State v. Boloff , 138 Or. 568 ( 1931 )

Chapter 34, Gen. Laws of Oregon, 1921, referring to criminal syndicalism, has been denounced by some as invalid, and by others as denying equal justice and contravening our constitutional guaranty against cruel and inhuman punishment. This statute was long ago determined to be constitutional: State v. Laundy,103 Or. 443 (204 P. 958, 206 P. 290). It is the function of the Legislative Assembly to discern and correct evils: See Or. Const., Art. 3, § 1.

At the Third Session of the Seventy-first Congress, under House Resolution 220 a committee was created by the House of Representatives of the United States to investigate the activities and propaganda of the Communists in this country. On January 17, 1931, after holding many hearings this committee filed its report and recommendations wherein, after setting out in detail the principles and aims of communism, it is stated:

"Communism has also been defined as an organized effort to overthrow organized governments which operate contrary to the communist plan now in effect in Russia. It aims at the socialization of government, private property, industry, labor, the home, education, and religion. Its objectives are the abolition of other governments, private ownership of property, inheritance, religion, and family relations."

The report of this committee also refers to, and quotes at length from, a memorandum submitted to the United States Senate on January 21, 1924, by Hon. Charles Evans Hughes, now Chief Justice of the Supreme Court of the United States, in his then capacity of Secretary of State, and, continuing, says:

"There is a sharp distinction between the right to advocate in an academic way any doctrine we like, and the right, which is not a right under any reasonable interpretation of our Constitution, to preach and plan the overthrow of our republican form of government by force and violence."

In Whitney v. California, 274 U.S. 357, a case relating to criminal syndicalism, Mr. Justice Brandeis, in a specially concurring opinion, wrote:

"To justify suppression of free speech, there must be reasonable ground * * * to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still further."

Similar to our own law defining and denouncing syndicalism is the statute defining "Unlawful Associations" in Canada, appearing on pages 114, 115, Crankshaw's Criminal Code of Canada (5th Ed.).

In a case prosecuted at Toronto, the witness chiefly relied upon was Sergeant John Leopold, a red-coated officer of the Royal Canadian Mounted Police, who, after secretly joining the "Unlawful Associations," had for seven years sat in the councils of Canadian Communists and had risen to be an official of the organization. It is reported that the prosecution offered batches of documents seized in raids on Communists headquarters, which established that the Canadian Communists were financed by money from Moscow, and that the organization had as its object the overthrow of the Canadian government by force and violence. As a result of the trial seven of the defendants received five-year and two-year sentences, to run concurrently, and the eighth a one-year and a two-year sentence, also to run concurrently. For a full discussion of the case, see The Literary Digest, November 28, 1931, page 15. This occurred in the Dominion of Canada, where ancient liberties are protected, and laws are enforced.

In the case at bar, the defendant was fairly tried, adjudged guilty, and sentenced. It is obligatory upon this court to enforce the law as it is written by the law-making power. We have not the authority to modify by construction the statute under which the defendant has been convicted. Nor can we entrench upon the power of the Executive by commuting the sentence or pardoning the defendant.

While it may be asserted that the sentence of ten years in this case was severe, I am of the persuasion that the court committed no reversible error in the trial thereof. I therefore concur in the opinion prepared by Mr. Justice ROSSMAN.