Shaw v. State , 76 Okla. Crim. 271 ( 1943 )

Petition for rehearing with brief attached has been filed. In view of the extraordinary length of the brief and of some of the extravagant statements used by counsel in challenging the conclusions reached by a majority of this court in our opinion, we feel a further statement of the issues should be made.

Although counsel devotes several pages in his brief to what he terms the Communist menace and the obligation which he alleges this court owes to see that this menace to our government is checked, we again emphasize that we intend to dispose of the issues herein solely upon what we determine to be the applicable law and without any consideration of extrajudicial matter.

House Bill No. 17, passed by the 1941 Oklahoma Legislature, 51 O. S. 1941 §§ 31-35, is cited and stressed as emphasizing the inherent danger of the Communist Party. This act disqualifies members of the Communist Party from being elected or appointed to public office in Oklahoma. It was passed subsequent to the institution of the prosecution herein and probably as an outgrowth thereof. If there should have been anything in said act which would have affected the guilt or innocence of defendant, the same would not be considered by this court because of the constitutional provision placing a ban on passage of ex post facto laws. Constitution, article 2, sec. 15.

Counsel state that our opinion completely nullifies the criminal syndicalism statute. This is not true. It was our purpose to sustain the statute, but at the same time establish certain legal principles in accordance with the Constitution which would govern in its future application. There can be no question but that the Supreme Court of the United States has applied the clear and present danger test in all of their recent expressions where the scope of constitutional protections of freedom of speech, of the press, or of religious worship, were in issue. In reference to this test, the United States Supreme Court recently stated in Bridges v. State of California, 314 U.S. 252, 62 S. Ct. 190, 193, 86 L. Ed. 192:

"It has been utilized by either a majority or minority of this court in passing upon the constitutionality of convictions under espionage acts, Schenck v. United States, supra [249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470]; Abrams v. United States,250 U.S. 616, 40 S. Ct. 17, 63 L. Ed. 1173; under a criminal syndicalism act, Whitney v. [State of] California, supra [274 U.S. 357, 47 S. Ct. 641, 71 L. Ed. 1095]; under an 'anti-insurrection' act, Herndon v. Lowry, supra [301 U.S. 242, 57 S. Ct. 732, 81 L. Ed. 1066]; and for breach of the peace at common law, Cantwell v. [State of] Connecticut, supra [310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213, 128 A.L.R. 1352]. And very recently we have also suggested that 'clear and present danger' is an appropriate guide in determining the constitutionality of restrictions upon expression where the substantive evil sought to be prevented by the restriction is 'destruction of life or property, or invasion of the right of privacy.' Thornhill v. [State of] Alabama, 310 U.S. 88, 105, 60 S. Ct. 736, 745, 84 L. Ed. 1093."

Counsel contend that this test should not be applied to a prosecution under a criminal syndicalism statute. However, the above language of the United States Supreme Court shows that this principle is used as a guide whenever any of the personal rights safeguarded by the Constitution are put in issue.

The Bill of Rights belongs to all of the people and not merely to Communists or other unpopular minorities. It may be invoked by them at the moment, but its protecting arm is thrown about every citizen. If we let down the bars to make it easier to convict Communists, then the bars will be down as to all other citizens. All people benefit when courts insist on the maintenance of free speech and other constitutional liberties for men we dislike.

It should be borne in mind that the constitutional principles in question are relative and not absolute. By that we mean that in the realm of constitutional guarantees of personal liberties the guarantees remain, but their application must often be temporarily modified lest the security or very existence of the state be endangered. It is mere common sense to recognize that certain acts and utterances which it is unnecessary and unjustifiable to restrict or punish in times of peace must, in the plain interest of the nation's safety, be, controlled in time of war or quasi-war. Thus when no threat of war impends much leeway can be given to statements opposing recruiting for the armed forces and opposition to war. But with an enemy at the gate and when every nerve is strained to recruit a maximum number of men to fight for our very existence, no reasonable man could contend that a like easygoingness would be possible, although the actions and words are precisely the same. The written terms of the constitutional guarantee of free speech and press would not have altered; but the changed conditions would make its application, for the time being, very different. Once the courts let suppression get under way it spreads very fast and any group or organization is likely to fall a victim.

Our attention is directed to the ban placed by the Communists in Russia at the beginning of their rule upon all forms of religious worship. If present historical and political writers can be believed, these restrictions on religious worship have been greatly relaxed in the last five years. But irrespective of that, if we should adopt a construction of the statute in question which is insisted upon by counsel for the state, it is conceivable that this rule might at some time be invoked by a majority to persecute members of any of several religious organizations here in our own state, merely because they are composed of an unpopular minority. It is easy to recall that the wealthy men of Germany were delighted when Hitler began rounding up Jews and Communists and seizing their properties, and one of the wealthiest, Mr. Thyssen, the steel magnate, contributed large sums of money to help Hitler carry on this work. It was not long, however, until Thyssen had all of his property seized and he departed for Switzerland in a hurry, where he now spends his time writing articles telling how badly Hitler treated him.

