People v. Sherman , 59 Cal. App. 100 ( 1922 )

The defendant was convicted under an indictment presented to and filed in the superior court of Yolo County charging him with the crime of "criminal syndicalism," as said crime is defined by an act of the legislature of 1919, entitled "An act defining criminal syndicalism and sabotage, proscribing certain acts and methods in connection therewith . . . and providing certain penalties . . . therefor." (Stats. 1919, p. 281.)

He appeals from the judgment and the order denying him a new trial.

The transcript on appeal was filed May 25, 1922, the cause was placed on the calendar of the term of this court commencing on September 5, 1922, and the parties and their attorneys were previously and in due time notified thereof.

On the day last named the cause was regularly called for hearing and argument, but there was no appearance in behalf of the defendant. Nor was there then, or has there since been, a brief filed in this court, in support of the appeal, and, the legal time for filing a brief having long since expired, the cause, upon the motion of the attorney-general, was submitted upon the record.

[1] The record is voluminous, and, while we have not, as we are not required to do where the state of the appeal is such as it is herein, examined the record with the care or circumspection requisite in cases where the appeals are supported by argument, oral or written, we are justified in saying, from such examination of the case as we have given it, that we have not discovered any violation of the fundamental rights of the accused and that he seems to have been accorded a fair trial.

The indictment, following, substantially, the language of the statute, charges the defendant with the commission of acts declared by subdivisions 3 and 4 of section I of said statute as constituting criminal syndicalism, there being two counts in the indictment, the one charging the acts specified in subdivision 3 and the other the acts specified in subdivision 4. The verdict was based entirely on subdivision 3.

The evidence, of which a large amount was brought into the record, is of the same general character as that presented in the case of People v. Roe, 58 Cal.App. 690 [209 P. 381], and, as there, consisted largely of books, pamphlets, booklets, magazines, and other publications, containing statements of the general principles of the I. W. W. organization, of which the defendant was shown to be a member, and arguments supporting those principles and advocating, in the most vigorous fashion, the practical application thereof with a view of overthrowing our present system of government. There was also, as was so in the Roe case, introduced as witnesses certain ex-members of the I. W. W. organization, and they testified at length as to the violent methods advocated by said organization or the members thereof as the means for accomplishing the avowed ultimate purpose and end of said organization. These methods, according to those witnesses, involved acts of sabotage as the same are defined in the statute. But further reference to the testimony in this case is not necessary. It is sufficient to say that, from our examination of the evidence, the verdict is amply fortified, evidentially.

The charge of the court was full, fair and involved, generally speaking, a correct statement of the principles of law pertinent to the charge and the case as it was made by the proofs.

As to the rulings of the court upon the evidence, it is to be said that, if there was or is ground for complaint on that score, it has not, of course, been pointed out, and, under such circumstances, it does not rest upon this court to search the record for the purpose of ascertaining whether any such errors were made, and, if so, whether they are of sufficient magnitude to require a reversal. In fact, we may assume that the record is free from such errors or, for that matter, all errors of a prejudicial character, from the fact that counsel for the accused have not attempted to sustain the appeal, which may well be taken as a concession that no errors damaging to the substantial rights of the accused were committed by the trial court. (People v. Sanchez, 57 Cal.App. 133 [206 P. 760].)

The judgment and the order are affirmed.

Burnett, J., and Finch, P. J., concurred.