State v. Boloff

• Decision Date: 12 January 1932
• Parties: STATE v. BOLOFF.
• Court: Oregon Supreme Court

7 P.2d 775

138 Or. 568

STATE v. BOLOFF.

Supreme Court of Oregon

January 12, 1932

En Banc.

Appeal from Circuit Court, Multnomah County; William A. Ekwall Judge.

On petition for rehearing.

Petition denied.

For former opinion, see 4 P.2d 326.

BELT J., BEAN, C.J., and RAND, J., dissenting.

Imposition of penalty rests within exclusive discretion of trial court.

Irvin Goodman, of Portland, for appellant.

Lotus L. Langley, Dist. Atty., and Ben Conn, Deputy Dist. Atty both of Portland (J. Mason Dillard, of Portland, on the brief), for the State.

Oscar Hayter, of Dallas, amicus curiae.

ROSSMAN J.

The petition for a rehearing and the arguments advanced in its support have caused us to consider once more all of the issues presented by this appeal.

At the outset it may be well to take note of the provisions of the Criminal Syndicalism Act (§ 14-3,112, Oregon Code 1930) applicable to the charge made by the indictment. A reference to the acts and conduct which it prohibits will bring to mind more clearly the issues awaiting our attention. It will also be well to recall that it is the province of the Legislature to declare what acts are injurious to the public welfare and to prohibit them by legislative enactment as crimes. When the Legislature has spoken, judicial consideration of its enactments is limited to an inquiry whether the constitutional rights of the citizen have been invaded. If they have not, the statute must be sustained and effect must be yielded to it by the courts, even though the latter may seriously disagree with the wisdom of such enactments. A legislative act creates a rule for all; it is not an order or command to some individual; it is permanent, not transient. A law is universal in its application, not a sudden order to and concerning a particular person. The act under consideration provides: "Any person *** who shall be or become a member of, or organize or help to organize, or solicit or accept any person to become a member of, or voluntarily assemble with any society or assemblage of persons which teaches, advocates, or affirmatively suggests the doctrine of criminal syndicalism, sabotage, or the necessity, propriety or expediency of doing any act of physical violence or the commission of any crime or unlawful act as a means of accomplishing or effecting any industrial or political ends, change or revolution or for profit, is guilty of a felony. ***" Reduced to simple terms, the above law makes it criminal for any one to join or hold a membership in any society which teaches or advocates crime, sabotage, or violence as a means of effecting a change or revolution in industry or government.

Defendant's briefs repeatedly mention the Communist Party and Boloff's membership in it; they seem to believe that he was convicted because of his faith in the doctrines of Marx, Engel, and Lenine. That is untrue. His conviction was sustained because he belonged to an organization which advocated violence and crime as approved means of effecting changes in government and industry. The fact that that organization is entitled the Communist Party, that its headquarters are in Russia, and that it is avowedly sympathetic with the workingman, are details of no consequence to this court. If the organization of which the defendant is a member had not advocated the use of violence, the law would never have taken notice of him or of his society. Had he and his associates proceeded by the means pointed out by the Federal and the Oregon Constitutions, they could have undertaken to effect any change in our system of government and of industry which they desired. They could have changed our republic into a purely communistic state with Boloff as its dictator. Only an approving vote by the American people was required, but that approval, evidenced by the necessary number of votes, is the all-important factor in changing our form of government. 6 R. C. L., Constitutional Law, p. 26, § 16. Violence, force, or unlawful seizure of the reins of government are not recognized by the Constitution and our laws. People v. Lloyd, 304 Ill. 23, 136 N.E. 505. The framers of our Constitution made abundant provision for changes in our form of government by peaceful means. We quote from the words of Mr. Justice Pound in People v. Gitlow, 234 N.Y. 132, 136 N.E. 317, 326, wherein he refers to the Communistic program enunciated in the party manifesto as published in the Revolutionary Age (copies of this document were kept in the party office in Portland): "Such means, even though force and violence are disavowed, are not lawful, for the reason that the form of our government may be lawfully changed only by the vote of the majority of the people, expressed through the ballot by constitutional methods, and that method of change is not the method advocated by the manifesto."

