I concur in the judgment upon the ground first stated in the opinion, namely, that in the absence of a demurrer the fifth count of the information stated an offense. I also concur in the conclusion that there was evidence sufficient to establish the commission of such offense. The evidence shows that certain literature was displayed at a meeting conducted by the Industrial Workers of the World upon a table at which the defendant Casey was seated. The defendants claim that the evidence is insufficient to establish the connection of the other defendants with such display. The evidence showed that the defendants were all furthering the meeting in question and that they were thus aiding and abetting Casey. It is true that the verdict is not strictly logical for the jury acquitted the defendants of the charge that they belonged to the Industrial Workers of the World, but for the purpose of determining whether or not the defendants all participated in the crime of displaying the literature in question, the jury were entitled to consider all the evidence before them tending to show that the defendants were co-operating together in the display and sale of the literature in question.
The defendants refused the aid of counsel in the trial court. They did not call upon the district attorney to elect the particular book, document or circular relied upon by him for conviction, but allowed the case to be presented to the jury both in the evidence and in the instructions without specification of the particular instrument or instruments relied upon by the prosecution to establish the general charge set forth in the fifth count of the information. They do not now complain of this failure of the district attorney to elect and the court to point out in its instructions the particular instrument relied upon to establish the defendants' guilt under the fifth count of the information. In view of the failure of the defendants to request any more definite specification by the district attorney or by the court in its instructions, the judgment must be affirmed. *Page 243