Appendix — Whitney v. California

Supreme Court brief1927

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APPENDIX.

—— SAL MOLE Nh Ral SRO DSI SEARLE, in ALLL EER SD aS Sle OREN RS cola

APPENDIX.

In the District Court of Appeal

State of California

First Appellate District

Division ONE.

Criminal No. 907.

Tue Preopie or THE Strata oF CALIFORNIA,

Plaintiff and Respondent,

Vs. k

, :

CuarLorre A, WHITNEY, :

Defendant and Appellant.

OPINION.

This appeal is from a judgment of conviction :

of the defendant for the alleged violation of the

provisions of the Criminal Syndicalism Act. The

information filed by the district attorney against

the defendant consisted of five separate counts

based upon the several subdivisions of said act.

The jury found the defendant guilty as to the

first count in the information, but disagreed as to

the other counts therein, and dismissals as to

these were subsequently filed. The charging part

of the first count in said information upon which

the conviction of the defendant was had is in the

language of the statute and reads as follows:

‘“‘The said Charlotte A. Whitney prior to the

time of filing this information, and on or about

the 28th day of November, A. D. nineteen hundred

and nineteen, at the said County of Alameda,

State of California, did then and there unlawfully,

wilfully, wrongfully, deliberately and feloniously

organize and assist in organizing, and was, is, and

knowingly became a member of an organization,

society, group and assemblage of persons organ-

ized and assembled to advocate, teach, aid and

abet criminal syndicalism.’’

The first contention of the appellant herein is

that said first count in said indictment, of which

the foregoing excerpt is the charging part, was

insufficient to state a public offense, the alleged

particular insufficiency therein being its omission

to specifically designate the name of the organi-

zation, society, group or assemblage of persons

which she is charged with having organized and

assisted in organizing and which were organized

and assembled to teach, aid and abet criminal syn-

dicalism. Since the original submission of this

cause the Supreme Court has decided the case of

People v. Taylor, 62 Cal. Dec. 546, covering the

a ee ee en ae en Se ea a A a eb a a :

Shad aC Fe iL PE ATEN in nO Ri BLA EN ILL EBA LIES ED SENG IE A a Di OR ne in St

lll

precise point which the appellant urges upon this

contention. The two cases are identical as to the

form of the charge and as to the procedure with

relation to the trial thereon in the trial court. In

each case the defendant was fully advised upon

the voir dire examination of the jurors and in the

opening statement of the district attorney that

the organization which the defendant was charged

with having organized and assisted in organizing

in violation of the terms of the Criminal Syndi-

ealism Act was the Communist Labor Party of

Oakland, a local branch of the Communist Party

of California. This being so, we are bound, in

conformity with the decision in People v. Taylor,

supra, to hold that the appellant’s first contention

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is void of merit.

The next contention which the appellant urges

upon this appeal is that the evidence is insufficient

to justify her conviction upon said count in the

information. The record is voluminous and no

useful purpose would be subserved by a detailed

review of the evidence which it contains. Upon

the main question, however, as to the part which

the defendant took in organizing and assisting to

organize the Communist Labor Party, there is no

dispute. In the brief of the appellant upon this

appeal it is stated to be an ‘‘admitted fact that

on mw mt SN RE RA I ll A lg Ae RE Se WT be:

the defendant became a member of the so-called

Communist Labor Party, attended a party con-

vention Nov. 9th, 1919, and was one of the com-

mittee on resolutions which reported the platform

hereinabove set forth.’’ In addition to the fore-

going admission the evidence abundantly shows

that the defendant not only took a leading and

active part in the organization of the Oakland

branch of the Communist Labor Party of Cali-

fornia, but also in the subsequent meetings and

acts of said organization. Notwithstanding this

admission and these proofs, the appellant insisted

upon the trial of the cause and now insists that

said organization was not of such character and

purposes as to bring it within the class of or-

ganizations forbidden and condemned by the

terms of the Criminal Syndicalism Act. It was

upon this branch of the case that the larger part

of the evidence adduced on behalf of the prosecu-

tion upon the trial of this cause was presented.

It is the appellant’s contention that the admis-

sion of a very large portion of such evidence de-

signed to show the pernicious activities of other

organizations with which the Communist Labor

Party of California was affiliated, or regarding

which, or the membership of which, it from time

to time by resolution or otherwise expressed its

approval and sympathy, was highly prejudicial

Oe SE Mee ere ath

to the defendant’s case, particularly in view of

the fact that as is claimed her knowledge of and

participation in these baneful activities was not

sufficiently shown. As to the propriety of the ad-

mission of such evidence as tending to show the

character and purposes of the Communist Labor

Party of California there can be no further doubt,

in view of the very full discussion of this subject

in the case of People v. Taylor, supra, and of

the determination of the Supreme Court therein.

As to the knowledge which the defendant had and

of her participation in the aims, expressions and

activities of the Communist Labor Party of Calli-

fornia there can also be no doubt, in view of the

admitted intelligence of the defendant and of her

participation in the drafting of the resolutions

and formulation of the constitution of the organi-

zation itself. That this defendant did not realize

that she was giving herself over to forms and ex-

pressions of disloyalty, and was, to say the least

of it, lending her presence and the influence of her

character and position as a woman of refinement

and culture to an organization whose purposes and

sympathies savored of treason, is not only past

belief but is a matter with which this court can

have no concern, since it is one of the conclusive

presumptions of our law that a guilty intent is

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Sah ad

a a a fan

Cee

NER ALTA DG Be ADEE SOL 8 A LEAN A ED ALE tin ae OAL id ab Sat OR le AAT Det: ae

presumed from the deliberate commission of an

unlawful act. (Code Civ. Proc., sec. 1962.)

As to the appellant’s only remaining contention

with relation to the alleged misconduct of the dis-

trict attorney upon the examination of a juror,

we have examined the record and do not find that

the episode complained of was of such prejudicial

character or consequence as to justify a reversal

ieee

ated veda?

of the case.

Judgment affirmed.

RICHARDS, J.

SSSOr STROM Ri goo HN, |

Avie

We concur:

Tyter, P. J.

Kerrican, J.

Filed April 25, 1922,

J. B. Martin, Clerk.

1171

Water H.j} Poiwak.

SEP 5 1

To be ArqubiMbyk. Sinai:

IN THE

Supreme Court of the United States

October Term, 1925—No—0— 3

CHARLOTTE ANITA WHITNEY,

Plaintiff-in-Error,

against

THE PEOPLE OF THE STATE OF

CALIFORNIA,

Defendant-in-Error,

IN ERROR TO THE DISTRICT COURT OF

APPEAL, FIRST APPELLATE DISTRICT,

DIVISION ONE, STATE OF CALIFORNIA.

JOHN FRANCIS NEYLAN,

THOMAS LLOYD LENNON,

of San Francisco,

WALTER NELLES,

WALTER H. POLLAK,

of New York City,

Attorneys for Plaintiff-in-Error.

Wa ter H. PoiiaK,

Rutu I. Witson,

on the brief.

Gatto & ACKERMAN, INc., 107 Liberty St. and 6 Church St., N. Y.

BOLL EI RE IEE INE PEE IONE

RARER AED LAI ILS EN Oe IE IES

INDEX. >

PAGES

TasLe or AUTHORITIES Vv j

General Statement 1-2 7

Claims advanced and rulings made in Cali- >

fornia Courts 3-4 :

Judicial Code, §237, the basis of jurisdiction 4-5

Cases sustaining jurisdiction H)

Statement of the case 6-22 e

California Criminal Syndicalism Act 6-7

Information 7-8

Demurrer to information overruled and

Dill Of particulars CEM nce 8-9

District Attorney’s opening analyzed .. 9-10 ;

Evidence 10-15 ;

Miss Whitney’s resolution for po-

litical action; its defeat we 11-15 f

Election by prosecution not compelled ; q

no identification of organization in f

charge 15-17 :

Charges and requests On iNteNt cece 17-19 ;

Organization remains unidentified by é

District Court of Appeal and charge ‘

as to intent approved 19-22 :

MAST RES

PAGES

Assigned errors urged 22-23

Outline of points 24-26

Point L—Failure to particularize accusation

a denial of due process 27-37

Hodgson vs. Vermont 28-29

Information in statutory language ...... 29-30

Motion for bill of particulars denied .... 30

District Attorney’s opening—Commun-

ist Labor Party of California not

named 32

Motion to compel election denied; other

rulings by trial court to same effect 32-35

Verdict in prescribed general form ..... 35

Failure to particularize issues involves

double jeopardy 36-37

Point 11.—Oceasions and connections outside

Alameda County and before passage of

Syndicalism Law submitted to jury as

possible bases for verdict 38-46

The I. W. W. 39-40

Chicago Convention of National Com-

munist Labor Party 40

Local Oakland 40-41

Executive Committee of State Party... 42

Stokes vs. U. S., Fontana vs. U. S., as to

the effect of commingling false

issues 43-45

Point I1].—Attendance at Oakland Conven-

tion of November 9, 1919, not punish-

able by reason of subsequent acts of

other persons: U, S. v8. FO% nuumumene 47-51

PAGES

Point IV.—Case submitted to jury on er-

roneous theory that specific intent un-

necessary in conspiracy prosecution;

guilty intention presumed from other

facts in violation of McFarland vs.

American Sugar Co. 52-60

California Supreme Court defines Sec-

tion 2, Subdivision 4 as punishing

conspiracy 52-3

Specific intent element of conspiracy

prosecution: Landen vs. U.S. cm 53-55

Innocent members of association not

conspirators: Shaw, C. J., in Com-

monwealth vs. Hunt 59

Labor Department ruling as to innocent

members of forbidden organiza-

tions 55-56

Constitutional prohibition not to be

transgressed indirectly by statutory

presumption: Bailey vs. U.S. uum. 59-60

Point V.—Statute as applied to Miss Whit-

ney’s case void for uncertainty: guilt

cannot be predicated of lack of ‘‘pro-

phetie’’ understanding (International

Harvester Co. vs. Kentucky) uss . 61-65

Point VI.—Statute as applied a ‘‘previous

restraint’? upon assembly: Patterson

vs. Colorado 66-69

Civil rights including right of assembly

protected by Fourteenth Amend-

ment: U7. S. vs. CrutksNank ures wwe 66-67

‘

PAGES

Point VII.—Statute as applied a prior re-

straint upon freedom of speech: Pat-

terson vs. Colorado 70-71

Point VIII.—Right of association an ele-

ment of liberty (Meyer vs. Nebraska) ;

restraint upon association a denial of

due process 72-74

Statutes forbidding association with

criminals invalid: Ex parte Smith

and other cases 72-73

Point IX.—State convention of November

9, 1919, had no quality of ‘‘incitement’’:

Gitlow vs. N. Y. 75-79

Ruling of Labor Department as to Com-

munist Labor Party 77

Sympathy with I. W. W. not ‘‘incite-

ment’’ 78-79

Urging release of political prisoners not

‘‘incitement’’ 79

No incendiary literature connected with

Communist Labor Party ccs ~—

Point X.—Criminal Syndicalism Law dis-

eriminates between differing opinions

and denies equal protection of laws:

Truax vs. Corrigan 80-81

Conclusion 81-83

Appendix A: Criminal Syndicalism Act of

California 85-87

Appendix B: Information 88-92

Appendix C: California Penal Code, §§1176,

1259 dispensing with exceptions and ob-

jections 93

DO I OS ie

See Oak Nee Ae IS

TABLE OF CASES CITED.

PAGES

Bailey vs. Alabama 60

Cady vs. Barnesville 73

Chicago & N. W. Rwy. Co. vs. Dey conunnnnnnen 62

Chicago, R. 1. & Pac. Co, vs. Perry commune 5)

Cincinnati Packet Co. vs. Bay 5)

City of Lancaster vs. Reed 73

City of Watertown vs. Christnacht mmm 73

Cochran vs. U. 8. 36

Colyer vs. Skeffington 77

Consolidated Turnpike Co. vs. Norfolk Rwy.

Co. 5

Davis vs. L. L. Cohen & Co., Ine. cece = 3D

Dearborn Pub. Co. vs. Fitzgerald cocsmenman 69

Fontana vs. U. 8. 43, 45

Gitlow vs. New York 26, 66, 67, 75, 76, 83

Gregory vs. McVeigh 5

Harrison, Ex parte 71

Hechinger vs. City of Maysville ccc. om 4a

Hodgson vs. Vermont mult, 27, 28, 36, 37, 38,

42, 45, 46, 82

International Harvester Co. vs. Kentucky ..25, 61,

64, 65, 83

Keeri vs. Montana 37

Landen vs. U.S. 53, 57, 60

Londoner vs. Denver 30

Louthan vs. Commonwealth 70

McFarland vs. American Sugar Co. waneedd, D2, 58,

59, 83

Marlin Fire Arms Co. vs. Shields coc 69

Maryland vs. Baldwin 43

Meyer vs. Nebraska 26, 66, 72

Patterson vs. Colorado mmm umn2d, 66, 68, 70, 83

a irapelgnoes nates

Bs AE oP 8

creas |

PAGES

People vs. Steelik 52, 57, 61, 62

People vs. Taylor 30, 62

Roller vs. Holly 39

St. Louis vs. Fitz 72

St. Louis vs. Roche 72, 73

Schenck vs. U. S. 69

Seott vs. Donald 73

Scott vs. MeNeil 39

Skeffington vs. Katzeff 77

Smith, Ex parte 73, 74, 83

State vs. Junkin 71

State vs. Laundy 32, 34

State vs. Pierce 71

Stokes vs. U. S. 43, 45

Stoutenburgh vs. Frazier 73

Truax vs. Corrigan 26, 60, 75, 80

Twining vs. N. J. 67

U. S. vs. Brewer 62

U. S. vs. Cohen Grocery Co. 62

U. S. vs. Cruikshank 36, 66

U. S. vs. Fox 95, 47, 49, 50, 51, 83

U. S. vs. Reese 62

U. S. vs. Summons 36

U. S. vs. Wallis 77

Watertown vs. Barker 73

Whitney vs. California 2

Yick Wo vs. Hopkins 80

IN THE

Supreme Court of the United States

October Term, 1925—No. 10.

CuarLotre Anita WHITNEY,

Plaintiff-in-Error,

against

Tue PEOPLE oF THE STATE OF CALIFORNIA,

Defendant-in-Error,

IN ERROR TO THE DISTRICT COURT OF

APPEAL, FIRST APPELLATE DISTRICT,

DIVISION ONE, STATE OF CALIFORNIA.

Brief for Plaintiff-in-Error.

The appeal is from a conviction under the

Criminal Syndicalism Law of California. An in-

formation was filed against Miss Whitney, charg-

ing her in five counts, following the language of

the five sections of the statute, with all the offenses

by that statute condemned. On none of the

charges of personal participation—the advocacy

or furtherance of forbidden doctrines—was she

ry,

EO TO OD Be eee ee *

convicted. She was found guilty upon the first

count alone, which charged her with having organ-

ized, or become, or been a member of some un-

named party or assemblage. Miss Whitney’s

personal connection was a wholly innocent one.

The only questionable organization she had any-

thing to do with was an organization in the proc-

ess of formation. To that organization she and

the Resolutions Committee on which she served

attempted to give a strictly political and admit-

tedly innocent character. The resolution she

helped to prepare and which she herself read to

the convention was, however, rejected, and the or-

ganization was thus, over her opposition, given

a quality which the California courts have con-

demned. The indefiniteness of the charge from

beginning to end of the prosecution and the in-

nocent character of Miss Whitney’s own acts, are

the foundation for her contention that, as applied

to her case, the California Criminal Syndicalism

Law, and in particular its prohibitions upon as-

semblage and membership, violate the Fourteenth

Amendment of the Constitution of the United

States.

o ® 7 € eo

The writ of error (page 12) reviews the judg-

ment of the District Court of Appeal, First Ap-

pellate District, Division I of the State of Cali-

fornia (opinion reported'57 Cal. App., 449), dated

April 25, 1922 (Record, page 1) affirming the

conviction. The Supreme Court of California,

without opinion, denied a petition for leave to

appeal to that Court (page 1); two of the seven

judges dissented and one judge was absent.