It is true that our forefathers wrested control from England by force, but at that time the law had provided no means whereby a change in government could be accomplished by ballot. After they had paid with blood and gold a fearful cost for effecting that change in government, they wrote into the Constitution which they provided for their posterity a means of effecting future changes without the necessity of paying such a costly price. They provided the ballot. In the recent case of State v. Diamond, 27 N.M. 477, 202 P. 988, 20 A. L. R. 1527, a statute, apparently aimed at sedition and insurrection, was held invalid because it failed to distinguish between opposition to government contemplating the use of force and that employing peaceful and legal methods. The court pointed out that the latter means are always available to any one who desires to effect a revolution. See, to like effect, Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A. L. R. 1484. And in Fiske v. State of Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108, the Federal Supreme Court reversed a judgment of conviction, previously sustained by the Supreme Court of Kansas (117 Kan. 69, 230 P. 88), of a member of the Industrial Workers of the World because the proof failed to show that his organization contemplated the use of violence in its program looking to a change in industry.

But it is suggested that the proof failed to show that Boloff had committed an "overt act." An "overt act" is nothing more than a step taken by the accused which shows that he has begun to put his designs into execution. The overt act, so called, must of necessity be some part of the crime, and to ascertain what acts constitute the crime we must look to the statute. Reverting to the Criminal Syndicalism Act, it will be observed that it does not employ the words "overt act" or any of their equivalents. "In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted." Section 9-214, Oregon Code 1930. Another section of our laws provides that the rules of the common law which demanded that penal statutes should be strictly construed have no application to our Criminal Code, but all of its provisions are to be construed according to the fair import of their terms. Section 14-1043, Oregon Code 1930. It will be observed from the portions of the act which we have quoted above that the only overt acts which that statute demands as proof of guilt are: (1) Organizing a society which teaches or advocates crime, violence, etc.; (2) uniting in membership with a society already in existence; or (3) continuing a membership previously obtained. We are powerless to add additional provisions. In fact, if additional so-called overt acts should be added by the courts, the criminal syndicalism acts would be rendered useless. For instance, before their passage our criminal laws already included: (a) Laws prohibiting attempts to commit crimes; (b) laws making penally liable those who aided and abetted the commission of crimes; and (c) conspiracy statutes. It must be evident that when the Legislature enacted the Criminal Syndicalism Act is intended to prohibit conduct which was not reached by the aforementioned provisions of our Criminal Code. No decision which has come to our attention-and we have examined many-has demanded more proof than the defendant's membership in an organization which teaches or advocates violence and crime. For instance, in State v. Aspelin, 118 Wash. 331, 203 P. 964, the Washington Supreme Court, in referring to the Criminal Syndicalism Act of that state, said: "In passing this act the Legislature evidently deemed it necessary to put a stop to activities which would naturally result in crimes against persons and property and made the mere membership in such an organization a crime." From Berg v. State, 29 Okl. Cr. 112, 233 P. 497, 500, we quote: "'Treason' requires more than mere words to constitute the offense. It requires some overt act and proof by two or more witnesses, while the offense here defined is an offense which consists of words only." From People v. Ruthenberg, 229 Mich. 315, 201 N.W. 358, 371, we quote: "This statute does not make criminality dependent upon the commission of an overt act. It reaches those who advocate or teach the commission of crime as a means to accomplish an end, and those who, by choice, assemble with them. An overt act along the lines of such advocacy or teaching would constitute an entirely different crime punishable now by other laws of the state." In support of its conclusion, the Michigan court quoted from State v. Laundy, 103 Or. 443, 204 P. 958, 965, tney v. People of State of California,

274 U.S 357, 45 S.Ct. 641, 71 L.Ed. 1095, as suggested in our previous...