State v. Hennessy

• Decision Date: 25 January 1921
• Docket Number: 15925.
• Citation: 114 Wash. 351,195 P. 211
• Court: Washington Supreme Court
• Parties: STATE v. HENNESSY.

195 P. 211

114 Wash. 351

STATE v. HENNESSY.

No. 15925.

Supreme Court of Washington, En Banc.

January 25, 1921

Appeal from Superior Court, Clarke County; R. H. Back, Judge.

Mike Hennessy was convicted of criminal syndicalism, and he appeals. Affirmed.

George F. Vanderveer and Ralph S. Pierce, both of Seattle, for appellant.

Lindsay L. Thompson, of Olympia, amicus curiae.

W. E Yates, of Vancouver, for the State.

MAIN, J.

The defendant was charged by an amended information with what is generally called 'criminal syndicalism,' though it is not so named in the statute defining the crime. A demurrer to the information was overruled, the trial resulted in a verdict of guilty, and the defendant appeals.

The charging part of the information is as follows:

'That he, the said Mike Hennessy, 'On or about the 15th day of November, 1919, in the county of Clarke and state of Washington, then and there being, did then and there willfully, unlawfully and feloniously organize, help to organize, give aid to, and voluntarily assemble with or be a member of 'The Industrial Workers of the World,' in a voluntary assembly and group of persons formed to unlawfully feloniously, and anarchistically advocate, advise, and teach crime, sedition, violence, intimidation and injury as a means of effecting industrial, economic, social and political change,' and the said defendant, Mike Hennessey did then and there print, publish, circulate, distribute, and display books, pamphlets, handbills, documents and other written and printed matter, advising, advocating, teaching and justifying crime, sedition, violence, intimidation and injury as a means and way of effecting industrial, economic, social and political change, contrary to the statutes in such cases made and provided and against the peace and dignity of the state of Washington.'

The statute (Laws 1919, p. 518) upon which the information is based is as follows:

'Section 1. Whoever shall

'(1) Advocate, advise, teach or justify crime, sedition violence, intimidation or injury as a means or way of effecting or resisting any industrial, economic, social or political change, or

'(2) Print, publish, edit, issue or knowingly sell circulate, distribute or display any book, pamphlet, paper, handbill, document, or written or printed matter of any form, advocating, advising teaching or justifying crime, sedition, violence, intimidation or injury as a means or way of effecting or resisting any industrial, economic, social or political change, or

'(3) Organize or help to organize, give aid to, be a member of or voluntarily assemble with any group of persons formed to advocate, advise or teach crime, sedition, violence, intimidation or injury as a means or way of effecting or resisting any industrial, economic, social or political change.

'Shall be guilty of a felony.'

Comparing the information with the statute, it will be seen that the charge is substantially in the language of subdivisions 2 and 3 of the statute. The statute makes it a felony for a person to do any of the things specified therein 'as a means or way of affecting or resisting any industrial, economic, social or political change.' The crime defined in the act, speaking generally, is one against the present social order and may be committed in any of the ways therein set out. It is first contended that the information was duplicitous in that it charged more than one crime and that for this reason the demurrer thereto should have been sustained. The information does charge the appellant with helping to organize, voluntarily assembling with, giving aid to, and being a member of the Industrial Workers of the World, and that he did print, publish, circulate, and distribute certain books, pamphlets, etc.

It is the general rule that, where a single offense may be committed in different ways of by different means, it may be charged in the information to have been committed by more than one of the ways or means. State v. Pettit, 74 Wash. 510, 133 P. 1014; State v. Gaul, 88 Wash. 295, 152 P. 1029; State v. Wingard, 92 Wash. 219, 158 P. 725; State v. Klein, 94 Wash. 212, 162 P. 52; State v. Brummett, 98 Wash. 182, 167 P. 120. On the other hand, if the statute defining the crime charges separate and distinct offenses arising out of disconnected transactions, an information which charges more than one of the offenses would be duplicitous. State v. Dodd, 84 Wash. 436, 147 P. 9; Seattle v. Molin, 99 Wash. 210, 169 P. 318. While the general rule is plain enough, it is not always easy to determine whether the information based upon a particular statute and in substantially the language thereof charges separate and distinct offenses or whether it charges one offense and sets out the various ways or means by which that offense may be committed. The appellant in this case contends that the information charges separate and distinct offenses. If this betrue, then the statute upon which it is based defines, not one offense and specifies the ways in which it may be committed, but defines a number of separate and distinct offenses.