See

Specific claims advanced, and rulings made in

the California Courts, relied upon as the basis of

this Court’s jurisdiction,

By demurrer to the information (pages 65-66)

—hy motion for a bill of particulars (pages 59-

64)—by motion for a directed verdict after the

opening statement of the District Attorney (page

73)—by motion to compel an election (pages 305-

307)—by requests at the close of the ease that the

Court instruct the jury to bring in a verdict of

not guilty (page 31)—by motions after verdict

for a new trial and in arrest of judgment (page

30)—Miss Whitney’s counsel before trial, during

the trial, and after the trial challenged the suffi-

cieney and the definiteness of the accusation upon

which she was convicted. The ruling in each case

was against her (pages 17-18; 30-31; 307).

Miss Whitney’s counsel requested the trial

court to charge that there could be no conviction

under any section of the statute in the absence of

a showing of personal participation in, and fur-

therance of, a seditious intention ( page 33; see

also page 17, this brief infra, footnote). The

court, however, charged in effect (page 40) that

membership or presence per se—without regard

to her intent in joining or attending, and with-

out inquiry whether her purpose was to give a

lawfal or unlawful character to the body then in

process of organization—could be made the basis

of conviction* This theory of guilt the Calli-

*By Section 1259 of the Penal Code of California, the need

of exceptions in criminal cases, and with respect to “any in-

struction given, refused or modified” the need of objections

is done away with when an appeal is taken in open court, as

x —

6 EPG I eT ORO Ee ERASE al sit eat

a ten het nS

- . Sa Baa Bh aes

ANT PPE Ag

fornia District Court of Appeal in terms approved

(page 4).

In the District Court of Appeal and also

upon her application for leave to appeal to the

Supreme Court of California, Miss Whitney con-

tended that the statute ‘‘and its application in

this case is repugnant to the provisions of the

Fourteenth Amendment of the Constitution of the

United States—providing that no state shall de-

prive any person of life, liberty or property, with-

out due process of law, and that all persons shall

be accorded the equal protection of the laws”’

(Stipulation and addition to the record, filed Dee.

16, 1924, and printed as pages 338-339). That

contention ‘was considered and passed upon’’ by

the District Court of Appeal—the highest Cali-

fornia Court to which appeal was permitted (see

page 1)—and was overruled by that court (Order

amending record, page 337).

Statutory provisions under which the jurisdic-

tion of this Court is invoked.

Judicial Code, Section 237, provides:

‘A final judgment * * * in any suit in the

highest Court of a State in which a decision in

the suit could be had * * * where is drawn

in question the validity of a statute of or an

authority exercised under any State, on the

ground of their being repugnant to the Con-

Miss Whitney's was (pages 29-30); see also Section 1176.

(Sections 1259 and 1176 are printed in the appendix to this

brief as Appendix C.)

\ .

stitution * * * of the United States, and the

decision is in favor of their validity, may be

re-examined and reversed or affirmed in the :

Supreme Court upon a writ of error.”’

Cases sustaining jurisdiction.

That writ of error lies to the judgment of the

California District Court of Appeal in this case,

see

Gregory vs. McVeigh, 23 Wall., 294;

and compare

Davis vs. L, L. Cohen & Co., Inc., Adv.

Op., 69 L. Ed., J uly 1, 1925, page 702.

That a decision against a claim of Federal right

in the State Court of last resort is sufficient to

give this Court jurisdiction, see

Chicago R. I. & Pac. Co. vs. Perry, 259

U. 8., 548.

That the raising of the Federal question and

its determination by the State Court of last re-

sort may be shown by eertificate of that —_—

‘made part of the record by that Court,”

Cincinnati Packet Co. vs, Bay, 200 U. S.,

179, page 182,

Compare

Consolidated Turnpike Co, vs. Norfolk,

etc., Railway Co., 228 U. S., 596.

> » 4

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Bats ite o wseineici NA i e ee le MRS eas ES

Statement of the Case.

California Criminal Syndicalism Act.

The verdict of guilty (page 30) was upon the

first count which, in the general language of the

statute (California Criminal Syndicalism Act—

Stat. 1919, page 281), charges a violation of See-

tion 2, Subdivision 4, thereof.*

Criminal Syndicalism is defined in the first sec-

tion of the statute as follows:

‘““The term ‘criminal syndicalism’ as used

in this act is hereby defined as any doctrine

or precept advocating, teaching or aiding and

abetting the commission of crime, sabotage

(which word is hereby defined as meaning

wilful and malicious physical damage or in-

jury to physical property), or unlawful meth-

ods of terrorism as a means of accomplish-

ing a change in industrial ownership or con-

trol, or effecting any political change.”’

Subdivision 4 of Section 2, for violation of

which plaintiff-in-error was convicted, is as fol-

lows:

‘*Any person who

* *

Organizes or assists in organizing, or is

or knowingly becomes a member of, any or-

ganization, society, group or assemblage of

persons organized or assembled to advocate,

teach or aid and abet criminal syndicalism

*The whole statute appears as Appendix A.

Is guilty of a felony and punishable by im-

prisonment in the state prison not less than

one nor more than fourteen years.’’

The basic facts upon which Miss Whitney’s ap-

peal rests are, as we have seen, two: the fact

namely that at no time was she—or the jury—

informed in any precise manner of the accusa-

tion against her upon this count, and the fact that

her personal connection and personal activity

were in every respect innocent. The nature of

these contentions involves a rather detailed re-

view of the proceedings before and at the trial,

and of the opinion of the California Distriet Court

of Appeal. The whole story of the proceedings in

Miss Whitney’s ease is as follows:

The Information,

The information against Miss Whitney was filed

on December 30, 1919 (page 14). All five counts

are drawn in the language of the statute. The

first, which alone resulted in conviction, charges

that

‘the said Charlotte A. Whitney prior to the

time of filing this information, and on or about

the 28th day of November, A. D., nineteen

hundred and nineteen, at the said County of

Alameda, State of California, did then and

there unlawfully, wilfully, wrongfully, de-

liberately and feloniously organize and assist

in organizing, and was, is, and knowingly be-

came a member of an organization, society,

group and assemblage of persons organized

“ae seene 8

and assembled to advocate, teach, aid and abet

criminal syndicalism’’ (page 15).

The second, third, fourth and fifth counts—all

of which failed (pages 30, 54-55)—charge respec-

tively the publication and circulation of printed

matter advocating criminal syndicalism; the ad-

voeacy and teaching ‘*by personal conduet’’; the

justifying and attempting to justify criminal, vio-

lent and unlawful methods ‘‘by spoken and writ-

ten words’*:; and the unlawful, wrongful, wilful,

deliberate and felonious practice and commission

of forbidden things by ‘‘personal acts’’ (pages

14-16)*.

The date of each of the offenses is given as

‘‘on or about the 28th day of November,’’ 1919

(pages 15-16).

No organization is named anywhere in the in-

formation.

Demurrer to information overruled and bill of

particulars denied,

Miss Whitney first demurred to the informa-

tion, and to the first count thereof, on the grounds,

among others, ‘‘that it contains no statement of

the acts constituting the alleged offense in ordi-

nary or concise language or in such manner as

to enable a person of common understanding to

know what is intended’? and ‘that the facts stated

do not constitute a public offense for the reason

that the purported statute therein referred to is

void, invalid, and unconstitutional’? (pages 60-

66). The demurrer was overruled (page 18).

*The whole information is annexed to this brief as Ap-

pendix B,

a “y R

Defendant thereafter moved for a bill of par-

ticulars. The motion was denied (pages 59-64,

18).

District Attorney's Opening.

The trial commenced on January 28, 1920, with-

in a month after the filing of the information

(page 70). The district attorney in two pages

protessed to give ‘ta very brief synopsis of the

‘ase that the People of the State of California

intend to prove’? (page 70)—a ease which then

embodied five counts and covered the entire ‘ange

of the statute. He mentioned a number of organi-

zations, assemblages and groups,—the Socialist

Party and a radical wing of it (page 70); dele-

gates from Oakland to a convention in Chicago

(page 71); a convention in Oakland of a party

“which was termed the Communist Labor

Party’’* (page 71); the I. W. W. (page 72). No-

where did he state in clear language which of

these bodies Miss Whitney was charged with or-

ganizing; which she was charged with member-

ship in; which she was charged with assembling

with.**

*The evidence subsequently applied the teem “Communist

Labor Party” to at least three bodies of one sort or another,

Local Oakland (which remained an independent body up to the

time of the trial), the California party which was organized at

a convention in Oakland, and a national party organized in Chi-

cago (infra this brief, pages 10-13),

**The emphasis of the opening was largely upon personal

advocacy charged in the other counts. The District Attorney's

Statement (pave 72) that incendiary or objectionable literature

was found in Miss Whitney’s home was absolutely unsubstan-

tiated by the evidence subsequently received or offered and the

jury did not convict on the counts which charged this,

(Footnote continued on next page.)

€ a

‘

Big tie, CA Sp ert bap hin csi

ec deiniigk.

Defendant’s counsel moved for a directed ver-

dict after this opening, and the motion was denied

(pages 72-75).

Evidence.

Plaintiff-in-error had been a member of Local

Oakland (pages 117-118), a local branch of the So-

cialist organization (pages 119, 189). This iocal

sent delegates to the National Convention of the

Socialist Party held in Chicago on August 30 and

September 1, 1919 (page 205). Plaintiff-in-error

voted for these delegates (pages 205-6); the elee-

tion was by written ballot circulated among the

members—not at a meeting (page 206). At the

Chicago Convention the ‘‘radicals’’ were ejected ;

they went to another hall and formed the Com-

munist Labor Party of America (page 100). The

delegates sent by Local Oakland ‘‘went over’? to

this group (page 100). Local Oakland thereafter

withdrew from the Socialist Party (pages 153,

155) and after receiving some communication or

communications from the Communist Labor

Party of America (pages 153-155, 158), and an

announcement from Local San Francisco that

a convention would be held in Oakland on No-

The reference in the District Attorney’s opening to the “red

flag” (page 71) was subsequently explained. At one of the

sessions of the meeting of November 9th, there was a red

table cloth hung over the American flag (page 92). The witness

Condon who testified to this incident admitted on cross examina-

tion that Captain Thompson of the police force had stated to him

that he had one of his men drape the table cloth in this

way (pages 108-109; 113-115). Captain Thompson subsequently

denied that he had told the witness that “he had a man to do

that thing’ (page 148). However, the red flag incident “went

out” of the case (page 109) on the express statement of the

District Attorney.

vember 9, 1919, to decide upon a state organiza-

tion (pages 82; 153-4) Local Oakland sent dele-

gates to this state Oakland convention, among

them plaintiff-in-error (pages 151, 152). Although

the convention resulted in the organization of the

Communist Labor Party of California, Local Oak-

land up to the time of the trial maintained its

independent character and had not applied for a

charter as a local of the Communist Labor Party

(page 156), nor ratified the action of the conven-

tion (page 190). While the Local thus tenta-

tively adopted the Communist Labor name, it

never joined the state organization, and therefore

did not and, indeed, could not belong to the na-

tional body either (pages 154, 184),

Plaintiff-in-error attended this state convention

which was held on November 9, 1919, at Loring

Hall in Oakland (pages 74, 81, 87, 151, 309),

and took part in the convention as chairman of

the Credentials Committee (83, 113, 308) and as

a member of the Resolutions Committee (87, 309).

While the constitution was still in the hands of

the Committee on the Constitution, and before the

presentation or adoption of any resolution, de-

fendant was elected to serve as one of two alter-

nate members on the State Executive Committee

(page 121).

Miss Whitney’s resolution for political action

and its defeat.

One of the resolutions which plaintiff-in-error’s

Committee presented and which she herself read

to the convention (page 309) is as follows:

pegmeechney, 4

“The C. L. P. of California fully recognizes

the value of political action as a means of

spreading communist propaganda; it insists

that in proportion to the development of the

economic strength of the working class, it,

the working class, must also develop its po-

litical power. The C. L. P. of California pro-

claims and insists that the capture of political

power, locally or nationally by the revolu-

tionary working class can be of tremendous

assistance to the workers in their struggle

of emancipation. Therefore, we again urge

the workers who are possessed of the right

of franchise to cast their votes for the party

which represents their immediate and final

interest—the C. L. P.—at all elections, being

fully convinced of the utter futility of ob-

: taining any real measure of justice or free-

dom under officials elected by parties owned

and controlled by the capitalist class.

Signed by the Whole Committee, H. L.

E Griest, Chairman. W. H. Eichhorn, J. G.

4 Wieler, D. D. Wemich, Charlotte Anita

‘ Whitney, Edw. R. Alverson’’ (pages 101-

2, see also 123).

The resolution thus bore Miss Whitney’s signa-

ture, and there is no question that it had her per-

sonal approval (page 309).

The critical importance of this resolution in the

ease this Court will at once recognize: It is ‘‘un-

lawful methods’’ of political or industrial change

that the statute penalizes, and the District Attor-

ney in his opening stressed the contrast between

changes ‘‘by the ballot, by political method’’ and

‘‘by industrial action,’ ‘direct action”? (page

70),

This resolution naturally aroused much contro-

versy among the delegates (pages 121, 142),—‘“‘a

tong war broke out’? (page 142). The proposal

was strongly opposed on the ground ‘that the

adoption of this resolution would have undone all

that the Communist Labor Party Convention at

Chicago had put down in their platforn and pro-

gram, and again lined us up with the Socialist

Party from which we had just escaped’’ (page

142). It was voted down and in its stead (page

121) was adopted the program of the Communist

Labor Party of America (pages 171-188) which,

to adopt the characterization of the secretary,

‘clearly defines that the ballot is practically

worthless as an instrument of emancipation and

we must look to organizing the workers indus-

trially as our great weapon of offense and de-

fense’’ (page 142).

* ~ * * * * *

The prosecution went on to prove a number of

other and distinct incidents—whether as char-

acterizing the Oakland Convention or as substan-

tive bases of accusation neither the District At-

torney nor the Court ever explained to the jury.

There was a scrap of testimony that Miss Whit-

ney in the capacity of an alternate attended a

meeting of the Exeentive Committee of the Cali-

fornia Communist Labor Party in San Jose in

December, 1919 (pages 125, 127, 150), and a meet-

ing in San Franciseo in January, 1920 (pages

127, 150). No particulars were given of what

the committee did on any of these occasions, and

“7

né

there was no testimony that Miss Whitney did

anything (pages 126-7).

There was evidence by a police officer that on

one oceasion in November, one in December and

one in January he had seen Miss Whitney in that

part of the building called Loring Hall which he

said was occupied by the Communist Labor Party,

and that he saw other members ‘‘coming and go-

ing’’ (page 206).

The prosecution, as our references to the Dis-

trict Attorney’s opening have indicated, made re-

peated effort in some way to drag the lL. W. W.

into Miss Whitney’s case. Acts of violence by

certain members of the I. W. W. (pages 228, 258-9,

262-71, 290, 294) and the incendiary nature of its

literature (pages 225-7, 234, 256) were proved.

There was, however, not an item of evidence that

defendant had ever attended a single meeting of

that body, or any branch of it, much less that

she was a member of it or had organized or had

helped to organize it. There was a shred of evi-

dence merely that on one or two occasions in July

and August, 1918 (pages 274, 282) she had been

at the headquarters of the I. W. W. in San Fran-

cisco and had spoken to the secretary of that

organization in regard to circulating defense

ecards (pages 274, 281).

The foregoing is the whole story of Miss Whit-

ney’s activities. The Communist Labor Party

of California was in process of organization and

she tried to give it a character which the majority

of those present at the meeting of November 9,

1919, refused to accept. Its organization was only

that day undertaken and Miss Whitney’s con-

nection with it continued so vague and so ill-de-

fined that even up to the time of the trial she ap-

parently had not signed a membership card (com-

pare page 193), although she declared herself at

that time to be a member—whether of some local,

or of the state, or of the national body does not

appear (page 310). (She had signed a ‘‘tempo-

rary card’’ which one ‘‘had”’ to take out in order

to attend the convention of November 9 [ pages

190-1.])

No proof was offered that plaintiff-in-error

ever advocated the use of violence, terrorism or

any other unlawful measure to effect political

change, or that she intended to assist or promote

any act of criminal syndicalism or any other un-

lawful act. The eyidence was all directly to the

contrary (page 136, compare 137; pages 309,

335).

