I concur in the result and agree that the case should be reversed on account of the admission of testimony as set out in the majority opinion. I cannot, however, agree with all of the statements in the opinion. Some matters I think should be noticed.
The defendant devotes a great deal of his argument to the application of the criminal-syndicalism statute to the facts charged in the case, and also as to the question of the constitutionality of the statute. These matters are not determined in the majority opinion and it may not be necessary to determine them, but considering the extensive argument of the defendant, I believe it is desirable that we determine the applicability of the statute to the present case. It is my opinion that the statute applies to just such a situation as is charged in the indictment, and that the crime of syndicalism should not be limited to apply only to movements which are nationwide in their extent; that it is the incitement to crime by one who, by word of mouth or writing, advocates or teaches the duty, necessity, or propriety of crime, sabotage, violence, or other unlawful means of terrorism, as a means of accomplishing industrial or political reform, which is condemned by the statute, and that whether the reform sought to be accomplished applies to one controversy or to more than one, or whether it is general or only as to one situation, can make no difference. *Page 617
It has been suggested also that in the instant case the word "reform" could not apply, and that the intent of the legislature was that it should not apply to a case such as this. "Reform," however, has a definite meaning: the amendment of what is defective, vicious, corrupt, or depraved; a removal or correction of an abuse, a wrong, or error; and as a verb: to amend, correct, improve; to amend or improve by change of form; removal of faults or abuses; to restore to a former good state; to bring from bad to good or from worse to better. Webster's New International Dictionary. In its general sense it means "change." It has been legally defined as implying both the lessening of evil and the increasing of good (Little v. State ex rel. Huey, 137 Ala. 659,35 So. 134, 136); to correct, to make new, to rectify (McCorquodale v. State, 54 Tex.Crim. Rep., 98 S.W. 879,211 U.S. 432, 435, 29 S. Ct. 146, 53 L. Ed. 269, 270). Clearly it would seem that practically any change having for its ultimate object an improvement of conditions or an advance in wages would come well within the definition of "reform," and of course, if applied to wages or conditions of people employed in factories, would be industrial reform. Therefore it seems that the acts charged in the indictment come definitely within the provisions of section 12906 of the Code, which defines criminal syndicalism as the doctrine which advocates crime, sabotage, violence, or other unlawful means of terrorism as a means, of accomplishing industrial or political reform, and such acts so charged are within the provisions of Code section 12907, which forbids advocating or teaching the duty, necessity, or propriety of such unlawful acts, and includes controversies between employer and employee, or labor disputes. I would therefore hold that the court was right in its instruction No. 9, and that, as qualified, it brought the offense within the terms of the statute. It is not necessary, and I do not think there is any authority for the statement, that the statute must be so interpreted as to contemplate some fundamental change general or universal in extent. It is true and a matter of general knowledge that the I.W.W. contemplated radical changes in or disruption of the whole industrial structure, but convictions have been sustained where no such question entered into the case. In the present *Page 618 case there was a sit-down strike, accompanied by violence. That the violence and sabotage were not of great extent was fortunate. The only question is whether or not the unlawful acts were inspired, or as the State says advocated, by the defendant. My conclusion must be that the statute applies to the present case; that it is not necessary to show that the defendant advocated the overthrow of the government or the abolition of the capitalistic and wage system, and that the crime of criminal syndicalism does not require any such extreme limitation.
The question of the constitutionality of the statute arose frequently during the trial and is argued extensively by the defendant, who makes his third assignment of error as follows:
"Sections 12906 and 12907, Code of Iowa, 1935, are so generally vague, indefinite and uncertain, and contain no statements of fact or law constituting the offense charged in ordinary and concise language that would enable a person of common understanding to know what was intended by the statute, and are, therefore, void and unconstitutional, and contravene and are repugnant to the rights guaranteed the defendant by the Fifth andFourteenth Amendments to the Constitution of the United States, and sections Nine and Ten, Article One, of the Constitution of the State of Iowa, and therefore, the court was in error when it overruled the defendant's motion to set aside the indictment, the demurrer and motion to direct a verdict of not guilty made at the close of the State's case and at the close of the entire case, upon the grounds therein mentioned."
The principal claim, therefore, in this assignment of error is that the statutes are not so framed as to afford due process of law as required by the constitutional provisions referred to. I think that we should take notice of this assignment of error.
The question of the right of free speech is referred to. I do not think such question enters into the case. No one can or should consent to any abridgment of that right. But such right is not denied by laws which punish its abuse, or interference with the rights of others. We have laws forbidding slander, libel, and conspiracy, immoral plays and books, malicious threats, interference with the administration of justice, and many others, *Page 619 and no one contends that they deprive us of our constitutional rights.
