State v. De Jonge
Decision Date | 26 November 1935 |
Citation | 152 Or. 315,51 P.2d 674 |
Parties | STATE v. DE JONGE. [*] |
Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.
Dirk De Jonge was convicted of violating the criminal syndicalism law, and he appeals.
Affirmed.
Irvin Goodman, of Portland (Harry L. Gross, Clifford O'Brien, and Dan Hartley, all of Portland, on the brief) for appellant.
Maurice E. Tarshis and George C. Graham, Deputy Dist. Atty., both of Portland (James R. Bain, Dist. Atty., of Portland, on the brief) for the State.
The defendant, Dirk De Jonge, was on September 29, 1934, indicted by the grand jury of Multnomah county, Or. The charging part of the indictment is as follows: "The said Dirk De Jonge, Don Cluster, Edward R. Denny and Earl Stewart on the 27th day of July, A. D. 1934, in the county of Multnomah and state of Oregon, then and there being, did then and there unlawfully and feloniously preside at, conduct and assist in conducting an assemblage of persons, organization society and group, to-wit: The Communist Party, a more particular description of which said assemblage of persons organization, society and group is to this grand jury unknown, which said assemblage of persons, organization, society and group did then and there unlawfully and feloniously teach and advocate the doctrine of criminal syndicalism and sabotage, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon."
This defendant, who was tried separately at his request, after a trial lasting in excess of three weeks, was found guilty as charged. From judgment entered on the verdict, he has appealed.
On Friday, July 27, 1934, there was held at what was referred to as Unity Center, 68 Southwest Alder street, Portland, Or., a meeting which had been previously advertised by mimeographed handbills issued by the Portland section of the Communist Party. The number of people in attendance was variously estimated by some who were present, at 150 to 300. It was estimated by some of the members of the Communist Party present that not to exceed 10 to 15 per cent. of those in attendance were members of the Communist Party. No admission charge was made and no question was asked of those entering as to whether or not they were members of or in sympathy with the Communist Party. The notice of the meeting advertised it as a protest against raids.
At this meeting Edward R. Denny acted as chairman. The defendant gave the following reason for his own attendance: "I went to that meeting because I was instructed by the section committee of the Communist Party through its section organizer, comrade Louis Olson, to speak at that meeting in the name of the Communist party." De Jonge, who admitted that he was and for several years had been a member of the Communist party, was the second speaker on the program, and in his talk protested against conditions at the county jail, the action of city police in relation to the maritime strike then in progress in Portland, and numerous other matters. As stated in his own language: Much more in addition was stated by the defendant concerning what he spoke about in the meeting that evening.
There was also testimony to the effect that Communistic literature was sold at the meeting, among which were "The Young Communist" and "The Daily Worker," and that De Jonge had urged those in the audience to be present at a street meeting of the Communist Party scheduled for the next evening, which "would be in defiance of the local police authority." The defendant also made a plea for new members to join the Communist Party. Asked whether or not he had urged those present to buy Communistic papers and literature, the defendant answered: At the trial a vast amount of official Communistic literature was introduced, most of which was received without objection on the part of defendant. Only a small amount of such literature was found in the hall where the meeting was held.
This meeting was described by most of the witnesses as having been conducted in an orderly manner, except that there was a little stir when the police entered, after the talks had been made, and when the meeting was about to be opened for general discussion. A group of those present, however, had formed a "defense circle" to resist any attack by what they referred to as "vigilantes." They had been warned that there might be an attempt by the "vigilantes" to break up the meeting.
The literature introduced into the record refers to the Communist Party as the leading force of the proletariat against the bourgeoisie and what is termed "imperialism" and "capitalism." All of it is written in somewhat specialized terminology. There is constant reference in all these writings to "mass movement," "mass activity," "mass organization," "revolutionary action," "revolutionary struggle," "revolutionary proletariat," "proletarian revolution," "mass revolution," and "the revolutionary way out." The limit of this opinion will permit inclusion of only a few excerpts from the literature introduced in evidence.
From "Programme of the Communist International" we quote:
This same pamphlet, after urging to readiness to "lead the working class to the revolutionary struggle for power" and advising mass action "when the revolutionary tides are rising," describes the plan of "attack" as follows:
On a succeeding page of the same publication is found the following:
This last-quoted excerpt appears in various other Communist publications, printed in italics.
From "Theses and Statutes of the Third (Communist) International" we take the following:
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...to true justice in this case and in like cases." State ex rel. Burghart v. Haslebacher, 125 Or. 389, 266 P. 900; and see State v. De Jonge, 152 Or. 315, 51 P. (2d) 674 (referring to the "salutary mandate" of Art. VII, § 3 of our State ex rel. v. Bartlett, 141 Or. 560, 18 P. (2d) 590; State ......
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...... The case has been pending in the courts a long time. The litigation involved should some to an end. With the complete record before us, we are as well prepared to solve the facts and apply the law thereto as is the trial jury.' . Again, in State v. De Jonge, 152 Or. 315, 51 P.2d 674, 684, we referred to the 'salutary mandate of article VII, § 3 of our Constitution.' . [208 Or. 582] Relative to the duty imposed upon us by Constitution Article VII, § 3, see also, State v. Burke, 126 Or. 651, 674, 682, 269 P. 869, 270 P. 756; State v. ......
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De Jonge v. State of Oregon, 123
...affirmed by the Supreme Court of the State which considered the constitutional question and sustained the statute as thus applied. 152 Or. 315, 51 P.(2d) 674. The case comes here on The record does not present the evidence adduced at the trial. The parties have substituted a stipulation of ......
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State v. Denny
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"THIS WEARISOME ANALYSIS": THE CLEAR AND PRESENT DANGER TEST FROM SCHENCK TO BRANDENBURG.
...great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves."). (186.) State v. De Jonge, 152 Or. 315, 317 (1935), rev'd, De Jonge v. Oregon, 299 U.S. 353 (187.) Id. at 318. (188.) Id. (189.) De Jonge, 299 U.S. at 359. (190.) Id. at 359-60. Th......