Trial Court’s refusal to require an election by

the prosecution and failure to identify the organi-

zation.

At the close of the trial the court—which had

previously overruled various objections that re-

cited the ignorance of the defense of ‘‘what this

lady is being tried for’? (pages 283; 291)—de-

clined to require the prosecution to elect and des-

ignate the specific offense under the first count

which the District Attorney desired to submit to

the jury (pages 305-7).

The charge of the trial judge with reference to

this count repeated the language of the section

(pages 43-4), without separately presenting the va-

rious offenses covered by the section, and desig-

nated no specific organization to which defend-

Pere ae

ant was accused of belonging and no specific act

or occasion constituting the offense. He did not

instruct the jury that the evidence concerning

other parties and organizations than the Com-

munist Labor Party of California was to be taken

into consideration only in determining the nature

of that party, but left the identity of the organiza-

tion whose character was to be determined, alto-

gether uncertain, The instruction on this point

was as follows:

‘*Eyidence has been admitted in this case

of statements, acts and declarations of per-

sous other than the defendant, and not made

and done in the presence of the defendant,

and of printed matter purporting to be

printed matter of the lL. W. W. and of the

Communist Labor Party, or circulated or pub-

licly displayed by the I. W. W. and by the

Communist Labor Party, and taken from

places and at times at which the defendant

was not present, and which was not directly

connected with the defendant, and which the

evidence does not show was circulated, prin-

ted or publicly displayed with her aequiesc-

ence or consent, Evidence has also been ad-

mitted of other objects which are not directly

connected with the defendant.

The Court instructs you that such evidence

was admitted for but one purpose, and is to be

considered by you for that one purpose only,

and that is to determine the character of the

organization of which it is claimed the de-

fendant was a member, or which it is claimed

she organized or assisted in organizing * * *

(page 46).”’

s) . - ee oe ee Rae

What ‘‘organization’’ was thus ‘‘claimed,’’ the

judge stated neither at that point of the charge

nor at any other.

Charges and requested charges on the subject

of intent,

The trial court was requested to charge the

jury

‘that in this case to constitute any crime

there must exist a union or joint operation

of act and intent’’;

and the further instruction was requested:

‘“‘T charge you that you must not convict

in this case unless convinced beyond all rea-

sonable doubt that defendant had a criminal

intent of doing an act forbidden by the law

under which this prosecution is brought”’

(Reeord, page 33).*

*In the list of requested instructions submitted by defendant

was also the following on the question of intent:

“One of the charges brought against this defendant is

that she knowingly became a member of an organization

organized to advocate criminal syndicalism. Before she

can be convicted of this charge every member of the

jury must be convinced beyond all reasonable doubt

not only that the organization in question was organized for

such criminal purpose, but also that the defendant knew

that it was organized for such criminal purpose * * *.”

This reqested instruction was perhaps accepted by the judge

when submitted, as it is marked “given as modified” (page 33).

It was not, however, given to the jury in any form (see pages

38-48; and especially 40).

LL LAY LIL LEE OE IM

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These sentences appear in weakened form in

the charge as given: The court added ‘‘criminal

negligence’? as a possible alternative to ‘‘intent”’

in the first, and omitted ‘‘criminal’’ before ‘‘in-

tent’’ in the second. He immediately added sen-

tences whose effect was, that intent was to be de-

duced from soundness of mind and that sound-

ness of mind could be predicated of all but idiots

and lunatics. As actually given the charge on

this subject reads as follows:

‘Tl charge you that you must not convict

in this case unless convinced beyond all rea-

sonable doubt that defendant had an intent

of doing an act forbidden by the law under

which this prosecution is brought.

In every crime or public offense there must

exist a union or joint operation of act and

intent or criminal negligence. The intent or

intention is manifested by the circumstances

connected with the offense and the sound

mind and discretion of the accused.

All persons are of sound mind who are

neither idiots nor lunatics, nor affected with

insanity.

It is a presumption of law that an unlaw-

ful act is done with an unlawful intent.

A malicious and guilty intent is always pre-

sumed from the deliberate commission of an

unlawful act for the purpose of injuring an-

other.

While it is true that the law presumes

that every man intends the natural conse-

quences of his acts knowingly and deliber-

ately committed, in a case like this, the pre-

sumption is not conclusive but is probitary

[sic] in character. It is for the consideration

of the jury in connection with all the other

evidence in this case, to the end that you may

determine the real intent of the party in do-

ing what you may find she did do. You may

infer the intent from the character, and the

natural, ordinary, necessary consequences of

the acts done. The defendant’s intent is to

he determined from all the evidence’’ (page

40).

Unsuccessful attempt at identification of the or-

ganization by the District Court of Appeal, and

affirmance and perpetuation of the trial court’s

ruling that guilty purpose could be presumed from

mere membership or presence,

The District Court of Appeal took note (page

3) of defendant’s contention that there had been

an ‘‘omission to specifically designate the name

of the organization, society, group or assemblage

of persons which she is charged with having or-

ganized and assisted in organizing.’’ Judge

Richards declared however that ‘‘upon the voir

dire examination of the jurors and in the opening

statement of the District Attorney,’’ the defend-

ant ‘‘was fully advised’’ ‘‘that the organization

which the defendant was charged with having

organized and assisted in organizing in violation

of the terms of the Criminal Syndicalism Act

was the Communist Labor Party of Oakland, the

local branch of the Communist Party of Cali-

fornia’’ (page 3). He went on to say that “the

evidence abundantly shows that the defendant not

2 IRE SET ONION

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‘

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only took a leading and active part in the or-

ganization of the Oakland Branch of the Com-

munist Labor Party of California, but also in the

subsequent meetings and acts of said organiza-

tion’’ (page 4).

This is exactly what the evidence does not show.

There was no evidence concerning the organiza-

tion of ‘‘the Oakland Branch of the Communist

Labor Party of California.’? Local Oakland

never applied, even up to the trial, for a charter

in the Communist Labor Party (page 156; compare

page 166), and never ratified the action of the

State Convention (page 190) or had a report con-

cerning it (pages 190, 157). There was no proof

of any resolution, platform or program ever

adopted at any meeting—whether before or after

November 9, 1919—by the Oakland Local. There

was affirmative evidence that-Miss—-Whitney at-

tended no meeting of Local Oakland after the

state convention of November 9 (pages 189, 192).

There was no proof, again, of any of the circum-

stances of Miss Whitney’s joining Local Oakland

—for example, whether it was before the passage

of the Criminal Syndicalism Law in April, 1919,

or after—and no proof that she ever in her life

attended a single meeting of the body. The only

evidence concerning Miss Whitney’s connection

with Local Oakland was the proof that in August,

1919, she voted by written ballot as a member of

that local for delegates to the convention of the

Socialist Party of America (pages 205-6); that

she was a delegate from Local Oakland to the

convention which on November 9, 1919, was held

to organize the Communist Labor Party of Cali-

fornia (page 152); and that on two or three oc-

casions after November 9, 1919, she was seen by

a police officer in Loring Hall when no meeting

Was in progress, but when members of Local Oak-

land were ‘‘coming and going’’ (page 206).

To the convention on November 9, 1919, at which

the state party was organized and which Miss

Whitney attended, the Appellate Court referred

in a casual sentence near the close of the opin-

ion (page 4+). That casual sentence is in each

of its particulars wholly erroneous. Judge

Richards there speaks of ‘ther participation in

the drafting of the resolutions and formulation of

the constitution of the organization itself.’’ The

record does not disclose that Miss Whitney had

any part in the ‘‘formulation of the constitution’’;

she was not on the constitution committee (page

119). Her ‘‘participation in the drafting of the

resolutions’’ consisted in the preparation and sub-

mission of a resolution of admittedly innocent

character which the convention rejected (Supra,

pages 11-13).

Judge Richards who failed to apprehend both

the identity of the organization and the qual-

ity of Miss Whitney’s connection with it, speaks

of ‘fan organization whose purposes and sym-

pathies savored of treason’? (page 4). The

organization truly involved—had the accusation

been at any time particularized, was an organiza-

tion which had no ‘‘purposes and sympathies,’ a

temporary organization—an organization whose

purposes and sympathies were necessarily in the

making and which Miss Whitney tried, though in

vain, to make innocent beyond all question.

It thus remains wholly true that even after

trial and in the ‘‘highest court of the state’’ to

;

2169 aoe CD SSR TE RAL le BESTEL T Sh TE AONB R

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which Miss Whitney’s appeal ran, both the iden-

tity of the organization and the oceasion of her

connection remained undefined and were in fact

misconceived.

The short opinion substantially concludes (page

4) with an explicit reaffirmation of the trial

Court’s declaration that the question of Miss

Whitney’s personal guilt—the inquiry whether

she furthered or opposed those purposes which

the organization finally adopted and which the

Court condemned—was immaterial.

‘*That this defendant did not realize that

she was giving herself over to forms and ex-

pressions of disloyalty and was, to say the

least of it, lending her presence and the in-

fluence of her character and position as a

woman of refinement and culture to an or-

ganization whose purposes and sympathies

savored of treason, is not only past belief

Lut is a matter with which this Court can

have no concern, since it is one of the con-

clusive presumptions of our law that a quilty

intent is presumed from the deliberate com-

_ mission of an unlawful-act.’’? (Our italies.)

Assigned Errors Urged.

Plaintiff-in-error urges the following errors as-

signed (pages 8-11):

That the Supreme Court of California when it

refused to grant leave to appeal, the District

Court of Appeal when it affirmed, and the Su-

perior Court when it rendered judgment de-

nied her the equal protection of the laws

(Assignments I, II and III); that the Superior

Court erred in overruling her demurrer to the

indictment, and in denying her motion to set

aside the information, and in denying her mo-

tion for a new trial, and in denying her motion

for a bill of particulars (Assignments IV, V, VI,

VII), and that the District Court of Appeal,

erred in affirming these rulings (Assignment

VIII); and finally that the Superior Court and

the District Court of Appeal, erred in holding

that the statute was not a violation of the due

process and equal protection of the laws provi-

sions of the Fourteenth Amendment (Assign-

ments IX, X) and that the California Supreme

Court erred in failing to grant an appeal and in

failing to hold the judgment of conviction a de-

nial of constitutional rights under the Four-

teenth Amendment (Assignment XT).

SS BRIG Rae aR RR ae Os

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OUTLINE OF POINTS.

Our argument, as we have already indicated,

rests upon two general contentions: ™T Points I

and II we shall show that the conviction would

have been a denial of due process even had the

statute been admittedly valid and even had facts

been proved which could constitutionally be pun-

ishable,—the failure ever to specify the accusa-

tion invalidated the conviction. In Points III-X

we shall submit various reasons why Miss Whit-

ney—even had the prosecution been wholly spe-

cific and perfect in form—could not constitution-

ally be convicted because of the quality which

other persons over her protest gave to the or-

ganization she joined. Briefly stated our points

are as follows:

I. The failure alike in the information and at

every subsequent stage of the proceedings to

identify either the organization or occasion of

which guilt was sought to be predicated, makes

her conviction a denial of due process (Hodgson

vs. Vermont, 168 U. S., 262) (pages 27-37).

II. Although the record showed only one occa-

sion of organization, membership or assemblage

on Miss Whitney’s part in Alameda County after

the passage of the Criminal Syndicalism Act—

namely, the convention of November 9, 1919—

the court submitted to the jury without discrimi-

nation many other incidents whose consideration

as substantive bases of guilt should have been

absolutely excluded (pages 38-46).

III. Miss Whitney’s act in attending the con-

vention of November 9, 1919, cannot constitution-

ally be made punishable by reason of ‘‘a subse-

quent event’? brought about against her will, by

the agency of others (U.S. vs. Fow, 95 U. S., 670)

(pages 47-51).

IV. The crime which the Criminal Syndicalism

Law, Section 2, subdivision 4, defines, has been

recognized by the California Courts as a crime

of conspiracy; to that crime a specific and ‘‘cor-

rupt’’ intent to join in the forbidden purpose of

the combination is an essential; that essential ean-

not constitutionally be supplied, in opposition to

proved and undisputed facts, by statutory pre-

sumption (McFarland vs. American Sugar Co.,

241 U. S., 79) (pages 52-60).

V. The statute as construed and applied in this

ease is so indefinite that a conviction under it is

a denial of due process. To adjudge Miss Whit-

ney guilty of felony because she failed to foresee

the quality others would give to the convention

of November 9, 1919, is to inflict criminal penal-

ties by reason of a lack of ‘‘prophetie’’ under-

standing (Juternational Harvester Co. vs. Ken-

tucky, 234 U.S., 216) (pages 61-65).

VI. The statute as applied in this case is a

‘‘previous restraint’? upon assembly and invalid

within the analogy of Patterson vs. Colorado, 205

U.S., 454 (pages 66-69).

VII. The statute as applied in this case is as

well a previous restraint upon free speech (Pat-

terson vs. Colorado, 205 U.S., 454) (pages 70-71).

scsi 006 ti ss Bec 8 BEAN AR RTT BROT

VIII. The statute as here applied is a violation

of the right of association, which is an element

of liberty protected by the Fourteenth Amend-

ment (Weyer vs. Nebraska, 262 U.S8., 390) (pages

72-74).

IX. No quality of incitement attaches to the

proceedings of the convention of November 9,

1919, and no conviction by reason of the conven-

tion that day held could constitutionally have

been had even if Miss Whitney had shared the

purposes of the majority (Gitlow vs. New York,

45 Sup. Ct., 625) (pages 75-79).

X. The Criminal Syndicalism Law, Section 2,

subdivision 4, unfairly discriminates between dif-

ferent political and economic opinions and de-

nies the equal protection of the laws (Truaz vs.

Corrigan, 257 U. S., 312) (pages 80-81).

POINT I.

The case was submitted to the jury and the con-

viction was affirmed, by the District Court of Ap-

peal without any specification of the assemblage,

group, occasion or connection of which guilt was

predicated. The information named no group or

party but merely charged organization, assembly

and membership in the general language of the

statute. A demurrer to it was overruled and a

bill of particulars denied. The District Attorney

never particularized the accusation in his opening

and neither he nor the Court did so while the evi-

dence was being received. A motion to compel the

prosecution to elect was overruled, and the

Judge’s charge did not identify the party, group,

or occasion of which guilt was predicated. The

failure to apprise the defendant of the charge

against her thus continued from beginning to end

of the proceedings; after verdict and affirmance it

remains today uncertain of what offense Miss

Whitney has been convicted and whether upon

the same state of facts she could not be convicted

again. The result is a denial of due process under

the doctrine of Hodgson vs, Vermont, 168 U. S.,

262.

Miss Whitney relies upon several aspects of

the due process principle and relies in this

first point upon that principle in its simplest

form. The information never apprised her of the

accusation against her and the subsequent rulings

of the court, instead of clarifying the matter,

confused it still further. The result was a de-

nial of her right under the Fourteenth Amend-

es ee

east

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ment within the test carefully laid down by this

Court in Hodgson vs. Vermont (168 U. 8., 262).

In that case the state’s attorney of Vermont filed

an information against Hodgson charging that

on a day and at a place named he ‘‘did at divers

times, sell, furnish and give away intoxicating

liquor without authority, contrary to the form of

the statute in such case made and provided and

against the peace and dignity of the state.’? The

individuals to whom sales were made were not

named. At the same time the state’s attorney

filed specifications which gave the names though

without addresses. This Court approved the hold-

ing of the Vermont Supreme Court that the speci-

fication to which defendant was entitled ‘‘as a

matter of right’? (page 272) supplied the de-

fects in the information. Speaking upon the gen-

eral principles of the subject, it noted defendant’s

insistence

‘‘that in all criminal prosecutions the ac-

cused must be informed of the nature and

cause of the accusation against him; that in

no case can there be, in criminal proceedings,

due process of law where the accused is not

thus informed, and that the information

which he is to receive is that which will ac-

quaint him with the essential particulars of

the offense, so that he may appear in court

prepared to meet every feature of the accu-

sation against him’’ (page 269).

