226 P. 956 | Cal. Ct. App. | 1924
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *83 The defendants Ware, Kohn, Nolan and White, who with eighteen others were jointly charged with the crime of criminal syndicalism, have appealed from the judgment of conviction and from the order denying their motion for a new trial. *84
The indictment contains two counts in each of which the defendants are charged with criminal syndicalism alleged to have been committed in the county of Los Angeles. The first count, drawn under subdivision 4 of section 2 of the Criminal Syndicalism Act, charges that defendants did "organize and assist in organizing and knowingly become and were members" of the Industrial Workers of the World, the nature and character of which organization is then averred. For brevity the organization will be referred to as the I. W. W. The second count is so inartificially drawn that we are left in doubt as to whether it is an attempt to charge a conspiracy to commit some one of the crimes denounced in section 2 of the act or to charge a violation of subdivision 3 of that section, i.e., the crime of publishing printed matter of the character condemned in that subdivision. The appellants Ware, White and Nolan were convicted under the first count and acquitted under the second; the appellant Kohn was convicted under the second count and acquitted under the first.
There is no evidence that Ware, White or Nolan ever organized or assisted in organizing the I. W. W. That society was completely organized and in existence before appellants had anything to do with it. And the act of bringing in or assisting to bring in members is not the equivalent of "organizing or assisting in organizing" such a group of persons. (People v. Thurman,
One of the most serious errors of which appellants justly complain is the admission against them of hearsay evidence and of incompetent opinions and conclusions. [3] In prosecutions under the Criminal Syndicalism Act, where it is charged that the accused is a member of an organization which advocates criminal syndicalism or that he published written or printed matter which advocates or teaches the purposes or principles of such an organization, it is incumbent upon the people to prove in each case the unlawful character of the organization. (People v. Thornton, supra.) In making such proof the following rules of evidence, sanctioned by authority and fortified by reason, should be observed: 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. (State v. Gibson,
[5] A witness testifying to statements, speeches or declarations made in his presence by members of the I. W. W., at recognized meetings or in places and upon occasions which have received the organization's sanction and countenance, or to conversations had with officers or leaders whose membership and rank have been proved by competent evidence and whose official positions are such as to carry authority to make on behalf of the organization declarations of its purposes, objects, principles and teachings, must not give his inference as to the meaning of the language heard by him, but must confine his testimony to recounting the substance of the statements, speeches, declarations or conversations, so far as his memory will enable him to recall it. That is to say, a witness to such speeches, declarations or conversations may give the substance of the language as he remembers it, but he may not give his inferences drawn from what was said to him or in his presence. He must not be allowed to place his construction upon the language by stating what he understood it to mean. It is for the jury, not the witness, to determine from the language used at the meetings or in the conversations with the authorized leaders or officers what were the teachings or principles promulgated or what were the objects or purposes had in view by the organization. The general rule is that a witness may not state his impression as to the meaning of the language heard by him or as to the intention of the speaker. (Braley v.Braley,
Tested by the foregoing it must be held that the trial court erred in overruling appellants' objections to innumerable questions calling for hearsay testimony and for the witnesses' interpretations of the language which they heard or read. Thus one of the witnesses for the prosecution, a *89 police officer who formerly was a member of the I. W. W., after giving what appellants' counsel describes as "a series of exegeses as to the witness' interpretation" of a certain pamphlet, was asked these further questions as to the meaning of the language of the pamphlet and gave the following answers: "Q. Now, Mr. Townsend, as far as you have gone, I will ask you whether or not the explanation you have given as you have gone along was the explanation of the literature that you learned in this school of instruction? A. Yes, in it, and being a member of the I. W. W., talking to members as individuals, as members. (Italics ours.) Q. Is there any further passage there? A. Yes. Q. All right, if you will just go ahead and read that and give the explanation of it. A. (Reading) 'It is as a negation of and as a reaction against such methods that the I. W. W. preaches its own form of economic direct action.' That is a statement against craft unionism, that they want to teach that by direct action. Here is the best one of all: 'We want to stir the workers into personal activity and participation in the struggle for a new society.' Now, what is that personal activity that they want to stir the workers into? Direct action, sabotage, the things that I have previously named; to destroy the industries. Personal activity means — Q. I will ask you whether that explanation is what you learned at the schools of instruction? A. Yes. Q. And from conversation with officials and the rank and file members of the I. W. W.? (Italics ours.) A. Yes." By these excerpts from the witness' testimony there is shown not