The chief reliance of the appellant is upon the Dodd and Molin Cases, just cited. In the Dodd Case the defendant was charged under a statute which made it an offense to place a female in charge of another person for an immoral purpose or, being the husband of a woman, conniving and consenting to her leading a life of prostitution, or soliciting persons to go to a house of prostitution for an immoral purpose. It was there held that the information was duplicitous because the act of the husband in placing his wife in custody of another person for an immoral purpose and with intent that she shall lead a life of prostitution had no readily perceived connection with the act of soliciting persons to go to a house of prostitution for an immoral purpose. In the Molin Case the defendant was charged with violating the general liquor ordinance of the city of Seattle and it was claimed that the complaint was had for duplicity. The defendant there was charged with manufacturing liquor, selling, bartering, and disposing of liquor, buying, receiving, and giving liquor for an unlawful purpose, buying liquor contrary to law and having a prohibited amount of liquor in his possession. It was there held that the complaint charged at least five separate and distinct offenses arising out of disconnected transactions based upon wholly different provisions of the ordinance. It is easy to see that the ordinance which defines manufacturing liquor, buying liquor contrary to the law, and so forth, charges separate and distinct offenses. There was no major crime which could be committed in each of the specified ways as defined in the ordinance under consideration in that case. The test applied by these two cases to determine whether the act charges and the statute defines more than one crime, or whether it defines a single crime which may be committed in a number of different ways, is whether there is a readily perceived connection between the things charged. If there is no reasonable connection one with the other and they are disconnected transactions, the information is duplicitous. Applying this test to the present case, it appears, as already indicated, that the crime defined by the statute and of which the appellant is charged was that of 'effecting or resisting any industrial economic social or political change' in any of the ways specified in the act. It was not made criminal to do the things there mentioned for any other purpose. It would seem that there is a direct and immediate connection between organizing, helping to organize, giving aid to and so forth, and voluntarily assembling which has a definite object to accomplish and the printing, publishing, circulating, and so forth, of books, pamphlets, and other printed matter having for its object the same purpose. One is the organizing, the other the propaganda put forth and the result to be accomplished is the same, each having the common object as defined by the statute of effecting or resisting any industrial, economic, social, or political change. The information upon which the appellant was tried in this case does not fall within the rule of the Dodd and Molin Cases, but comes within the general rule above stated, where a single offense may be committed in different ways it may be charged in the information to be committed in more than one of the ways. There is another reason why the trial court was correct in overruling the demurrer, and that is that the ways and means specified in the statute by which the crime may be committed are not repugnant to each other. State v. Pettit, 74 Wash. 510, 133 P. 1014; State v. Wingard, supra. In the Wingard Case it was said:

'But this court has held, and the general rule is, that where a single offense may be committed in different ways or by different means, it may be charged in the information to have been committed by more than one of the ways or means, provided the ways or means charged be not repugnant to each other'--citing the Pettit and the Gaul Cases.

In the Klein Case it was said:

'In other words, the defining statute enumerates disjunctively a series of acts, either of which separately, or all together, so far as they are not in their nature inconsistent, may constitute the single offense of larceny. In such a case it is thoroughly settled that the information may charge in a single count the commission of the offense in any, or, by conjunctive allegation, in all of the enumerated and not inconsistent ways.'

Other cases from this court might be cited and reviewed, but a detailed consideration of how the court has held in each specific case would greatly extend this opinion and would add nothing to the general rule. Each case must depend to...