And this Court went on to concede ‘‘that this

is a correct statement of the rights of an accused

person, and that, if deprived of such rights, he

may properly invoke the protection of the Con-

stitution of the United States’’ (page 269); and

again (pages 272-3):

‘*We concede the proposition, so earnestly

urged on behalf of the plaintiff-in-error, that

by the Fourteenth Amendment it is made the

right and the consequent duty of this court,

when a case has been duly brought before it,

to inquire whether, in the enactment and ad-

ministration of the criminal laws of a State,

it is sought to arbitrarily deprive any person

of his life, liberty or property, or to refuse

him the equal protection of the laws, and that

such inquiry is not precluded or ended by the

mere fact that the judgment complained of

was reached by proceedings in a state court

in pursuance of the provisions of a state stat-

ute.’’ (Our italics.)

The principles of the subject are then wholly

clear:

A defendant in a criminal case must be ap-

prised of the nature of the accusation against

him; if he is not so apprised, the result is a de-

nial of due process. If the information is vague,

specifications may supply the lack. But apprised

the defendant must be.

It remains then merely to test the instant prose-

cution by these simple principles:

The information was a blanket charge covering

all possible offenses included in the language of

the statute, and neither in the first count nor in

any other, named any organization (pages 14-16).

To cael

The inquiry then is: was the lack subsequently

supplied? The demurrer to the information was

overruled (pages 17-18, 65-6).

Miss Whitney moved for a bill of particulars.

The motion papers show her and her counsel’s

complete uncertainty on January 13, 1920—two

weeks before the trial began (see page 69)—what

the occasion was upon which the prosecution was

based. The date named in the information was

‘fon or about the 28th day of November’’ (page

15). The District Attorney on the previous argu-

ment of the motion for a demurrer had, according

to the repeated and undenied allegations of Miss

Whitney’s attorney, declared that the prosecu-

tion was ‘‘connected with the occurrence of No-

vember 28th and ‘centering around that date’ ”’

(page 63)—which was the date of her arrest (page

62). The meeting Miss Whitney attended on that

day was a meeting of the Civic League of Oak-

land which she addressed on the negro problem

(page 62). The question is of course, not of the

date alone; the point is that neither by an ac-

curate date nor by the name of a specified organi-

zation was the occasion charged in any way iden-

tified (see the motion papers, pages 61-64; see for

a good statement of the theory of many objections,

305-6). The motion for a bill of particulars was

denied (pages 17-18), and Miss Whitney was com-

pelled to go to trial without the sort of informa-

tion Hodgson had from the beginning.

The defects we have thus far noticed are de-

fects which in substance the highest court of the

State of California, passing upon a prosecution

under the same section, has admitted. The prose-

cution in People vs. Taylor (187 Cal., 378) was

’

eet RPE - |

directed against one whose complete identifica-

tion with the Communist Labor Party—the na-

tional organization as well as the California state

organization—and whose personal activity in fur-

therance of its policies were abundantly shown

by the record. Taylor, too, was convicted under

section 2, subdivision 4 of the Criminal Syndical-

ism Law. But even in his case, the California Su-

preme Court found the count drawn ‘in the exact

language of the statute’”’ (page 397) ‘‘clearly in-

sufficient’’* (page 398).

*The California Court affirmed the conviction as to that

count because Taylor “upon the voir dire of the jury, asked

the District Attorney to specifically state what organization

or party was referred to in the indictment for which it was

intended to prosecute him. The District Attorney replied ‘Com-

munist Labor Party’ so that during the actual trial of the case

there was no doubt in the mind of the defendant as to the

organization with which he was charged with affiliating” (page

382). Taylor's brief showed plainly—-the Court goes on to ex-

plain—that he knew that the accusation was based on “his

prominent part in the organization of the Communist Labor

Party of California.” “In the absence of some indication in

the record or some claim on appeal that the defendant was

surprised by the method in which the charge against him was

made and proven, we cannot see that the defendant was preju-

diced by the failure to mention the name of the organization to

which it is charged he belonged” (187 Cal., page 382).

The District Court of Appeal in the Whitney case (page 3),

cites the Taylor case and declares the “two cases” to be “iden-

tical.” Judge Richards added that “in each case, the defendant

was fully advised upon the voir dire examination of the jurors

and in the opening statement of the District Attorney” concern-

ing the identity of the organization. In spite of the inaccurate

use of “each,” the obvious meaning is that in the Taylor case

this information was given upon the woir dire and in the

Whitney case upon the opening: the opinion in the Taylor case

makes no reference to the opening; on the other hand this

record shows no reference to any organization in the voir dire

(pages 19-22). (As to the district attorney's opening in this

case, see pages 9-10 supra, and page 32 infra.)

See also

State vs. Laundy, 103 Ore., 443, cited

infra, page 34, footnote.

It is thus clear that Miss Whitney was not ac-

corded the right to which, under the Hodgson

opinion, as we read it, she was entitled—the right

to go to court ‘‘prepared.’’ No less manifest is

it that the lack was never supplied in the course

of the trial and that the original uncertainty per-

sisted and was indeed intensified.

The District Attorney’s opening, as the state-

ment of facts (pages 9-10, supra) has shown, men-

tioned various groups and bodies, the Chicago

Convention (page 70), the Oakland Local (page

71), the I. W. W. (page 72). It did not even name

the Communist Labor Party of California. It did

not specify the convention of November 9, 1919,

as the occasion of the offense for which Miss Whit-

ney was to be prosecuted under the first count.

So utterly inadequate was the opening indeed that

the District Court of Appeal, as we have seen,

conceived it as directed to establishing a guilty

connection with the Oakland Local (supra, pages

19-22).

Miss Whitney’s counsel moved for the direc-

tion of a verdict after the opening and pointed

out the vagueness of the accusation as a basis for

his application (pages 72-3); the motion was de-

nied, as was also a general objection to the ad-

mission of evidence ‘‘on the ground that the infor-

mation does not state any public offense’’ (pages

73, 20).

To the ruling thus made, the trial judge steadily

adhered. Miss Whitney’s counsel for example

objected to the admission of evidence relating to

the I. W. W. on the ground that ‘‘We don’t know

what this lady is being tried for. Is she being

tried for being a member of the I. W. W., aiding,

abetting or assisting them; or being a member of

the Communist Labor Party, and aiding, abetting

and assisting them?’’ (page 283, see also pages

291, 298). The District Attorney distinctly

argued that ‘ther relationship with the 1. W. W.

organization’? (page 283) was itself at issue. He

contended for the admissibility of the evidence as

a circumstance ‘‘to bring her home in connection

with the I. W. W.’’ (see page 282, see also 283).

‘*She agreed to do certain things for the IL. W. W.

organization,’’ the District Attorney said (page

280); ‘‘we are going to follow it up by showing

there was a meeting then’’ (nage 280).

The court declared merely that ‘‘we have the

Communist Labor Party here on trial rather than

the I. W. W. organization’? (page 288) and re-

ceived the evidence. ‘‘It would be proper’’ the

court ruled a little later ‘*to show what the action

of any of the locals or branches of the I. W. W.

was and what they did in their meetings’’ (page

292).

At the end of the state’s case, counsel for plain-

tiff-in-error again attempted to secure a ruling

which would make it clear ‘‘what this jury is try-

ing’’ under the first count of the indictment (page

307). He said that from the conduct of the case

he assumed that Miss Whitney was charged with

having heeome a member of the Communist Labor

Party of California at the state convention on

November 9, 1919, and that the evidence eon-

cerning I, W. W. outrages was admitted to show

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the character of the organization which the Com-

munist Labor Party of America had in some sense

endorsed or at least ‘‘recognized’’ (page 176), and

which the Communist Labor Party of California

in adopting the national platform and program

(in place of the resolution which had Miss Whit-

ney’s sanction and which she herself read to the

convention) had therefore endorsed at second

hand. He then asked that the prosecution, if it

did not accept this theory, be required to elect

and state the offense which it did desire to submit

to the jury under this count (see pages 305, 307).

The prosecution ironically declined to adopt this

theory of its case* and the Court declined to re-

quire the prosecution to make the election or to

define the issue for the jury** (page 307, see for

a similar attempt by the defense and its failure,

pages 133-4, 137).

Defendant requested the direction of a verdict

on ‘feach and every count’? after the evidence

was in, including the ground of ‘‘variance between

*"Mr. Calkins: It is always illuminating to get somebody

else’s understanding of the theory—I don't feel that there is

anything which now compels me to analyze your version of my

theory” (page 305).

**In State vs. Laundy (103 Ore, 443), the Supreme

Court of Oregon reversed a conviction under the Oregon

Criminal Syndicalism Law. The indictment, which — fol-

lowed the language of the statute (corresponding — to

Section 2 [4] of the California statute) charged organizing,

membership and assembling, all in one count. The organiza-

tion (the 1. W. W.) was named. Refusal at the end of the

trial to require the prosecution to elect whether it would go

to the jury on a charge of membership in the 1. W. W. or on

a charge of assembling with the I. W. W. (there was no evi-

dence to support the charge of organizing) was held reversible

error.

information and proof’? (page 31); the request

was refused,

The court supplied the jury with ‘‘forms of

verdict’? (pages 47-8). The jury struggled to

bring their verdict within some one of these forms

(page 49), The forms were wholly general (pages

47-48) and so was the verdict (pages 28, 30)—

‘‘enilty of felony as to counts One and not guilty

SG 10 COUN scenes ”? (pages 28, 30).

The affirmance by the California District Court

of Appeal shrouded the result in additional un-

certainty (pages 3-4). It remains today an en-

igma what Miss Whitney was charged with and

of what she was convicted.

The result does not amount merely to a mis-

application of the state’s recognized forms of

criminal procedure, It goes far deeper. The

California courts’ application of the Criminal

Syndicalism Act to Miss Whitney’s case deprived

her of the fundamental requirement of due pro-

cess—notice of the accusation against her, The

test of constitutionality cannot, of course, be nar-

rowed to the mere wording of a state statute.

If such were the rule, state courts would be free

to indulge in the most unconstitutional practices

under cover of an unobjectionably worded statute

(compare Scott vs. McNeil, 154 U. S., 34).

See also

Roller vs. Holly, 176 TU. S., 398;

Londoner vs. Denver, 210 U, S., 373, 385.

‘inquiry is not precluded or ended by the

mere fact that the judgment complained of

‘

;

}

‘

;

ip Rage.

was reached by proceedings in a state Court

in pursuance of the provisions of a state

statute’? (/lodgson vs, Vermont, supra, 168

U. S., at page 273).

The failure throughout the trial ever to desig-

nate either the particular offense—the statute

covered organizing, membership and assembly—

or the particular occasion of the offense, is the

basis of another and related contention. One of

the reasons why an indictment or information

must contain particulars, or those particulars

must subsequently be supplied is, of course, to

protect the defendant against double jeopardy.

It is **fundamental in the law of criminal pro-

cedure,”’’ that the aceused must be apprised with

reasonable certainty of the nature of the accusa-

tion against him, both that he may prepare his

defence, and that he may ‘‘ plead the judgment as

a bar to any subsequent prosecution for the same

offense. An indictment not so framed is defect-

ive, although it may follow the language of the

statute’? (U. S. vs. Simmons, 96 U. S., 360, 362,

our italics).

See also

U.S. vs. Cruikshank, 92 U.S., 542, 558;

Cochran vs. U. S., 157 U. S., 286, 290.

Miss Whitney’s counsel was absolutely correct

in arguing in support of his motion that if ‘this

Court brings in a verdict of ‘Not Guilty’ in this

case on this Information * * * it will not prevent

the District Attorney from starting a new action

about the 9th and bringing in the very same facts

he is bringing in this case’? (page 73),

This Court has thus far found it umecessary

to decide whether a subjection to double jeopardy

would by itself be a denial of due process within

the meaning of the Fourteenth Amendment (Keerl

vs. Montana, 213 U. S., 135). In this ease the

double jeopardy point does not stand alone. It is

but the necessary consequence of the denial of

proper notice which this Court has recognized

as a fundamental right—a right which it is the

‘“‘duty’’ of this Court to protect against infringe-

ment by the states (Hodgson vs. Vermont, supra).

ee ee eee

POINT II.

The Court’s consistent refusal to particularize

the issue permitted the jury to predicate guilt

of meetings and assemblages that were outside

Alameda County and that took place either before

the passage of the Criminal Syndicalism Law or

after the date named in the information. The

general verdict could, as far as appears, have been

based upon any one of these occasions, every one

of which should have been peremptorily excluded

from the jury’s consideration as a basis of con-

viction. That confusion of issues which the rule

of Hodgson vs. Vermont (168 U. S., 262) is de-

signed to prevent, appears in Miss Whitney’s case

in its most prejudicial form.

We have seen that as the case was in fact sub-

mitted to the jury, it is the merest speculation

what connection of Miss Whitney’s they found

to be the guilty one, whether with the Oakland

Local or the Communist Labor Party of Calli-

fornia or the Communist Labor Party of the

United States or the State Executive Committee

or the I. W. W., and what the nature of that con-

nection was—whether organization, membership

or assemblage.

In this point we shall demonstrate how griev-

ously damaging the confusion of issues was. In

succeeding points we shall argue that for a va-

riety of constitutional reasons, conviction cannot

be based upon the Oakland convention, We shall

here show that not one of the other incidents,

which the Court without discrimination sub-

mitted to the jury constituted assembly, organi-

zation or membership in Alameda County between

the passage of the Syndicalism Law on April 30,

1919 and November 28, 1919, the date named in

the information, or indeed up to the date of the

trial.

(1) Manifestly the references to the I. W. W.

should have been definitely excluded from the

jury’s consideration as substantive bases of eon-

viction. There was absolutely no evidence that

Miss Whitney ever belonged to the organization or

had anything to do with it. The admitted “‘inform-

er’’ (page 228)—oncean I. W. W. Secretary (page

224)—whom the prosecution ealled, ‘‘knew that

this lady never held a card in the organization”?

(page 231; see also page 232). Her only contact

with individual members—casual meetings in con-

nection with legal defense—were in July and Au-

gust, 1918 (pages 274, 282)—while the Criminal

Syndicalism Law, as the information shows, was

passed only in 1919 (page 15). Nevertheless, scores

of pages of the testimony were taken up with the

proceedings and aets of the I. W. W. (see, for ex-

ample, pages 220-228). This evidence was largely

related to a particular convention in Chicago in

1916 (page 225)—three years before the Syndi-

calism Law was passed; there was proof too

(pages 255-260) concerning a meeting in Saera-

mento more than five years before the enactment

(page 255). The most striking evidence that went

before the jury was the evidence of particular

acts of incendiarism and eattle poisoning by mem-

bers of the I. W. W. (pages 258-266, 269-271), and,

as we have seen, the District Attorney himself

avowed his intention to directly connect defendant

2 Reon, Re So Aa eee EN el RES

with the I. W. W. (page 282; see also page 280).

‘Tt is a circumstance to bring home to her her

relationship with the I. W. W. organization”’

(page 283; see also for the District Attorney’s

opening, pages 70-72).

(2) The Chicago Convention of the National

Communist Labor Party also should have been

definitely excluded from the jury’s consideration

as a basis of guilt both because Miss Whitney

never attended the convention and because it was

held outside Alameda County and outside the

State of California.

(3) Despite the belief of the District Court of

Appeal that her connection with the Oakland Local

was the guilty one, there is in fact no evidence in

the record that she ever organized, helped to or-

ganize or assembled with that body; the record

shows merely that at some time—whether before

or after the passage of the act on April 30, 1919,

is left uncertain—she had become a member of

it (page 118) while it was a Socialist body (pages

119, 189). The record shows absolutely no con-

nection with the body after the Communist Labor

Party of California was formed. It was affirma-

tively proved that Miss Whitney attended no meet-

ing of this Local after that date (pages 189, 192).

Her physical presence on three occasions—two of

them after the date named in the indietment—at

Loring Hall when members of Local Oakland were

‘‘eoming and going’’ and no meeting was in prog-

ress (page 206)—-is not claimed to constitute

assembly.

Finally, not a single resolution, proceeding,

platform or program of Local Oakland was re-

ceived or offered in evidence, and as its character

was thus left undefined, there is no basis for a

finding that association with it could be punish-

able. We know that the proceedings at the State

convention were not reported to Local Oakland

(page 157) or ratified by it (page 190), and that

it wever had a charter as a Local in the Com-

munist Labor Party of California (page 156) and

therefore was no part of the national body either

(pages 153, 154; 184). “It was independent of

every other organization’’ (page 156). It had not

put in an application for a charter (page 156).

