Burns v. United States

• Citation: 274 U.S. 328,71 L.Ed. 1077,47 S.Ct. 650
• Decision Date: 16 May 1927
• Docket Number: No. 135,135
• Parties: BURNS v. UNITED STATES
• Court: United States Supreme Court

274 U.S. 328

47 S.Ct. 650

71 L.Ed. 1077

BURNS

v UNITED STATES.

No. 135.

Argued November 24, 1926.

Decided May 16, 1927.

Messrs. R. W. Henderson, of Bakersfield, Cal., and Walter H. Pollak, of New York City, for plaintiff in error.

The Attorney General and Mr. William D. Mitchell, Sol. Gen., of Washington, D. C., for the United States.

[Argument of Counsel from page 329 intentionally omitted] Mr. Justice BUTLER delivered the opinion of the Court.

An Act of Congress of June 2, 1920, § 4, c. 218, 41 Stat. 731 (Comp. St. § 5207d), 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 (chapter 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 case is here under section 238 of the Judicial Code (Comp. St. § 1215) 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 willful 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.

'Sec. 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 of these, he asserted that the statute 'is in violation of the Fourteenth Amendment of the Constitution of the United States and is void for uncertainty.' But that point is determined adversely to his contentions in Whitney v. People of the State of California, 274 U. S. 357, 47 S. Ct. 641, 71 L. Ed. 1095, decided this day.

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 knowingle become 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 the 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 evidence bearing on the matter referred to and is to be considered in the light of the charge as a whole. New York Cent. & H. R. R. Co. v. United States, 212 U. S. 509, 508, 29 S. Ct. 309, 53 L. Ed. 624; Hotema v. United States, 186 U. S. 413, 416, 22 S. Ct. 895, 46 L. Ed. 1225; C. M. Spring Drug Co. v. United States (C. C. A.) 12 F.(2d) 852, 856; People v. Scott, 6 Mich. 287, 291. There is no contention that plaintiff in error was not connected with the organization substantially as alleged, or that the evidence failed to show it to be the kind of organization specified in the indictment. The record shows that for a number of years he had been a member of the organization; that, at the time alleged and when arrested, he was its authorized delegate and had a quantity of its literature in his possession: that he solicited others to become members and was authorized to initiate new members and to collect initiation fees and dues. It also shows that the organization disseminated large amounts of printed matter declaring its purposes and advocating means to accomplish them. A 'preamble' was contained in practically all its publications and was printed on the membership card of plaintiff in error. It declares that the working class and employing class have nothing in common; that a struggle must go on between them until the workers organize, take possession of the earth and the machinery of production and abolish the wage system; that the trade unions aid the employing class to mislead the workers into the belief that they have interests in common with their employers; that, 'instead of the conservative motto, 'A fair day's wages for a fair day's work,' we must inscribe on our banner the revolutionary watchword, 'Abolition of the wage system;" that it is the mission of the working class to do away with capitalism; that the army of production must be organized to carry on when capitalism shall have been overthrown; that 'by organizing industrially we are forming the structure of the new society within the shell of the old.'

Sabotage, as the evidence indicates it to have been advocated and taught by the organization, is not confined, as is the definition contained in the act, to physical damage and injury to physical property. The organization's printed matter that was received in evidence contains no precise definition of sabotage, but does give a number of descriptive explanations of what it means. As fairly illustrative, we take the following:

'Three versions are given of the source of the word. The one best known is that a striking French weaver cast his wooden shoe-called a sabot-into the delicate mechanism of the loom upon leaving the mill. The confusion that resulted, acting to the workers' benefit, brought to the front a line of tactics that took the name of sabotage. Slow work is also said to be at the basis of the words, the idea being that wooden shoes are clumsy and so prevent quick action on the part of the workers. The third idea is that sabotage is coined from the slang term that means 'putting the boots' to the employers by striking directly at their profits without leaving the job. The derivation, however, is unimportant. It is the thing itself that causes commotion among employers and politicians alike.'

The evidence shows that the organization advocated, taught and aided various acts of 'sabotage' that are plainly within the meaning of that word as defined by the act. Some examples are: Injuring machinery when employed to use it, putting emery dust in lubricating oil, damaging materials when using them in manufacture or otherwise, scattering foul seed in fields, driving tacks and nails in grape vines and fruit trees to kill them, using acid to destroy guy wires holding up the poles provided to support growing vines, putting pieces of wire and the like among vines to destroy machines used to gather crops, scattering matches and using chemicals to start fires to destroy property of employers. One of the witnesses testified:

'I heard * * * a member of the I. W. W. say in a speech on May 10, 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."

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...