# Appendix — Whitney v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0689%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1927 - **Citation:** 274 U.S. 357 ## Text 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. = 4 OPINION. a This appeal is from a judgment of conviction : >I 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 Bt 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 a ER oak Nook Aha PE ee fees ree “ " 4 a 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: iv 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 ty Oe SE Mee ere ath Vv 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 Se ke Oe > eT eee 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 vi 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 f b f f 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 : iS & ie MAST RES ii 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 ii 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 3 i % ay ‘ ay 2 a % Se ye iv 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 Vv 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 | vi 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 é ry, 2 re = Fe Na Pa EO TO OD Be eee ee * 2 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 3 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 4 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.) \ . 5 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 z é Y 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 itn. . : ee. * 7M ~ w! Y - * ) =X oe RTGS TESS Bats ite o wseineici NA i e ee le MRS eas ES 6 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. 7 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 9 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 J r % x ‘ + if 6 ¢ ~ Big tie, CA Sp ert bap hin csi ec deiniigk. 10 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. 11 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: f pegmeechney, 4 12 “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 13 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 # e s né : i 14 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- 15 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 16 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 17 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 REE AIR vem: Wee ete oo x 18 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- 19 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 ee 2 IRE SET ONION ~at ie ‘ ' e ~~ ee. ee | 20 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- 21 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 9 ; k 4 _ Pe at 2169 aoe CD SSR TE RAL le BESTEL T Sh TE AONB R ey ig we a ne RE AR RACK HS LEENA, oS Oe = Oe 22 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- 23 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 RAG ES ALE RSA OS TATA ioe Qalee ee. Ten 24 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). = 25 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 26 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). 27 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 iS RA PAS pb? Geese EA PRP 28 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 29 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 30 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 - | 31 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 33 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 core verano i : twdhtte ae? cali ins op aaa RG Alene Mea wend ae Pe Tas Beets 34 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. 35 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 ‘ i i 4 ‘ re 5 2 ‘ ; 4 } ' : * ‘ ‘ & BS ; 5 ee ip Rage. oo 36 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 37 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 38 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- 39 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 At 40 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. 41 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 REIS I RTE BETAS ROL ARSE dite Syste ae pear eee os si a et Biveccs eA Lat 42 (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 43 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: Dubin Pir Sy hee aati REAR SIRE A Big UN Tic CRA PH SEY Weel TRAY TRE Btieiac cadwricuts 44 ‘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. 45 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.) : F ree Se 8 erin hal shed 6 Sad IO a2 EY cals Y SPeD ae Re SO al Bassi ccesmremaree 2 Aidan 46 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 Ir STR RET: | | 47 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 48 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 ae 49 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 ae 50 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 > 51 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. 52 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 — 53 “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 54 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, : a 58 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 el 59 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 | ae PRRs et iit ite inh : h : 4 ha | / % % : 5 : 4 a ; g 3 & - 3 60 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. 61 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. 62 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 id 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 By 63 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 ies cS patie tanta Relea ets be PRE AE LONAZCED Fim otal hE pide A pnts, S58 ha ta in ROY I at 8 BRAS EL ALA ILE Fly Ete Eo: al }- 64 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 65 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 66 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- 67 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 S ; a 4 e] a 68 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- 69 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 70 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, 71 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. fe “s pod | OF peoldes U4 Pe Biecwne RUE Ca 72 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, { z 82 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; 83 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» 84 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. y 85 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- rere RONEN he DWP Cae wet ERSTE sea LA Naan es roicle Kittin oa) 0X) tev ay a hn 86 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, i A, 87 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 Bax: wry ha! Cre poe a | 88 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 89 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 ¥ 4 t SG ELISE AL SBI AEE ID EMI ce bh eg Bester ntniinn Cetra sect nhie PANE 0 90 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 i [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0689%3A2. Public record. Not legal advice.