Summarizing and re-stating the foregoing, we

find the case with respect to the Oakland Local

tobe this: There is not one item of evidence when

Miss Whitney became a member of the body—

whether before or after the Criminal Syndicalism

Law was passed,—thongh it is proved affirmatively

and without contradiction that it was definitely

a Socialist and in no possible sense a Communist

Labor Organization at the time; there is no shred

of evidence that she ever organized or helped to

organize the body or when or how or by whom

it was organized; there is no shred of evidence

that she ever attended a meeting of the body

either before the Criminal Syndicalism Law was

passed or after, and there is affirmative and un-

disputed proof that she did not attend any such

meeting after the Communist Labor Party of

California was founded; there is no proof of any

declaration hy the Local.—the only evidence as

to its character is that it was a Socialist body

in the beginning and remained ‘*independent’? to

the end.

ERR AR

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(4) Miss Whitney’s attendances as alternate

at two meetings of the Executive Committee

of the State Party (supra, pages 13-14)—

one in San Jose, one in San Franciseco—should

again have been explicitly excluded from the

jury’s consideration for all of the following rea-

sons: because both of these meetings were after

the date named in the information; because both

of them were outside of Alameda County—one

being in Santa Clara County, the other in San

Francisco County,—and finally because there is

absolutely no proof what Miss Whitney or any

other person said or did at either of the meetings,

or that she or any one did anything.

The Judge’s charge never informed the jury

whether it was the Communist Labor Party or the

I. W. W. whose character was at issue; on the

contrary, he treated them together and, adopting

a charge of the prosecution (pages 36-7), men-

tioned the I. W. W. first (page 46). He told the

jury—again in the language of the prosecution

(page 37)—that it was for them ‘‘to determine the

character of the organization of which it is claimed

the defendant is a member’’ (page 46), but, as

we have seen, he did not tell them wha‘ that or-

ganization was.

Under the doctrine of Hodgson vs. Vermont

there would have been a denial of constitutional

rights had the confusion been between accusa-

tions all of them in themselves valid; the fact

that there was confusion would have deprived the

defendant of her right to go to court ‘‘prepared.”’

But Miss Whitney’s case went to the jury with-

out the elimination of all these occasions which

had been emphasized in the evidence, every one

of which as a matter of law should have been

strictly excluded from the jury’s consideration

as a substantive basis of guilt. Guilt may in fact

have been found by the jury by reason of one or

several of these very issues. On the prosecution

of Rose Pastor Stokes for violating the Espion-

age Act a ‘‘false issue’’ (264 Fed. at page 21)

was submitted along with an incident of which

guilt could properly be predicated. The Cireuit

Court of Appeals remarked (citing Maryland vs.

Baldwin, 112 U. S., 490) that ‘‘the generality of

the verdict renders it impossible to determine

upon which theory the jury based it’? (Stokes vs.

U. S., 264 Fed., 18, 23), and proceeded to reverse

the conviction.

Much in point upon the practical situation Miss

Whitney’s case presents, is the decision of San-

born, C. J., in Fontana vs. U. 8. (262 Fed., 283).

Fontana was indicted under the Espionage Act.

In that case, as in this ease, the indictment set

forth the accusation in the most general language

only (262 Fed. at pages 286, 287). In that case,

too, every incident, except one, was an incident

whose consideration as a substantive basis of eon-

viction should have been definitely excluded: ‘All

of the evidence recited, except that with refer-

ence to the sermon in August, relates to expres-

sions used prior to June 15, 1917 [when the Espi-

onage Act was passed] for the use of which he

could not be convicted if they had been charged’’

(262 Fed. at page 290). With respect to the gen-

erality of the accusation, Judge Sanborn thus

expressed himself:

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‘If the pleader had set forth in this in-

dictment any fact or facts, such as the time,

place, occasion, circumstances, persons pres-

ent, or any other distinctive earmark where-

by the defendant could have found out or

identified the occasion or occasions when the

government intended to attempt to prove that

the defendant uttered any of the nine say-

ings charged he might have been able to in-

vestigate the basis of the charges to learn

who were or were not present on the occa-

sions referred to, hence who were possible

witnesses, and to prepare his defense; but

there is nothing of that kind in the indict-

ment. As it reads, he might have been called

to meet on each of the nine charges testi-

mony that at any time of day or night, at

any place in New Salem, on any occasion,

public or private, before the indictment was

filed, and after the Espionage Act was passed

on June 15, 1917, he had uttered to any one

whomsoever any of the statements charged

in the indictment. These considerations

compel the conclusion that this pleading sig-

nally failed to state the facts which the gov-

ernment claimed constituted the alleged of-

fense in this case, so distinctly as to give the

defendant a fair opportunity to prepare his

defense to meet any of them, and that he

could not and did not have that notice of them

required to give him a fair trial’’ (286-7).

The Cireuit Court of Appeals of course reversed

the conviction.

That Miss Whitney’s trial was not “a fair

trial’’ cases like Stokes vs. U. S. and Fontana vs.

U.S. clearly establish; that the right denied was

a right around which the Fourteenth Amendment

throws the protection of the Constitution of the

United States, Hodgson vs. Vermont, makes

wholly clear.

The actual injury the denial of that right

worked in Miss Whitney’s case, the present rec-

ord from beginning to end illustrates. Nothing

illustrates this more clearly indeed than the jury’s

verdict, general though that verdict was. What

specific occasion induced it, we do not and ean-

not know. One great fact, however, stands out:

the comparatively concrete accusations which the

second, third, fourth and fifth counts embody—

accusations of advocacy by ‘‘speech’’ and “‘writ-

ing’’ and ‘‘personal acts’’—all failed. It was

upon the count that from beginning to end of the

case remained an enigma—upon the count that

at the end of the case was a greater enigma than

at the beginning—that conviction was had.*

*Certain incidents of the trial increased the burden under

which the defense labored. The trial was begun (page 70)

within a month after the information was filed (page 14). The

influenza epidemic was raging at the time: there was serious

illness in the family of Miss Whitney's trial counsel, Mr. O’Con-

nor, at the opening of the case, but his request for a continu-

ance was denied (page 69). By the second day of the trial

(pages 20, 117) Mr. O'Connor himself was ill (page 134). By

the third day (pages 21, 137, 144) he was a very sick man,

though still in court (page 145). His illness seriously inter-

fered with the cross examination of the prosecution’s witnesses

(page 145), as the Court indeed noted (page 149). At the next

session, February 2 (pages 21, 195), Mr. O’Connor was unable

to be present (pages 198, 200), and a two days’ continuance was

granted. On Wednesday, February 4 (page 200), further ad-

journment was refused, although Mr. O'Connor's associate, Mr.

(Footnote continued on next page.)

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In succeeding points we shall see that not only

should every incident except the convention of

November 9, 1919 have been withdrawn from the

jury’s consideration as a substantive basis for a

finding of guilt but that for many constitutional

reasons no conviction based upon that incident

can stand, and that the result, even apart from the

doctrine of Hodgson vs. Vermout, was a plain de-

nial of due process of law. In this case it will

thereby appear every issue was a ‘false issue.”’

Pemberton, declared that it would be “dangerous to Mr. O’Con-

nor to be unable to tell him that the case is postponed” (page

201). Mr. Pemberton, who had previously been threatened with

punishment for contempt by the Court (page 131), objected to

assuming the burden of the defense, and Miss Whitney an-

nounced that she did not wish Mr. Pemberton to act as her

trial counsel (page 199; see also pages 202-203). The Court,

however, refused to allow Mr. Pemberton to withdraw, and

required him to go on with the trial after a recess of a few

moments (page 204). On Monday, February 9 (page 212), the

death of Mr. O'Connor was announced in court and after one

day’s adjournment, on February 10 (page 213), Mr. Coghlan

was substituted as trial counsel for Miss Whitney, and the

trial continued (page 214). Miss Whitney herself was ill for a

time during the trial (pages 196-8; 200) and one of the jurors

died (page 212) and was replaced by the alternate juror.

UI ge een Sa

~~ er

STR RET:

POINT III.

If the conviction was based on defendant’s

participation in the Oakland convention of Novem-

ber 9, 1919 she was punished not for her own acts

but for the subsequent acts of other persons. This,

within the decision of this Court in U. §S. vs. Fox,

95 U. S., 670, constitutes a denial of due process.

Our discussion has now been narrowed to the

convention of November 9, 1919. The facts are

in no dispute.

Until November 9, 1919, the Communist Labor

Party of California was in process of preliminary

organization (pages 82; 153-4). On that day its

convention was held, There was naturally—and

indeed necessarily—the organization being still

temporary and tentative, a continuing uncertainty

at least until that day what character the majority

of the convention would give to the party. This

uncertainty lasted until the precise moment

when Miss Whitney’s resolution for political ac-

tion was voted down by the majority in its final

session (compare as to the precise time, pages

117; 121; 140; 308-9),

Miss Whitney’s committee introduced and she

signed and approved a resolution which ‘fully

recognized the value of politieal action’’ (pages

101-2; 123). Had that resolution been adopted the

Communist Labor Party would have taken an

uneqnivoeal stand in support of “changes in our

Government by the ballot, by political method”?

(compare the opening of the District Attorney,

page 70; see also statement of Mr. Harris,

page 122), and could not by any possibility have

AeA BO TI sales a

Sapee

fallen within the prohibition of a statute leveled

against acts of ‘‘crime,’’ ‘‘sabotage’’ or ‘‘unlaw-

ful methods of terrorism.’’ The effort of Miss

Whitney and her associates failed (pages 121;

142-3) and the majority of the convention com-

mitted themselves to a purpose that the Cali-

fornia courts have condemned.

The case was thereafter submitted to the jury

upon the theory that Miss Whitney's personal pur-

poses and intents were immaterial and that per-

mitted the jury to find her guilty merely by rea-

son of her presence, The trial court disposed of

the question of intent by quoting the general

declaration that ‘tall persons are of sound mind

who are neither idiots nor lunaties nor affected

with insanity’? and that it is a ‘presumption of

law that an unlawful act is done with an unlawful

intent’? (page 40). By charging ‘‘that the law

presumes that every man intends the natural eon-

sequences of his acts knowingly and deliberately

committed’? the court did away with any require-

ment of personal intent or—as in the law of crimes

it is often called——‘‘ specifie intent’? on Miss Whit-

ney’s part. This theory the appellate court fully

adopted. ‘*That this defendant did not realize

that she was giving herself over to forms and ex-

pressions of dislovalty,’’ the California District

Court of Appeal declared, ‘tis a matter with whieh

this court can have no concern, since it is one of

the conelusive presumptions of our law that a

guilty intent is presumed from the deliberate com-

mission of an unlawful act’? (page 4).

As Miss Whitney’s connection with the conven-

tion of November 9, 1919, was not only admittedly

innocent but, judged by the District Attorney’s

own standards (page 70; see also 122), proper

and even laudable, this theory of prosecution was

the very crux of the case, and the constitutional

question that it raises goes to the foundation,

That question is: Can one be constitutionally

convicted of felony and subjected to imprison-

ment* for joining a body which at the time he

joins has no character and which is subsequently,

by the action of others, taken over his protest,

given an objectionable character?

Stated more generally, the question is: Can

an act, innocent at the time, constitutionally be-

come a crime by reason of the subsequent action

of other persons? To that question the ease of

I. S. vs. For (95 U. S., 670), supplies the answer.

The statute there considered provided

‘“‘that ‘every person respecting whom pro-

ceedings in bankruptcy are commenced,

either upon his own petition or that of a

creditor,’ who, within three months before

their commencement, ‘under the false color

and pretense of carrying on business, and

dealing in the ordinary course of trade, ob-

tains on credit from any person any goods

or chattels with intent to defraud,’ shall be

punished by imprisonment for a period not

exceeding three years.’’

The statute, in other words, made guilt or in-

nocence of the offence of obtaining goods on credit

‘under false color and pretense”? dependent upon

*The statute leaves no alternative to a prison sentence of

from one to fourteen years (Appendix A).

sho Sika Slee Rf Ore re a

MiP OS TORR KR OF

the subsequent action either of the defendant him-

self or of other persons in filing voluntary or in-

voluntary bankruptey proceedings. This Court

condemned the statute as unconstitutional—partly

as an unwarrantable intrusion by the federal gov-

ernment into the ordinary criminal law of the

states—but in the first instance ‘‘upon principle.”’

Mr. Justice Field began his opinion with the fol-

lowing statement (page 671):

‘‘The question presented by the certificate

of division [of the court below] does not ap-

pear to us difficult of solution. Upon prin-

ciple, an act which is not an offence at the

time it is committed cannot become such by

any subsequent independent act of the party

with which it has no connection, By the

clause in question, the obtaining of goods on

credit upon false pretenses is made an of-

fence against the United States, upon the

happening of a subsequent event, not perhaps

in the contemplation of the party, and which

may be brought about, against his will, by the

agency of another, The criminal intent es-

sential to the commission of a public offence

must exist when the act complained of is

done: it cannot be imputed to a party from

a subsequent independent transaction,’’ (Our

italics.)

The case at bar is a much clearer case than the

Fox case: Miss Whitney’s act in joining a still

temporary and tentative body was a colorless act;

Fox obtained credit ‘‘under false color and pre-

tense.’’ The ‘‘subsequent event’’ which brought

vee

Se” a >

Fox’s act within the prohibition of the statute

was an act of his own,—‘‘the defendant filed a pe-

tition in bankruptey’’ (95 U. S. at page 670); the

subsequent event in Miss Whitney’s case was the

action of others who rejected her resolution and

adopted contrary policies.

POINT IV.

The crime of membership, organization or as-

semblage defined by the California Criminal Syn-

dicalism Law has been recognized by the Supreme

Court of California as a crime of conspiracy. To

conspiracy a specific intent to participate in the

purposes of the combination is an essential. The

trial Court submitted the case to the jury and the

District Court of Appeal sustained the conviction

upon the theory that that intent could be con-

clusively presumed from the mere fact of presence.

The application of that presumption to the case

is, within the doctrine of McFarland vs, American

Sugar Co., 241 U.S., 79, a denial of due process.

The nature of the crime defined by Section 2,

subdivision 4, of the Criminal Syndicalism Law

of California is not in doubt. In the leading case

of People vs. Steelik (187 Cal., 361) Wilbur, P. J.,

reviewing the whole statute, said (pages 368-9) :

‘“‘Tt seems clear that not more than three

crimes are described in the statute: First,

the commission of a crime for the purpose of

effecting the desired change; second, advocat-

ing the commission of such a crime, although

it might not have occurred, and where the

advocates would not therefore be accomplices

in the crime; this would include those who

print or write documents in furtherance of

such crime; and third, forming a criminal con-

spiracy for the purpose of committing such

a crime.’’

* _ . - * * *

————————EE—

EE te el —

“The conspiracy denounced in subdivision

4, section 2, is also a separate and distinct

crime, which may result in the commission of

the crime advocated, in which event the con-

spirators can be charged as principals in the

crime.’

” * * * * * *

‘There was thus evidence before the jury

that the defendant had violated section 2, sub-

division 4, of the statute, that is, he know-

ingly belonged to a conspiracy to commit

crimes, in furtherance of industrial and po-

litical control.’’ (Our italies.)

Precisely as the defendant in a larceny case

must intend to deprive another in some way or

other of property or the defendant in a malici-

ous mischief case must actually intend to do harm,

so a conspirator must have a ‘‘corrupt intent.’’

The late decision of the Cireuit Court of Appeals

for the Sixth Circuit in Landen vs. U. S. (299

Fed., 75) well states the familiar principle and

gives to that principle a striking illustration. The

prosecution was for conspiracy to violate the Na-

tional Prohibition Act by selling intoxicating

liquor without the necessary permit. The evi-

dence disclosed that defendants in good faith be-

lieved that no permit was in their case necessary.

The Court recognized that even as to mala pro-

hibita a conspiracy conviction must rest upon a

showing of conscious intent to do a forbidden

thing. At pages 78-79, Denison, C. J., thus ra-

tionalizes the subject:

“Tt is settled that with regard to criminal

prosecutions for those acts which are not

Sa |

Viessiaiieneakacssaaedd

mala in se, but which through legislative ex-

ercise of the police power have become mala

prohibita, no conscious intent to break any

law is essential. The respondent need not

even know that the law exists. Shevlin vs.

