State v. De Jonge , 152 Or. 315 ( 1935 )

Dirk De Jonge was convicted of having violated the criminal syndicalism act of this state and sentenced to serve a term of seven years in the penitentiary, notwithstanding the recommendation of the jury for leniency. It is, indeed, a terrible price to pay for warped ideas. With all deference to the conscientious trial judge who imposed such sentence, and for whom I have a high regard, it seems to me that the sentence has no reasonable relation to the offense alleged to have been committed. No act of violence was involved in the case. De Jonge has never before been convicted of crime. However, it is only fair to say that for many years he has been identified with radical organizations and is generally looked upon as an agitator.

In my opinion, this court, in the interests of justice, should, under and by virtue of Art. VII, § 3 of the Oregon Constitution, materially reduce the penalty. Such is the practice in Oklahoma, by virtue of its Code of Criminal Procedure (§ 3204 Okla. Stats., 1931), when the appellate court concludes that an excessive penalty has been imposed: Welch v. State, 20 Okla. Crim. 190 (201 P. 524); Fritz v. State, 8 Okla. Crim. 342 (128 P. 170). That this court has the power, under the above Constitutional provision, to modify the judgment and sentence of the lower court, in a criminal action, seems to me to be clear. The people, in adopting this Constitutional provision, however, were careful to provide that the supreme court in a criminal action was not authorized to find the defendant guilty of an offense for which a greater penalty was provided than that of which the accused was convicted in the lower court. I concede that this power should be exercised by the appellate court only in extreme cases, but, in my opinion, it would be proper to do so here.

The assignment of error upon which this dissent is principally based pertains to the ruling of the trial court permitting the witness Bacon, who was called by the State, to answer on rebuttal, over the objection of the defendant, the following question:

"Q. Mr. Bacon, I will ask you to say if at any time while you were a member of the Communist Party, between the dates of March and September of 1930, you ever heard any members of the Communist Party discussing a major felony? * * *."

When objection was interposed, Mr. Doyle appearing as special prosecutor at first stated that "This question is made for the sole purpose of impeaching the testimony of Louis Olson", but later contended that such testimony was admitted "as to whether the Communist Party advocates criminal syndicalism, bank robberies and felonies", and that "it is for the purpose of impeaching that testimony alone". On appeal the theory of impeachment of the witness Olson was apparently abandoned and the state now urges that this testimony was admissible to show that the Communist party taught and advocated criminal syndicalism.

In response to the question, the witness Bacon thus answered:

"A. Just prior to the demonstration of May 1st, 1930 there wasa discussion took place in the unit headquarters, at 312 Worcester Building, Portland, in the presence of a member of the district executive committee of the Communist Party, Reuben Sandstrum and others, old members of the Communist Party, which was in the nature of instruction from this member, directed particularly to myself, which was acceded to and not dissented with, by the other leading members of the Party present, to the effect that ____ ____

* * * * * "Mr. Goodman: Was the defendant, Dirk DeJonge, present? A. No. * * * * * "A. (continuing) to the effect that Stalin had taken the money and jewels out of the Czarist banks and had used the money to carry on the revolution; that they had had men planted inside these banks, and raided them, and that we, — speaking to myself and of himself and others present as Communists, — must begin to do that here, and cited one case of a Communist having held up a bank messenger in San Francisco and obtained forty thousand dollars to carry on the Party work. There was no dissent with that suggestion and advocation that such activities be carried on by the Party here.

"At another time, some time in July, 1930, there was occasion for the Party to send a delegate to represent the lumber workers of the Soviet Union on a trip, and it was required of the Portland unit that they furnish funds for this trip, and a letter was received and read to the unit, — to the members, by Reuben Sandstrum, by Jack Laury, who was at that time district organizer of the Trade Unity League section of the Red International of Trade Unions, under whose auspices this trip was being promoted, asking that they raise a sum of $275.00, I believe, — I am not certain as to the exact amount, but it was two hundred some dollars, I believe it was $275.00, and suggested that this money be raised from some of the comrades, which they all termed themselves, and if unable to obtain it as a loan, — this was written in pencil as a postscript at the bottom of the letter, — I saw the letter myself and read it: `I suggest that you go out and hold up a bank.' Those are two specific instances that I remember very clearly. Also on May 1st, 1930, they gave out the program of the march ____ ____." (Italics ours.)

