Burns v. United States
Burns v. United States
Opinion of the Court
delivered the opinion of the Court.
An Act of Congress of June 2, 1920, § 1, c. 218, 41 Stat. 731, provides that, if any offense shall be committed in the Yosemite National Park which is not prohibited by a law of the United States, the offender shall be subject to the. same punishment as the) laws of California prescribe for a like offense. Plaintiff in error was indicted for violating within that Park the California Criminal Syndicalism Act, c. 188, California Statutes 1919. The indictment was in two counts. The verdict was guilty on the first count and not guilty on the second. Plaintiff in error, by demurrer and by motion to arrest the judgment, insisted that the statute contravenes the Constitution of the United States. His contention was overruled. The casé is here under § 238 of the Judicial Code, before the Amendment of February 13, 1925.
The applicable provisions follow: “Section 1. The term * criminal syndicalism ’ as used-in this» act is hereby defined as any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning wilful and malicious physical damage or injury to physical property)., or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change. Section 2. Any person who: _. ,. . organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism. . . . is guilty of a felony ...”
Plaintiff in error here contends that, as applied in the district Court, these provisions are repugnant to the due process and equal protection clauses of the Fourteenth Amendment. The only attack upon the validity of the law was by the demurrer and motion in arrest. In each
The substance of. the count on which plaintiff in error was adjudged guilty is that on or about April 10, 1923, at Yosemite National Park, he did “ organize, and assist in organizing, and was, is, and knowingly became, a member of an organization, society, group and assemblage of persons organized and assembled to advocate, teach, aid and abet criminal syndicalism, to wit; The Industrial Workers of the World, commonly known as I. W. W.”
1. Plaintiff in error argues that he is entitled to a new trial because the charge contains the following: “Now, there has been presented to you evidence ... to the effect that this organization, amongst other things, advocated what is known as slowing down on the job, slack or scamped work, such as loading of a ship in such a way that it took a list to port or starboard and therefore had to limp back to port, and things of that kind. I instruct you that under the definition as laid down by the legislature of. California, that any deliberate attempt to reduce the. profits in .the manner that I have described would constitute sabotage.” He calls attention to the language in section 1 and says, that merely loading telephone poles on a ship so as to occasion more work is not physical damage or injury to physical property within the meaning of the statute.
. If that instruction stood alone it might be thought to permit the jury erroneously to expand the meaning of sabotage beyond that defined in the Act. But it does not stand alone; and the mere comparison of the quoted language of the instruction with the words of the statute is not sufficient to disclose whether there was prejudicial error. The instruction must be taken in connection with
The foregoing sufficiently shows the foundation of fact for the portion of the charge complained of. Before giving that instruction, the court warned the jury that the Government must establish beyond reasonable doubt that the I. W. W. was such an organization ,as is denounced by the Act. The definition of criminal syndicalism was given the jury in the exact words of the statute. The court then gave a number of lexicographers’ definitions of sabotage. ■ They are broader than the meaning of the word'as defined in the Act and. are not confined to physical damage or injury to- physical property. Then,' by way of contrast, the statutory definition of sabotage was repeated, and by the repetition it was emphasized. The court said: “ The statute, itself, you will notice, however, denounces sabotage as meaning wilful and malicious physical damage or injury to physical property.” The instruction complained of followed. It referred' to the eviden'ce indicating that the organization .advocated acts such as loading a ship so that it would list and have to return, and things of that kind. And in that connection the court said that any deliberate attempt to reduce profits “in the manner that I have described” would
While one of the purposes of such improper loading of ships may be to create more work for the men and so to inflict loss on employers, it is also plainly calculated to endanger the vessels, their cargoes and the lives of those aboard'. By the instruction complained of, the consideration of the jury was limited to “things of that kind.” The advocating of the malicious commission of such acts is to teach and.abet sabotage- — physical damage and injury to physical property; it also is to teach and abet crime and unlawful methods of terrorism. It was not necessary for-the prosecution to show-that the elements of criminal syndicalism were advocated or taught with the precision of statement required in indictments for criminal acts involved. Cf. Wong Tai v. United States 273 U. S. 77. The purpose and probable effect of the printed matter circulated and of the things said in furtherance of the declared purposes of the organization are to be considered having regard to the capacity and circumstances of the persons sought to be influenced. When there is taken into account the evidence referred to and the parts of the charge preceding and following the part of the charge here assailed — and especially the giving and reiteration of the statutory language defining sabotage — it is quite apparent that the instruction was not erroneous.
Both sides have.déalt with the case here as if the question were properly raised, and we have considered its merits. McNitt v. Turner, 16 Wall. 352, 362; Baltimore & Potomac Railroad v. Mackey, 157 U. S. 72, 86; Nor
2. Plaintiff in error complains of another part of the charge: “There has been evidence here that advertisements were published in the official organs of the Industrial Workers of the World, what they call also stiekerettes, calling upon people to boycott the entire State of California and its products. That would only be legal in the event that it was in furtherance of a strike, and by ‘legal’ I mean as established by the State of California, that is to say, if it was in furtherance of a strike, if it was in good faith, an attempt -to better their conditions, and if it did not indulge in maliciousness or misrepresentation. If, however, you should find from the evidence that that was not so, then it would be an illegal
The record does not contain all the evidence and fails to show that it includes all relating to the matter referred to in this instruction. We. think it cannot be said as a matter of law that the things there mentioned, when taken in connection with other facts, may not have been proper for consideration in connection with some element of the criminal syndicalism charged. Moreover, no objection was made or exception properly taken to that, part of the charge. Here again the exception failed specifically to point out the instruction now assailed as erroneous.
