendant's briefs repeatedly mention the Communist Party and Boloff's membership in it; they seem to believe that he was convicted because of his faith in the doctrines of Marx, Engel and Lenine. *Page 612 That is untrue. His conviction was sustained because he belonged to an organization which advocated violence and crime as approved means of effecting changes in government and industry. The fact that that organization is entitled the Communist Party, that its headquarters are in Russia, and that it is avowedly sympathetic with the workingman are details of no consequence to this court. If the organization of which the defendant is a member had not advocated the use of violence the law would never have taken notice of him or of his society. Had he and his associates proceeded by the means pointed out by the Federal and the Oregon Constitutions they could have undertaken to effect any change in our system of government and of industry which they desired. They could have changed our republic into a purely communistic state with Boloff as its dictator. Only an approving vote by the American people was required, but that approval, evidenced by the necessary number of votes, is the all-important factor in changing our form of government: 6 R.C.L., Constitutional Law, p. 26, § 16. Violence, force or unlawful seizure of the reins of government are not recognized by the constitution and our laws:The People v. Lloyd, 304 Ill. 23 (136 N.E. 505). The framers of our constitution made abundant provisions for changes in our form of government by peaceful means. We quote from the words of Mr. Justice Pound in People v. Gitlow, 234 N.Y. 132 (136 N.E. 317), wherein he refers to the Communistic program enunciated in the party manifesto as published in the Revolutionary Age (copies of this document were kept in the party office in Portland):
"Such means, even though force and violence are disavowed, are not lawful, for the reason that the form of our government may be lawfully changed only by *Page 613 the vote of the majority of the people, expressed through the ballot by constitutional methods and that method of change is not the method advocated by the manifesto."
It is true that our forefathers wrested control from England by force, but at that time the law had provided no means whereby a change in government could be accomplished by ballot. After they had paid with blood and gold a fearful cost for effecting that change in government they wrote into the Constitution which they provided for their posterity a means of effecting future changes without the necessity of paying such a costly price. They provided the ballot. In the recent case of State v. Diamond,27 N.M. 477 (202 P. 988, 20 A.L.R. 1527), a statute, apparently aimed at sedition and insurrection, was held invalid because it failed to distinguish between opposition to government contemplating the use of force and that employing peaceful and legal methods. The court pointed out that the latter means are always available to any one who desires to effect a revolution. (See to like effect Stromberg v. People of State of California,283 U.S. 359 (51 S. Ct. 532, 75 L. Ed. 723, 73 A.L.R. 1484). And inFiske v. State of Kansas, 274 U.S. 380 (47 S. Ct. 655,71 L. Ed. 1108), the Federal Supreme Court reversed a judgment of conviction, previously sustained by the Supreme Court of Kansas, of a member of the Industrial Workers of the World because the proof failed to show that his organization contemplated the use of violence in its program looking to a change in industry.
But it is suggested that the proof failed to show that Boloff had committed an "overt act." An overt act is nothing more than a step taken by the accused which shows that he has begun to put his designs into execution. The overt act, so-called, must of necessity *Page 614 be some part of the crime, and to ascertain what acts constitute the crime we must look to the statute. Reverting to the Criminal Syndicalism Act, it will be observed that it does not employ the words "overt act" or any of their equivalents. "In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted." (§ 9-214, Oregon Code 1930.) Another section of our laws provides that the rules of the common law which demanded that penal statutes should be strictly construed have no application to our criminal code, but all of its provisions are to be construed according to the fair import of their terms: (§ 14-1043, Oregon Code 1930). It will be observed from the portions of the Act which we have quoted above that the only overt acts which that statute demands as proof of guilt are: (1) organizing a society which teaches or advocates crime, violence, etc.; (2) uniting in membership with a society already in existence; or (3) continuing a membership previously obtained. We are powerless to add additional provisions. In fact, if additional so-called overt acts should be added by the courts the Criminal Syndicalism Acts would be rendered useless. For instance, before their passage our criminal laws already included: (a) laws prohibiting attempts to commit crimes; (b) laws making penally liable those who aided and abetted the commission of crimes; and (c) conspiracy statutes. It must be evident that when the legislature enacted the Criminal Syndicalism Act it intended to prohibit conduct which was not reached by the aforementioned provisions of our criminal code. No decision which has come to our attention — and we have examined many — has demanded more proof than *Page 615 the defendant's membership in an organization which teaches or advocates violence and crime. For instance, in State v.Aspelin, 118 Wash. 331 (203 P. 964), the Washington Supreme Court, in referring to the Criminal Syndicalism Act of that state, said: "In passing this act, the legislature evidently deemed it necessary to put a stop to activities which would naturally result in crimes against persons and property, and made the mere membership in such an organization a crime." From Bergv. State, 29 Okla. Crim. 112 (233 P. 497), we quote: "`Treason' requires more than mere words to constitute the offense. It requires some overt act and proof by two or more witnesses, while the offense here defined is an offense which consists of words only." From People v. Ruthenberg, 229 Mich. 315 (201 N.W. 358), we quote: "This statute does not make criminality depend upon the commission of an overt act. It reaches those who advocate or teach the commission of crime as a means to accomplish an end, and those who, by choice, assemble with them. An overt act along the lines of such advocacy or teaching would constitute an entirely different crime punishable now by other laws of the State." In support of its conclusion, the Michigan court quoted from State v. Laundy, 103 Or. 443 (204 P. 958, 206 P. 290), wherein this court clearly indicated that membership or the act of joining would suffice. We are satisfied that nothing more is required. Many additional decisions, including the decision of the Federal Supreme Court in Whitney v. California,274 U.S. 357, as suggested in our previous decision, could readily be cited to like effect. Membership alone is sufficient.
