People v. Malley

The defendant was indicted for violating chapter 188 of the Statutes of 1919, commonly known-as the Criminal Syndicalism Act. He was found guilty and sentenced to imprisonment in the state prison. This appeal is from the order denying the motion for a new trial, and in arrest of judgment, and from the judgment of conviction

The indictment charges that the defendant circulated and publicly displayed certain books, papers, pamphlets, documents, and other printed and written matter, in his possession and custody, and under his control, containing and carrying written advocacy, teaching and advising of criminal syndicalism. The defendant interposed a demurrer to the indictment which was overruled. It is contended, on this appeal, that the ruling of the lower court was erroneous, appellant claiming that the indictment does not state facts sufficient to constitute a public offense, and that it does not contain a statement of the acts constituting the offense charged, in ordinary and concise language, in such manner as to enable a person of common understanding to know what is intended; and further, that it is faulty in neither setting out nor identifying the books, papers, pamphlets, documents, and other printed and written matter the defendant' is charged with circulating and publicly displaying.

Section 1 of the act defining criminal syndicalism and sabotage, and prescribing what acts and methods in connection therewith amount to a violation of its provisions (Stats. 1919, p. 281), defines the term “criminal syndicalism” to be “any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, .sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.” It is declared in section 2, subdivision 3, that any person who “3. Prints, publishes, edits, issues or circulates or publicly displays any book, paper, pamphlet, document, poster or written or printed matter in. any other form, containing or carrying written or printed advocacy, teaching, or aid and abetment of, or advising, criminal syndicalism . . . is guilty of a felony and punishable by imprisonment in the

[1] Omitting the necessary formal parts, the indictment charges that the defendant did “willfully, unlawfully and feloniously circulate and publicly display, certain books, papers, pamphlets, documents and other printed and written matter, then and there in the possession, custody and under the control of him, the said James P. Malley, containing and carrying written advocacy, teaching and advising of criminal syndicalism, to wit: advocating, teaching and advising the commission of crime, sabotage and other willful and malicious damage and injury to property, and unlawful acts of force and violence, and unlawful methods of terrorism as a means of accomplishing a change in industrial ownership and control, and effecting political changes.” This averment, it will be noted, substantially follows the language of section 1 and section 2, subdivision 3 of the statute, by the terms of which the commission of the acts, alleged in the indictment, is made a criminal offense. In support of the sufficiency of the indictment the attorney-general cites In re McDermott, 180 Cal. 783 , [ 183 Pac. 437 ], wherein on an application for a writ of habeas corpus the supreme court said that the complaint, or deposition, in almost the exact language of the pleading in this case stated an offense under the provisions of the “act defining criminal syndicalism.” But, in the later case of Whitney v. Superior Court, 182 Cal. 114 , [ 187 Pac. 12 ], the court said that the objections to the sufficiency of the information to state a public offense fell within the rule announced in In re Ruef, 150 Cal. 665 , [ 89 Pac. 605 ], in which it was held that where an indictment purports, or attempts, to state an offense, the question whether the facts charged are sufficient will not be

