State v. Boloff

• Citation: 4 P.2d 326,138 Or. 568
• Parties: STATE v. BOLOFF.
• Decision Date: 20 October 1931
• Court: Supreme Court of Oregon

4 P.2d 326

138 Or. 568

STATE v. BOLOFF.

Supreme Court of Oregon

October 20, 1931

En Banc.

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

Ben Boloff was convicted of the crime of criminal syndicalism and he appeals.

Affirmed.

This is an appeal from the judgment of the circuit court which adjudged the defendant guilty of the crime of criminal syndicalism, as alleged in an indictment which reads as follows: "The said Ben Boloff on the 29th day of August A. D. 1930, in the County of Multnomah and State of Oregon then an there being, did then and there unlawfully and feloniously help to organize, and did voluntarily assemble with a certain society and assemblage of persons, to-wit: The Communist Party of the U.S. A., and was then and there a member of said society, which society and assemblage of persons was formed to, and did then and there unlawfully and feloniously teach, advocate and affirmatively suggest the doctrine of criminal syndicalism, sabotage, and the necessity, propriety and expediency of doing acts of physical violence and the commission of crime and unlawful acts as a means of accomplishing and effecting industrial ends political ends, change and revolution, and for profit."

The indictment was founded upon section 14-3,112, Oregon Code 1930. The judgment of guilt ordered the defendant's incarceration in the Oregon penitentiary for a term of ten years. Defendant's brief presents and argues eight assignments of error.

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

Irvin Goodman, of Portland, for appellant.

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

ROSSMAN, J. (after stating the facts as above).

Since a consideration of the assignments of error will be greatly facilitated through an understanding of the evidence presented by the state, we deem it advisable to set forth the following résumé of the principal features developed by the state's evidence. We precede this review with a statement that during the interrogation of the veniremen and during the examination of the state's witnesses, the defendant's attorney voluntarily and freely conceded the defendant's membership in the Communist Party, and that he joined the party in Oregon. As a witness in his own behalf, the defendant admitted his membership.

One M. R. Bacon, a police officer in the employ of the city of Portland, testified that for the purpose of gaining information as to the nature and activities of the Communist Party, he joined the Portland unit of it March 15, 1930, and was thereafter elected to various offices in the party and its subsidiaries, including a position as secretary and also as a delegate to its Northwest convention held in Seattle, and to its Pacific Coast convention in San Francisco. From his testimony it appeared that the Communist Party in the United States has organized this country into more than twenty districts, of which Oregon, Washington, and Alaska comprise the twelfth, with headquarters in Seattle. National headquarters are maintained in New York. The Communist Party of the United States is a subsidiary of an international organization whose headquarters are in Moscow, Russia. The main program followed by the Communist Party of the United States originates in Moscow, and is sent to the Communist Party of this country from the Communist International by "theses and resolutions." The Portland unit, with a membership of approximately fifty listed individuals who pay dues, maintains headquarters at Room 312 Worcester Building, where a supply of literature is maintained for sale and distribution. It also has an "underground membership" whose number is unknown to Bacon. The aforementioned room also constitutes the regular meeting place for the Portland membership. Upon its wall is displayed a large red flag bearing the symbols-a scythe and hammer-of Soviet Russia. According to Bacon, Communist Party newspapers have a circulation of approximately 250,000 copies in the United States.

Bacon testified that one who desires to join the party is required to sign an application wherein he subscribes to its principles. When his application has been received, he is required to return a registration form bearing such information concerning himself as is desired by the local unit. All applicants are required to pledge adherence to the program and statutes of the party and to promise to engage in all of its activities. Bacon testified that no membership card is issued until the officials of the party have become convinced of the applicant's sincerity and good faith. At the time of the defendant's arrest there was taken from his person his membership booklet issued to him by the Communist Party, in which was recited the fact that he was a member of that organization, having been admitted to membership in January of 1924. Beside this entry was another which stated that he had "entered revolutionary movement, 1922." Upon pages specially provided and headed with the words, "Membership Dues for 1930," are 33 dues stamps. Four of these, in the denomination of 50 cents, are marked, "8/29, E. N." A later page, headed with the words "Assessment Stamps," contains one stamp of the denomination of $1, entitled, "7th Convention of the Communist Party of the U.S. A.," and is marked, "5/30/30, L. M." In the booklet, which is of a size appropriate for a vest pocket, are five pages entitled, "Extracts from the Statutes of the Communist Party of the U.S. A." Omitting parts, we quote from these the following:

"§ 3-Membership. 1. A member of the Party can be every person from the age of eighteen up who accepts the program and statutes of the Communist International and the Communist Party of the U.S. A., who becomes a member of a basic organization of the Party, who is active in this organization, who subordinates himself to all decisions of the Comintern and of the Party, and regularly pays his membership dues. ***

"§ 4-Structure of the Party. 1. The Communist Party, like all sections of the Comintern, is built upon the principle of democratic centralization. These principles are: *** (c) Acceptance and carrying out of the decisions of the higher Party committees by the lower, strict Party discipline, and immediate and exact applications of the decisions of the Executive Committee of the Communist International and of the Central Committee of the Party. *** (e) The discussion on basic Party questions or general Party lines can be carried on by the members only until the Central Committee has decided them. After a decision has been adopted at the congress of the Comintern, the Party convention, or by the leading Party committee, it must be carried out unconditionally, even if some of the members or some of the local organizations are not in agreement with the decision. ***

"§ 12-Party Discipline. 1. The strictest Party discipline is the most solemn duty of all Party members and all Party organizations. The decisions of the CI and the Party Convention, of the CC and of all leading committees of the Party, must be promptly carried out. Discussion of questions over which there have been differences must not continue after the decision has been made."

The above extracts of "statutes" is succeeded by the following: "What is the Communist Party?

"The Party is the vanguard of the working class and consists of the best, most class conscious, most active, the most courageous members of that class. It incorporates the whole body of experience of the proletarian struggle, basing itself upon the revolutionary theory of Marxism and representing the general and lasting interests of the whole of the working class, the Party personifies the unity of proletarian principles, of proletarian will and of proletarian revolutionary action. (From the program of the Communist International.)

"We are the Party of the working class. Consequently, nearly the whole of that class (in time of war and civil war, the whole of that class) should work under the guidance of our Party, should create the closest contacts with our Party. (Lenin)

"On Discipline. He who weakens, no matter how little, the iron discipline of the Party of the proletariat (especially during the period of dictatorship), effectually helps the bourgeoisie against the proletariat. (Lenin)"

Bacon testified that August 29, 1930, at Room 312 Worcester Building, a meeting of the local unit was held which was attended by the defendant. It will be recalled that Boloff's membership book records his purchase of four fifty-cent stamps August 29, 1930. Bacon testified: "That meeting was called to select speakers and to appoint members of the Party to take charge of a demonstration, proposed demonstration, to be held under the auspices of the Trade Union-Unemployed Council of the Trade Union Unity League for September 1st, and to see that a defense corps was organized; that was a part of the instructions, or to protect the speakers at the meetings to be held at the Plaza Blocks on September 1st. *** All Party members were requested to be present and be active in distributing leaflets for that demonstration and to be at the demonstration, to support the speakers and to protect them from police interference in case attempts were made to arrest their speakers." He added that instructions were given to forcibly resist any officer who attempted to interfere with the demonstration.

The same witness swore that the policies and principles advocated by the Communist Party were the following: "They advocate the overthrow of the Government, of our Government-that is, the Government of the United States of America, and all other Governments, that are not Soviet, by revolution, and that is-the...