It is next argued that our Criminal Syndicalism Act is wartime legislation, and, after having delivered himself of this assertion, the appellant urges that this *Page 616 court should somehow rid the statute books of this law. Even if the Act was enacted during the war, we fail to understand from what source would come our power to repeal or nullify it. The same body which enacts our laws is also the sole department of government which has the power of repeal, although the power to repeal is not as frequently exercised as the power to enact. Reluctance to legislative repeal ofttimes begets administrative nullification and at other times the courts, in order to save themselves the uninviting task of administering a judgment upon the accused which will shock the sense of justice, because the law has outlived its usefulness, resort to the creation of obstructing technicalities and thereby in effect repeal the statute. The latter, however, as they arise to plague the courts in subsequent administration of the criminal laws, have been the source of endless embarrassments. We possess no power of repeal or of nullification and will exercise none. The statute under consideration, when enacted ten years ago, received no dissenting vote. In the interval, five sessions of the legislature have convened and the State has had the services of five different governors, yet this Act has not been repealed, no bill seeking its repeal has been introduced, nor has any one of the five governors in a message to the legislature recommended its repeal. Similar legislation in other states has been frequently applied. We quote from 19 Cal. Law Rev. 64 (the reference is to the California Criminal Syndicalism Act): "Its enforcement began on May 6, 1919, and by August 15, 1924, 511 persons had been charged on information or indictment with violation of the law. Of these, 504 were arrested and 264 actually tried. One hundred were freed, 31 by acquittal and 69 by disagreement of the jury. One hundred and sixty-four *Page 617 were convicted, 23 receiving a suspended sentence, and 128 being sentenced to prison for one to fourteen years. Of the 114 who appealed from judgment of conviction 55 won reversals."
However, the Act was not passed during the war. It was enacted by the 1921 legislative session. The Armistice was signed November 11, 1918, and the treaty of Versailles June 28, 1919. The 1921 Act was preceded by another enacted in 1919 which, however, disappointed those who believed that no man should have a right to hold membership in a society which advocated crime, violence, sabotage or criminal syndicalism as approved means of effecting changes in government or industry because it failed to render unlawful anything but the act of joining. This disappointment was manifested when decisions of our circuit court pointed out that one who continued to retain a membership, procured prior to the enactment of the law, had done nothing in violation of the Act. These decisions created an insistent demand for legislation of a more effective type against such societies and caused the 1921 legislative assembly to repeal the 1919 Act and to enact the 1921 Criminal Syndicalism Act.
We believe it is a matter of common knowledge that the enactment of these statutes was brought about largely by public demand for legislation which would curtail the activities of the society known as the Industrial Workers of the World in the lumbering industry, and by fear of general strikes which at that time were being fomented by that and other organizations. The Seattle and Winnipeg general strikes were then recent occurrences. The lawmakers of this state evidently regarded organizations which preached violence, sabotage and criminal syndicalism as menaces to the law and order of this state. *Page 618
Bearing in mind that the statute under consideration renders it unlawful for any one to organize or join a society which takes as its objective the preachment and practice of crime, sabotage, criminal syndicalism and armed revolutions as approved means of bringing about industrial and political changes, let us see whether good reason can be found in support of such legislation. The science of medicine today endeavors to prevent disease rather than to step in after the patient has been attacked by illness. Cannot the State, through its legal machinery, endeavor to prevent crime just as it has made progress in the prevention of disease by its health departments? Ordinarily, the criminal law punishes the deed after its commission but, by ignoring definite manifestations of criminal tendencies, fails to prevent its occurrence. Resort to a homely adage will convey the thought we have in mind — we lock the stable door after the horse has been stolen.
The legislature of New York in 1902 gave us an illustration of legislation intended to prevent the commission of crime by intercepting those who plainly manifest a disposition to violate the public peace. In 1900, King Humbert of Italy was assassinated, and in 1901 President McKinley met his death by a similar means. The latter was assassinated at Buffalo by Leon F. Czolgosz, an anarchist, who for several years had been studying the doctrines of anarchy at the circles of anarchistic societies until he had become convinced that all men in high official positions were tyrants and should be removed. It was then seen that the teachings of Emma Goldman, John Most and other anarchists who preached the doctrines of that cult were actually capable of taking effect in the mind of a simple person and of moving him into action. Most, who was *Page 619 editor of a weekly newspaper called "The Freiheit," had published on the day of President McKinley's assassination, an article entitled "Murder vs. Murder" in which he extolled murder of public officials as a virtue. We quote from his article: "Let murder be our study, murder in every form. In this one word lies more humanity than in all our theories." See People v. Most (171 N.Y. 423, 64 N.E. 175, 58 L.R.A. 509), wherein the court, in referring to Most's language, declared:
"No one can foresee the consequences which may result from language such as was used on this occasion. * * * The courts cannot shut their eyes to the fact that there are elements in our population, small in number, but reckless and aggressive, who are ready to act on such advice and to become the assassins of those whom the people have placed in authority."
May 4, 1886, at the Haymarket in Randolph street in Chicago, occurred the Haymarket riot in which seven policemen were killed and sixty more were seriously wounded: 12 American State Trials 1. It was preceded for many weeks by a series of articles in radical newspapers which urged the use of violence against police officers, counselled preparation for revolution and explained the manufacture of powder, dynamite and bombs. The effectiveness of these articles was enhanced by speakers who, in inflammatory words, addressed meetings of discontented workmen, urging revolution: See Spies v. The People, 122 Ill. 1 (12 N.E. 865, 17 N.E. 898, 3 Am. St. Rep. 320, and 12 Am. St. Trials 1). After the conviction of Spies, Schwab, Fischer and others of those accused of bringing about the death of the officers, had been sustained (Spies v. The People, supra) and the convicted had been executed, Most, on the 12th day of November, 1887, that being the day following *Page 620 the execution, addressed a crowd in New York, exhorting them to avenge the death of those executed in Illinois, and after declaring, "I am an anarchist, and am willing to die for its cause," wound up by declaring, "Arise Anarchy! Long shall it live!" Following Most's speech, he was arrested and charged with a misdemeanor. His subsequent conviction was affirmed in Peoplev. Most, 128 N.Y. 108 (27 N.E. 970, 26 Am. St. Rep. 458.) The above two experiences with Most showed to the people of New York that one who used such inflammatory language, well calculated to incite others to action, could not be charged with anything more serious than a misdemeanor. This circumstance and a conviction that the teachings of Emma Goldman had caused the simple-minded Czolgosz to take the life of President McKinley moved the New York legislature, in the year following McKinley's assassination, to enact a law entitled the Criminal Anarchy Statute (for a copy see People v. Gitlow, 234 N.Y. 132 (136 N.E. 317)), which, while brief, is not unlike in principle the Oregon Criminal Syndicalism Act. In the same year New Jersey enacted a similar law: Freund, Police Power, section 478. Thus, we have the forerunner of our Criminal Syndicalism Acts. As proof of our assertion that the foregoing were the circumstances that caused the New York legislature to enact its criminal anarchy law, we quote from the language of Mr. Justice Pound in People v.Gitlow, supra:
"In 1902 the State of New York adopted the statute under consideration with this definition in mind. The assassination of President McKinley in 1901 had brought forcibly to the attention of the legislature that the publication of articles instigating revolution by the murder of public officials was punishable, if at all, only as a misdemeanor * * *. To nip in the bud the growth of anarchistic theories and to lessen the *Page 621 possibility of future anarchistic acts or attempts by those whose minds had been excited or poisoned by such publications, the teaching or advocacy of anarchy as then generally understood was made criminal."
