Shaw v. State

• Decision Date: 17 February 1943
• Docket Number: A-10083.
• Parties: SHAW v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

134 P.2d 999

76 Okla.Crim. 271

SHAW v. STATE.

No. A-10083.

Court of Criminal Appeals of Oklahoma

February 17, 1943

Syllabus by the Court.

1. Law in its regular course of administration through courts of justice, is "due process" when operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.

2. Each state, when not restrained by its own fundamental law or by the supreme law of the land, possesses all legislative power consistent with a republican form of government, and has power and authority to provide by legislation, not only for the protection of the health, morals, and safety of the people, but for the common good, as involved in the well-being, peace, and prosperity of its people.

3. The Oklahoma Criminal Syndicalism Act (21 O. S. 1941 § 1263) which defines criminal syndicalism as 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 and declares guilty of a felony any person who becomes a member of or voluntarily assembles with any society or assemblage of persons which teaches or advocates the doctrine of criminal syndicalism, is sufficiently clear and explicit to satisfy the requirements of due process of law.

4. The criminal syndicalism statute does not violate the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution in penalizing those who advocate a resort to violent and unlawful methods as a means of changing industrial and political conditions while not penalizing those who may advocate a resort to such methods for maintaining such conditions, since the distinction is not arbitrary but within the discretionary power of the State to direct its legislation against what it deems an evil without covering the whole field of possible abuses.

5. The determination of the legislature that the acts defined involve such danger to the public peace and security of the State that they should be penalized in the exercise of the police power must be given great weight and every presumption be indulged in favor of the validity of the statute, which could be declared unconstitutional only if an attempt to exercise arbitrarily and unreasonably the authority vested in the State in the public interest.

6. If by any fair intendment the provisions in the body of an act have a necessary and proper connection with the title, and are not incongruous with the title, or without proper connection or relation therewith they are sufficiently covered by the title.

7. The term "subject" as used in Article 5, Section 57, of the Oklahoma Constitution to the effect that "Every Act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title," is to be given a broad and extensive meaning so as to allow the legislature full scope to include in one act all matters having a logical or natural connection.

8. That part of the criminal syndicalism statute which makes it unlawful to become a member of or voluntarily assemble with a denounced society or assemblage embraces matters which are at least "matters properly connected with the subject," even though not specifically mentioned in the title to the act. That part of the body of the act is clearly not broader than the title of the act.

9. An information following substantially the language of the statute in charging that defendant became and was a member of the Communist Party, which was a society that teaches advocates and affirmatively suggests the doctrine of criminal syndicalism and describes the method of operation of said society, is not vague, indefinite or uncertain and is sufficient as against a general demurrer.

10. The information is not duplicitous.

11. Affidavit for search warrant, positive in its terms and correctly describing premises to be searched, is not void because it is on a form ordinarily used in procuring a warrant to search for intoxicating liquors.

12. The truth of the averments in the affidavit to procure search warrant is not an issue in a hearing on a motion to suppress evidence.

13. In hearing on motion to suppress evidence, court's finding on disputed question of fact as to whether search warrant sufficiently described defendant's premises will be sustained where there is competent evidence in record to support finding.

14. Where a party is legally arrested for a felony, such person and his premises may be searched in order to find and seize things connected with the crime as its fruits or as the means by which it was committed.

15. It is error to admit in evidence, over objection of defendant books, pamphlets and other writings of which defendant was not the author, for the purpose of showing the principles of the Communist Party, allegedly advocated by defendant, where the books or other writings are not properly authenticated and there is no evidence from which the jury might find that defendant sanctioned the principles set forth in said writings.

16. A general commentary or dissertation upon the principles or doctrines of the Communist Party, unless defendant himself is the author or unless shown to have been published or adopted by said organization, would not be admissible over objection of defendant.

17. A writing does not prove itself and it is error to admit in evidence books not written by defendant but found in his possession and purportedly being a dissertation on the Communist Party, on the theory that the books are "self-identifying."

18. The hearsay rule applies as forcibly to statements in writing as those verbally made.

19. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced, and there must be reasonable ground to believe that the danger apprehended is imminent.

20. The likelihood, however great, that a substantive evil will result cannot alone justify a restriction on freedom of speech or the press, but the evil itself must be substantial and must be serious, and even the expression of legislative preferences or beliefs cannot transform minor matters of public inconvenience or annoyance into substantive evils of sufficient weight to warrant the curtailment of liberty of expression.

21. The First Amendment to the Federal Constitution which prohibits any law abridging the freedom of speech or of press must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow, and before utterances can be punished the substantive evil that will likely result must be extremely serious and the degree of imminence must be extremely high.

22. The freedom of speech and of the press secured by the First Amendment against abridgment by the United States is similarly secured to all persons by the 14th Amendment against abridgment by a state.

23. Neither "inherent tendency" nor "reasonable tendency" to cause a substantive evil is enough to justify a restriction of free expression.

24. The guilt of any individual is personal and must be determined by the activities of that individual.

25. Before individual may be condemned for membership in an organization there must be proof of conscious guilt by individual action showing that individual adopts and approves the principles advocated by such organization.

26. In prosecution against accused charged with being a member of an organization advocating criminal syndicalism, the jury should have been instructed in substance that before they can convict defendant they must find beyond a reasonable doubt that defendant had become a member of an organization which advocated crime, physical violence, sabotage or other unlawful acts or methods, as a means of accomplishing or effecting industrial or political ends and that such advocacy was reasonably likely to result within the immediate future in the commission of crime, serious violence or other unlawful acts for the purpose of bringing about political or industrial change or revolution by such means.

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

Alan Shaw was convicted of criminal syndicalism, and he appeals.

Reversed and remanded.

George Croom, of Tulsa, Stanley Belden, of Cushing, and Herman Rosenfeld and Samuel A. Neuburger, both of New York City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and John Eberle, Asst. Co. Atty., both of Oklahoma City, for defendant in error.

Arthur Garfield Hays and Joseph A. Klausner both of New York City, for American Civil Liberties Union.

John Lee Smith, of Throckmorton, Tex., and Sam S. Gill, of Oklahoma City, for Knights of Pythias.

Osmond K. Fraenkel, of New York City, for National Lawyers Guild.

Abraham J. Isserman, of Newark, N. J., and Nathan Witt, of New York City, for National Federation for Constitutional Liberties.

Ralph B. Gregg, of Indianapolis, Ind., and Fred A. Tillman, of Pawhuska, for American Legion.

JONES Presiding Judge.

The defendant, Alan Shaw alias Alan Lifshutz, was charged by an information filed in the District Court of Oklahoma County with criminal syndicalism, was tried, convicted and sentenced to serve ten years imprisonment in the State Penitentiary and to pay a fine of $5,000, and has appealed.

This prosecution is an outgrowth of an investigation conducted by the police department of Oklahoma City and culminating in a series of raids conducted in August and September, 1940. Charges under the various sections of the criminal syndicalism statute (21 O.S.1941 § 1263) were instituted against d...