Minnesota, 218 U. S., 57, 68; U. S. vs. Balint,

958 U. S., 250, 252; Armour vs. U. S., 209

U. S., 56, 85, 86. When, however, the

prosecution is for conspiracy, the text-

books and elementary discussions seem to

agree that there must be a ‘corrupt intent,’

which is interpreted to be the mens rea, the

conscious and intentional purpose to break the

law. Bishop’s Criminal Law (8th Ed.), $$297,

300; 12 C. J., page 552, §16; 5 R. C. L., page

1066, <6. The principle that even a mistake

of law may protect one accused of crime has

familiar illustration in the rule that, if the

respondent in a prosecution for larceny took

the property in a good-faith, though errone-

ous, belief that he had the legal right to its

possession, he is not guilty.”’

Judge Denison goes on to note that

‘‘the principle was applied to conspiracy in

People vs. Powell, 63 N. Y., 88, 91, 92. Ina

eareful opinion by Judge Andrews, the

difference between the intent involved in

the substantive offense, which intent the

law will imply from the act, and the

‘corrupt intent’ necessary to make con-

spiracy, Which intent does not necessarily

follow from a plan to do the act, is clearly

pointed out. The case has stood for 50 years

Sn eee

as the leading one on the subject, and if it be

confined, as it is (page 92), to a plan to do

an act ‘innocent in itself,’ it has never, so far

as we find, been questioned.’’ (Our italics.)

The doctrine which Judge Denison so recently

expounded and applied is a doctrine which de-

rives from the basic principle Shaw, C. J., thus

stated in Commonwealth vs. Hunt (4 Mete., 111)

—an early and leading case on conspiracy: ‘*The

unlawful agreement constitutes the gist of the of-

fense’’ (page 125), It follows (as the great Chief

Justice of the Massachusetts went on to say)

that

‘‘when an association is formed for purposes

actually innocent, and afterwards its powers

are abused, by those who have the control and

management of it, to purposes of oppression

and injustice, it will be criminal in those who

thus misuse it, or give consent thereto, but

not in the other members of the association”’

(page 129; our italies.)*

*The principle of the conspiracy cases has regularly been

applied to crimes in the nature of seditious assembly (Redford

vs. Burley, 3 Starkie, N. P., 76, 102, 107, 110-128: Duane’s case,

Wharton American State Trials, 345, 386, 388; 2 Stephen,

History of the Criminal Law of England, 386; see also as to

treasonous assembly the case of Green vs. Bedell, stated and

approved in Rex vs, Huggins, 2 Ld. Raymond, 1574, 1585).

In no case before the present, as far as we have been able

to discover, that has been submitted to any court, has the at-

tempt been made to impose any legal consequences, civil or

criminal, by reason of membership in an organization or at-

tendance at a meeting in the face of affirmative proof of

dissent from questionable practices. A somewhat. similar ques-

tion was, however, presented to the Labor Department of the

United States under the act of October 16, 1918 (40 Stat., 1012,

(Footnote continued on next page.)

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How then did the California courts deal with

this basie requirement of the crime for which

Chap. 186), providing for the deportation of aliens “who are

members of or affiliated with any organization that entertains a

belief in, teaches or advocates the overthrow by force or violence

of the government of the United States.” The Department ruled

that membership in the Communist Party—though not in the

Communist Labor Party—was, in general, ground for deporta-

tion (see infra, page 77, footnote). Deportation was not,

however, permitted where the evidence showed the alien’s per-

sonal ignorance of the Communist Party's purposes. The lead-

ing case is In re Truss (Decision of the Labor Department

reported in “Hearings before a sub-committee of the Com-

mittee on Immigration and Naturalization, House of Repre-

sentatives, 66th Congress, 2nd Session,” April 21-24, 1920—Gov-

ernment Printing Office, Washington, pages 14-18). The De-

partment recognized the problem with which the statute dealt

as a problem of conspiracy,—"“to permit aliens to violate the

hospitality of this country by conspiring against it is something

which no American contemplates with patience” (17). The fol-

lowing extracts show the basis for its ruling that innocent mem-

bership in a guilty organization was not a basis for deportation :

“In some cases the membership is ‘automatic,’ the

arrested alien having been transferred from a lawful

organization to the unlawful one by vote of a group or

branch of the former and without his knowledge. In some

cases he has had knowledge of the transfer but none at

all of the character of the organization to which he has

been transferred. In other cases he has signed applica-

tions before the existence of the unlawful organization

and has never confirmed his membership by any conscious

act. Sometimes an organizer or a friend has signed the

application for him” (16-17).

* * * + * * + *

“Tie Congress of the United States should not hastily

bc presumed to have intended that resident aliens be

arrested and deported as members of an unlawful organi-

zation, when all the circumstances show the alien himself

to have been innocent of any guilty knowledge of [or]

malice in taking membership and when it appears not only

that he is and has been wholly free from any hostile

purpose toward this Government, but that he is sympa-

thetic with our democratic institutions” (page 16).

ona

Miss Whitney was convicted? The trial judge

took ont from the charge, as the defendant sub-

mitted it (page 33), the requirement of the “‘crim-

ival intent of doing an act forbidden by the law’’

(see page 40); he thus took out of the definition

of the crime that ‘‘conscious and intentional pur-

pose to break the law’’ which in a conspiracy

there ‘‘must be’’ (Landen vs. U. S., supra) ; at the

same time he ruled that the ‘‘malicious and guilty

intent,’’ might be made out by presumption, by

‘presumption of law’? (page 40). While he per-

haps indicated that the presumption was rebut-

table he denied all practical effect to the possibil-

ity of rebutting it by giving as his illustration of

persons outside the presumption only ‘‘idiots’’

and ‘‘lunaties’’ (page 40). The California Dis-

trict Court of Appeal definitely declared the pre-

sumption an absolute one; Judge Richards said

that with Miss Whitney’s personal opinions and

attitudes, with the question what she did or

did not ‘‘realize,’’ ‘*this Court can have no con-

cern, since it is one of the conclusive presump-

tions of our law that a guilty intent is presumed

from the deliberate commission of an unlawful

act’’ (page 4).

It was by this presumption that the trial

court laid the foundation for Miss Whitney’s

conviction on a charge that the Supreme Court of

the state had recognized and authoritatively de-

fined as a ‘‘charge of conspiracy’’ (People vs.

Steclik, 187 Cal., 361, 368-9) ; and it was by virtue

of what it declared to be a ‘‘conclusive presump-

tion’? of ‘‘law’? that the District Court of Ap-

peal affirmed that conviction.

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Let Ne hin ahead

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A conviction of conspiracy so founded is a de-

nial of due process. The result would indeed be

constitutionally forbidden were the presumption

merely prima facie and actually rebuttable. So

this Court has definitely held. The Louisiana

statute considered in McFarland vs. American

Sugar Co, (241 U. S., 79), provided that

‘**any person engaged in the business of

refining sugar within this State who shall

systematically pay in Louisiana a less price

for sugar than he pays in any other State

shall be prima facie presumed to be a party

to a monopoly or combination or conspiracy

in restraint of trade and commerce, and upon

conviction thereof shall be subject to a fine

of five hundred dollars a day for the period

during which he is adjudged to have done

so’ ’’ (page 81).

This Court in holding the statute unconstitu-

tional said (page 86):

‘‘As to the presumptions, of course, the

legislature may go a good way in raising one

or in changing the burden of proof, but there

are limi's, It is ‘essential that there shall be

some rat.onal connection between the fact

proved ana the ultimate fact presumed, and

that the inference of one faet from proof

of another shall not be so unreasonable as

to be a purely arbitrary mandate.’ Mobile,

Jackson & Kansas City R, R. vs. Turnipseed,

919 U. S., 35, 48. The presumption created

here has no relation in experience to gen-

eral facts.’’

Eee

And again (ibid.):

‘It is not within the province of a legis-

lature to declare an individual guilty or pre-

sumptively guilty of a crime.’’

Clear as is the decided case, the case at

bar is clearer yet. The ‘rebuttable presumip-

tion”’ (see headnote 241 U. 8S. at page 79 and

compare page 81) considered in the McFar-

land case had ‘‘no relation in experience to

general facts’; the all but irrebutable pre-

sumption which supplied the basis for Miss

Whitney’s conviction and the ‘conclusive pre-

sumption’? whereby that conviction was sus-

tained were in direct opposition to the proved

and undisputed facts,—the facts namely that Miss

Whitney far from concurring in the questionable

policies which the convention of November 9,

1919, finally adopted, fought those policies but

was outvoted and overruled by the majority.

. * * * * * *

The precise error into which both the Cali-

fornia courts fell and its effect may be thus re-

stated. Relying on certain presumptions of fact*

*Sections 1962 and 1963 of the California Civil Code list

certain presumptions as “conclusive” and others as “disputable.”

Section 1962 (Subd. 1) provides that the presumption of “a

malicious and guilty intent from the deliberate commission of an

unlawful act for the purpose of injuring another” shall be “con-

clusive.” The trial court paraphrased this statutory statement

in its charge (page 40); the District Court of Appeal likewise

paraphrased it, cited the section, and expressly declared the pre-

sumption “conclusive” (page 4). The trial court further relied

(page 40) on the presumption which Section 1963 lays down

“that an unlawful act was done with an unlawful intent” (Rec-

ord, page 40).

See |

PRRs et

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;

codified by the California Civil Code, these courts

accepted as applicable to all the offenses defined

by the California Syndicalism Law the conclusive

presumption of unlawful intent that ordinarily

flows from the doing of an unlawful act. This pre-

sumption is inapplicable to the only count upon

which Miss Whitney was convicted, the count in

the nature of conspiracy. In thus applying it

the courts overlooked the ‘‘difference between

the intent involved in the substantive offense,

which intent the law would imply from the act,

and the ‘corrupt intent necessary to make con-

spiraey’ ’’ (Landen vs. U. S., supra). The result

was a denial of due process. The conviction under

the California Syndicalism Law, as construed and

applied in this case is as plainly a violation of

the Fourteenth Amendment as if that statute said

in so many words that guilt of conspiracy could

be presumed from mere presence in an as-

sembage and without proof of concurrence.

“Tt is apparent that a constitutional pro-

hibition cannot be transgressed indirectly by

the creation of a statutory presumption any

more than it can be violated by direct en-

actment.’’

Bailey vs. Alabama, 219 U. 8., 219, 239.

See also

Truax vs. Corrigan, 257 U. S., 312, 324,

collecting cases.

POINT V.

The statute provides no definite test of crimi-

nality. Defendant could not know at the time of

joining an organization still in its formative stage

whether the action of other persons would or

would not give it a character which the statute

might condemn. Because the statute thus in effect

calls for ‘‘prophetic’’ quality, it works a denial

of due process under the doctrine of International

Harvester Co. vs. Kentucky, 234 U. S., 216.

The California courts in this ease refused to

apply any test of Miss Whitney’s personal inten-

tions and attitudes to the problem of her guilt.

By so doing they made her guilt dependent not

upon the intention which accompanied her own

act in joining an organization still in process of

formation and not upon the quality of any of her

own acts in connection with the organization, but

upon the character which other persons after

her joining gave to the organization. The stand-

ard of conduct which the statute as construed and

applied imposed spon Miss Whitney was a stand-

ard too vague to be a constitutional basis for crim-

inal prosecution.

In its application to many conceivable states of

fact, where the purposes of the organization or

assemblage were fixed or where the defendant’s

own share in the activity of the organization or in

the acts of the assemblage are such as to clearly

come within the definition of criminal syndicalism

—as was true in the cases which the California

Supreme Court reviewed and affirmed ( People vs.

A Sao hte OEE ati a ate |

Bis.

Steelik, 187 Cal., 361; People vs. Taylor, 187 Cal.,

378)—no practical difficulty with this statute on

the ground of uncertainty need arise. But the

ease of the plaintiff-in-error is not such a case.

The lack of definiteness of which she complains

is the impossibility of applying the statute with

any reasonable degree of certainty to the problem

of her own conduct.

‘‘Laws which create crime ought be so

explicit that all men subject to their penal-

ties may know what acts it is their duty to

avoid.’’

U. S. vs. Brewer, 139 U. S., 278, page

288.

‘No penal law can be sustzined unless its

mandates are so clearly expressed that an

ordinary person can determine in advance

what he may and what he may not do under

Chicago & N. W. Rwy. Co. vs. Dey, 35

Fed., 866, page 876--Brewer, J.

See also

U. S. vs. Cohen Grocery Co., 255 U.S.

81;

U. S. vs. Reese, 92 U. S., 214, 219.

What then was the standard of conduct which

this statute exacted of plaintiff-in-error, and

wherein did she deviate from this standard?

NF Views, 4,

¥ MAME, + es

She was a member of Loeal Oakland, which

was a branch of the Socialist) organization.

She voted for the delegates whieh Loeal Oak-

land sent to the convention of the Socialist

Party held in Chicago on August 30 and Sep-

tember 1, 1919. She did not attend that con-

vention and therefore had no part in the for-

mation of the Communist Labor Party of the

United States of America which resulted from

that convention. She was named as a delegate

of Loeal Oakland to a convention to organize a

State branch of the Communist Labor Party and

attended that convention. The sentiments and

purpose of the state organization still remained

to be determined, and the character of the result-

ing organization could not be foretold. The con-

vention was an open one, no violation of law be-

ing intended or foreseen (pages 112, 335). De-

fendant in attending had no purpose of helping

to create an instrument of terrorism and it was

not her purpose, nor, as far as she knew or could

know, the purpose of the convention—if an in-

choate organization of this character could be

said to have anything so unified as a purpose—to

do anything unlawful (pages 309, 335). She took

part in formulating and presenting to the conven-

tion a resolution which, if adopted, would have

committed the new organization to a legitimate

policy of political reform by the use of the ballot.

As things turned out, the majority of the mecting

were contrary-minded, and other less temperate

policies prevailed. The record shows no further

act done by the plaintiff-in-error within the dis-

trict in which she was prosecuted, At what point

did this course of conduct, which was admittedly

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innocent in the beginning, become a crime, and

how could she have certainly avoided incur-

ring the penalty of the statute?) Avoidance

in her case would have required the power

to foresee the future and correctly prog-

nosticate the outeome of the convention, No law,

however, can constitutionally require prophetic

power from an individual and punish him for not

having such power. (Jufernational llarvester

Co. vs. Kentucky, 234 U. 8., 216.)

The exactions of this law upon the plaintiff-in-

error are precisely analagous to the exactions of

the Kentucky law condemned by this Court in the

International Harvester Co, case. That statute

made it unlawful for any number of persons to

combine the crops of wheat, tobacco, corn, oats,

hay or other market products raised by them ‘‘for

the purpose of obtaining a higher price than they

could get by selling them separately.’? The state

courts in reviewing this and related statutes had

declared the combination of such producers to be

not in itself unlawful and had identified the crimi-

nality of the act proscribed with the price-fixing

feature solely, This Court declared the problem

what the price would have been had the lawful

combination not been in existence, ‘*a problem that

no human ingenuity could solve.’’ Such a law, by

reason of the penalty which its infringement car-

ried, deprived the producers of liberty and prop-

erty without due process of law, because

“To compel them to guess on peril of in-

dictment what the community would have

given for them if the continually changing

conditions were other than they are, to an un-

‘

—eS=-e

certain extent; to define prophetically what

the reaction of only partially determinate

facts would be upon the imaginations and de-

sires of purchasers, is to exact gifts that man-

kind does not possess’’ (234 U. S., pages 223-

4).

i diaasncel

pian seemaedyl

POINT VI.

The right of assembly is an element of the

liberty which the due process clause protects. A

statute which is applied to attach penal conse-

quences to joining an organization still in its

formative stage because that organization subse-

quently acquires over defendant’s protest a ques-

tionable character, imposes a ‘‘previous restraint’’

upon the right of assembly and within the analogy

of Patterson vs. Colorado, 205 U. S., 454, works

a denial of due process.

It is now wholly clear upon authority as well

as upon principle that the elementary civil rights

are parts of that liberty which the due process

clause protects. So it was declared in Meyer vs.

