Wood v. State
| Decision Date | 15 September 1943 |
| Docket Number | A-10046. |
| Citation | 141 P.2d 309,77 Okla.Crim. 305 |
| Parties | WOOD v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. This is a companion case of Alan Shaw v. State, reported in 134 P.2d 999, and rehearing denied 138 P.2d 136. Defendant was charged with the violation of the criminal syndicalism statute, 2573 O.S.1931, 21 O.S.A.1941§ 1263.
2. Many of the issues involved in this case are decided in the Shaw case.
3. Where it is charged that defendant "did print, publish issue, and knowingly circulate, sell, distribute and publicly display" certain books in violation of the terms of the "criminal syndicalism" statute, the books sold and those found in the place of business of defendant were admissible in evidence as a circumstance to prove the criminal intent of defendant in the circulation and sale of the books.
4. In the field of legislation there is a general presumption that acts of the legislature are constitutional and it must be shown that the State has abused its power before the same will be declared unconstitutional.
5. An exception to this general rule arises where the right of freedom of speech, or of the press, or of religion is involved, and when these questions are raised, the burden is upon the State of justifying its application in each instance.
6. The limitation upon individual liberty must have appropriate relation to the safety of the State. When the legislative act exceeds this need, the principles of constitutional freedom are violated. As applied to the case at bar, the statute may be perfectly legal on its face and reveal no constitutional defects, but if its application is such that one is deprived of personal constitutional liberties, a conviction must be set aside as violative of due process.
7. The Supreme Court of the United States in many recent decisions has applied the "clear and present danger" test in determining the sufficiency of the evidence to sustain convictions where questions of personal liberties protected by the constitution are involved. This Court will follow such decisions in construing the terms of the Federal Constitution.
8. Where information charges that defendant "did print publish, issue and knowingly circulate, sell, distribute and publicly display" certain books in violation of the terms of the criminal syndicalism statute, it was necessary to instruct the jury that before they could convict defendant they must find that the defendant in selling and distributing said books had an unlawful intent to bring about industrial or political change in our government by such means. A refusal to give a requested instruction to this effect was error.
9. Where it was charged that defendant "did print, publish issue and knowingly circulate, sell, distribute and publicly display" certain books in violation of the criminal syndicalism statute, the jury should have been instructed that before they could convict the defendant they must find beyond a reasonable doubt that the books, papers and pamphlets so sold and distributed not only advocated crime physical violence, sabotage, or other unlawful acts or methods, as a means of accomplishing or effecting industrial or political ends, but that such sale, distribution and advocacy was reasonably likely to result within the immediate future in the commission of crime, serious violence or other unlawful acts for the purpose of bringing about political or industrial change or revolution by such means.
10. A refusal to give a requested instruction based upon the above principles was a fundamental error for which this case should be reversed.
Appeal from District Court, Oklahoma County; Ben Arnold, Judge.
Robert Wood was convicted of criminal syndicalism, and he appeals.
Reversed and remanded.
George E. Croom, of Tulsa, and Stanley D. Belden, of Oklahoma City, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and John F. Eberle, Asst. Co. Atty., both of Oklahoma City, for defendant in error.
Osmond K. Fraenkel, of New York City, for National Lawyers Guild, amicus curiae.
Arthur Garfield Hays and Herman Rosenfeld, both of New York City, for American Civil Liberties Union, amicus curiae.
John Lee Smith, of Throckmorton, Tex., and Sam S. Gill, of Oklahoma City, for Knights of Pythias, amicus curiae.
Fred A. Tillman, of Pawhuska, and Ralph B. Gregg, of Indianapolis, Ind., for the American Legion, amicus curiae.
Defendant, Robert Wood, was charged in the District Court of Oklahoma County jointly with a number of other defendants with the crime of criminal syndicalism, was given a severance, tried, convicted and sentenced to pay a fine of Five Thousand Dollars and serve ten years in the State Penitentiary. From this judgment and sentence he has appealed.
This is a case growing out of the same state of facts discussed in the case of Shaw v. State, decided by this Court on February 17, 1943, reported in 134 P.2d 999 and in which a rehearing was denied on May 19, 1943, 138 P.2d 136. Neither opinion has yet been reported in the State reports.
Many of the questions of law involved in this appeal have been fully discussed and settled in the Shaw case, and it will be unnecessary to lengthen this opinion by a discussion of those questions. It will also be unnecessary to review at length the evidence, as it is fully stated in that case. The question of the validity of the information, the constitutionality of the criminal syndicalism statute, and the legality of the searches and seizures by means of which certain books and pamphlets were obtained and used as evidence against this defendant are the same as in the case against Alan Shaw.
The charge herein is different from the charge against Shaw, above referred to. In that case , the charge was that Shaw did "become and was a member" of, and "assemble with", "and was *** a member of a Society and an assemblage of persons, viz., The Communist Party," an organization "which teaches, advocates and affirmatively suggests the doctrine of criminal syndicalism," etc., without an allegation of any overt act on the part of the said Alan Shaw. Here, the defendant is not charged with the offense of being a member of this organization, but that he "did print, publish, edit, issue and knowingly circulate, sell, distribute and publicly display books, namely, to-wit: 'The Communist Manifesto,' by Marx and Engles, 'State and Revolution,' by V. T. Lenin, 'Foundations of Leninism,' by Joseph Stalin, and other books, pamphlets, papers, handbills, posters, documents and written and printed matter advocating, advising, affirmatively suggesting and teaching crime, criminal syndicalism, sabotage, the doing of acts of physical violence, the destruction and damage to property, the injury to persons and the commission of crimes and unlawful acts as a means of accomplishing, effecting and bringing about industrial and political ends and changes, and as a means of accomplishing, effecting and bringing about industrial and political revolution, contrary to the form of the statutes," etc.
The statute upon which this charge is based is section 2573, O.S 1931, 21 O.S.A. 1941 § 1263, which is as follows: ...
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