However, as was pointed out in State v. Laundy, 103 Or. 443 (204 P. 958, 206 P. 290), even the common law regarded as a misdemeanor the act of one who incited another to commit a crime whether the crime was actually committed or not. And the law of conspiracies, to which criminal syndicalism statutes are often likened (Whitney v. California, 274 U.S. 357 (47 S. Ct. 641,71 L. Ed. 1095); State v. Lowery, 104 Wash. 520 (177 P. 355)), "go back to the very early pages of the history of the common law": 35 Harvard Law Review 393. As early as 1304, in the reign of Edward I, the statute known as Third Ordinance of Conspirators was enacted in order to amplify the common law. In the 1700s Parliament passed several acts prohibiting workmen from entering into combinations and conspiracies whose purposes were to advance wages, lessen the hours of work, etc. The legislation was intended to restrain those activities of workmen's organizations which would inevitably increase the prices of merchandise: Stephen's History of the Criminal Law, p. 206. The foregoing, we believe, indicates that the principle upon which Criminal Syndicalism laws are based is very old.
In 1916 the Commonwealth of Australia enacted a Criminal Syndicalism law. By 1922, 19 American states, as well as Hawaii and Alaska, had passed similar statutes. See 19 California Law Review, p. 64. Since that time many other states have enacted similar laws.
Bringing the above instances concerning the assassination of President McKinley and the Haymarket *Page 622 riot down to present times, it may be observed that had Princip, Chabrinovitch and their fellow conspirators been intercepted before they carried into execution their murderous designs upon Franz Ferdinand, Archduke of Austria, by shooting him to his death June 28, 1914, the World war possibly would never have been declared.
It is, of course, evident from the above that legislation of the type before us was enacted not for the purpose of denying to any one the right of teaching socialism, communism, or any other form of social, economic compact, but for the exclusive purpose of preventing the use of violence by forbidding membership in societies which teach it. Laws of this type are founded upon the principle that the moron, especially those who are class-conscious, and who believe that men in high places got there through imposition upon the toilers, are likely to translate into action the words of their voluble leaders. Czolgosz is described as a "simple, uneducated, foreign youth, an ordinary, industrious workman, without bad habits and honest in his relation with his fellowmen, but unhappily listening to the advocates of anarchy": 14 American State Trials, V. Laws of this kind also accept as granted the proposition that no one, whether intelligent or otherwise, has a right to advocate the commission of crime, the use of violence and the employment of sabotage. These laws go beyond that and insist that when men band themselves together into a compact organization their effectiveness for evil doing is increased. The will of the schemer is often carried out by the acts of the unthinking. We quote from one who made a study of the Czolgosz atrocity: "Why the notorious Emma Goldman, whose teachings inspired his crime, *Page 623 was not put in the dock with him is hard to explain, unless it was that the laws of New York were defective in this respect": 14 American State Trials, p. 6.
The problem now arises whether legislation of this kind based upon the above principles is violative of the sections of the Federal and Oregon Constitutions which grant the right of freedom of speech and of peaceable assembly. The clear reasoning and ample citation of authority in Mr. Justice HARRIS' decision in State v. Laundy, supra, ought to convince any inquiring mind that no conflict exists between this act and those constitutional provisions. The decision just mentioned states: "The Syndicalism Act does not violate the constitutional right to speak freely nor the constitutional right to assembly peaceably." In addition to the numerous authorities cited by Mr. Justice HARRIS supporting the validity of such statutes will be found collected in the following compendiums many additional decisions to like effect: 20 A.L.R. 1535, 1 A.L.R. 336, 19 Cal. Law Rev. 64, and 76 Penn. Law Rev. 198. And see also the cases cited in Berg v. State,29 Okla. Crim. 112 (233 P. 497). Due to appellant's insistence, we have once more carefully considered the contention that a conflict exists.
It is clear that freedom of speech is not an absolute right without limitation. It is not the equivalent of "unbridled license" as was pointed out in State v. Laundy, supra. It has its limitations. They are hard to define but exist nevertheless. We quote from State v. Boyd, 86 N.J. Law 75 (91 A. 586):
"The fundamental answer to the point raised is that free speech does not mean unbridled license of speech, and that language tending to the violation of the rights of personal security and private property, and toward *Page 624 breaches of the public peace is an abuse of the right of free speech for which, by the very constitutional language invoked, the utterer is responsible."
Mr. Justice Holmes in his dissenting opinion in Abrams v.United States, 250 U.S. 616 (40 S. Ct. 17, 63 L. Ed. 1173), defined freedom of speech as "free trade in ideas" and added "the best test of truth is the power of thought to get itself accepted in the competition of the market." Milton wrote thus of the capacity of truth to gain dominance over the false (2 Milton's Prose Works (1871 Ed.), p. 96): "And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and falsehood grapple. Whoever knew Truth put to the worse in a free and open encounter?" The ideal of free speech as defined by Judge Holmes, and as is illustrated by the quoted words of Milton, is an objective well worthy of national aspiration. When all within the nation have become Americanized and when all of our people have received schooling, not only in matters of common learning but also in the fundamentals of government as employed in a republic, these ideals will become realities. But, in the meantime, we have a practical problem. We are dealing with mankind as we know it. The entire history of our country readily demonstrates that the free exchange of ideas through the avenue of free speech can be confidently relied upon to reveal the truth, enthrone law and order, and show the wiser course of action for the nation to pursue; yet instances like that of Czolgosz, the Haymarket riot, and many others which come readily to mind indicate quite clearly that when truth finds itself in a race with that which is false, especially when the latter is championed in *Page 625 the secret meeting places of class-conscious, disgruntled fragments of a society by professional agitators, truth is often tardy in overtaking the vicious. In the delay which ensues before it has asserted itself the poisonous propaganda of the apostles of the false takes effect in creating turbulence and disorder. And as we have seen above, in one instance at least, it caused the assassination of a dearly beloved president.