Nebraska (262 U. S., 390, 399) of the right ‘‘to

worship God according to the dictates of one’s

own conscience’’; so this Court ‘‘might’’ and ‘‘did

assume’? in Gitlow vs. New York (45 Sup. Ct.

Rep., 625, at page 630) of ‘‘freedom of speech

and of the press’’; so it was first of all declared

of freedom of assembly itself (U.S. vs. Cruik-

shank, 92 U. S., 542, 551, 554) :

‘“‘The right of the people peaceably to as-

semble for lawful purposes existed long be-

fore the adoption of the Constitution of the

United States. In fact, it is, and always has

been, one of the attributes of citizenship

under a free government. It ‘derives its

source,’ to use the language of Chief Justice

Marshall, in Gibbons vs. Ogden, 9 Wheat.,

211, ‘from those laws whose authority is ac-

knowledged by civilized man throughout the

world.’ It is found wherever civilization ex-

ists. It was not, therefore, a right granted

to the people by the Constitution. The gov-

ernment of the United States when estab-

lished found it in existence, with the obliga-

tion on the part of the States to afford it

protection’? (page 551).

“The Fourteenth Amendment * * * fur-

nishes an additional quaranty against any

encroachment by the states upon the funda-

mental rights which belong to every citizen

as a member of society’’ (page 554; our ital-

ies).

See the citation of this case in Twining vs. N.

J., 211 U.S., 78, 96-7.

What then is the limitation upon freedom of

assembly which the Criminal Syndicalism Law of

California, section 2, subdivision 4, as ‘‘applied

in the present case’”’ (Gitlow vs. New York, supra,

at page 632), imposes? That statute says: You

must not join an organization even for the pur-

pose of lending your own power of persuasion

and your own influence to insure its peaceable

character if subsequently it acquires a quality

the law condemns. You may not go to a meet-

ing to advocate the use of lawful methods with-

out subjecting yourself to criminal prosecution

if the majority turns out to be against you.

It is unnecessary to do more than allude to the

policy of such a statute—its obvious effect in

keeping orderly and law-abiding persons out of

ig ano hyena aon

PESTER AE OR. FE ERA LOR

Tk iP Oa t

;

organizations, and its necessary tendency to in-

crease the likelihood that organizations will fall

into the hands of the reckless and the violent.

For the issue is wholly clear upon principle and

authority applying by the closest analogy.

A statute, which by reason of subsequent events

attaches penal consequences to assemblage, is by

definition a prior restraint upon assemblage. And

a prior restraint upon assemblage is constitu-

tionally void.

Statutory restraints upon freedom of assembly

have been almost unknown throughout the whole

course of American constitutional law. Precise

authorities are therefore lacking. There can,

however, be no doubt where to turn for preced-

ents,—namely to the law of free speech. The

freedom of assembly and the freedom of speech

and of the press are in effeet parts of one gen-

eral liberty of expression. At the very least

the right of assemblage is as broad as the right

of utterance. The liberty to listen manifestly

cannot be subjected to greater restraints than the

liberty to speak or write.

If then a prior restraint upon speech or writing

is constitutionally void, so must be a prior re-

straint upon assemblage. That such a prior re-

straint is forbidden, the decisions, including the

decisions of this Court, leave in no doubt. In

Patterson vs. Colorado (205 U.S., 454, 462) this

Court said of the free speech and free press

principles :

‘*In the first place, the main purpose of

such constitutional provisions is ‘to prevent

all such previous restraints upon publica-

tions as had been practiced by other govern-

ments’.’’ (Citing authority, italics the

Court’s.)

See also

Schenck vs. United States, 249 U. S., 47,

51,

and among many other cases,

Marlin Fire Arms Co, vs. Shields, 171

N. Y., 384;

Dearborn Pub, Co. vs. Fitzgerald, 271

Fed., 479, 482.

[ie ERS incl NR lara

Mei nga eget

Bix dcteeccss a ae

POINT VII.

The statute, which attaches penal consequences

to attendance at a meeting for the purpose of

addressing that meeting and urging orderly ac-

tion, likewise imposes a prior restraint upon free-

dom of speech (Patterson vs. Colorado, 205 U. S.,

454) and works a denial of due process.

It is not by analogy alone that the authorities

upon freedom of speech and upon prior restraints

apply to the case at bar. A statute which is con-

strued and applied to make mere attendance at

a meeting criminal by reason of the subsequent

action there taken may include within its penal-

ties—and in the case at bar did include within

its penalties—one who attends for the purpose of

addressing the meeting. It may include within

its penalties—and in the case at bar did include

within its penalties—one who addresses the meet-

ing in opposition to that course of the majority

which subsequently gave to the assemblage the

quality to which objection is taken. Miss Whit-

ney herself read to the meeting of November 9,

1919, the resolution in favor of political action.

Where a statute in fact operates as a prior

restraint upon speech, it is wholly immaterial

that that statute does not in terms mention speech,

The legislation considered in Louthan vs. Com-

monwealth (79 Va., 197) made it unlawful for

certain publie officers, judges, superintendents of

schools and the like ‘‘to participate actively in

polities’? and provided that .

‘‘making political speeches, or the active or

unofficial participation in political meetings,

shall be deemed to be an active participation

in politics within the meaning of this see-

tion.’’

The Virginia Court squarely held the statute

invalid as a violation of the right of free speech.

It denied the power of any

“legislative body, to seal the lips of citizens,

and exclude them from the assemblies of the

people, unless they will sit dumb among their

fellowmen, and to forbid their holding eom-

munion with their fellow-citizens on govern-

mental questions, to directly or indirectly in-

fluence the votes of others’? (page 204),

To the same effect is

State vs. Junkin, 85.Neb., 1, 3.

See also

Ex Parte Harrison, 212 Mo., 88;

State vs. Pierce, 163 Wis., 615.

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POINT VIII.

The right of association is an essential element

of liberty (Meyer vs. Nebraska, 262 U. S&., 390).

A prior restraint upon association is upon prin-

ciple and upon unbroken authority a denial of due

process.

The historical analogy to the right of assembly

is the analogy we have given to the right of free

expression in speech and in the press, <A clear

logical analogy lies as well to what has frequently

been detined as the right of association. Indeed

the right of assembly is the most conspicuous

illustration—most conspicuous because most fa-

vored by the policy of free institutions and there-

fore singled out by the constitutions of the United

States and of the states—of a general right to

associate, That right is one of ‘‘those privileges

long recognized at common law as essential to

the ordinary pursuit of happiness by free men’’

(Meyer vs. Nebraska, 262 U.S8., 390, 399).

An unbroken course of decisions establishes

that a previous restraint upon association is pro-

hibited by the due process principle. In all of

the eases listed below the attempt to limit the

right of association failed and failed under the

due process provision of the states. In those

cases the attempt was to cireumscribe the moral

and physical contagion of vice and crime by mak-

ing it criminal to associate with prostitutes,

drunkards and the like.

St. Louis vs. Fitz, 53 Mo., 582;

St. Louis vs. Roche, 128 Mo., 541;

wagers

J —— “FF

hot ce eee

Ex parte Smith, 135 Mo., 223;

City of Lancaster vs. Reed, 207 S. W.,

868 (Mo., 1919, not officially reported) ;

City of Watertown vs. Christnacht, 39

S. D., 290;

Watertown vs. Barker, 39 8. D., 407.

To somewhat the same effeet are:

Hechinger vs. City of Maysville, 22 Ky.

L. Rep., 486;

Cady vs. Barnesville, 4 Weekly Cine. Law

Bull, 101;

Stoutenburgh vs. Frazier, 16 D. C. Ap-

peals, 229.

The constitutional case against these statutes,

while sufficient, was manifestly less cogent than

the case against section 2, subdivision 4. The leg-

islation there considered was passed in pursuance

of the police power in its simplest form and sub-

ject to the principle which gives peculiar lati-

tude to legislation directed against vice (compare

e. g., Scott vs. Donald, 165 U. S., 58, 91); the leg-

islation here considered is legislation in deroga-

tion of a basie constitutional right of freedom.

Again, the legislation there considered was held

constitutionally objectionable even when limited to

persons consorting ‘‘with the intent to agree, con-

spire, combine or confederate’? (St, Louis vs.

Roche, supra, a leading ease); the California

Syndiealism Act as applied in Miss Whit-

ney’s case has resulted in her conviction despite

a definite showing that her intent and her effort

were in the fullest sense innocent.

“¥ “~s

Breer mp strats

In Ex parte Smith, supra (135 Mo. at 227), the

Court said:

pie

‘*We deny the power of any legislative body

in this country to choose for our citizens

whom their associates shall be,’’

and, again:

Eira oily

**As to that portion of the eighth clause

which uses the words ‘for the purpose or with

the intent to agree, conspire, or combine or

confederate to commit any offense,’ ete., it is

quite enough to say that human laws and

human agencies have not arrived at such a

degree of perfection as to be able, without

some overt act done, to discern and determine

by what intent or purpose the human heart

is actuated.’’

ee re

POINT IX.

No quality of incitement attaches to the pro-

ceedings of the convention of November 9, 1919.

Judged by the standards definitely laid down by

this Court in Gitlow vs. New York (45 Sup. Ct.,

625), Miss Whitney’s conviction would have

worked a denial of due process even had she

participated in all the purposes and activities of

the convention.

Our argument has presented from various

points of view a single contention: It is a denial

of due process to convict Miss Whitney of crime

by reason of the quality which others gave to the

convention of November 9, 1919. She cannot be

charged, we have said, with the purposes of those

she opposed but failed to convinee. Our argu-

ment now goes further. Had she fully shared

every purpose and participated in every action

of the Communist Labor Party of California, her

conviction still would have been a denial of due

process,—a denial of those rights of free assembly

and free speech which are foundations of that

‘liberty’? the Fourteenth Amendment protects.

The due process clause, declared the Chief Jus-

tice in Truax vs, Corrigan (257 U.S., 312, page

O32), supplies

‘*a required minimum of protection for every-

one’s right of life, liberty and property which

the Congress or the legislature may not with-

hold.’’

What that ‘‘required minimum”’ in this pre-

cise field is, the late decision in Gitlow vs. New

1 aE RR LBP Cah Sail ee:

I OPAPP MIE at 2 Ste)

COBRA

York (45 Sup. Ct., 625) makes clear. The state

may punish ‘incitement’? to violent action; it

may punish incitement even in the absence of a

showing of specific danger from the utterance.

“The state cannot reasonably be required to

measure the danger from every such utterance in

the nice balance of a jeweler’s scale’? (page 631).

But nothing short of incitement is punishable.

In the Gitlow ease this Court went on to a

most detailed analysis of the Communist Mani-

festo, an analysis aecompanied by full quotation,

That analysis culminated in the declaration (page

629):

“The Manifesto, plainly, is neither the

statement of abstract doctrine nor, as sug-

gested by counsel, mere prediction that in-

dustrial disturbances and revolutionary mass

strikes will result spontaneously in an inevi-

table process of evolution in the economic

system. It advocates and urges in fervent

language mass action which shall progres-

sively foment industrial disturbances and

through political mass strikes and revolution-

ary mass action overthrow and destroy or-

ganized parliamentary government. It con-

cludes with a call to action in these words:

‘The proletariat revolution and the

Communist reconstruction of society—the

struggle for these—is now indispensable.

** * The Communist International calls

the proletariat of the world to the final

struggle.’

This is not the expression of philosophical

abstraction, the mere prediction of future

events; it is the language of direct incite-

ment.’’

Such were the tests to which the Manifesto of

the Communist Party was subjected in this court

and by which in the view of the majority it was

condemned ; it remains merely to apply these same

tests to the platform and program of the Com-

munist Labor Party of California.*

The constitution and platform and program of

the Communist Labor Party of California includ-

ing the program of the National Chicago Conven-

tion—which was substituted for Miss Whitney’s

cemeasedcescpapeaea

*The Court will understand that the Communist and Com-

munist Labor parties are wholly distinct bodies (Record, pages

88-89). The Department of Labor of the United States con-

sistently held members of the Communist Party deportable under

the act of October, 16, 1918, which provides for the deportation

of aliens “who are members of or affiliated with any organization

that entertains a belief in, teaches or advocates the over-

throw by force or violence of the Government of the United

States” (40 Stat., 1012, Chap. 186). In that ruling as to the

Communist Party, it was sustained by the Courts (Ske ffington

vs. Katseff, 277 Fed., 129; U. S. vs. Wallis, 268 Fed., 413). The

Department of Labor, however, held membership in the Com-

munist Labor Party no ground for deportation,

The opinion of the Labor Department in the case of one Carl

Miller, which settled the practice, is quoted in a footnote to

Colyer vs. Skeffington (265 Fed., at pages 65-68). After an

analysis of the same platform and program printed in this record

(page 171) the Secretary of Labor concluded:

“The excerpts from the Communist Labor Party plat-

form and program quoted above indicate an extremely

radical objective, but there is nothing in them that dis-

closes an intention to use force or violence or that is

incompatible with ‘he use of parliamentary machinery

to attain the radiai end it has in view.”

| RMIT SN ET

Bath Beak atte ARABIA « 4

BPRS

tana RE.

Ewes ae ol bad

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Bieciennenz

resolution—appear at pages 159-188. The great

bulk of these pages is taken up with purely me-

chanical and formal provisions for the organiza-

tion of committees and the like. The platform ap-

pears at pages 171-178, It is sufficient to refer to

the sole passages to which the prosecution at the

trial took objection, 2 page 176 appears the

following:

‘Tn any mention of revolutionary industrial

unionism in this country, there must be recog-

nized of [sic] the immense effect upon the

American Labor movement of the propa-

ganda and example of the Industrial Workers

of the World, whose long and valiant

struggles and heroic sacrifices in the ¢class-

war have earned the respect and affection of

all workers everywhere. We greet the revo-

lutionary industrial proletariat of America,

and pledge them our wholehearted support

and cooperation in their struggles against the

capitalist class.’’

This passing reference in a platform which was

substituted for the resolution which Miss Whitney

proposed and which was rejected, was made the

basis for the admission of much evidence con-

cerning the 1. W. W. (see e. g., pages 221, 223). But

it never was even argued as far as we know, and

cannot be argued, that this generalized statement

of collective sympathy was upon any possible con-

struction an incitement, much less a ‘*direct in-

citement.’? This is the more plainly true as

criminal activity was shown by the evidence not

to be an avowed object at least of the I. W. W.;

the lawless practices the proseeution stressed

were, according to its own witnesses, agreed upon

in secret outside of the regular meetings (pages

2o8-0; 227-8); many of the “rank and file’’ of the

I. W. W. **knew nothing about it at all’? (286-7).

The prosecution laid much stress (see the cross

examination of Miss Whitney, pages 310-21) upon

the following resolution:

‘Resolutions Committee recommends that

the C. L. P. use all its strength and cnergy

in the organization and education of the

workers to utilize to the full extent. their

collective power to foree the unconditional

release of each and every one now serving

sentence as a political or class war prisoner’?

(page 103),

Even more plainly is this ‘‘reeommendation”’

no ‘incitement’? to anything. It was, in Miss

Whitney’s own words ‘absolutely not,’ intro-

duced with any intention of incitement (page

335).*

*Much supposedly incendiary literature was received in ev

dence. Its identification was through “a witness who had seized

certain documents of the 1. W. W.” (page 223) and the only

ground for receiving the documents was the alleged recom-

mendation of them as propaganda by the I. W. W. conven-

tion of 1916 in Chicago (page 225; see generally pages 224-249).

These documents included I. W. W. songs (pages 2306-243),

books or pamphlets by one Perry (page 233), by one St. Joh:

(page 234), by William Haywood (page 243), by one Pouget

(page 246), with an extract read to the jury from Giovannitti

“Essex Co. Jail, Lawrence, Mass, August, 1912” (page 249), by

one Walker Smith (page 249), and by Miss Flynn (page 272).

The only document connected with the Communist Labor Party

consists of five scattered paragraphs (pages 217-219) of a book

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POINT X.

The California Criminal Syndicalism Law, and

especially Section 2, Subdivision 4 thereof—by

confining its penalties to advocates of change and

especially of ‘‘change in industrial ownership or

control’’—discriminates between differing politi-

cal and economic opinions and their respective

supporters and thus denies the equal protection of

the laws. (Truax vs. Corrigan, 257 U. S., 312.)