To hold that the indictment does not state a public offense would be to say that the statute defines none, for, as we shall presently show, the former follows and employs almost the precise language of certain sections of the act. The language of the statute and of the indictment being the same, the latter must be understood in the same sense as the former. (People v. White, 34 Cal. 183 , 186). In enacting the Criminal Syndicalism Act, the legislature declared in one of its provisions that it concerns and is necessary to the immediate preservation of the public peace and safety. [2] It has power to repress whatever it deems hurtful to the general good, the only limitations being those prescribed in the constitution. (Ex parte Andrews, 18 Cal. 679 , 682.) This precise question was very recently considered by the supreme court of the state of Minnesota. Every objectioh, we think, urged against this indictment was made there in an attack upon the constitutionality of a statute, so similar as to be almost identical in many respects with ours. It was there squarely held that no right granted or secured to the citizen, by either the federal or state constitution, was taken away or in any way impaired by the act. The opinion aptly disposes of much of appellant’s argument here as is shown by the following quotation: “The design and purpose of the legislature in the enactment of the statute was the suppression of what was deemed by the lawmakers a growing menace to law and order in the state, arising from the practice of sabotage and other unlawful methods of terrorism employed ... in furtherance of industrial ends and in adjustment of alleged grievances against employers. The facts surrounding the practice of sabotage, and like in terrorem methods of self-adjudication of alleged wrongs, are matters of common knowledge and general public notoriety of which the courts will take notice. That they' are unlawful and within the restrictive power of the legislature is clear. Sabotage, as practiced by those advocating it as an appropriate and proper method of adjusting labor troubles embraces, among other lesser offensive acts, the willful and intentional injury to or destruction of the property of the employer in retaliation for his failure or refusal to comply

“It is the exclusive province of the legislature to declare what acts, deemed by the. lawmakers inimical to the public welfare, shall constitute a crime, to prohibit the same and impose appropriate penalties for a violation thereof. With the wisdom and propriety thereof the courts are not concerned. (State v. Shevlin-Carpenter Co., 99 Minn. 158 , [9 Ann. Cas. 634, 108 N. W. 935 ]; Clark & Marshall on Crimes, par. 41.) Judicial consideration of enactments of the kind is limited to the inquiry whether the constitutional rights of the citizen have been invaded or violated. If such rights-be in nowise infringed or abridged, the statute must stand, however harsh it may seem to those who run counter to its commands. It requires no argument to demonstrate that the subject matter of this statute was and is within legislative cognizance, vesting in that body the clear right to prohibit the advocacy or teaching of the iniquitous and unlawful doctrines which it condemns.” (State v. Moilen, 140 Minn. 112 , 114, [ 1 A. L. R. 331 , 167 N. W. 345 , 346].)

The supreme court of California has said that no reason for holding the act beyond legislative power is obvious to it. (In re McDermott, 180 Cal. 783 , [ 183 Pac. 437 ].) None is made to appear to us, in so far as its provisions are material in this case.

The rules by which the sufficiency of the pleadings in criminal actions is to be determined are those prescribed by the Penal Code of this state. [3] Under its provisions an indictment or information is .only required to contain a statement of the acts constituting the offense, with which a defendant is charged, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. If the particular circumstances of the offense charged are necessary to constitute a complete offense, the pleading must be direct, and certain in that regard. The words used are to be construed in their usual acceptance in common language, ex

In keeping with the broad construction placed by it upon the action of the legislature, in establishing the more liberal method of pleading in criminal cases, the supreme court, from the start uniformly held, in respect to indictments generally, that they were sufficient, in matter of averments, if they contained allegations of all the acts, or facts used by the legislature in defining the particular offense charged. (People v. Cronin, 34 Cal. 191 , 208; People v. Murray, 67 Cal. 103 , [ 7 Pac. 178 ]; People v. Rozelle, 78 Cal. 84 , 90, [ 20 Pac. 36 ].) Shortly after the Penal Code was adopted the court held that none of its sections changed the rules of pleading so as to require a more specific allegation of the means employed in the commission of an offense than was necessary under the former statute. (People v. Weaver, 47 Cal. 106 , 107.)

[4] As corollary to these rules of construction, and ever mindful of the lack of care on the part of prosecuting officers, in the preparation of pleadings in criminal matters, to which Chief Justice Murray called attention in the early case of People v. Thompson, supra, the court has as consistently held that while it is a fact that the rules of the common law with respect to criminal pleading have been greatly relaxed in this state by legislation and judicial decision, and many of the formalities and particulars formerly deemed necessary are not now required, there are certain fundamental principles which have neither been abrogated nor modified. A defendant is still entitled to be apprised with reasonable certainty of the nature and particulars of the crime charged against him, that he may prepare his defense, and, upon acquittal or conviction, plead his jeopardy against further prosecution. A defendant is entitled, under any statute, to a clear statement of the offense with which he is charged. (People v. Lee, 107 Cal. 477 , 480, [ 40 Pac. 754 ]; People v. Webber, 138 Cal. 145 , 149, [ 70 Pac. 1089 ]; People v. Bergotini, 172 Cal. 717 , 720, [ 158 Pac. 198 ].)