The provisions of our constitutions which guarantee freedom of speech and due process of law are not the only undertakings of constitutional government. The Federal Constitution in its preamble states that the purpose of the Union is to "establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and * * *." The preamble of the Oregon Constitution is: "We, the people of the State of Oregon, to the end that justice be established, order maintained, and liberty perpetuated, do ordain this Constitution." Now, would it not startle the people of Oregon if this court should hold that the selfsame constitutions which announced purposes of establishing justice, insuring domestic tranquillity, and maintaining order renders it impossible to curb a society which teaches crime, urges the employment of violence, defends sabotage, and actually proposes to inaugurate at the first opportune moment a revolution by warfare? In fact, would it not be a surprise to the people of our state to be told that a document which announces the above purposes contains also a provision guaranteeing to those who teach crime, revolution, criminal syndicalism and sabotage, permission to go on unmolested by the law? And does it not seem anomalous that one who is so intolerant of the views of others, and too impatient to be willing to employ free speech to gain the votes needed to put *Page 626 into effect the changes in government which he champions, and who, therefore, proposes to achieve his ends by using violence, should believe that the defense of freedom of speech is available to him? Let us recall that the Communist Party adopted as its shibboleth: "Bullets, not ballots."
But, regardless of whether we might believe that freedom of speech should be expanded or narrowly confined, we are bound by the law as it exists. And it is too well settled to need the citation of authority that "freedom of speech" as expressed in the Constitution means freedom of speech as it was understood by the common law at the time when the Constitution was adopted.
The Pennsylvania court in Commonwealth v. Widovich, 295 Pa. 311 (145 A. 295), in referring to the Sedition Act of that state, said:
"The act does not emasculate political discussions. Government officers, the conduct of public officials and the laws themselves, may be criticized without fear of punishment, unless the statements should be maliciously false, and then punishment is meted out in the terms of injury to an individual. Remedies for the relief of supposed wrongs or the redress of grievances may be suggested and urged without fear of punishment, as provided by article I, section 20 of our Constitution. Books treating historically of past revolutions, of the doctrines of the various forms of governments, books and essays on sociology and economics, which treat on the various influences in government and their possible elimination, or their supposed peril, the writings of reformers, — all these may be safely offered for sale or taught as they are now in our educational institutions. Freedom of thought, speech and the press is as extensive since the passage of the act as it was before. The Sedition Act does not attempt to interfere with these rights; it contemplates a higher *Page 627 and broader ground. The danger line in utterances is reached when one strikes at the very foundation of organized society by inciting rebellion in an attempt to destroy it."
In Frohwerk v. United States, 249 U.S. 204 (39 S. Ct. 249,63 L. Ed. 561), Mr. Justice Holmes said:
"We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech."
The New York court in People v. Gitlow, 234 N.Y. 132 (136 N.E. 317), said:
"The first amendment to the United States Constitution and section 8 of article I of the New York State Constitution, which secure the freedom and liberty of speech and of the press, do not protect the violation of this liberty or permit attempts to destroy that freedom which the constitutions have established."
The same decision quotes from People v. Most, 171 N.Y. 423 (64 N.E. 175, 58 L.R.A. 509), thus:
"It places no restrain upon the power of the legislature to punish the publication of matter which is injurious to society according to the standard of the common law. It does not deprive the state of the primary right of self-preservation. It does not sanction unbridled license, nor authorize the publication of articles prompting the commission of murder or the overthrow of government by force."
From People v. Cox, 66 Cal. App. 287 (226 P. 14), we quote:
"A constitutional government contains within itself the method, the manner, and the power of constitutional change, and that change is always subject to the will, wish and prerogative of the majority of the people exercising the right of suffrage in a legal and constitutional manner. So long as these methods *Page 628 of procedure are open and may be advocated by anyone, it cannot with consistency be urged that the right of the press or of free speech is either curtailed or abridged by an act which limits the exercise of the effort to make such changes as may be desired by peaceable means. * * * One may freely state his reasons why a change in government is desirable, but he has no license by reason thereof to advocate the destruction of or take steps to incite others to destroy the property or imperil the lives of those who do not agree to such changes. One method is lawful, the other is not, because it strikes at the basis of all government, and denies the right of self-preservation. This does not presuppose the continuance of the existing order, but it does presuppose that the existing order, condition and structure of society shall be changed only by peaceable means, and that violence and destruction have no place in human government. We find nothing in the constitution of this state nor in the constitution of the United States which denies the right of the state to protect itself from violent assaults whether directed from within or from without."
From the recent decision of the Federal Supreme Court inStromberg v. People of State of California, 283 U.S. 359 (51 S. Ct. 532, 75 L. Ed. 1117, 73 A.L.R. 1484), wherein that court is referring to the constitutional provisions concerning freedom of speech, we quote:
"The right is not an absolute one, and the state in the exercise of its police power may punish the abuse of this freedom. There is no question but that the state may thus provide for the punishment of those who indulge in utterances which incite to violence and crime and threaten the overthrow of organized government by unlawful means. There is no constitutional immunity for such conduct abhorrent to our institutions."
From People v. Lloyd, 304 Ill. 23 (136 N.E. 505), being a case wherein the Illinois Criminal Syndicalism *Page 629 Act was applied to a member of the Communist Party who claimed that the law improperly restricted freedom of speech, the court said:
"It would be a strange constitution, indeed, that would guarantee to any man the right to advocate the destruction by force of that which that constitution guarantees to the people living under its protection."
