# State v. Boloff

> Oregon Supreme Court · June 23, 1931 · 138 Or. 568

URL: https://www.frixlaw.com/law-library/cases/3839639

## Case

- **Full name:** State v. Boloff
- **Court:** Oregon Supreme Court
- **Decided:** June 23, 1931
- **Citations:** 138 Or. 568; 7 P.2d 775; 4 P.2d 326; 1931 Ore. LEXIS 243
- **Precedential status:** Published
- **Opinion:** Dissent
- **Judges:** Bean, Belt, Brown, Campbell, Kelly, Rand, Rossman
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3839639

## Opinion text

Ten years in the penitentiary! What a price to pay for warped ideas! Who is this man Ben Boloff that he should thus be considered such a menace to society? Let the record speak.
Boloff came to this country from Europe when a boy 18 years of age and has resided almost continuously in Oregon for the past 20 years. Never before has he been convicted of any crime. He has never attended school a single day in his life and cannot read nor write. All he knows is hard work — how to dig a ditch or lay sewer pipe. In October, 1930, he came from Klamath Falls to Portland in search of work. After walking the streets for a few days looking in vain for a job, he was arrested upon a charge of vagrancy. Upon hearing, the charge was dismissed. Two days later he was arrested for having violated the Criminal Syndicalism Act and, upon failure to give a bond of $2,500, was put in jail where he has been ever since.
It may be conceded that it is within the power of the legislature to enact laws prohibiting any organization or political party from teaching or advocating crime ( Whitney v. California , 274 U.S. 357 ( 47 S.Ct. 641 , 71 L.Ed. 1095 ); State v. Laundy , 103 Or. 443 ( 204 P. 958 , 206 P. 290 )), but, in my opinion, it was never intended that such statutes be invoked to silence by force the complaints or criticisms, however unjust or unreasonable, made against existing social, economic, or political conditions. Even the sovereign state can not sit in judgment upon a man's conscience and dictate to him how he shall think or speak concerning such questions. Legislation is not a cure for radicalism. As a matter of fact, free expression of opinion is the best antidote for the various kinds of isms with which our body politic is afflicted. The soap box orator — *Page 654
unmindful of all the blessings which a beneficent government bestows upon him — may rant and storm, but his radicalism will not take root in a nation whose people enjoy the sacred right of freedom of thought and speech.
Let it be borne in mind that the charge in the indictment is predicated solely upon the mere act of the defendant in joining the Communist Party. Aside from his membership in this organization, there is not a scintilla of evidence that he ever said or did anything to teach or advocate crime or physical violence.
Assuming the constitutionality of the Act, the record discloses error which warrants a reversal of the judgment of conviction. Defendant excepted to the refusal of the court to give the following instruction:
"The Court instructs the jury that an honest mistake on the part of one who has become a member of an unlawful organization as to its nature and purposes is a defense. Therefore I instruct you that even if you should be convinced beyond a reasonable doubt and to a moral certainty that the defendant is guilty beyond a reasonable doubt and to a moral certainty of all the material allegations in the indictment, you must then inquire as to whether the defendant made an honest mistake as to the nature and purpose of the Communist Party of the U.S.A. when he joined that organization. And if there is a reasonable doubt in your mind, from all the evidence in the case, that the defendant Ben Boloff did not honestly understand the nature and purposes of the organization he joined then it is your duty to resolve that doubt in his favor and bring in a verdict of not guilty."
Not only did the trial court refuse to give the above instruction, but explicitly instructed the jury that guilty knowledge of the defendant as to the teachings and doctrines of the Communist Party was not an essential *Page 655
element of the offense charged in the indictment. That this instruction was erroneous and highly prejudicial to the rights of the defendant seems obvious. The trial court might well have given the instruction relative to knowledge which met with the approval of this court in State v. Laundy , supra. Referring to the same it was said:
"* * * the court prevented the jury from adjudging the defendant guilty of that which he could not know," citing State v. Cox , 91 Or. 518 ( 179 P. 575 ).
Also see State v. Harris , 106 Or. 211 ( 211 P. 944 ), and State v. LaBine , 119 Or. 583 ( 250 P. 738 ). True, there was no exception taken to the instruction as given in the instant case, but it is believed that the requested instruction which the court refused, and to which refusal exception was taken, sufficiently presented to the court the question of knowledge. In taking cognizance of this plain error in law — regardless of the fact that counsel for defendant failed properly to preserve his record — we might well invoke Rule 12 of the Supreme Court rules, which provides:
"* * * The court reserves the right in furtherance of justice to notice on its own initiative a plain error of law apparent on the face of the record." 100 Or. 750 .
After all, rules of procedure are enacted for the purpose of administering justice — not to defeat it.
Yet it is said in the majority opinion that "there was ample evidence to indicate that, after joining, the defendant must have become aware of the purposes of the organization, and as we have seen he did not deny such knowledge after the State had submitted its proof. We, therefore, conclude that the requested instruction was properly refused." Where is the evidence to justify this conclusion? Indeed, the evidence *Page 656
well warrants the inference that Boloff did not know that he was joining an organization having an unlawful purpose. Consider the following portion of the record:
"Q. Now, Ben, tell the jury how you come to join the Communist Party.
"A. Well, the Communist Party is a working class organization of workers — the working class party.
"Q. How do you know it is?
"A. I know the workers that belong to it.