Several separate, different, and distinct acts are enumerated in the Criminal Syndicalism Act, the commission of each or any of which constitutes a specific offense, though the same crime, and the defendant, in order to make his defense, was entitled to know what wrong he was charged

Had this defendant been charged with merely committing an act of criminal syndicalism in general terms, his objections would be well taken, but he ’was charged with the commission of a public offense by an indictment, the words of which he, and all others, were bound to construe in their usual acceptance in common language, except the word “sabotage, ’ ’ which carried with it the definition and legal meaning given to it by the statute. (Pen. Code, sec. 957.) He was informed in ordinary and concise language of the acts constituting the alleged crime. No other circumstances were necessary to constitute a complete offense. Bound, as we are, by the unbroken line of authorities in this state to the effect that only in exceptional cases, of which this is not one, is it necessary to do more than set out the offense in the language of the statute, we must hold this indictment sufficient. It contains, in a clear and concise statement, allegations of all the acts and facts used by the legislature in defining the particular offense with which the defendant is charged. According to the established rules of pleading the defendant was informed of the nature and cause of the accusation against him. (Burton v. United States, 202 U. S. 344 , 372, [6 Ann. Cas. 362, 50 L. Ed. 1057 , 26 Sup. Ct. Rep. 688 , see, also, Rose’s U. S. Notes].)

[6] The indictment did not specify or identify the books, papers, pamphlets, documents, and other printed matter

It was not necessary to specify the books, papers, pamphlets, or documents alleged to have been circulated and displayed by the defendant, in order to protect him from a second prosecution for the offense. If he should be again prosecuted for the offense, he may plead his conviction in the manner provided by the code, and establish the identity of the cases by evidence, the burden being upon him. (People v. Faust, 113 Cal. 172 , 176, [ 45 Pac. 261 ]; People v. Burke, 18 Cal. App. 72 , 81, [ 122 Pac. 435 ].)

The appellant contends that the evidence in this case is insufficient to warrant his conviction. He was shown to be a member and the secretary of the San Francisco branch of the Industrial Workers of the World, an international organization, or movement, commonly known and designated as the “I. W. W.” As such secretary he was in charge of its headquarters and the place of assemblage .of the members of the organization. On tables and in bookcases in the rooms were openly displayed, and exposed for sale, large quantities of pamphlets and other printed matter, in order to purchase any of which it was necessary to consult the defendant, who stated to a number of persons previous to his arrest that it was “for sale.” There were introduced in evidence as being part of the printed matter thus offered for sale by the defendant: A copy of “The One Big Union Monthly,” a magazine published by the General Ex

We do not think it is necessary to make long quotations from these various publications, which were introduced in evidence, in order to illustrate the nature of their contents. One excerpt from the pamphlet “The Revolutionary I. W. W.,” by Grover H. Perry, will suffice. The pamphlet de fines the I. W. W. organization as a “labor union that as

“The Industrial Workers of the World is an international movement; not merely an American movement. We are ‘patriotic’ for our class, the working class. We realize that as workers we have no country. The flags and symbols that once meant great things to us have been seized by our employers. Today they mean naught to us but oppression and tyranny. As long as we quarrel among ourselves over differences of nationality, we weaken our cause; we defeat our own purpose. The practice of some craft unions is to bar men because of nationality or race. . . .