only a violation of the rule which forbids the witness giving his conclusions and inferences, but a violation also of the rule against hearsay evidence. A portion of the witness' information may have been gained by him through hearing speeches at recognized meetings of the I. W. W., through secret instruction given him by authorized teachers of the organization's real purposes and aims or through his conversations with officers of the I. W. W.; but he did not pretend to say what portion of his information was so acquired and what portion was obtained by him from private conversations had with members or purported members of the organization — with those whom he referred to as "the rank and file members." As in State v. Cantwell, supra, the witness was testifying, in part, as to what he had learned *90 from supposed members of the organization who were not shown to have had authority to speak concerning the organization's purposes and principles. Another witness, who testified that he had joined the I. W. W. for the purpose of getting information for the government, testified as follows: "Q. And from your knowledge of the organization (italics ours), I will ask you if you know the attitude of the I. W. W. towards military establishment? A. Yes, sir." Thereupon the defendants, who were not represented by counsel, all of them having elected to conduct their own defense in person, interposed the following objections and motions which met with the following adverse rulings: "Mr. Kohn: May it please the court, we object — he has not been a member since 1919, and anything he can claim to know or think to know can only be hearsay, or conclusions. . . . The Court: . . . Objection overruled. Mr. White: I move that the literature of the I. W. W. be used as the best evidence, and not this man's testimony. The Court: Objection overruled." Thereupon the witness proceeded as follows: "Q. By Mr. Hill (the public prosecutor): The question is, what is their attitude toward the military establishment? A. They support every movement for the reduction of the army and navy; they discourage enlistments in the army and navy, the national guard, and so on, without exception. Q. Why? A. To increase their chances of success when the time comes for a revolution. Mr. White (a defendant): I certainly object to the answer and the question both, and ask that it be stricken out and the jury instructed to disregard them as plainly a conclusion of the witness, why these members of the I. W. W. done this. The Court: Motion denied." In this testimony we have an example of a flagrant violation of the rule which forbids a witness to place his interpretation upon language heard or read by him or to give his inferences as to the meaning of spoken or written words. Another witness, a former mayor of Seattle, was permitted to testify that during his incumbency of the office of mayor of .that city he read official copies of certain resolutions published in the Seattle Union Record, a newspaper which he testified was owned by the Central Labor Council. The prosecuting officer, over defendants' objections that it called for the conclusion of the witness, was then permitted to ask the question, "And *91 by whom was the Central Labor Council controlled at that time?" To which the witness answered: "The Central Labor Council was controlled at that time by members of the Industrial Workers of the World." A more glaring violation of the rule forbidding a witness to state his conclusion could not well be imagined. The record before us, covering almost seven thousand pages, is replete with just such errors, a few of which we have culled at random for the purpose of illustration. That these errors were prejudicial is shown beyond the shadow of a doubt. It was the contention of the defendants at the trial that since the year 1918 the literature issued by the I. W. W. and the teachings of that organization have undergone a radical change, and that ever since that year violence and sabotage no longer have been taught or justified by that group of men. It was important, therefore, that the jury should be apprised of the principles, policies, aims, and purposes of the organization within the three-year period immediately preceding the filing of the indictment, and not be led astray by hearsay evidence and incompetent conclusions based, in part at least, upon speeches, declarations, and conversations occurring prior to the time when, as the defendants claimed, the principles, purposes, and teachings of the organization were greatly modified.
[6] But one further error needs consideration. After having read to the jury the Criminal Syndicalism Act, the trial court gave the following instruction: "You are instructed that the word 'criminal syndicalism' is defined in the law I have read to you and you are to be governed by that definition. It is defined in Webster's New International Dictionary as follows: 'It aims to abolish the present political and social system by means of the general strike, and direct action, which is any kind of action that is directly effective, whether it be a simple strike, a peaceful public demonstration, sabotage or revolutionary violence.' " (Italics ours.) This instruction was misleading and tended to confuse the jury. It could hardly have failed to create in the minds of the jurors the erroneous notion that not only is there no conflict between the law's definition and Webster's definition, but that criminal syndicalism is a crime which embraces any and every aim to abolish the present political and social system by any directly effective action, *92 even though such action amount to no more than a peaceful public demonstration.
It is but fair to say that the attorney-general, in the brief filed by him, virtually concedes that the judgment should be reversed.
The judgment against each appellant and the order denying the motion for a new trial are reversed.
Works, J., and Craig, J., concurred.