Opinion
Crim. No. 637.
December 11, 1922.
APPEAL from a judgment of the Superior Court of Sacramento County. Malcolm C. Glenn, Judge. Affirmed.
The facts are stated in the opinion of the court.
R. W. Henderson, E. S. Smith and Austin Lewis for Appellants.
U.S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.
[1] The first point made by appellants is that the trial court should have sustained the demurrer to the indictment on the ground that it did not conform to the requirements of sections 950, 951, and 952 of the Penal Code, "in that there is uncertainty as to the offense charged and the particular circumstances of the offense charged." It is admitted, however, that they were accused in the language of the statute in that "They were, and each of them was then and there willfully, unlawfully, feloniously and knowingly a member of an organization, society, group and assemblage of persons known and designated as 'The Industrial Workers of the World,' sometimes known and referred to as the I. W. W. and sometimes known and referred to as the 'One Big Union,' which said organization, society, group and assemblage of persons was then and there organized and assembled to advocate, teach and abet criminal syndicalism." This question has been recently considered by this court in the case of People v. Roe, 58 Cal.App. 690 [ 209 P. 381], wherein the charging part of the indictment was in the identical language of that before us, and it was held to be sufficient to so follow the language of the statute. We may refer also to People v. Steelik, 187 Cal. 203 [ 203 P. 78], and People v. Taylor, 187 Cal. 378 [ 203 P. 85], cited in the Roe case, wherein the same doctrine is enunciated. The question must be deemed settled adversely to the contention of appellants and no further discussion is called for.
[2] It is urged that the evidence is insufficient to support the verdict. In this connection the particular contention is that the character of the organization after the enactment of the Criminal Syndicalism Act of 1919 (Stats. 1919, p. 281) was not shown to have been within the inhibition of the law. There is a claim that the organization, in compliance with public sentiment as embodied in said statute, changed its purposes and modified its methods and that the evidence of what was advocated and practiced by the society related entirely to the old organization and not to it in its present form. In this appellants are in error. It is true that a large portion of the voluminous transcript is taken up with a recital of what the organization taught and practiced prior to 1919, but our examination of the record has convinced us that it reveals sufficient basis for the implied finding of the jury that in February, 1922, defendants were members of "an organization, . . . which said organization, society, group and assemblage of persons, was then and there organized and assembled to advocate, teach and aid and abet criminal syndicalism" as that term is defined in the statute. Indeed, the evidence of the character of said organization in the case at bar is substantially the same as in People v. Roe, supra, and we may refer to that decision as a complete answer to this contention of appellants.
[3] The only other point upon which reliance is had is disclosed by the following affidavit of E. S. Smith used on the motion for a new trial:
"E. S. Smith being first duly sworn, upon his oath says: That he is one of the Attorneys for the defendants above named; That ten witnesses for the defense in the above-entitled case, Walter Smith, P. Beasley, B. Kyler, A. E. Anderson, Thos. O'Mara, W. Rutherford, Chas. B. La Rue, Tom Zanger, H. M. Edwards and J. Nash, were arrested before they left the court room and shortly after leaving the witness stand; That some of said witnesses were chained together just outside the court room and were marched down the corridor in the presence of several of the jurymen while said trial was in session; That after the first two witnesses, P. Beasley and Chas. B. La Rue were arrested, in the absence of the jury but in the presence of most of the above named witnesses and other prospective witnesses, Mr. J. R. Hughes of the District Attorney's office, in open court made the statement that all witnesses who would thereafter take the stand in this case and admit they were paid up members of the Industrial Workers of the World in good standing, would be arrested and charged with Criminal Syndicalism; That in order to properly present defendants' case and explain to the jury the character and nature of the organization known as the Industrial Workers of the World it was necessary to use as witnesses, members of the said organization; That by reason of the arrest of witnesses P. Beasley and Chas. B. La Rue the other witnesses above named were intimidated and terrorized so as to render them less efficient as witnesses and other prospective witnesses were scared away; That this affiant believes that the above facts rendered it impossible for the defendants to receive due process of law and equal protection and that they did not so receive; Further affiant sayeth naught except that the above facts are true as your affiant verily believes."
It may be stated that on the hearing of said motion Markham Johnson, a deputy district attorney of Sacramento County, filed the following counter-affidavit:
"That he is a deputy district attorney of the County of Sacramento, State of California, duly appointed, qualified and acting as such; that he assisted on behalf of the plaintiff in the presentation of the above entitled cause of the People of the State of California v. J. A. Casdorf and Earl Firey.
"That in reply to the affidavit filed herein by E. S. Smith, one of the attorneys for the defendants herein, this affiant denies that ten witnesses for the defense who appeared to testify in the above entitled cause, to-wit: P. Beasley, B. Kyler, A. E. Anderson, Thos. O'Mara, W. Rutherford, Chas. B. La Rue, Tom Zanger, H. M. Edwards and J. Nash, or any, or either of them, were arrested before they left the court room of the above entitled court, and — or shortly after they left the witness stand; and in this connection, affiant avers the truth and fact to be that none of said above named witnesses were arrested in the court room, or shortly after they left the witness stand, but they and each of them were arrested for the commission of a known felony by deputies of the office of the sheriff of the County of Sacramento, State of California, and that said arrests and each of them were made outside of the above entitled courtroom and without the presence of the jury that was sworn to try the said above entitled cause.
"And this affiant denies that said arrests or any of them was for the purpose of intimidating, coercing, or terrorizing any of said witnesses, and avers that said arrests did not intimidate, coerce, or terrorize any of the witnesses called by said defendants, or either of them, and this affiant further avers that each and every witness called on behalf of said defendants and each of them did appear and was fully examined by counsel for said defendants.
"Affiant further avers that the acts and conduct of said deputies sheriff were not within the presence or hearing of any of the jurors sworn in the above entitled cause, and were done in absolute good faith and in the performance of their sworn duty as officers of the law.
"This affiant further avers that he fully believes that said defendants received and each of them received a full, fair and complete trial in said cause, and therefore asks this Honorable Court to deny said motion for a new trial."
We must assume that the trial judge accepted the affidavit of the deputy district attorney as containing a true statement of the facts and we are bound by his decision as far as any conflict exists between said affidavits. [4] There is no denial, however, of this important statement in Mr. Smith's affidavit:
"That after the first two witnesses, P. Beasley and Chas. B. La Rue were arrested, in the absence of the jury but in the presence of most of the above named witnesses and other prospective witnesses, Mr. J. R. Hughes of the District Attorney's office, in open Court made the statement that all witnesses who would thereafter take the stand in this case and admit they were paid up members of the Industrial Workers of the World in good standing, would be arrested and charged with criminal syndicalism."
The propriety of such remark may be debatable, but we must assume that the assistant district attorney acted in good faith and his purpose was to warn the witnesses of the consequence of incriminating themselves, so that upon that ground they might decline to testify if they so desired. But at any rate no prejudice to the substantial rights of the defendants was shown. That those who testified were rendered "less efficient" as witnesses is of course a mere conclusion of the affiant and should be disregarded. Likewise, the statement that "other witnesses were scared away" can be accorded no decisive significance in the absence of any statement of the names of the witnesses and what their testimony would be.
No error appears of sufficient gravity to warrant an interference with the verdict, and the judgment and order are therefore affirmed.
Finch, P. J., and Hart, J., concurred.