“Organizing a New Social System.—The I. W. W. is fast approaching the stage where it can accomplish its mission. This mission is revolutionary in character. The preamble of the I. W. W. constitution says in part: ‘By organizing industrially we are forming the structure of the new society within the shell of the old.’ That is the crux of the I. W. W. position. We are not satisfied with a fair day’s wages for a fair day’s work. Such a thing is impossible. Labor produces all wealth. Labor is therefore entitled to all wealth. We are going to do away with capitalism, by taking possession of. the land and the machinery of production. We don’t intend to buy them, either.”

As was well said by the writer of the opinion in Kumpula v. United States, 261 Fed. 49 , 52, [ 171 C. C. A. 645 , 648], in commenting upon this identical language: “If the preamble and constitution of the organization are correctly expounded by the Perry pamphlet, the flag of the nation means only ‘oppression’ and ‘tyranny,’ and the ‘mission’ and purposes of the I. W. W. organization are to be accomplished by force, violence, and other unlawful means.”

We have already alluded to the design and purpose of the legislature in the enactment of the statute. “Sabotage,” in the ordinary sense of the word, means the “malicious waste or destruction of an employer’s property by workmen during labor troubles.” (Webster’s New International Dictionary,

Appellant’s arrest, and subsequent conviction, followed not long after the enactment of the law. When arrested, the defendant declared that he was not a citizen of the United States, and that he had no desire to be one. A copy of the Criminal Syndicalism Act, under which this prosecution is lodged, was posted conspicuously upon the wall in the headquarters. We are satisfied from the record that the defendant distributed the literature under his control and in his possession with full understanding of its nature; and this, of itself, furnished a ground for attributing to him an intent to bring about, and for finding that he was thereby attempting to bring about, any and all such consequences as might reasonably be anticipated from its distribution. (Pierce v. United States, 252 U. S. 239 , 249, [ 64 L. Ed. 542 , 40 Sup. Ct. Rep. 205 , 209].)

[9] During the trial the court admitted in evidence on behalf of the prosecution certain translations from Russian writings, and a copy of “I. W. W., Its History, Structure and Methods, by Vincent St. John,” which were found in the desk of the defendant. Later, upon the suggestion of the district attorney, they were withdrawn. The court thereupon ordered the exhibits stricken out, and instructed the jury to disregard them. Defendant contends that preju-' dicial error resulted from the admission of these exhibits, which was not cured by their subsequent withdrawal, and the instructions of the court. He fails to point out, however, where any error resulted, relying merely upon People v. Derbert, 138 Cal. 467 , 470, [ 71 Pac. 564 ], which deals with alleged misconduct on the part of the district attorney, in persisting, against the ruling of the court, in asking improper questions. The decision has no bearing on the facts of the case at bar. In the absence of any affirmative show-

[10] Appellant’s last contention is that the court erred in reading all of sections 1 and 2 of the Criminal Syndicalism Act in its charge, instead of instructing the jury that the defendant was only charged with violating subdivision 3 of said section 2, which specifically relates to the printing, publishing, and displaying of certain printed matter. The court, however, read the indictment in full, and charged the jury that it must find the defendant guilty “of the crime as set forth in the indictment beyond all reasonable doubt,” or not at all. This was a sufficient express limitation of the terms of the act to the allegations contained in the indictment. (Hargrave v. State (Tex. Cr.), 30 S. W. 444 ; Simons v. State (Tex. Cr.), 34 S. W. 619 , 620; People v. Young, 44 Cal. App. 279 , [ 186 Pac. 383 ].)

The defendant was charged with a public offense in an indictment which was sufficient for that purpose. His guilt was established to the satisfaction of the jury upon evidence of sufficient probative force to warrant the conviction. No miscarriage of justice resulted from any matter occurring in connection with the overruling of the demurrer. or rulings of the court during the trial.

The orders denying defendant’s motions for a new trial, and in arrest of judgment, and the judgment are and each is affirmed.

Richards, J., and Beasly, J., pro tem., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on November 6, 1920.