Defendant cites various authorities that criminal statutes are to be strictly construed, and that penal statutes should not admit of such double meaning that citizens may act upon one conception of their requirements and the courts upon another. About this there can be no question. Defendant cites various cases, both in his original and reply argument. I merely refer to them: Yu Cong Eng v. Trinidad, 271 U.S. 500, 46 S. Ct. 619,70 L. Ed. 1059, involving a Philippine statute known as the Chinese Bookkeeping Act; State v. Tonn, 195 Iowa 94, 191 N.W. 530, but the constitutional question is not there discussed except in a dissenting opinion in which the writer states that it is unnecessary for the purposes of his dissent. Defendant also cites Connally v. General Construction Co., 269 U.S. 385,46 S. Ct. 126, 70 L. Ed. 322, which involved a statute requiring the current rate of wages; Cline v. Frink Dairy Co., 274 U.S. 445,47 S. Ct. 681, 71 L. Ed. 1146, a price-fixing statute; Collins v. Kentucky, 234 U.S. 634, 34 S. Ct. 924, 58 L. Ed. 1510; International Harvester Co. v. Kentucky, 234 U.S. 216,34 S. Ct. 853, 58 L. Ed. 1284, also a price-fixing statute. None of these cases supports his argument. Neither does Lanzetta v. New Jersey,306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888, in which case a statute providing for the punishment of gangsters is obviously indefinite. The case of Tedrow v. Lewis Son Dry Goods Co.,255 U.S. 98, 41 S. Ct. 303, 65 L. Ed. 524, which follows the opinion in United States v. Cohen Grocery Co., 255 U.S. 81,41 S. Ct. 298, 65 L. Ed. 516, also involving a price-fixing statute, also is cited. United States v. Reese, 92 U.S. 214, 23 L. Ed. 563, referred to appropriate legislation to carry into effect theFifteenth Amendment to the Constitution. None of these cases refers to any holding of any court in regard to criminal-syndicalism statutes. Several other cases are cited, including De Jonge v. State of Oregon, 299 U.S. 353,57 S. Ct. 255, 81 L. Ed. 278, which held that the Oregon statute as applied to the particular charge as defined by the state court is repugnant to the due-process clause of the Fourteenth Amendment. The charge was limited to defendant's participation in a meeting called by the communist party, and the opinion sets out that *Page 620 the court sustained the conviction upon that basis regardless of what was said or done at the meeting. Chambers v. State of Florida, 309 U.S. 227, 60 S. Ct. 472, 84 L. Ed. 716, was based on a confession improperly obtained. Carlson v. People of State of California, 310 U.S. 106, 60 S. Ct. 746, 84 L. Ed. 1104, involved a county ordinance forbidding the display of banners. Thornhill v. State of Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093, was a picketing case. Fiske v. State of Kansas, 274 U.S. 380,47 S. Ct. 655, 71 L. Ed. 1108, was reversed for the reason that the supreme court will review the finding Of facts by a state court where a federal right has been denied as the result of a finding shown by the record to be without evidence to support it; and the syndicalism act in that case was applied to sustain the conviction on the evidence, without any charge or evidence that the organization in which the defendant secured members advocated any crime, violence, or other unlawful acts, and that thus applied the act was an arbitrary and unreasonable exercise of police power. In Herndon v. Lowry, 301 U.S. 242, 57 S. Ct. 732,81 L. Ed. 1066, a conviction under a statute of Georgia was reversed, but the application of the statute was what was condemned. It was not the statute which was held to be a violation of the right of free speech so much as the application of it to the facts in the case.
The constitutionality of the criminal-syndicalism statutes has often been assailed, but we do not think that in any case the statutes have been held invalid for the reasons urged by the defendant in his brief. A number of cases have arisen involving their constitutionality, and I merely refer to them here. See, State v. Moilen, 140 Minn. 112, 167 N.W. 345, 1 A.L.R. 331; State v. Quinlan, 86 N.J.L. 120, 91 A. 111; State v. Boyd, 86 N.J.L. 75,91 A. 586; State v. Fox, 71 Wash. 185, 127 P. 1111, subsequently affirmed in 236 U.S. 273, 35 S. Ct. 383,59 L. Ed. 573; State v. Holm, 139 Minn. 267, 166 N.W. 181, L.R.A. 1918C, 304 (relating to a statute making it a criminal offense to advocate that men should not enlist in the military forces); People v. Most, 171 N.Y. 423, 64 N.E. 175, 58 L.R.A. 509 (sustaining a statute prohibiting the publication of an article advocating the murder of rulers by poison and dynamite). See, also, People v. *Page 621 Gitlow, 234 N.Y. 132, 136 N.E. 317, 268 U.S. 652, 45 S. Ct. 625,69 L. Ed. 1138; Ex parte McDermott, 180 Cal. 783, 183 P. 437; People v. Malley, 49 Cal. App. 597, 194 P. 48; People v. Steelik,187 Cal. 361, 203 P. 78; People v. Taylor, 187 Cal. 378,203 P. 85; Whitney v. People of State of California, 274 U.S. 357,47 S. Ct. 641, 71 L. Ed. 1095; State v. Worker's Socialist Pub. Co.,150 Minn. 406, 185 N.W. 931; Application of Moriarity, 44 Nev. 164,191 P. 360; State v. Laundy, 103 Or. 443, 204 P. 958. The foregoing cases apply more particularly to what may be termed seditious acts, except as to the New Jersey case. Syndicalism as a crime has been expressly passed upon in various cases and in several states. See State v. Hestings, 115 Wash. 19, 196 P. 13; State v. Hemhelter, 115 Wash. 208, 196 P. 581; People v. McClennegen, 195 Cal. 445, 234 P. 91; People v. Wagner, 65 Cal. App. 704,225 P. 464; People v. Cox, 66 Cal. App. 287, 226 P. 14; Burns v. United States, 274 U.S. 328, 47 S. Ct. 650,71 L. Ed. 1077; State v. Dingman, 37 Idaho 253, 219 P. 760; People v. Ruthenberg, 229 Mich. 315, 201 N.W. 358 (writ of error dismissed,273 U.S. 782, 47 S. Ct. 470, 71 L. Ed. 890); Berg v. State,29 Okla. Crim. 112, 233 P. 497.
For the reasons given and from an examination of the foregoing cases, which assailed the constitutionality of the statute from nearly every angle, I would hold that the statute as enacted is constitutional and is applicable to the charges made in this case.
I am authorized to say that JUSTICES MILLER and OLIVER join in this special concurrence.