In my opinion, this evidence was clearly inadmissible. Diligent search of the authorities reveals none going so far as to hold that a witness can relate a conversation had, in the absence of the defendant, with some member of the Communist party who purports to state what such party teaches and advocates, unless it be shown that such person was authorized to so speak. Especially do courts reject the evidence of the commission of particular crimes by some member of an organization, as tending to show what the organization taught and advocated.

In the instant case the alleged conversation or discussion occurred approximately four years prior to the meeting in question. The defendant is deprived of the opportunity to cross examine the person alleged to have made such statements, relative to his knowledge or conception of the organization about which he speaks. As stated in People v. Ware, 67 Cal. App. 81 (226 P. 956):

"The testimony of a witness as to talks which he had with persons whom he believed to be members of the organization, whether such belief be founded upon membership cards shown to the witness or upon declarations made to him by such supposed members, and in which talks the persons whom the witness so believed to be members made statements of what purported to be the purposes, objects, principles, or teachings of the organization, is hearsay testimony, and as such is inadmissible." Citing, in support thereof, State v. Gibson, 115 Wash. 512 (197 P. 611); State v. Cantwell, 119 Wash. 665 (206 P. 362) — the latest expression of the Washington Supreme Court.

Also to the same effect, see State v. Pettilla, 116 Wash. 589 (200 P. 332); People v. Wagner, 65 Cal. App. 704 (225 P. 464);People v. Bailey, 66 Cal. App. 1 (225 P. 752); State v.Dingman, 37 Idaho 253 (219 P. 760).

State v. Boloff, 138 Or. 568 (4 P.2d 326, 7 P.2d 775), is not to the contrary. In that case the witness was permitted, without objection, to repeat a portion of a speech made by an authorized speaker of the Communist party. As stated therein, the speaker Leavitt "was an agent of the society, acting within the scope of his authority when he spoke". The distinction to which attention has been directed was clearly recognized by Mr. Justice ROSSMAN, speaking for a majority of the court, as is evidenced by his comment upon the holding in State v. Dingman, supra. It will be recalled that, in the instant case, the question to which objection was made sought to have Bacon testify about a conversation relative to the commission of major felony which was had "at any time" by "any members of the Communist Party".

We think the court also erred in receiving, over the objection of the defendant, a carbon copy of the letter addressed to Nolan A. Mackrill, a witness for the defendant. This letter purported to give the reason for dismissal from the Railway Express of Mackrill who was called on behalf of the defense to state what occurred at the meeting of the Communist party. On cross-examination he was questioned at length concerning his services with the Railway Express and the reason for his dismissal. In answer to a question, he stated in substance that he had never received a letter from the company giving the reason for his discharge. The State, to impeach this witness upon what it seems to me was a wholly collateral matter which had nothing whatever to do with the charge in the indictment, introduced in evidence a carbon copy of a letter purporting to have been written to Mackrill. There was no showing that the original letter had been mailed to Mackrill or received by him, nor did the State make any showing for the admission of secondary proof. The error was accentuated by the following argument made by Mr. Doyle of counsel for the State:

"And when you stop to think of this man Mackrill, who brought on to the job, mind you, — and he was the express messenger, don't forget this, and he had four special agents, and somebody gave him some liquor, and he gave the liquor to those four men who were shotgun guards in charge of a million dollars of Government gold. But he didn't drink any, himself.

"And then he lied point blank, cold perjury, anything you want to call it, when I asked him the question directly as to Rule G. He wouldn't come clean; he hasn't, and won't."

It may be that this assignment of error in itself would not be sufficient to justify a reversal, but it is nevertheless a matter for consideration in determining whether the defendant had the kind of trial which the law contemplates.

Appellant also complains about the alleged misconduct of counsel for the State in his final argument to the jury. In addition to the above, the following portion of the argument is noted:

"I will tell you the type of man this DeJonge is. And I will tell you further than that, each and every one of this jury, if these were war times, there wouldn't be a trial here at all; I wouldn't be able to hold down the sentiment that has accumulated as a result of this man's dangerous activities."

Such argument was highly improper and prejudicial to the rights of the defendant. It was an appeal to passion and prejudice. Any reference to what a mob might do in dealing with the defendant, under any circumstances, is beyond the pale of legitimate argument — even making due allowance for the zeal of counsel.

For the reasons above stated, I dissent from the judgment of conviction.

RAND, J., concurs in this dissenting opinion.