State v. Tonn

• Decision Date: 16 January 1923
• Docket Number: 33587
• Parties: STATE OF IOWA, Appellee, v. HENRY TONN, Appellant
• Court: Iowa Supreme Court

191 N.W. 530

195 Iowa 94

STATE OF IOWA, Appellee, v. HENRY TONN, Appellant

No. 33587

Supreme Court of Iowa, Des Moines

January 16, 1923

Appeal from Linn District Court.--MILO P. SMITH, Judge.

DEFENDANT was convicted of the crime of conspiracy to commit a public offense, to wit, criminal syndicalism, and appeals.

Reversed.

Harold O. Mulks, for appellant.

Ben J Gibson, Attorney-general, John Fletcher, Assistant Attorney-general, and H. K. Lockwood, County Attorney, for appellee.

FAVILLE J. EVANS, STEVENS, ARTHUR, and DE GRAFF, JJ., concur. PRESTON, C. J., and WEAVER, J., concur in part and dissent in part.

OPINION

FAVILLE, J.

Chapter 382 of the Acts of the Thirty-eighth General Assembly defines the crime of criminal syndicalism and prescribes the punishment therefor. Said statute is as follows:

"Section 1. Criminal syndicalism is the doctrine which advocates crime, sabotage, violence or other unlawful methods of terrorism as a means of accomplishing industrial or political reform. The advocacy of such doctrine, whether by word of mouth or writing, is a felony punishable as in this act otherwise provided.

"Sec. 2. Any person who:

"A. By word of mouth or writing, advocates or teaches the duty, necessity or propriety of crime, sabotage, violence or other unlawful methods of terrorism as a means of accomplishing industrial or political reform; or

"B. Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays any book, paper, document or written matter in any form, containing or advocating, advising or teaching the doctrine that industrial or political reform should be brought about by crime, sabotage, violence or other unlawful methods of terrorism; or

"C. Openly, willfully and deliberately justifies, by word of mouth or writing, the commission or the attempt to commit crime, sabotage, violence or other unlawful methods of terrorism with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism; or

"D. Organizes or helps to organize, or becomes a member of or voluntarily assembles with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism, is guilty of a felony and punishable by imprisonment in the state penitentiary or reformatory for not more than ten years (10) or by a fine of not more than five thousand dollars ($ 5,000.00) or both."

The appellant was indicted by the grand jury of Linn County, Iowa, charged with the offense of conspiracy to commit the act of criminal syndicalism. The indictment was brought under Section 5059 of the Code, which is as follows:

"If any two or more persons conspire or confederate together with the fraudulent or malicious intent wrongfully to injure the person, character, business, property or rights in property of another, or to do any illegal act injurious to the public trade, health, morals or police, or to the administration of public justice, or to commit any felony, they are guilty of a conspiracy, and every such offender, and every person who is convicted of a conspiracy at common law, shall be imprisoned in the penitentiary not more than three years."

I. A demurrer to the indictment was interposed by the appellant, and was overruled. It is urged that it should have been sustained. Appellant's chief contention in this regard is that the indictment does not sufficiently comply with Sections 5297 and 5490 of the Code. Said sections are as follows:

"Section 5297. In an indictment for conspiracy, where an overt act is required by law to constitute the offense, the defendant cannot be convicted unless one or more overt acts be expressly alleged therein."

"Section 5490. Upon a trial for conspiracy, a defendant cannot be convicted unless one or more overt acts alleged in the indictment are proved, when required by law to constitute the offense, but other overt acts not alleged in the indictment may be given in evidence."

The point urged is that the indictment failed to expressly allege one or more overt acts.

It is to be noticed that in each of said sections of the statute there is a qualifying clause to the effect that an overt act must be alleged when such overt act is "required by law to constitute the offense." The indictment in the instant case did not charge any such overt act. It did charge that the defendant and divers other persons to the grand jury unknown did conspire, agree, and confederate together, with the fraudulent and malicious purpose and intent to commit a felony, to wit, the crime of criminal syndicalism, by doing the various things which are prohibited by the terms of the said statutes, which said things are detailed and set out in extenso.