From Whitney v. California, 274 U.S. 357 (47 S. Ct. 641,71 L. Ed. 1095), wherein the Federal Supreme Court sustained the conviction of Miss Whitney for a violation of the California Criminal Syndicalism Act, committed in the same manner charged against Boloff, the court said:
"That the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility, whatever one may choose, or an unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom; and that a state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means is not open to question."
We quote again from the Federal Supreme Court, this time from its decision in Ex parte Yarbrough, 110 U.S. 651 (4 S. Ct. 152,28 L. Ed. 274):
"That a government whose essential character is republican, whose executive head and legislative body are both elective, whose most numerous and powerful branch of the legislature is elected by the people directly, has no power by appropriate laws to secure this election from the influence of violence, of corruption and of fraud, is a proposition so startling as to arrest attention and demand the gravest consideration. *Page 630 * * * If it has not this power it is left helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption."
The argument that criminal syndicalism acts improperly impair the constitutional right of freedom of speech as enunciated in the specific portion of our constitutions which names the right, and also as embraced within the Fourteenth Amendment, have been so many times rejected that we shall refer no further to the decisions, but shall state their effect by employing the language of the Michigan Supreme Court (People v. Ruthenberg, 229 Mich. 315 (201 N.W. 358)):
"The reasons advanced here against the constitutionality of the act have been urged against similar acts in other jurisdictions and found to have no merit."
We shall bring to a close our consideration of the contention that the Criminal Syndicalism Act violates the constitutional provisions of free speech and peaceable assembly by employing the language of Mr. E.F. Albertsworth in 22 Illinois Law Review, 541, wherein the writer is reviewing the Federal Supreme Court's decision of Whitney v. California:
"On the other hand, growing out of some troublous experiences over a period of time, some states have ascertained that in abstracto this type of reasoning is fallacious; that, on the contrary, actually some groups or societies — particularly radical workingmen — are not so persuasive to the voice of reason as some believe, but that actual experience has demonstrated that where such individuals, with strong opinions on real or imaginary grievances, congregate under leaders who themselves are not of a `reasonable' disposition, a hot-bed or breeding-ground of direct action is present which has often led to serious acts of violence and terrorism. Hence, it is believed by this group of publicists that *Page 631 it is not unreasonable to prevent the formation, under criminal penalties, of such societies themselves, as well as membership in them; but leaving to those thus disposed to advocate violence, the complete right, in common with all other persons, of securing their objectives through appeal to reason and argument, the use of the ballot, and peaceable methods in general. Therefore, it would seem entirely reasonable for a state legislature, after investigation based upon evidence, to declare that in its opinion repression was both desirable and necessary of groups of all kinds — whether workingmen or non-workingmen — which advocate force for the accomplishment of their objects; and whatever arguments of undesirability or unsoundness are raised by doubting Thomases must be addressed to their constituents and not to the courts.
"Such is the viewpoint of the majority opinion in the instant case, which it has consistently maintained in analogous cases which have come before it in the past. From a constitutional standpoint, the conclusions reached seem impregnable; with reference to the desirability of such legislation, opinions will differ."
It must be evident from the foregoing — and we could readily multiply our citations — that the provisions of constitutional law which guarantee freedom of speech were never intended to justify the words of one who maliciously cried "Fire!" in a crowded auditorium, or of another who counselled crime, or of a revolutionist who sought to overthrow our government by force. By so holding, we deny to no one a privilege which he should cherish. To all is left untouched the right to appeal to reason. All may labor for revisions in our laws, and our constitution. No one is denied the right to seek any change in our form of government or of industry which he may desire. The law under consideration does not molest the advocacy, by peaceful means, of the program sponsored by the Communist *Page 632 Party. The ballot box is rendered even more safe when force and appeals to force are forbidden. The only thing denied is violence and appeals which incite direct action and exhort the commission of crime.
We come now to the contention that when the Criminal Syndicalism Act is actually put into application upon this defendant, under the circumstances revealed by the evidence, he is denied the benefit of the aforementioned constitutional guarantee. Although the evidence as reviewed in our previous decision clearly indicates that the Communist Party, through its literature and authorized speakers, advocated immediate, direct action upon its program of violence, still the defendant argues that the time had not yet come when this language must cease. The defendant's brief nowhere contends that the numerous publications distributed by his organization and the speeches made in its behalf were only jests, academic discussions, or "words, words, nothing but words." Some of the literature, as for instance, copies of the Communist Manifesto, which was introduced in evidence in this case, was denounced in the decisions of other courts cited in this opinion and actually brought about the conviction of the accused. It must be observed that in the consideration of this feature of the case the party program, more than the defendant, is on trial. The question for solution is: How long must the state wait before taking action when it is confronted with an organization which urges a revolution, insists that the workers arm themselves, which clamors for action, and whose local unit prepares itself for demonstrations and clashes with the police? We quote from The People v. Lloyd, supra, being an appeal by the defendant from a conviction which charged him with violation *Page 633 of the Criminal Syndicalism Act of Illinois, committed through his membership in the Communist Party:
"Plaintiffs in error seem to argue that the language of the Act must be such that the term `violence and other unlawful means' is limited to such unlawful acts as create a clear, real and imminent danger to the form of government now secured to this state, but this is not the true law. Of course, if the acts are too trivial for the law's notice and create no apparent danger and no perturbation in the peaceful order of things, then no crime is committed; but if the means advocated are apparently adapted to the end then the public peace, so far as advocacy is concerned, is as much disturbed as if they should be so actually. (1 Wharton on Crim. Law, 11th Ed., secs. 221-225; 1 Bishop's New Crim. Law, secs. 737-740). Manifestly, the legislature has authority to forbid the advocacy of a doctrine designed and intended to overthrow the government without waiting until there is a present and imminent danger of the success of the plan advocated. If the state were compelled to wait until the apprehended danger became certain, then its right to protect itself would come into being simultaneously with the overthrow of the government, when there would be neither prosecuting officers nor courts for the enforcement of the law."
