Magon v. United States

260 F. 811 | 9th Cir. | 1919

ROSS, Circuit Judge

(after stating the facts as above). [1] It is clear that all of the acts charged against the defendants were connected together and concerned the same transactions, and were therefore of the same class of offenses. In such circumstances it is expressly declared by statute that they may be included in the same indictment, the statute being: ■

“When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may bo properly joined, instead oí having several indictments the whole may be joined in one indictment in separate counts; and ii two or more indictments are found in such cases, the court may order them to be consolidated.” Rev. St. § 1024 (Comp. St. § 1090).

See Blitz v. United States, 153 U. S. 308, 14 Sup. Ct. 924, 38 L. Ed. 725; Crain v. United States, 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097; Glass v. United States, 222 Fed. 773, 138 C. C. A. 321; Sidebotham v. United States, 253 Fed. 417, 165 C. C. A. 159.

[2] It is contended for the plaintiffs in error that none of the facts alleged in counts 1, 3, 4, 5, and 6, constitute an offense against the United States, and complaint is also made of “the duplicitous character of the indictment.” We see nothing duplicitous about it. The fact that the first count alleges a conspiracy to violate three separate and specific provisions of the federal statutes in no respect makes it duplicitous. There is but the one crime charged in that count, namely, conspiracy; the number of its objects is wholly immaterial. Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. 249, 63 L. Ed. 561, decided March 10, 1919, and cases there cited; and see the numerous cases cited in Jelke v. United States, 255 Fed. on page 275, .— C. C. A.-. In each of the other counts in question the charge is the unlawful depositing in the post office establishment of the government of copies of the nonmailable matter specifically set out in the first count.

[3 | It is assigned as error that the trial court admitted in evidence, over the objections of the defendants, a speech made by the defendant Magon March 27, 1917, and published in his. paper “Regeneración” July 28, 1917, and in the like admission, over like objections, of a letter from one Emma Goldman, of date February 6, 1918, and likewise published March 6, 1918. The speech of the plaintiff in error Magon was delivered at a meeting in the city of Eos Angeles organized by the “International Workers’ Defense Eeague in Defense of Comrades Raul Palma and Ogilon Runa,” who, it appears from the speech, were arrested by some members of the police of the city for views spoken by them “to the workers congregated at the Plaza.”

In the speech of Magon, which was admitted in evidence, he not only admitted that he is an anarchist, but boasted that “the words of the anarchists are words of truth and justice”; that they—

“hurt all of those who live from the labor of others; our words hurt the parasites, the useless and noxious beings who suck the blood of the people; the clergyman, the bourgeois, and the ruler; these are the ones who are injured by our words. So much the worse for them, so much the better for us! That the country is at war, and that is why we cannot talk. Bully reason this!”

In a very recent case, Mead v. United States, 257 Fed. 639, 642,-C. C. A.-, we had occasion to say that free speech in times of war is by no means the same thing as free speech in times of peace, and in a late case the Supreme Court held precisely the same thing in effect. In the same speech of the plaintiff in error Magon, which it is claimed was erroneously admitted in evidence, he further said, among other things;

“We, the anarchists, cannot shut up; we shall not shut up. So long as .Injustice reigns, our voice shall be heard. * * * Go on, you haughty overlords, swallow your order, for we, the anarchists, are not disposed to obey it; we cannot shut up, we will not shut up, and we shall speak, cost what it may. * * * "Above your caprice is our right, right which we do not owe to you, but to nature, which has endowed us with a mind to think, and in the defense of a right, understand it well, we are ready for anything, and to face it all, be it the dungeon or the gallows. Don’t forget that right, no matter how much you may mutilate it, no matter how much you may* crush it, no matter how much you may try to annihilate it, when it is persecuted the most, and when you are proudest of your triumph, it roars its vengeance in dynamite belches lead from the barricade.”

The Goldman letter, written while the writer of it was imprisoned, published in the “Regeneración” by Magon and circulated by the other plaintiff in error, was in advocacy of the same general principles, and urged her “Dear Faithful Friends” to whom it was addressed, among other things, to spread her “Bolsheviki pamphlet in tribute to their great courage and marvelous vision and for the enlightenment of the American people,” and concluded with these words:

“Good-bye, dear friends, but not for long — if the spirit of the Bolsheviki prevails. Long live the Bolsheviki! May their flames spread over the world and redeem humanity from its bondage!”

We think it does not admit of doubt that both the speech and the letter were properly admitted in evidence, as bearing on the intent with which the plaintiff in error Magon published and the other plaintiff in error aided him in depositing the publication in the mail.

The judgment is affirmed.