The indictment is in four counts, conforming to the four paragraphs of Section 2 of said statute.

The precise question now urged by the appellant was before us in State v. Poder, 154 Iowa 686, 135 N.W. 421, wherein we said:

"The appellant challenges the sufficiency of the indictment, in that it fails to charge an indictable offense, and is void for duplicity. It is said, among other things, that the indictment fails to charge any overt act, and will not therefore sustain a conviction. The objection is unsound. It may be, and doubtless is, true that in some cases the offense of conspiracy is not complete without some overt act, and, when such is the case, the act must be alleged and proved. To this class of cases, Code Sections 5297 and 5490, on which counsel rely, are applicable, but the conspiracy charged in the present case is of statutory creation. See Code Section 5059, which makes it an indictable offense to conspire to do 'any illegal act injurious to public morals.' When, therefore, the accusation is made in the language of the statute and the particular illegal act injurious to public morals, which act is the subject of the alleged conspiracy, is stated, the charge is complete."

See, also, State v. Soper, 118 Iowa 1, 91 N.W. 774; State v. Loser, 132 Iowa 419, 104 N.W. 337; State v. Rayburn, 170 Iowa 514, 521, 153 N.W. 59; State v. Madden, 170 Iowa 230, 148 N.W. 995.

The indictment was sufficient, and the demurrer was properly overruled.

II. On or about the 14th day of November, 1919, the appellant was in the city of Marion, and presented a check made payable to himself, which had been drawn by the officers of the Industrial Workers of the World, in the city of Chicago. Some suspicions were aroused from this circumstance, with others, and the appellant was arrested by a deputy sheriff and taken to jail. At the jail he was searched by a deputy sheriff, who at that time found upon his person a letter addressed to the appellant, purporting to have been written from the headquarters of the Industrial Workers of the World, commonly known as the "I. W. W.," and some small articles of personal use.

After the appellant had been placed in the jail, it appears that the county attorney, without the knowledge of appellant, went to the Royal Hotel in Marion, where the appellant was registered as a guest, and where he had been stopping for a few days, and took from the hotel a suitcase and hand-bag belonging to the appellant, and carried the same to the sheriff's office. The record is not exactly clear as to whether the suitcase and hand-bag were taken from the room in the Royal Hotel occupied by the appellant, or from the lobby in the hotel where the appellant had placed them. Thereafter, while the appellant was confined in the jail and before a preliminary hearing was had, he was brought to the sheriff's office and the suitcase and hand-bag were then opened in his presence and in the presence of the county attorney and sheriff and two deputies. The contents of the bags consisted of some personal effects of the appellant, including a razor, some wearing apparel, and similar matters, and a very large amount of literature pertaining to the "I. W. W." organization. At that time, the officers told the appellant to take anything of his personal property in the bags that he cared to take with him, and the appellant then took his razor, brush, hone, and probably one or two other articles. He was asked if there was anything else that he wanted, and was told, if so, to take it; and he said he "guessed that was all he wanted." The remaining contents of the two bags consisted of a large amount of books, pamphlets, letters, buttons, badges, and similar matters pertaining to the organization, principles, and practices of the "I. W. W." These comprised about 225 exhibits, which are set out in the record.

After his indictment, and prior to the trial, the appellant filed in said cause a petition for the return of all of said articles, setting up, under oath, the manner in which he claimed they were taken from him, and praying an order for their return. A resistance to this application was filed by the county attorney, and the petition for the return of the papers was denied by the court. Upon the trial of the cause, the contents of the said two suitcases were offered in evidence by the State. Objection thereto was interposed by the appellant, which was overruled. The appellant insists that the action of the lower court constituted error, both in admitting the exhibits in evidence and in refusing to order their restoration to appellant.

Assuming that the seizure of appellant's said property was without lawful authority, the first pertinent question that arises is whether or not such fact alone rendered the property so taken inadmissible in evidence against the appellant.

A similar question has been before the courts of this country frequently, and it must be conceded that the decisions are by no means uniform on the subject. At an early day, courts and text-writers laid...