The Chief Justice in Truae vs. Corrigan,

pointed out the relation and the difference be-

tween the due process and the equal protection

provisions. The one guarantees a ‘required

minimum”? of liberty; the other ‘* ‘is a pledge of

the protection of equal laws’.’’ (Vick Wo vs. Hlop-

kins, 118 U.S., 356, 369, quoted at 257 U. S., 333.)

The law under review, especially in the penal-

ties it imposes in its membership provisions is, an

unequal law. Like the Arizona statute before this

court in the Truax case, this statute deals with

‘industrial’? conflict. From the opposite direc-

tion, but in quite the same degree, it diserimi-

nates between parties to that conflict and denies

equal protection, Organizing, being a member

on Syndicalism by Ford and Foster (page 216) which Police

Captain Kyle seized at Loring Hall (page 209). (He estimated

the amount of his seizure as “around a ton” [page 209].) The

work was never mentioned as far as the record shows at the

convention of November 9, 1919, or at any of the proceedings

of any of the bodies mentioned in the case. The specitic state-

ment of the District Attorney in his opening that at Miss Whit-

ney’s home the officers found “radical and red literature” (page

72) is absolutely unsubstantiated by any evidence in the record

(see supra this brief, page 9, footnote).

of, and assembling with, organizations or groups

whose purpose is terrorism and unlawful destruc-

tion of property become punishable only if the

purpose of these bodies is political or industrial

change; there is no restraint upon joining any

organization, whatever its purposes or methods,

and however clearly they are avowed, whose ob-

ject is maintenance of the existing order. Two

organizations or two meetings may both be par-

ties to the same political and industrial conflict

and the methods practiced by both may he identi-

cal. Coneretely applying the California Statute

to the case of two organizations so widely known

as the Ku Wlux Klan and I. W. W. and assum-

ing, for the purpose of argument and illustra-

tion, that the same methods of terrorism were em-

ployed by some of the members of both organiza-

tions, the result would be that a member of the

Ku Klux Klan could be convicted for the out-

rage only in accordance with the ordinary rules

of conspiracy—upon proof that he was consciously

a party to it; but a member of the I. W. W. could

he convicted upon mere proof of membership it-

self,

It is no answer to this to argue, as the prosecn-

tion has argued, that the statute operates upon

all social classes alike and that Miss Whitney

herself may have been a woman of position or

wealth. The inequality urged is not precisely

hetween members of different economic or social

classes. The inequality of the statute is that it

snhjeets persons who differ in opinion to differ-

ing rules of law.

The two groups of contentions developed re-

spectively in Points I-II and in Points IIT-X, are

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independent. No conviction for any offense can

stand, where that offense itself is specified neither

in the indictment nor in the course of the trial,

nor in the charge; to convict anyone of any felony

in such circumstances is to deprive him of liberty

without due process of law. Again, had the forms

of procedure been the imost technically regular

conceivable, Miss Whitney’s conviction would still

have been a deprivation of liberty without ‘‘due

process’’: her own acts were demonstrably inno-

cent and she cannot constitutionally be condemned

because others rejected the purposes she held,

avowed and defended.

While thus separately stated and independently

valid, the effect of the two sets of principles upon

which we have relied is cumulative: Miss Whit-

ney was in fact prosecuted without diserimina-

tion upon a number of unspecified and undifferen-

tiated accusations. Conditions of time and space

—to mention no others—should have precluded

once and for all even the submission of all but

one of the supposed issues as in themselves sub-

stantive bases of conviction; a conviction upon

that one, a half-dozen formulations of the due

process principle forbid.

For each of the following reasons—and for all

of them—Miss Whitney’s conviction was a viola-

tion of due process:

Because it was her right to know ‘‘the essential

particulars of the offense, so that she might ap-

pear in court prepared to meet every feature of

the accusation against her’? (ITodgson vs. Ver-

mont), and that right was denied her—denied so

completely as to render wholly possible a second

prosecution by reason of the same facts;

Because ‘‘the criminal intent essential to the

commission of a crime must exist when the act

complained of is done.’? ‘*Upon principle’? one

cannot be declared guilty of crime ‘‘upon the hap-

pening of a subsequent event, not perhaps in the

contemplation of the party, and which may be

brought about, against his will, by the agency of

another’? (U7. S. vs. Fox);

Because ‘‘it is not within the province of a leg-

islature to declare an individual guilty or pre-

sumptively guilty of a crime’’ (McFarland vs.

Amer, Sugar Co.),—least of all (by doing away

with ‘‘corrupt intent’’) guilty of conspiracy;

Because no legislature may ‘‘exact gifts that

mankind does not possess’’ and impose eriminal

penalties for a lack of ‘‘prophetic’’ understand-

ing (Int. Harvester Co. vs. Ky.);

Because the exercise of those elementary rights

of free assemblage and free speech which lie at

the foundation of liberty may not be subjected to

‘previous restraint’? (Patterson vs. Colorado) ;

Because no ‘‘legislative body”’’ may ‘‘choose

for our citizens who their associates shall be’’

(ex parte Smith);

Because the state may prohibit ‘‘direct incite-

ment” alone (Gitlow vs. New York), and even the

platform which, over Miss Whitney’s opposition,

was substituted for her own resolution, shows no

incitement, direct or indirect.

ele DA et err ee

hI ARAN OPREAENS CB AE ARN 4 SD 2

PDiesiisn tarmyedtincariign oo»

The conviction should be reversed and the plain-

tiff-in-error discharged.

Dated, September 4, 1925, and respectfully sub-

mitted,

JOHN FRANCIS NEYLAN,

THOMAS LLOYD LENNON,

of San Francisco,

WALTER NELLES,

WALTER H. POLLAK,

of New York City,

Attorneys for Plaintiff-in-Error.

Watrer H. Pottax,

Ruts I. Wirson,

on the brief.

APPENDIX A.

THE CRIMINAL SYNDICALISM ACT OF

CALIFORNIA.

Act 5086—An Act defining criminal syndicalism

and sabotage, proscribing certain acts and methods

in connection therewith and in pursuance thereof

and providing penalties and punishments therefor.

History: Approved April 30, 1919. In effect

immediately. States, 1919, page 281.

Criminal syndicalism defined.

+1. The term ‘criminal syndicalism’ as used

in this act is hereby defined as any doctrine or

precept advocating, teaching or aiding and abet-

ting the commission of crime, sabotage (which

word is hereby defined as meaning wilful and

malicious physical damage or injury to physical

property), or unlawful acts of force and violence

or unlawful methods of terrorism as a means of

» accomplishing a change in industrial ownership or

control, or effecting any political change.

Unlawful acts. Penalty.

+2. Any person who:

1. By spoken, or written words or personal

conduct advocates, teaches or aids and abets

criminal syndicalism or the duty, necessity

or propriety of committing crime, sabotage,

violence or any unlawful method of terrorism

as a means of accomplishing a change in in-

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dustrial ownership or control, or effecting any

politieal change; or

2. Wilfully and deliberately by spoken or

written words justifies or attempts to justify

criminal syndicalism or the commission or

attempt to commit crime, sabotage, violence

or unlawful methods of terrorism with intent

to approve, advocate or further the doctrine

of criminal syndicalixm; or

3. Prints, publishes, edits, issues or cireu-

lates or publicly displays any book, paper,

pamphlet, document, poster or written or prin-

ted matter in any other form, containing or

carrying written or printed advocacy, teach-

ing, or aid and abetment of, or advising,

criminal sydicalism; or

4. Organizes or assists in organizing, or is

or knowingly becomes a member of, any or-

ganization, society, group or assemblage of

persons organized or assembled to advocate,

teach or aid and abet criminal syndicalism; or

3. Wilfully by personal actor conduct, prae-

tices or commits any act advised, advocated,

taught or aided and abetted by the doctrine

or precept of criminal syndicalism, with intent

to accomplish a change in industrial owner-

ship or control, or effecting any political

change;

Is guilty of a felony and punishable by

imprisonment in the state prison not less than

one nor more than fourteen years,

Constitutionality,

#3. If for any reason any section, clause or

provision of this act shall by any court be held

unconstitutional then the legislature hereby de-

clares that irrespective of the unconstitutionality

so determined of such section, clause or provision,

it would have enacted and made the law of this

state all other sections, clauses and provisions of

this act.

Urgency measure,

+4. Inasmuch as this act concerns and is neces-

sary to the immediate preservation of the public

peace and safety, for the reason that at the present

time large numbers of persons are going from

place to place in this state, advocating, teaching

and practicing criminal syndicalism, this act shall

take effect upon approval by the governor.

Serer: pa We rai hae

PAT Ce OLN AIS Dee

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APPENDIX B.

IN SUPERIOR COURT,

ALAMEDA CouNTY.

Tue Preorpte or THE StaTE OF CALIFORNIA

against

CuarLotre A, WHITNEY.

Information—Filed Dee. 30, 1919.

In the Superior Court of the County of Ala-

meda, State of California, the 30th day of De-

cember, A. D. nineteen hundred and nineteen,

Charlotte A. Whitney, is accused by the District

Attorney of the said County of Alameda by this

information of the crime of felony, to wit: a vio-

lation of an Act entitled, ‘‘An Act defining crimi-

nal syndicalism and sabotage, proscribing cer-

tain acts and methods in connection therewith, and

in pursuance thereof, and providing penalties

and punishments therefor,’’ approval April 30th,

1919, committed as follows: The said Charlotte

A Whitney prior to the time of filing this infor-

mation, and on or about the 28th day of Novem-

ber, A, D. nineteen hundred and nineteen, at the

said County of Alar.eda, State of California, did

then and there unlawfully, wilfully, wrongfully,

deliberately and feloniously organize and assist

i. al

in organizing, and was, is, and knowingly became

a member of an organization, society, group and

assemblage of persons organized and assembled

to advocate, teach, aid and abet criminal syndi-

ealism.

And all of the acts of the said Charlotte A.

Whitney in the premises were and are contrary

to the form, force and effect of the statute in such

case made and provided, and against the peace

and dignity of the People of the State of Cali-

fornia,

Second Count. And the said Charlotte A. Whit-

ney is accused by the District Attorney of said

County of Alameda by this information of the

crime of felony, to wit: a violation of an Act en-

titled ‘‘An Act defining criminal syndicalism and

sabotage, proscribing certain acts and methods in

connection therewith, and in pursuance thereof,

and providing penalties and punishments there-

for,’’ approved April 30, 1919, committed as fol-

lows: The said Charlotte A. Whitney, prior to

the time of filing this information, and on or about

the 28th day of November, A. D. nineteen hun-

dred and nineteen, at the said County of Ala-

meda, State of California, did then and there un-

lawfully, wilfully, wrongfully, deliberately and

feloniously print, publish, edit, issue, cireu-

late and publicly display books, papers, pam-

phlets, documents, posters and written and

printed matter containing and carrying written

and printed advocacy, teaching and aid and abet-

ment of, and advising, criminal syndicalism.

And all of the acts of the said Charlotte A.

Whitney in the premises were and are contrary

to the form, force and effect of the statute in such

SG ELISE AL SBI AEE ID EMI ce bh eg

Bester ntniinn Cetra sect nhie PANE 0

case made and provided, and against the peace

and dignity of the people of the State of Cali-

fornia.

Third Count.- And the said Charlotte A. Whit-

ney is accused by the District Attorney of said

County of Alameda by this information of the

crime of felony, to-wit, a violation of an Act

entitled ‘‘An act defining criminal syndicalism

and sabotage, proscribing certain acts and meth-

ods in connection therewith, and in pursuance

thereof and providing penalties and punishments

therefor,’? approved April 30th, 1919, committed

as follows: The said Charlotte A. Whitney, prior

to the time of filing this information, and on or

about the 28th day of November A. D., nineteen

hundred and nineteen, at the said County of Ala-

meda, State of California, did then and there un-

lawfully, wilfully, deliberately and feloniously by

spoken and written words, and by personal con-

duct advocate, teach, aid and abet criminal syn-

dicalism, and the duty, necessity and propriety

of committing crime, sabotage, violence and un-

lawful methods of terrorism as a means of ac-

complishing a change in industrial ownership and

control, and as a means of effecting a political

change;

And all of the acts of the said Charlotte A.

Whitney in the premises were and are contrary to

the form, force and effect of the statute in such

ease made and provided and against the peace

and dignity of the People of the State of Cali-

fornia.

Fourth Count. And the said Charlotte A. Whit-

ney is accused by the District Attorney of said

County of Alameda by this information of the

crime of felony, to wit, a violation of an Act

entitled ‘An Act defining criminal syndicalism

and sabotage, proscribing certain acts and

methods in connection therewith, and in pur-

suance thereof and providing penalties and pun-

ishment therefor,’? approved April 30th, 1919,

committed as follows: The said Charlotte A.

Whitney prior to the time of filing this informa-

tion, and on or about the 28th day of November,

A. D., nineteen hundred and nineteen, at the said

County of Alameda, State of California, did then

and there unlawfully, wilfully, wrongfully, de-

liberately and feloniously, by spoken and written

words justify and attempt to justify criminal syn-

dicalism and the commission and attempt to com-

mit crime, sabotage, violence, and unlawful meth-

ods of terrorism with intent then and there to ap-

prove, advocate and further the doctrine of crim-

inal syndicalism ;

And all of the acts of the said Charlotte A.

Whitney, in the premises were and are contrary

to the form, force and effect of the statute in such

case made and provided, and against the peace

and dignity of the People of the State of Cali-

fornia;

Fifth Count. And the said Charlotte A. Whit:

ney is aeeused by the District Attorney of said

County of Alameda by this information of the

erime of felony, to-wit, a violation of an Act en-

titled, ‘‘An act defining criminal syndicalism and

sahotage, proscribing certain acts and methods

in connection therewith, and in pursuance thereof

and providing penalties and punishment there-

for,”? approved April 30th, 1919, committed as

follows, to-wit: The said Charlotte A. Whitney

Speer th ees at ae

a Tl rae ke BAEK

MAR ACLS

“3

prior to the time of filing this information, and on

or about the 28th day of November, A. D., nine-

teen hundred and nineteen, at the said County of

Alameda, State of California, did then and there

unlawfully, wrongfully, wilfully, deliberately and

feloniously by personal acts and conduct practice

and commit acts, advised, advocated, taught and

aided and abetted by the doctrine and precept of

criminal syndicalism with intent to accomplish a

change in industrial ownership and control and

effecting a political change;

And all of the acts of the said Charlotte A.

Whitney in the premises were and are contrary

to the form, force and _ effect of the statute

in such case made and provided, and against

the peace and dignity of the People of the State

of California.

Ezra W. Decoto, District Attorney in

and for said County of Alameda,

State of California, by A. A. Rogers,

Deputy District Attorney in and for

the County of Alameda, State of

California. Geo. E. Gross, Clerk, by

L. A. Rudolph, Deputy Clerk. Ezra

W. Decoto, District Attorney, by A.

A. Rogers, Deputy District Attorney

in and for the County of Alameda,

State of California. (File endorse-

ment omitted.)

APPENDIX C.

California Penal Code.

§1176. Written charges need not be excepted

to. When written instructions have been pre-

sented, and given, modified, or refused, or when

the charge of the court has been taken down by

the reporter, the questions presented in such in-

structions or charged need not be excepted to or

embodied in a bill of exceptions; but the Judge

must make and sign an indorsement upon such

instructions, showing the action of the court

thereon, and certify to the correctness of the re-

porter’s transcript of the charge; and thereupon

the same, with the endorsements, become a part

of the record, and any error in the action of the

court thereon may be reviewed on appeal in like

manner as if presented in a bill of exceptions.

[Amendment approved 1905; Stats. 1905, page

762.)

§1259. Appellate court may review what. Upon

an appeal taken by the defendant in open court,

the appellate court may, without exception hav-

ing been taken in the trial court, review any ques-

tion of law involved in any ruling, order, instruc-

tion, or thing whatsoever said or done at the trial

or prior to or after judgment, which thing was

said or done after objection made in and con-

sidered by the lower court, and which affected

the substantial rights of the defendant. The ap-

pellate court may also review any instruction

given, refused or modified, even though no ob-

jection was made thereto in the lower court, if

the substantial rights of the defendant were af-

fected thereby (Amendment approved 1909;

Stats. 1909, page 1088).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.