51 P.2d 674 (Or. 1935), State v. De Jonge

Citation:51 P.2d 674, 152 Or. 315
Opinion Judge:BAILEY, Justice.
Party Name:STATE v. DE JONGE. [*]
Attorney:[152 Or. 316] 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.
Judge Panel:BELT and RAND, JJ., dissenting. CAMPBELL, C.J., and KELLY and ROSSMAN, JJ., concur. BEAN, Justice (concurring in part). BELT, Justice (dissenting). RAND, J., concurs in this dissenting opinion.
Case Date:November 26, 1935
Court:Supreme Court of Oregon
 
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51 P.2d 674 (Or. 1935)

152 Or. 315

STATE

v.

DE JONGE. [*]

Supreme Court of Oregon

November 26, 1935

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.

BELT and RAND, JJ., dissenting.

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[152 Or. 316] 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.

BAILEY, Justice.

The defendant, Dirk De Jonge, was on September 29, 1934, indicted by the grand jury of [152 Or. 317] 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.

[152 Or. 318] 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: "Well, at that meeting, speaking as a Communist, representing the Communist party,

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I went into a discussion as to why the Workers' Book Shop, the Communist party headquarters, the Marine Workers' Industrial Union hall, the Civic Emergency Federation and International Labor Defense halls were raided. *** I told the workers there, at least, I laid the background for the reasons why these workers' halls and offices were raided. I told the workers that the reason of these attacks upon the working class organizations was a stepping stone on the part of the steamship companies and stevedoring companies to break the maritime longshoremen's and seamen's strike; that they hoped to break that strike by pitting the maritime longshoremen and seamen against the Communist movement." 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 [152 Or. 319] 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: "I don't remember whether I did or not. But I usually do at meetings held by the Communist party; that is, every Communist is a literature salesman as well as an organizer." 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 [152 Or. 320] 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:

"The conquest of power by the proletariat is the violent overthrow of bourgeois power, the destruction of the capitalist State apparatus (bourgeois armies, police, bureaucratic hierarchy, the judiciary, parliaments, etc.), and substituting in its place new organs of proletarian power to serve primarily as instruments for the suppression of the exploiters. ***

"The Soviet State completely disarms the bourgeoisie and concentrates all arms in the hands of the proletariat; it is the armed proletarian State. The armed forces under the Soviet State are organized on a class basis, which corresponds to the general structure of the proletarian dictatorship, and guarantees the rule of leadership to the industrial proletariat. ***

"This organization, while maintaining revolutionary discipline, insures to the warriors of the Red Army and Navy close and constant contacts with the masses of the toilers, participation in the administration of the country and in the work of building up Socialism."

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:

"This mass action includes: a combination of strikes and demonstrations; a combination of strikes and armed demonstrations and finally, the general strike conjointly with armed insurrection against the State power of the bourgeoisie. The latter form of struggle, which is the supreme form, must be conducted according to the rules of war; it presupposes a plan of campaign, offensive fighting operations and unbounded

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devotion and heroism on the part of the [152 Or. 321] proletariat. An absolutely essential condition precedent for this form of action is the organization of the broad masses into militant units, which, by their very form, embrace and set into action the largest possible numbers of toilers (Councils of Workers' Deputies, Soldiers' Councils, etc.), and intensified revolutionary work in the Army and Navy."

On a succeeding page of the same publication is found the following:

" The Communists disdain to conceal their views and aims. They openly declare that their ends can be attained only by the forcible overthrow of all existing social conditions. Let the ruling classes tremble at the Communist revolution. The proletarians have nothing to lose but their chains. They have a world to gain.

"Workers of all countries, unite!"

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:

"The Communist International makes its aim to put up an armed struggle for the overthrow of the international bourgeoisie and to create an international Soviet republic as a transition stage to the complete abolition of the State. ***

"The Communist International fully and unreservedly upholds the gains of the great proletarian revolution in Russia, the first victorious Socialist revolution in the world's history, and calls upon all workers to follow the same road. ***

"The general state of things in the whole of Europe and of America makes necessary for the Communists of the whole world an obligatory formation of illegal Communist organizations along with those existing legally. ***

"The International League of...

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