Berg v. State

• Decision Date: 02 February 1925
• Docket Number: A-4806.
• Citation: 233 P. 497,29 Okla.Crim. 112
• Parties: BERG v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

233 P. 497

29 Okla.Crim. 112

BERG v. STATE.

No. A-4806.

Court of Criminal Appeals of Oklahoma

February 2, 1925

Syllabus by the Court.

The Criminal Syndicalism Act (chapter 70, Session Laws 1919; sections 2219, 2220, and 2221, Comp. St. 1921) held constitutional so far as its provisions are material in a prosecution for circulating and displaying printed matter teaching, advocating and affirmatively suggesting criminal syndicalism or sabotage, and for circulating and displaying books and other printed matter prohibited by said act.

That part of section 2221, Comp. St. 1921, defining criminal syndicalism as circulating and displaying printed matter advocating, teaching, or affirmatively suggesting crime sabotage, etc., does not violate the right of free speech and is not void for indefiniteness.

The fact that treason is defined in the federal and the state Constitutions does not deprive the Legislature of the power to enact a statute intended to prevent the teaching of criminal syndicalism or sabotage as defined by the criminal syndicalism statute, and does not violate either the Constitution of the United States nor the Constitution of this state defining treason.

Under Criminal Syndicalism Act, § 3, making criminal and prescribing the punishment for circulating or displaying books or printed matter advocating, teaching, or affirmatively suggesting syndicalism or sabotage, an information setting out the matter complained of and following substantially the language of the statute is sufficient.

A defendant cannot be tried for two separate offenses in the same information or indictment.

An information or indictment must charge but one offense; but when the same act may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty, the different offenses may be set forth in separate counts in the same indictment or information; but in such cases the information or indictment must show upon its face that the separate counts are all based upon one and the same transaction.

The amended information in this case attempting to join the crime of circulating and displaying printed matter advocating teaching, etc., of criminal syndicalism and the crime of being a member and organizer of an organization teaching and advocating, etc., criminal syndicalism, is not a statement of the same acts which constitute different offenses, and the attempt to so join renders the amended information duplicitous.

In case of a lawful arrest, the arresting officer may take from the person arrested any instruments of crime or anything else reasonably deemed necessary to his own or the public safety and the use of such things on the trial of the person arrested is not objectionable as obtained by unlawful search and seizure.

Additional Syllabus by Editorial Staff.

In Comp. St. 1921, § 2558, requiring indictment or information to charge but one offense, but permitting "same offense" to be set forth in different forms or degrees under different counts of same indictment, under certain conditions, term "same offense" does not mean same class or kind of offense, eo nomine, but means offense committed by same acts, transaction, or omission.

Appeal from District Court, Pittsburg County; A. C. Brewster, Judge.

Arthur Berg was convicted of criminal syndicalism, and he appeals. Reversed and remanded.

John J. Carney, of Oklahoma City, for plaintiff in error.

George F. Short, Atty. Gen., and N.W. Gore, Asst. Atty. Gen., for the State.

EDWARDS J.

The information is in two counts, in the first of which plaintiff in error is charged:

