State v. Denny

• Decision Date: 21 January 1936
• Citation: 152 Or. 541,53 P.2d 713
• Parties: STATE v. DENNY. [*]
• Court: Oregon Supreme Court

53 P.2d 713

152 Or. 541

STATE v. DENNY. ^[*]

Supreme Court of Oregon

January 21, 1936

Department 2.

Appeal from Circuit Court, Multnomah County; James P. Stapleton Judge.

Edward R. Denny was convicted for conducting assemblage advocating criminal syndicalism, and he appeals.

Affirmed.

Irvin Goodman, of Portland (Harry L. Gross and Clifford O'Brien, both of Portland, on the brief), for appellant.

Maurice E. Tarshis and George C. Graham, Deputy Dist. Attys., both of Portland (James R. Bain, Dist. Atty., of Portland, on the brief), for the State.

CAMPBELL Chief Justice.

On September 29, 1934, the grand jury of Multnomah county returned an indictment charging the defendants Edward R Denny, Dirk De Jonge, Don Cluster, and Earl Stewart with the crime of presiding at, conducting, and assisting in conducting an assemblage of persons advocating criminal syndicalism; the charging part of the indictment reading as follows: "*** Did then and there unlawfully and feloniously preside at, conduct and assist in conducting an assemblage of persons, organization, society and group to-wit: The Communist Party, a more description of which said assemblage of persons, organization, society and group is to this grand jury unknown, which said assemblage of persons organization, society and group did then and there unlawfully and feloniously teach and advocate the doctrine of criminal syndicalism and sabotage; ***".

Defendant Denny demanded and was granted a separate trial. He was thereafter tried separately, and on January 29, 1935, was found guilty as charged, and sentenced to the penitentiary of this state for a period of two years.

On the trial, at the close of the state's evidence, defendant moved for a directed verdict of not guilty. Again, at the close of all the evidence in the case, defendant moved for a directed verdict, on the ground: "*** That use of the terms 'revolutionary tactics' and 'defiance of police', if such terms were used, together with the exhibits introduced into evidence herein furnish no evidence of a violation of the criminal syndicalism law, and upon the further ground that the state of Oregon has failed to prove the material allegations in the indictment that defendant, Denny, unlawfully and feloniously taught and advocated the doctrine of criminal syndicalism and sabotage as defined by law."

Both of the above motions were overruled, and the defendant duly excepted to the rulings of the court thereon. Thereafter defendant appealed to this court. On the appeal being taken, the defendant moved the lower court for an order requiring the state to provide a transcript of testimony, at the expense of the county for the use of the defendant on this appeal. This request was denied, and, the defendant failing to have it transcribed, the case is now before us on the bill of exceptions which purports to give in substance the testimony introduced on behalf of the state and the defendant.

1, 2. The contention is made in appellant's brief that the Criminal Syndicalism Act, section 14-3,112, Oregon Code 1930, as amended by chapter 459,§ 3, Oregon Laws 1933 (page 868), violates sections 8 and 26 of article 1, of the Oregon Constitution, and that it also violates the First Amendment and section 1 of the Fourteenth Amendment to the United States Constitution.

Defendant asks us to take judicial notice of the transcript of testimony which was filed in this court in the case of State v. Dirk De Jonge, 51 P.2d 674, 680, decided by this court, November 26, 1935, as this indictment and trial grew out of the same meeting and the same incidents that were pertinent to the trial of said De Jonge. There are sufficient excerpts from the literature distributed or advocated at said meeting, quoted in said cause, to show the purpose for which the meeting was called.

If we should take judicial notice of the transcript of evidence in the case of State v. Dirk De Jonge, supra, then we have already passed upon the constitutionality of the act, and in that case the court said: "It is not necessary here to discuss the constitutionality of the Oregon act, questioned by defendant, for that matter was thoroughly covered in the cases of State v. Laundy, 103 Or. 443, 204 P. 958, 206 P. 290, and State v. Boloff, 138 Or. 568, 4 P.2d 326, 7 P.2d 775. See, also, in this connection, Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095, and State v. Hennessy, 114 Wash. 351, 195 P. 211." State v. De Jonge, supra.

In addition to the decisions of our own court, the decisions of the courts of other states and of the United States Supreme Court have almost unanimously held similar statutes to be constitutional. The latest expression of the United States Supreme Court is found in the case of Herndon v. State of Georgia, 295 U.S. 441, 55 S.Ct. 794, 796, 79 L.Ed. 1530.

The state of Georgia has a statute which makes it a criminal offense to incite insurrection. Insurrection is defined by its statute: "Insurrection shall consist in any combined resistance to the lawful authority of the State, with intent to the denial thereof, when the same is manifested, or intended to be manifested, by acts of violence." Section 55, Penal Code of Georgia 1910.

"Any attempt, by persuasion or otherwise, to induce others to join in any combined resistance to the...