State v. Schleifer

• Decision Date: 30 July 1925
• Citation: 102 Conn. 708,130 A. 184
• Court: Connecticut Supreme Court
• Parties: STATE v. SCHLEIFER.

130 A. 184

102 Conn. 708

STATE v. SCHLEIFER.

Supreme Court of Errors of Connecticut.

July 30, 1925

[Copyrighted Material Omitted]

Appeal from Superior Court, New Haven County; Newell Jennings Judge.

Ernest Schleifer was convicted of the offense of solicitation to commit crime, and he appeals. Error, and new trial ordered.

Maltbie J., dissenting.

Benjamin Slade, of New Haven, Thomas J. Spellacy, of Hartford, and Louis Weinstein, of New Haven, for appellant.

Arnon A. Alling, State's Atty., of New Haven, for the State.

WHEELER, C.J.

The information upon which the accused was upon trial was before us upon a motion to quash, 99 Conn. 432, 121 A. 805, 35 A.L.R. 952. It charges the common-law crime of solicitation. The state offered evidence to prove that there existed on November 22, 1922, a strike of the shopmen on the New Haven Railroad, and that at a meeting of the strikers in New Haven on this day the accused addressed them in substance as follows:

" You will never win the strike with soft methods. You young men ought to go out on the bridge. Don't use eggs, use coal or indelible ink. Break foreman's windows at their homes. Watch the scabs when they come from work, lay for them, especially on pay day. Take them in a dark alley and hit them with a lead pipe. That is the softest thing you can use. Reimburse yourselves for what we have sacrificed for five months. Don't forget to bump off a few now and then, so Mr. Pearson will know that you are not getting cold feet. You car men know how to take a brake shoe off. Take the brake shoe and put it under something that will put the cars off the irons. A little sand or emery in the journal boxes will help greatly. Don't be satisfied with trimming the engines. Put some of the cars on the bum. Also, if convenient, put something in between the frames and rods of engines on sidings. Get busy young fellows, and trim these scabs. Things are running too smooth on the New Haven Road, but let me hear from you while I am here. Go ahead and rip things and don't let the injunction stop you from trimming these scabs. Don't forget to tie them up with derailments. You boys ought to cut them all up."

On the part of the accused the assignments of error, 80 in number, include exceptions to the rulings on evidence, to the charge as made, and to the requests to charge refused, and to the argument of the state's attorney. The bill of exceptions by the state cover certain rulings on evidence adverse to the state, and the charge of the court in one particular. We take up these several matters in the order stated.

In 1917, the accused was an organizer for the International Association of Machinists which is affiliated with the American Federation of Labor, and at the same time in the service of the United States government without pay, in recruiting men for war service at the Fore River shipyard. The state, upon cross-examination of the accused, while a witness in his own behalf, offered in evidence for the purpose of affecting his credibility three letters which indicated that at the time he was serving the government in war time he was preaching anarchy and advocating the social revolution among the employees of this shipyard. The court admitted the letters over the objection that they were irrelevant, concerned collateral matter, would tend to create prejudice against the accused, were remote and did not affect his credibility. If the letters disclosed a commercial fraud on the part of the accused, they would affect his credibility. If they disclose that he was in the service of the government in this shipyard, and at the same time advocating to the employees the overthrow by violence of the government, the letters were admissible as affecting the truthfulness, that is, the integrity, of the accused. This was undoubtedly the position of the trial court. It was, under the circumstances before the trial court, erroneous. One of the letters states that the accused was " preaching anarchy," and another that he was spreading " the propaganda of the social revolution." In one letter he addressed " Dear Comrade," in one he closed, " For a revolutionary success," in the other, " for the revolution." The state inquired of the accused upon cross-examination what was his definition of anarchy. This and the whole subject of anarchy the court excluded as one " upon which perhaps good men might differ." The court was right, anarchy has several meanings. " At its best," Webster's Unabridged Dictionary says:

" It stands for a society made orderly by good manners rather than by law, in which each person produces according to his powers, and receives according to his needs. At its worst, it stands for a terroristic resistance of all present government and social order."

Gitlow was convicted of the statutory crime of criminal anarchy, under New York Penal Laws, § § 160, 161. Section 160 provides:

" Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony."

In the appeal from this conviction, Mr. Chief Justice Sanford thus construes this statute:

" The statute does not penalize the utterance or publication of abstract ‘ doctrine’ or academic discussion having no quality of incitement to any concrete action. It is not aimed against mere historical or philosophical essays. It does not restrain the advocacy of changes in the form of government by constitutional and lawful means. What it prohibits is language advocating, advising, or teaching the overthrow of organized government by unlawful means. These words imply urging to action. * * * That a state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question. * * * And a state may penalize utterances which openly advocate the overthrow of the representative and constitutional form of government of the United States and the several states, by violence or other unlawful means." Gitlow v. People of the State of New York, 45 S.Ct. 625, 69 L.Ed. 1138, 268 U.S. 652.

If the accused meant in any of these letters the second of these meanings, then we think the letter was admissible as affecting his credibility, but if it meant the first, the philosophical use of this word, then it could not affect his credibility because there was no disloyalty to government in his advocacy, it was simply lawful propaganda by peaceful methods.

Our general rule of practice requires this conclusion. The particular acts of misconduct which may be inquired of a witness must be relevant to those which affect his character for veracity. The letters, which admit the preaching of anarchy, were not relevant, because they did not tend to affect the character of the accused for truthfulness. Dore v. Babcock, 74 Conn. 430, 50 A. 1016; Shailer v. Bullock, 78 Conn. 68, 70, 61 A. 65, 112 Am.St.Rep. 87. We do not intend by this holding to limit our rule that the credibility of a witness is largely discretionary as to the period to be covered and the extent. The question of relevancy is never within the discretion of the trial court. What we have said as to anarchy is applicable to the preaching of the social revolution. There is nothing in the letters or in the record which made this relevant. A court cannot of its own volition assume that when one uses the term " anarchy" or the " social revolution," he means the overthrow of government or society by terroristic or any other unlawful means. If the meaning can be determined by the court from an inspection of the letters in the light of the surrounding circumstances, the court can determine the meaning without the aid of extraneous evidence; if this cannot be done without evidence, the court cannot assume one of several meanings and admit evidence which would be admissible with this meaning, but inadmissible if another meaning were intended.

The accused on direct examination described those who had taken the places of shopmen out on strike as scabs. On cross-examination he defined a scab. He was then inquired of if he was in accord with the definition of a scab found upon a card handed him. Over objection and exception he answered, " Yes." The card was then laid in evidence. The definition it gave was a most vivid and venomous one. Later in the case the court struck this from the record. It had already been read to the jury and was of such a character that it had probably left its ineffaceable impress upon the mind of the jury, but regardless of this, we think it was perfectly admissible to read the definition and ask the witness if he was in accord with it. The question is upon the same basis as the question asked of an expert, as to whether he is in accord with a statement appearing in a recognized authority. If his answer be yes, the page of the authority read from cannot be laid in evidence as an exhibit, and for a like reason this definition purporting to come from a popular novelist cannot be laid in evidence as an exhibit. To lay it in evidence would take it to the jury room and accord this answer more weight than other answers not marked as exhibits. It follows that the ruling of the court in first admitting this question was not erroneous.

Evidence was offered by the state and admitted over objection and exception by the accused, of the date of the strike, July 1, 1922, and of its continuance up to and including November 22, 1922, of the classes of employees who struck aggregating yearly 100 per cent. in and around New Haven, of...