"* * * On or about the 27th day of December, in the year of our Lord one thousand nine hundred and twenty-two and anterior to the presentment hereof, then and there willfully, wrongfully, unlawfully and feloniously print, publish, edit, issue and knowingly circulate, sell, distribute and publicly display books, pamphlets, papers, handbills, posters and documents, the same being written and printed matter containing matter advocating, advising, affirmatively suggesting and teaching crime, criminal syndicalism, sabotage, to wit, Certain membership cards in words and figures, as follows, to wit, 'Industrial Workers of the World. Official Membership Book. Issued by authority of the General Executive Board of the I. W. W. The member is entitled to work in any industry of this organization where employment is obtainable when stamps are affixed showing the member to be in good standing. To be in good standing a member must be paid for current month. Preamble: The working class and the employing class have nothing in common. There can be no peace so long as hunger and want are found among millions of the working people and the few, who make up the employing class, have all the good things in this life. Between these two classes a struggle must go on until the workers of the world organize as a class, take possession of the earth, and machinery of production, and abolish the wage system. We find that the centering of the management of industry into fewer and fewer hands makes the trade unions unable to cope with the ever growing power of the employing class. The trade unions foster a state of affairs which allows one set of workers to be pitted against another set of workers in the same industry, thereby helping defeat one another in wage wars. Moreover, the trade unions aid the employing class to mislead the workers into the belief that the working class have interests in common with their employers. These conditions can be changed and the interests of the working class upheld only by an organization formed in such a way that all its members in any one industry, or all industries if necessary cease work whenever a strike or lockout is on in any department thereof, thus making an injury to one an injury to all. Instead of the conservative motto, "a fair day's wage for a fair day's work," we must inscribe on our banner the revolutionary watchword, "Abolition of the wage system." It is the historic mission of the working class to do away with capitalism. The army of production must be organized, not only for the everyday struggle with capitalists, but also to carry on production when capitalism shall have been overthrown. By organizing industrially, we are forming the structure of the new society within the shell of the old.' 'Labor is entitled to all it produces'; and certain official stamps, signs and indices of the I. W. W.'s, as follows, to wit: Stamp. Stamp. Stamp. Stamp."

In the second count the plaintiff in error is charged with being a member of, and an organizer, and voluntarily assembled, in a society teaching the doctrine of criminal syndicalism and sabotage, to wit, Industrial Workers of the World.

The facts as gathered from the record are substantially as follows:

"The plaintiff in error was, by his own evidence, an oil field worker, and was on his way from El Dorado, Ark., to Drumright, Okl. He was arrested in the town of Haileyville on the 27th day of December, 1922, which was during the time of a railway strike. It appears that he had ridden into town on a freight train; had been there but a short time, probably not more than an hour or such a matter and was waiting to catch another freight train and ride out when he was stopped on the railroad right of way by four special officers, who had no warrant or search warrant, and was searched, and the papers and documents in question taken from his person. He was turned over to the chief of police at Haileyville and later convicted of vagrancy."

Upon the trial the jury returned a verdict finding the plaintiff in error guilty upon the first count of said information and not guilty upon the second count. The record was made up in the regular way, and the plaintiff in error presents four assignments of error as follows:

"First. Of the introduction of the evidence secured by the unlawful search and seizure.

Second. That the information upon which plaintiff in error was tried is defective.

Third. That plaintiff in error was not permitted to propound certain questions to the jurors on voir dire examination.

Fourth. That the statute under which plaintiff in error was convicted attempts to create and define a new kind of treason, and is, therefore, unconstitutional."

We will notice these assignments of error, first, however, considering No. 4, under which the information is drawn. This is based on sections 1, 2, and 3, chapter 70, of the Session Laws of Oklahoma of 1919; sections 2219, 2220, and 2221 of Compiled Statutes 1921, which read as follows:

"Section 1. Criminal syndicalism is hereby defined to be the doctrine which advocates crime, physical violence, arson destruction of property, sabotage, or other unlawful acts or methods, as a means of accomplishing or effecting industrial or political ends, or as a means of effecting industrial or political revolution, or for profit.

Sec. 2. Sabotage is hereby defined to be a malicious, felonious, intentional or unlawful damage, injury to or destruction of real or personal property of any employer or owner by his or her employee or employees, or any employer or employers or by any person or persons at their own instance, or at the instance, request or instigation of such employees, employers, or any other person.

Sec. 3. Any person who, by word of mouth or writings, advocates, affirmatively suggests or teaches the duty, necessity, propriety or expediency of crime, criminal syndicalism, or sabotage, or who shall advocate, affirmatively suggest or teach the duty, necessity, propriety or expediency of doing any act of violence, the destruction of or damage to any property, the bodily injury to any person or persons, or the commission of any crime or

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