Judgment affirmed.
Dissenting Opinion
dissenting.
This writ of error was allowed under § 238. of the Judicial Code, on constitutional grounds, prior to the amendment of February 13, 1925. All alleged errors at the trial which were properly excepted to are therefore, before us. Chaloner v. Sherman, 242 U. S. 455, 457. There was, at least, one error committed which, in my opinion, justifies reversal and which does not involve a constitutional question. For that reason, according to the practice approved by the Court, I refrain from discussing the constitutional questions presented. See Steamship Co. v. Emigration Comm’rs, 113 U. S. 33, 39; Chicago & G. T. Ry. Co. v. Wellman, 143 U. S. 339, 345; Howat v. Kansas, 258 U. S. 181, 184.
The defendant was convicted on the count which charges him with becoming a member of an organization formed to advocate criminal syndicalism. The California statute defines criminal syndicalism as advocating sabotage, among other things; and it defines sabotage “ as
■ “ Sabotage has been variously defined. Webster’s New International Dictionary defines it as, ‘ Scamped work; malicious waste or destruction of an employer’s property by workmen during labor troubles.’ Eunk & Wagnalls’ New Standard Dictionary defines it as:' ‘Any poor work or other damage done by dissatisfied workmen; also, the act of producing it; plant wrecking.’ Nelson’s Encyclopedia defines it thus: ‘The organized hampering of production by slack work, skilful disabling of machinery or the^publication of trade secrets.’ The New International Encyclopedia defines it thus: ‘Sabotage may consist in throwing the progress of production out of order, through tampering with machinery, improper use of material, or loitering at work.’ The Encyclopedia Americana defines it as: ‘A method used by labor- revolutionists to force employers to accede to demands made on them. It consists in wilful obstruction and interference with the nor-, mal processes of industry. It aims .at inconveniencing and tying up of production, but. stops short of actual destruction or of endangering human life directly.’
“The statute, itself, you will notice, however, denounces sabotage as meaning wilful and malicious physical damage or injury to physical property.
“Now, there has been presented to you evidence, of the truth or falsity of which, however, you are the exclusive judges, to the effect that this organization, amongst other things, advocated what is known as slowing down on the job, slack or scamped work, such as loading of a ship in such a way that it took a list to port or starboard*339 and therefore had to limp back to port, and things of that kind. I instruct you that under the definition as laid down by the legislature of California, that any deliberate attempt to reduce the profits in the manner that I have described would constitute sabotage.”
The testimony referred to by the court in the above-instruction was this:
“Under similar circumstances I heard Leo Stark, a member of the I. W. W., say in a speech on May 10th, 1923: ‘When you go back to work, if we"*do have to go to work, we will put on the wooden shoe.’ Then he said: ‘ In case you are loading telephone poles on a ship down there, sometime the boss is not looking you can slip a couple of poles crossways and then cover up, and then when that ship goes to sea naturally she will start rolling and the cargo will shift, and then she will come in listed like the one you see out in the harbor, then she has got to tie up to the dock, and she will have to unload the telephone poles and put them in again and put them straight, and then we will get paid for the loading originally, and get paid for unloading it and get pay for loading it again, and that will hit the bosses hard in the pocketbook.
“ Mr. Lewis. I move that that answer be stricken out as immaterial, irrelevant ánd incompetent, not within the definition of sabotage as laid down in the statute, or the Criminal Syndicalism law.
“ The Court. I cannot see it. As I said before, I cannot see but what any deliberate act, the purpose of which is to reduce the profits of the physical thing, is not equally an injury. Motion denied.
“ Mr. Lewis. I note an exception.”
The exception to the charge is insisted on, although the objection to the admission of the evidence is not urged here. The charge was clearly erroneous. It plainly directed the jury that “slowing down on the job” and “ scamped work ” constituted sabotage within the mean
It is said that the charge, if erroneous, was not prejudicial, because the illegal. character of the organization was established by other evidence than that which formed the basis of the charge, and because even the latter evidence showed the advocacy of acts which amounted tó a malicious destruction of property, and so might properly support a conviction even under a proper construction of the statute. Even in civil cases erroneous rulings, especially those embodied in instructions, are presumptively prejudicial. Filippon v. Albion Slate Co., 250 U. S. 76, 82; United States v. River Rouge Co., 269 U. S. 411, 421. The illegal character of the organization was not conceded. There was evidence from which the illegal character might have been deduced. But the evidence related, in the main, to the acts of individuals. The effort of the defense was to disavow those acts.
It is also said that the exception to the charge was not properly taken. The defendant excepted specifically to that portion-of tlie charge which dealt with sabotage. The precise ground of the exception was, not set forth. But the continued objections to the admission of evidence upon the ground here urged, and the court’s adverse rulings thereon, could have, left no doubt in the mind of the coürt as to what was meant by the exception here in question. Moreover, the case comes to this
The judgment should be reversed.
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