"Q. Then you want the jury to understand that workers told you that the Communist Party was a working man's organization; now, is that correct? Is that right?
"A. Yes, that is right.
"Q. Have you read anything about the Communist Party in the Communist papers?
"A. No.
"Q. Do you read English?
"A. No.
"Q. Did you ever hear of the materialistic conception of history?
"A. Never.
* * * * *
"Q. Did you ever hear of the doctrine which is also known as historical materialism or economic determinism?
"A. Never have.
* * * * *
"Q. Just explain a little further why you joined the Communist Party. * * *
"A. Well, the Communist Party is a working class organization, that they try to get better conditions, and so I tried to go with them as a worker, and it was for that purpose.
* * * * *
"Q. Well, now you are charged in the indictment with being a member of an organization which unlawfully and feloniously teaches, advocates and affirmatively *Page 657
suggests the doctrine of criminal syndicalism; what do you understand by criminal syndicalism? Criminal syndicalism.
"A. I don't know what that means; I don't know what that word means.
"Q. Do you know what syndicalism means?
"A. No, I don't.
"Q. Did you ever read anything about syndicalism?
"A. No; I never heard that word before I been in the jail.
* * * * *
"Q. I will ask you if in your lifetime you ever committed any acts of physical violence, crime, or unlawful acts.
"A. No."
In the light of the above record it is utterly absurd that this ignorant defendant, who does not know what it is all about, will, by reason of his ideas, constitute an imminent danger to the welfare of our government. Under any view, the question of his knowledge as to the character of the Communist Party was one for the jury to determine and it cannot be said, as a matter of law, that the defendant did or did not know the nature of such organization.
In my opinion, it was also error to admit the hearsay testimony of the police officer O'Dale, relative to a speech made by one Levitt, a member of the Communist Party, tending to show that such organization advocated crime and violence. Levitt was not called as a witness and defendant had no opportunity to cross-examine him to ascertain whether, in fact, he had a true conception of the teachings and principles of the organization to which he belonged. There is no evidence that the organization ever ratified anything said by Levitt in such speech. Yet, it was all received as *Page 658
against the defendant whether he believed in the same or not. The State, having shown that the defendant joined the Communist Party, apparently sought, under the theory of a conspiracy, to hold him responsible for all of the strange doctrines and teachings that any member of such organization ever advocated — whether the defendant believes in or even knows of the same. Applying the same logic, if some Democrat should go so far as to assert in a public speech that all Republicans should be shot at sunrise, then every member of the Democratic party would be guilty of crime. The doctrine of criminal conspiracy, when thus extended, leads to absurdity.
True, State v. Pettilla , 116 Wn. 589 ( 200 P. 332 ), apparently upholds the admission of such testimony. In that case a distinction is made between hearsay statements of individual declarations of members of an organization regarding teachings of the organization and speeches made by authorized members. The Washington court held that evidence of the first type was inadmissible as hearsay, but that the latter kind of evidence was admissible. I can see no good reason for this distinction and, furthermore, I am unable to reconcile that case with the prior holding of the court in State v. Gibson , 115 Wn. 512
( 197 P. 611 ). That such testimony as received in the instant case is inadmissible see the well considered case of State v. Dingman , 37 Idaho 253 ( 219 P. 760 ).
But it is urged that this alleged error was not prejudicial because substantially the same evidence was received without objection. This contention was also made in the Dingman case and, in disposing of the same adversely to the State, the court said:
"It is earnestly contended that, notwithstanding the errors committed in the admission of this hearsay *Page 659
evidence there is still sufficient competent evidence to sustain the conviction, and hence such error was without prejudice. Where a conviction follows the admission of incompetent evidence, it is never possible for the court to say to what extent its admission influenced the verdict. A verdict should not be set aside for error unless it is clear that the defendant has not had a fair trial. In the instant case the jury acquitted the remaining 22 persons jointly informed against and tried with defendant, although the evidence against them was substantially the same, except that they were not shown to be organizers. In view of the highly inflammatory nature of this hearsay evidence, and the large number of witnesses who were permited to testify, and all the surrounding circumstances, it cannot be presumed that its admission was harmless. Furthermore, this court should not lend its sanction to the making of an exception disregarding and setting aside a rule of law so ancient, fundamental, and important as the rule against the admission of hearsay evidence, which would thereby make the teachings, doctrines and character of every civic, religious, or political organization the subject of attack upon its good name and character by any irresponsible person who sought to malign it. Courts are governed by the limitations and restrictions imposed by law, and they cannot in its administration sanction or uphold that which has not been done in accordance with its settled principles. If it were otherwise, they would exercise a mere autocratic power to arbitrarily uphold or set aside a conviction for crime, irrespective of the settled rules of procedure. They are not clothed with that power, but must extend to every person charged with crime the equal protection of the law."
Being firmly convinced that there is error which warrants a reversal, I dissent from the majority opinion denying the petition for rehearing.
BEAN, C.J., and RAND, J., concur in this dissent. *Page 660

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3839639. Public record. Not legal advice.