From Gitlow v. People of the State of New York, 268 U.S. 652 (45 S. Ct. 625, 69 L. Ed. 1138), we quote:
"That utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion, is clear. Such utterances, by their very nature, involve danger to the public peace and to the security of the state. They threaten breaches of the peace and ultimate revolution. And the immediate danger is none the less real and substantial, because the effect of a given utterance cannot be accurately foreseen. The state cannot reasonably be required to measure the *Page 634 danger from every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the state is acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration. It cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disburbances of the public peace or imminent and immediate danger of its own destruction; but it may in the exercise of its judgment suppress the threatened danger in its incipiency. * * * In other words, when the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve such danger of substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil, is not open to consideration. It is sufficient that the statute itself be constitutional and that the use of the language comes within its prohibition."
The literature distributed from the local headquarters of the Communist Party and the speeches made by its authorized representatives in addressing crowds in Portland demanded direct action. Certainly a jury would have done no violence to the evidence had it made a special finding to that effect. The defendant asked for none. The nature of the literature and the diatribes of the speakers were not abstract discussions of warfare, of history, and of the destructive power of violence, but were forceful appeals to action. Repeatedly, the literature and the speakers denounced the ballot as meaningless to a Communist, and commended *Page 635 bullets as the proper course. In People v. Ruthenberg, supra, where similar evidence was under review, the court said: "They spurn the ballot and appeal to direct force." Direct action was demanded and it, in fact, constitutes the implement upon which the party relies to substitute a dictatorship of the proletariat for our present government. The State had the right to assume that the Communist Party meant what it said when it used the foregoing language. When one in strong words threatens the life of the individual beside him, the latter need not wait to see whether the murderous words will be carried into execution before he seeks the protection of a peace officer, but is justified in believing that such language will culminate in the threatened deed; and likewise the State was warranted in believing that the inflammatory literature and calls to action which poured forth from the local headquarters of the Communist Party were not mere vituperation nor the empty words of harmless, irrational men. Had the defendant believed that this issue could have been resolved in his favor he could have sought a special finding upon it, as suggested in Whitney v. California, supra. The same decision is also authority for the statement that the evidence was reasonably capable of supporting a finding in favor of the State. People v.Lloyd, supra, People v. Ruthenberg, supra, and People v.Gitlow, 234 N.Y. 132 (136 N.E. 317), and Gitlow v. People ofNew York, supra, may all be cited to like effect. We have mentioned the fact that a part of the proof placed before the jury was a copy of the Communist Manifesto. The latter document is thus described by Chief Justice Hiscock in People v. Gitlow, supra:
"As we read this manifesto, interspersed with sentiments and statements such as we have quoted, *Page 636 we feel entirely clear that the jury were justified in rejecting the view that it was a mere academic and harmless discussion of the advantages of communism and advanced socialism and a mere Utopian portrayal of the blessings which would flow from the establishment of those conditions. We think, on the other hand, that the jury were entirely justified in regarding it as a justification and advocacy of action by one class which would destroy the rights of all other classes and overthrow the State itself by use of revolutionary mass strikes. It is true that there is no advocacy in specific terms of the use of assassination or force or violence. There was no need to be. Some things are so commonly incident to others that they do not need to be mentioned when the underlying purpose is described."
The commonly accepted test for determining whether the accused's conduct constitutes such a threat of danger against the State that to apprehend him will not violate his right of freedom of speech is given in Schenck v. United States, 249 U.S. 47 (39 S. Ct. 247, 63 L. Ed. 470). The much-quoted language will be found in our previous decision. It is always a question of proximity and degree. When the threatening language has progressed to the point that it is creating a clear and present danger of action the State need not wait until the blow is struck, but may proceed to protect the public peace. It is our belief that this contention of the defendant lacks merit.
It is again argued that the circuit court erred when it permitted the witness Odale to repeat the portion of Leavitt's address mentioned in our previous decision. On behalf of the defendant it is argued: "It is probably true that the literature of the Communist Party was admissible in the Boloff case, but we believe that all testimony regarding either speeches or individual statements made by alleged members of the *Page 637 Party was hearsay and inadmissible." No individual statements were received over objection. The brief of amicus curiae concedes that the disposition of this assignment of error in our previous decision "is well fortified." It will be recalled that Odale's testimony was preceded by uncontradicted testimony which showed that the local unit of the Communist Party had designated Levitt as an authorized speaker. In other words, he was an agent of the society acting within the scope of his authority when he spoke. This circumstance clearly distinguishes this challenged testimony from the mass of inadmissible hearsay — 213 pages — commented upon in State v. Dingman, 37 Idaho 253 (219 P. 760), being the authority upon which defendant relies. There can be no distinction — affecting admissibility — between a written declaration and a spoken one. Moreover, it will be recalled that the Criminal Syndicalism Act renders unlawful membership in societies of only a certain kind; that is, societies which teach, advocate and affirmatively suggest crime, violence, sabotage, etc. Hence, it was incumbent upon the State to prove that the Communist Party "advocated" the use of violence. The court's order which permitted the State to offer in evidence this item of proof was nothing more than yielding to the State its right to prove the above element of the crime by the declarations of an authorized speaker. Citations in addition to those set out in our original decision could readily be added which hold that Odale's testimony was admissible for the purpose of proving the character of the society, but we believe that conclusion needs no further buttressing by the citation of authority. We add, however, to our previous citations, Burns v. United States, 274 U.S. 328 (47 S. Ct. 650, 71 L. Ed. 1077). In that case the Federal Supreme Court, in sustaining *Page 638 the conviction of a member of the Industrial Workers of the World for the crime of criminal syndicalism, explained in part the reasons for its conclusion that that organization advocated sabotage, thus:
"One of the witnesses testified: `I heard * * * a member of the I.W.W. say in a speech on May 10, 1923: `When you go back to work, if we do have to go to work, we will put on the wooden shoe.' Then he said: `In case you are loading telephone poles on a ship down there, sometime the boss is not looking you can slip a couple of poles crossways and then cover up, and then when that ship goes to sea naturally she will start rolling and the cargo will shift, and then she will come in listed like the one you see out in the harbor, then she has got to tie up to the dock, and she will have to unload the telephone poles and put them in again and put them straight, and then we will get paid for the loading originally, and get paid for unloading it and get pay for loading it again, and that will hit the bosses hard in the pocketbook.' The foregoing sufficiently shows the foundation of fact for the portion of the charge complained of."