It is always open to Americans to challenge in the courts a law which in its application to them abridges freedom of speech or assembly, by showing that there was no emergency justifying the application of the statute.

Vigorous language was used by counsel in objecting to that part of our opinion ruling that the books and papers introduced against defendant were improperly received in evidence. They again assert that these articles are self-identifying, referring to the same cases set forth in their original brief. We did not discuss each of these cases separately because it was apparent that they were not in point and we did not wish to add to an already lengthy opinion. At counsel's insistence we have again read these cases. In some of them the evidence was admitted without any objection on the part of defendants so that no question as to the admissibility of such evidence was before the appellate court. Albizu v. United States, 1 Cir., 88 F.2d 138; People v. McClennegen, 195 Cal. 445, 234 P. 91; People v. Ruthenberg,229 Mich. 315, 201 N.W. 358; People v. Chambers, 22 Cal. App. 2d 687,72 P.2d 746. In other cases cited, the objections were not properly made, so that the question of the admissibility of the evidence was not saved. People v. Johansen, 66 Cal. App. 343,226 P. 634; People v. Cox, 66 Cal. App. 287, 226 P. 14; People v. Lloyd, 304 Ill. 23, 136 N.E. 505. In still other cases, the defendants conceded, either at the trial or on the appeal, that the literature offered had been adopted by the organization involved, ratified by the defendants, and was thus binding upon them. Dunlop v. United States, 165 U.S. 486, 17 S. Ct. 375, 41 L. Ed. 799; State v. Tonn, 195 Iowa 94, 191 N.W. 530; People v. Powell, 71 Cal. App. 500, 236 P. 311; State v. Dingman,37 Idaho 253, 219 P. 760; State v. Hemhelter, 115 Wash. 208, 196 P. 581; State v. Payne, 116 Wash. 640, 200 P. 314. These admissions were direct statements accepting full responsibility for everything contained in the literature. In the remaining cases cited in the state's brief, proof, entirely lacking here, was received which established that the literature had been issued under the authority of the organizations with which the defendants were associated. State v. Laundy, 103 Or. 443, 204 P. 958, 206 P. 290; State v. Lowery, 104 Wash. 520, 177 P. 355. In some of these cases the judgments of conviction were reversed.

All of our discussion in the opinion concerning the books and pamphlets seized at the bookstore was directed solely to the question as to whether they might legally be used to show the principles of the Communist Party simply because they were found in a bookstore being operated by an alleged Communist and because some of the books themselves purportedly related some of the activities of the party.

The evidence showed by inference from written statements in the handwriting of one of the accused that meetings had been held with various organizations. What was said or done at any of these meetings was never sought to be shown. If the accused had asked anyone to purchase the books and explained that by reading them they would learn of the activities of the Communist Party, or if he had taken the books to one of the meetings and there sold or distributed them stating that they represented the views of his party, or if he had committed any act which, by reasonable inference, could be said to have shown that defendant had approved of the books as representing the views of his organization, then a sufficient. predicate would have been laid to have authorized the admission of the books in evidence for the purpose of showing the work and political aims of the Communist Party. As the record stands, the books might be admissible for some limited purposes but not admissible under a charge of belonging to a party that allegedly advocates criminal syndicalism for the purpose of showing that the views therein expressed were the views of such party.

The defendant's connection with one Robert Wood has been shown and it may be that there was sufficient conversation between Wood and Officer Webb at the time of Webb's purchase of the books to have shown a connection between the Communist Party and the literature in question. But if there were such conversation it was not developed in the evidence. All the record discloses is that Webb had been instructed to go to the bookstore and purchase certain books. He went to the store, called for the books, paid the purchase price and left. Webb was not asked in his examination by either the state or counsel for defendant if Wood had made any statement concerning the books which were purchased or any other books. It should be borne in mind that there were many other books in the store besides those allegedly pertaining to the activities of the Communist Party. Among other books were a large number of copies of the United States Constitution and autobiographies of many of the famous men in American history. Many of the books admitted in evidence did not mention the Communist movement by name. In fact, the books which are the most subject to criticism do not mention the Communist Party or Russian revolution, but are books relating the personal views of the author concerning historical events or the proper solution to certain social problems of the times mentioned in the book. Although the state contends that many of the authors of these publications were Communists, there is nothing in the record to so show.

After a thorough consideration of all of the matters, we are firmly convinced that the conclusions we reached in our opinion are correct and that the petition for rehearing should be denied and the mandate forthwith issued.

It is so ordered. BAREFOOT, J., concurs. DOYLE, J., dissents.