State v. Fiske
| Decision Date | 08 November 1924 |
| Docket Number | 25,333 |
| Citation | 117 Kan. 69,230 P. 88 |
| Parties | THE STATE OF KANSAS, Appellee, v. HAROLD B. FISKE, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1924
Appeal from Rice district court; CLYDE R. DOUGLASS, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CRIMINAL SYNDICALISM--No Error in Refusing Continuance. It is held that no abuse of discretion is shown in the overruling of a motion for a continuance.
2. SAME--Venue Question of Fact for Jury. The question whether a criminal prosecution was brought in the proper county is held to have been one of fact for the determination of the jury.
3. SAME--Proof of Corpus Delicti. It is held that if the corpus delicti cannot be proved by extra-judicial admissions of the defendant, there was in this case such corroborative evidence as to prevent the application of the rule.
4. SAME--Articles Wrongfully Obtained Competent Evidence. The rule is applied that articles are not rendered inadmissible in evidence by the fact that they were wrongfully obtained.
5. SAME--Sufficient Information. An information is held sufficient to charge a violation of the statute penalizing criminal syndicalism.
6. SAME--Evidence Supports Conviction. The evidence is held to support a conviction on a charge of criminal syndicalism.
7. SAME--Freedom of Speech Not Violated. Constitutional guarantees of freedom of speech are not violated by a statute penalizing the advocacy of violence in bringing about governmental changes.
Charles L. Carroll, of Great Bend, A. M. Harvey, Randal C. Harvey and Paul L. Harvey, all of Topeka, for the apellant.
Charles B. Griffith, attorney-general, and Bronce Jackson, county attorney, for the appellee.
Harold B. Fiske appeals from conviction upon a charge of violating the statute which defines criminal syndicalism and penalizes its advocacy.
1. The offense is alleged to have been committed on July 2, 1923. A term of court began September 4, 1923, on which day the information was filed. On September 18, the day the case was tried, the defendant filed a motion for a continuance until a later date or until the next term, on the ground that his regular counsel, a resident of Chicago, was unable to be present because of being of counsel in cases pending in another court and his local attorney had not had time to prepare a proper defense. The overruling of the motion is complained of. The matter was within the discretion of the court and it cannot be said that any abuse of discretion was shown.
2. It is contended that the case should have been transferred to Reno county under the statute authorizing such procedure where it develops that a prosecution is brought in a county not having jurisdiction. (R. S. 62-1442.) The defendant testified that he took two applications for membership in the Industrial Workers of the World (upon which conduct the state relied for conviction) at Haven, in Reno County, on June 30, saying, however, that he went from that county into Rice that day and was in the latter county all of July 1, The day the application cards bore date. He gave an explanation consistent with the applications having been made June 30, but its credibility was one of the issues of fact. There was also evidence that the sheriff of Rice county said to him in Geneseo, in that county, "Have you got any members here in this county?" and that he answered, "Yes, two." There was other testimony to the same effect. The question whether the applications were taken in Rice county was therefore a fair one for the jury.
3. It is urged that there was no evidence of the defendant having induced anyone to join the Industrial Workers of the World except his own statements made out of court, and that the corpus delicti cannot be established by his extra-judicial admissions. The rule, if otherwise sound and applicable, does not apply here, because of the corroboration afforded by the signed cards in the possession of the defendant, which were identified by him as applications for membership.
4. Without a warrant the defendant was arrested and papers in his possession were seized. The use of the papers in evidence is objected to on the ground of their illegal seizure. This court has adopted and recently confirmed the rule that articles are not rendered inadmissible as evidence by the fact that they were wrongfully obtained. (The State v. Johnson, 116 Kan. 58, 226 P. 245.)
5. Error is assigned in the overruling of a motion to quash the information. The statute under which the prosecution is brought, so far as now important, reads:
"Any person who, by word of mouth, or writing, advocates, affirmatively suggests or teaches the duty, necessity, propriety or expediency of crime, criminal syndicalism, or sabotage, or who shall advocate, affirmatively suggest or teach the duty, necessity, propriety or expediency of doing any act of violence, the destruction of or damage to any property, the bodily injury to any person or persons, 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." (R. S. 21-303.)
"Criminal syndicalism is hereby defined to be 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, or as a means of effecting industrial or political revolution, or for profit." (R. S. 21-301.)
The material part of the information reads:
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