The briefs argue that the enforcement of laws of this character do the State more harm than good, that the trial of the case inevitably gives publicity to the cause espoused by the accused, and tends to make him a martyr in the event of his conviction. This may be true. The trials of the early Christians instead of suppressing their teachings strengthened the voice of the disciples. It may also be true that prosecution drives the adherents of the faith from the open into secret, remote meeting places. But the problems arising from these circumstances are not for our solution. The argument should be addressed to other departments of the State government.
It is again urged that the circuit court erred when it declined to subscribe to an instruction requested *Page 639 by the defendant which contained the following language: "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." The instruction continued that if the jury doubted reasonably whether the defendant understood the nature of the organization "he joined" it should resolve the doubt in favor of the defendant. The court declined to give the requested instruction but told the jury: "You are further instructed that guilty knowledge of the defendant that the Communist Party of the U.S.A. did teach, advocate or affirmatively suggest any or all of said acts or doctrines named in the indictment is not an element of the offense." The defendant saved no exception to the portion of the charge just mentioned, but preserved an exception to the court's refusal to subscribe to the requested instruction. As pointed out in our previous decision, the requested instruction made guilt dependent upon whether the defendant was aware of the character of the Communist Party at the time "when he joined that organization." According to the evidence, Boloff joined in January, 1924, and, since the court instructed the jury that the statute of limitations rendered it impossible to bring in a verdict of guilt unless the alleged unlawful act was committed "on some date within three years prior to the date of the indictment," the requested instruction, had it been given, would have been tantamount to a directed verdict in favor of the defendant. The indictment alleged that Boloff committed *Page 640 the unlawful act, not by joining the Party in 1924, but by being a member on August 29, 1930. Hence, the exception which the defendant saved to the court's refusal to grant the requested instruction discloses no error. The defendant saved no exception to the instruction which the court gave. In State v. Laundy,103 Or. 443 (204 P. 958, 206 P. 290), Mr. Justice HARRIS pointed out very clearly that the only error reviewable by this court, except in rare instances, is error to which an exception has been saved. Occurrences which take place in the trial court, and to which the defendant voices no exception, may properly be deemed by both the court and opposing counsel as meeting with the defendant's approval. It is true that a rule of this court reserves to it "the right in furtherance of justice to notice upon its own initiative a plain error of law" but we do not believe that the facts warrant the application of that rule to the contention now before us. Can we assume that this defendant was unfamiliar with the nature and character of the Communist Party at the time of his arrest? Mr. Justice RAND recently declared: "Members of a corporation are, as a general rule, chargeable with knowledge of its by-laws and cannot plead ignorance of them to avoid their operation: 14 C.J., p. 347." (Doehler v. Lansdon, 135 Or. 687 (291 P. 392, 298 P. 200)). How then can this defendant, a member of the Communist Party, which is a non-stock corporation, be permitted to negative knowledge of its program which is not only set forth in vast masses of literature, but which has also been proclaimed and discussed everywhere? But if an issue exists let us once more revert to the facts. The defendant's brief admits that he joined the organization in January, 1924. He was not arrested until November 1, 1930. He was born in Russia and was still a citizen *Page 641 of that country at the time of his arrest. He described himself as being 37 years of age and stated that he had lived in Portland for 19 years. He added that he had found employment principally in construction work but had also worked in mines and in factories. At one time he had been employed in Alaska and at another time followed highway work in the state of Washington. The sewer work which he says he performed consisted of connecting the drain pipes of new dwelling houses with the main pipe in the street. Although he testified that he understood that the organization of which he was a member was a workingmen's society which was endeavoring to better conditions for the working man, he nowheres claimed ignorance of its program of violence and of revolution by force. The minority decision quotes a portion of Boloff's testimony but the omitted parts are more significant. Boloff attended meetings in the local hall where the red flag of revolution was constantly on display and where quantities of literature profusely illustrated with pictures of men bearing arms and engaged in violence were kept for distribution. According to the record, he attended at least one meeting where the use of violence was advocated by the speakers. According to his own testimony he was a frequenter of the Plaza Blocks in Portland where the Communist Party speakers held forth. There he became well acquainted with at least one of the officers of the society. His claim of ignorance was thus avowed by him: "I can't read, I can't write, and I can't speak English." We believe the conclusion is justified that no citizen of Russia, in the prime of life and possessed of enough intelligence to perform the various kinds of work in which Boloff has engaged, could remain a member of the Communist Party for six years and attend its meetings *Page 642 occasionally without becoming aware of the fact that that organization taught and advocated violence as a means of effecting changes in government and industry. For these reasons, we decline to apply the above mentioned rule of court. Had Boloff intended to present an issue upon the questions whether he was ignorant of the Communist Party's teachings upon violence after the State had produced the vast quantity of evidence as to the Party's program, and his familiarity therewith, he should have testified directly upon those points.
So far, we have expressed no opinion upon the question whether the instruction actually given correctly stated the law because the exceptions saved do not present that issue. But in State v.Laundy, supra, where the question was properly before the court and where Mr. Justice HARRIS considered the issue at length, this court said: "The statute neither expressly nor impliedly makes guilty knowledge or criminal intent essential elements of the crime."
We shall take occasion to express our opinion upon only one other matter argued in the briefs. Upon all other contentions our opinions are sufficiently expressed in our previous decision. We add, however, that it is altogether possible that the record of the trial court is not entirely free from error. It would be remarkable if a trial, lasting for three or four days, was conducted in such perfect adherence to the letter of the law that no one bent upon faultfinding could point to even a minor transgression of the rules of evidence or to a failure of the instructions faithfully to recite every detail of the substantive law applicable to the charge contained in the indictment. However, the purpose for which appellate courts were created *Page 643 was not that they should serve as a dragnet through the cumbersome records of trials in the hope of finding some technical deviation from the letter of the law. To the contrary, the purpose of a court of this kind is to ascertain whether the defendant had a fair trial under the law and whether his conviction is based upon substantial evidence. The brief ofamicus curiae, which we have read with interest, urges us to regard as error evidence which was received with the express approval of the defendant's attorney, and regard as erroneous instructions to which no exceptions were saved. The attorney who represented the defendant during the course of the trial has had several years of active practice and is capable of conducting a defense of this kind. During the course of the trial he was alert to protect the interests of his client. After having reviewed the entire record, we believe that it is free from error of the kind above described, and that the defendant's conviction is supported by substantial evidence.
