Shaw v. State

• Decision Date: 19 May 1943
• Docket Number: A-10083.
• Citation: 138 P.2d 136,76 Okla.Crim. 271
• Parties: SHAW v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

138 P.2d 136

76 Okla.Crim. 271

SHAW v. STATE.

No. A-10083.

Court of Criminal Appeals of Oklahoma

May 19, 1943

Syllabus by the Court.

1. 51 O.S.1941 §§ 31, 32, 33, 34, and 26 O.S.1941 §§ 6.1, 6.2 pertaining to qualifications of persons eligible for appointment or election to public office and disqualifying persons affiliated directly or indirectly with Communist party, may not be considered in prosecution commenced prior to passage of said Acts because of the constitutional provision placing a ban on ex post facto laws, Constitution Article 2, Section 15.

Appeal from District Court, Oklahoma County; Ben Arnold, Judge.

On petition for rehearing.

Petition denied.

For former opinion, see 134 P.2d 999.

DOYLE J., dissenting.

Stanley Belden, of Cushing, for plaintiff.

Mac Q Williamson, Atty. Gen., for defendant.

JONES Presiding Judge.

Petition for rehearing with brief attached has been filed. In view of the extraordinary length of the brief and of some of the extravagant statements used by counsel in challenging the conclusions reached by a majority of this court in our opinion, we feel a further statement of the issues should be made.

Although counsel devotes several pages in his brief to what he terms the Communist menace and the obligation which he alleges this court owes to see that this menace to our government is checked, we again emphasize that we intend to dispose of the issues herein solely upon what we determine to be the applicable law and without any consideration of extrajudicial matter.

House Bill No. 17, passed by the 1941 Oklahoma Legislature, 51 O.S.1941 §§ 31-35, is cited and stressed as emphasizing the inherent danger of the Communist party. This Act disqualifies members of the Communist party from being elected or appointed to public office in Oklahoma. It was passed subsequent to the institution of the prosecution herein and probably as an outgrowth thereof. If there should have been anything in said Act which would have affected the guilt or innocence of defendant, the same would not be considered by this court because of the constitutional provision placing a ban on passage of ex post facto laws. Constitution, Article 2, Section 15.

Counsel state that our opinion completely nullifies the criminal syndicalism statute. This is not true. It was our purpose to sustain the statute but at the same time establish certain legal principles in accordance with the Constitution which would govern in its future application. There can be no question but that the Supreme Court of the United States has applied the clear and present danger test in all of their recent expressions where the scope of constitutional protections of freedom of speech, of the press, or of religious worship, were in issue. In reference to this test, the United States Supreme Court recently stated in Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 193, 86 L.Ed. 192: "It has been utilized by either a majority or minority of this Court in passing upon the constitutionality of convictions under espionage acts, Schenck v. United States, supra [249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470]; Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173; under a criminal syndicalism act, Whitney v. [State of] California, supra [274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095]; under an 'antiinsurrection' act, Herndon v. Lowry, supra [301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066]; and for breach of the peace at common law, Cantwell v. [State of] Connecticut, supra [310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352]. And very recently we have also suggested that 'clear and present danger' is an appropriate guide in determining the constitutionality of restrictions upon expression where the substantive evil sought to be prevented by the restriction is 'destruction of life or property, or invasion of the right of privacy.' Thornhill v. [State of] Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 745, 84 L.Ed. 1093."

Counsel contend that this test should not be applied to a prosecution under a criminal syndicalism statute. However, the above language of the United States Supreme Court shows that this principle is used as a guide whenever any of the personal rights safeguarded by the Constitution are put in issue.

The Bill of Rights belongs to all of the people and not merely to Communists or other unpopular minorities. It may be invoked by them at the moment but its protecting arm is thrown about every citizen. If we let down the bars to make it easier to convict Communists, then the bars will be down as to all other citizens. All people benefit when courts insist on the maintenance of free speech and other constitutional liberties for men we dislike.

It should be borne in mind that the constitutional principles in question are relative and not absolute. By that we mean that in the realm of constitutional guarantees of personal liberties the guarantees remain, but their application must often be temporarily modified lest the security or very existence of the state be endangered. It is mere common sense to recognize that certain acts and utterances which it is unnecessary and unjustifiable to restrict or punish in times of peace must, in the plain interest of the nation's safety, be controlled in time of war or quasi-war. Thus when no threat of war impends much leeway can be given to statements opposing recruiting for the armed forces and opposition to war. But with an enemy at the gate and when every nerve is strained to recruit a maximum number of men to fight for our very existence, no reasonable man would contend that a like easygoingness would be possible, although the actions and words are precisely the same. The written terms of the constitutional guarantee of free speech and press would not have altered; but the changed conditions would make its application, for the time being, very different. Once the courts let suppression get under way it spreads very fast and any group or organization is likely to fall a victim.

Our attention is directed to the ban placed by the Communists in Russia at the beginning of their rule upon all forms of religious worship. If present historical and political writers can be believed, these restrictions on religious worship have been greatly relaxed in the last five years. But irrespective of that, if we should adopt a construction of the statute in question which is insisted upon by counsel for the state, it is conceivable that this rule might at some time be invoked by a majority to persecute members of any of several religious organizations here in our own state, merely because they are composed of an unpopular minority. It is easy to recall that the wealthy men of Germany were delighted when Hitler began rounding up Jews and Communists and seizing their properties and one of the wealthiest, Mr. Thyssen, the steel magnate, contributed large sums of money to help Hitler carry on this work. It was not long, however, until Thyssen had all of his property seized and he departed for Switzerland in a hurry where he now spends his time...