We are again met with the argument that the penalty imposed upon the defendant by the trial judge was too severe. The brief of amicus curiae declares that the penalty violates Article 1, section 16, Oregon Constitution, which provides: "Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense." Similar contentions have been urged in other cases. For instance, Gitlow, who was the defendant in People v. Gitlow, supra, was sentenced to hard labor for a term of five to ten years (The Inquiring Mind, Chafee, p. 102) upon a charge that he had violated the New York Criminal Anarchy Act by publishing in The Revolutionary Age the Communist Manifesto. His contention that the penalty was too severe was disposed of by the Court of Appeals *Page 644 (234 N.Y. 132, 142) as follows: "Although I recognize that the sentence may have been heavy for the offense, yet I cannot see wherein any error has been committed." Miss Whitney, who was the defendant in Whitney v. California, supra, was sentenced to San Quentin prison for a term of one to fourteen years. (The Inquiring Mind, Chafee, p. 120.) Miss Whitney's offense was no greater than Boloff's. It arose out of her membership in the Communist Party and the fact that the proof showed that that organization proposed to employ violence. A reading of the Federal Supreme Court decision indicates that Miss Whitney was opposed to a program of violence and had urged the organization to employ political methods; that is, an appeal to the ballot box. The instrument of pardon for Miss Whitney by the governor of California described her as a woman who had performed much public service. The appellate courts did not discuss her penalty. Lloyd, who was the defendant in People v. Lloyd, supra, was sentenced to imprisonment in the penitentiary and to pay a fine of $2,000. He also argued that the penalty was too severe. In rejecting this contention, the Illinois court said: "When one considers the blessings of the form of government now secured to this state and nation, it is difficult to think of a punishment disproportionate to the offense of advocating the overthrow of our government by force and violence. * * * The courts have jurisdiction to interfere with legislation upon this subject only where there has been a great departure from the fundamental law and the spirit and purpose thereof, and a penalty imposed which is manifestly in excess of the constitutional limitations." In State v. Moilen,140 Minn. 112 (167 N.W. 345, 1 A.L.R. 331), the defendant had been convicted of a violation of the Criminal Syndicalism Act of *Page 645 Minnesota by advocating, through his membership in the Industrial Workers of the World, the use of sabotage. His contention that the penalty prescribed in the statute constituted "cruel and unusual punishments" within the contemplation of the Minnesota constitution was thus answered by the court:
"The term `cruel and unusual punishments,' as used in the constitution, has no special reference to the duration of the term of imprisonment for a particular crime, though it would operate to nullify the imposition, by legislation, of a term flagrantly in excess of what justice and common humanity would approve. The purpose of incorporating that particular provision in the constitution was to prevent those punishments, which, in former times, were deemed appropriate without regard to the character or circumstances of the crime, but which later standards in such matters condemned as unjust and inhuman; such punishments as burning at the stake, the pillory, stocks, dismemberment, and other extremely harsh and merciless methods of compelling the victim to atone for and expiate his crime. The intention was to guard against a return to such inhuman methods."
We add, however, that after the conviction of Miss Whitney and of Lloyd had been sustained, the governors of their respective states granted them pardons (The Inquiring Mind, Chafee, p. 133). Likewise, after Gitlow's conviction had been sustained by the Federal Supreme Court, he was pardoned (The Inquiring Mind, Chafee, p. 106). The record contains only the meager description of the defendant given by himself when he became a witness in his own behalf. We all know that before a sentence is imposed a careful judge apprises himself concerning the defendant's past life, his capacity to comply with the adopted standards and his former attitude towards law and order. We assume that such inquiries were made in the present instance before *Page 646 sentence was imposed and convinced the trial judge that the penalty was appropriate. However, this information concerning the defendant is no part of the present record and generally is omitted. Since we have none of this information, and since the circuit court's exercise of discretion in imposing the penalty has not been made the subject matter of an assignment of error, we are compelled to assume that the penalty is just.
In our previous decision, however, we expressed ourselves concerning the penalty thus:
"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."
We were drawn to the conclusion that possibly the penalty was too severe by the fact that much of the literature offered in evidence has been carried through the United States mails as second-class matter. Further, Boloff's offense, as described by the evidence, partook more of the nature of guilt by association than guilt by conduct. Guilt by association has not been regarded favorably in America as a means for determining an individual's worth (Freedom of Speech, Chafee, p. 262). There is a vast difference between the act of merely associating with lawbreakers and the *Page 647 conduct of one who obtains a membership in a carefully organized society which teaches the commission of crime and who makes contributions of money for the furtherance of its program. Next, the crime of conspiracy, which, as we have seen, has supplied criminal syndicalism acts with their primary principles, has not fared well in the administration of justice. This branch of the criminal law may very well be described as the quicksands of the law. It too frequently is subject to the shifting public sentiment which always affects matters pertaining to government. For instance, the seven justices of the United States Supreme Court who voted to sustain the conviction of the defendants inAbrams v. United States (250 U.S. 616 (40 S. Ct. 17,63 L. Ed. 1173)) are accused by Professor Chafee of the Harvard Law School of having done "a lasting injustice to the defendants" (Freedom of Speech, Chafee, p. 155), while the two dissenting justices have been sharply criticized by Dean John H. Wigmore of the Northwestern University Law School, for endeavoring to license "freedom of thuggery" (14 Illinois Law Review, 539). It must be evident that the defendant's contention does not warrant us in assuming any control over the penalty, and, since it is well settled that the imposition of the penalty rests within the exclusive discretion of the circuit court, we dismiss this phase of the case without further notice.
Having once more made a painstaking examination of the record, we find no reversible error. The defendant committed the act prohibited by the statute. It follows that the petition for a rehearing will be denied.
BROWN, CAMPBELL and KELLY, JJ., concur. *Page 648