text:
    ROBERT WOOD v. STATE.
    No. A-10046.
    Sept. 15, 1943.
    (141 P. 2d 309.)

      See, also, Ex parte Wood, 71 Okla, Cr. 200, 110 P. 2d 304.

      George E. Groom, of Tulsa, and Stanley D. Belden, of Oklahoma City, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and Lewis B. Morris, Go. Atty., and John F. Eberle, Asst. Go. Atty., both of Oklahoma City, for defendant in error.
    Osmond K. Fraenkel, of New York City, for National Lawyers Guild, amicus curiae.
    Arthur Garfield Hays and Herman Rosenfeld, both of New York City, for American Civil Liberties Union, amicus curiae.
    John Lee Smith, of Throckmorton, Tex., and Sam S. Gill, of Oklahoma City, for Knights of Pythias, amicus curiae.
    Fred A. Tillman, of Pawhuska, and Ralph B. Gregg, of Indianapolis, Ind., for the American Legion, amicus curiae.
   BAREFOOT, J.

Defendant, Robert Wood, was charged in the district court of Oklahoma county jointly with a number of other defendants with the crime of criminal syndicalism, was given a severance, tried, convicted and sentenced to pay a fine of Five Thousand Dollars and serve ten years in the State Penitentiary. From this judgment and sentence he has appealed.

This is a case growing out of the same state of facts discussed in the case of Shaw v. State, decided by this court on February 17, 1943, reported in 76 Okla. Cr. 271, 134 P. 2d 999, and in which a rehearing was denied on May 19, 1943, 76 Okla. Cr. 271, 138 P. 2d 136.

Many of the questions of law involved in this appeal have been fully discussed and settled in the Shaw Case, and it will be unnecessary to lengthen this opinion by a discussion of those questions, It will also' be unnecessary to review at length the evidence, as it is fully stated in that case. The question of the validity of the information, the constitutionality of the criminal syndicalism statute, and the legality of the searches and seizures by means of which certain books and pamphlets were obtained and used as evidence against this defendant are the same as in the case against Alan Shaw.

The charge herein is different from the charge against Shaw, above referred to. In that case the charge was that Shaw did “become and was a member” of, and “assemble with”, “and’was * * * a, member of a Society and an assemblage of persons, viz., The Communist Party,” an organization “which teaches, advocates, and affirmatively suggests the doctrine of criminal syndicalism,” etc., without an allegation of any overt act on the part of the said Alan Shaw. Here, the defendant is not charged with the offense of being a member of this organization, but that he “did print, publish, edit, issue and knowingly circulate, sell, distribute and pjublicly display books) namely, to-wit: ‘The Communist Manifesto,’ by Marx and Engles, ‘State and Revolution,’ by V. T. Lenin, ‘Foundations of Leninism,’ by Joseph Stalin, and other books, pamphlets, papers, handbills, postersi, dpcumentb! and written and printed matter advocating, advising, affirmatively suggesting; and teaching crime, criminal syndicalism, sabotage, the doing of acts of physical violence, the destruction and damage to property, the injury to persons and the commission of crimes and unlawful acts as a means of a ccomplishing, effecting and bringing about industrial and political ends and changes, and as a means of accomplishing, effecting and bringing about industrial and political revolution, contrary to the form of the statutes,” etc.

The statute upon which this charge is based is: section 2573, O. S. 1931, 21 O.S.A. 1941 § 1263, which is.as follows:

“Any person who, by word of mouth or writings-, advocates, affirmatively suggests or teaches the duty, necessity, propriety or expediency of -crime, criminal syndicalism, o-r sabotage, or who shall advocate, affirmatively suggest or teach the duty, necessity, propriety or expediency of doing any act of violence, the destruction of or damage to any property, the bodily injury to any person or persons, or the commission of any crime or unlawful act as a means of accomplishing or effecting any industrial or political ends, change; or revolution, o-r for profit; or who prints, publishes:, edits, issues, or knowingly iciirculates, sells, distributes, or publicly displays any books, pamphlets-, paper, handbill, poster, document, or written or printed matter in any form whatsoever, containing matter advocating, advising, affirmatively suggesting, or teaching crime, criminal syndicalism, sabotage, the doing o-f any act of physical violence, the destruction of or damage to any property, the injury to- any person, or the commission of any crime or unlawful act asm means of accomplishing, effecting o-r bringing about any industrial or political ends, or change, or as a means of accomplishing, effecting or bringing about any industrial or political revolution, or for profit; or who shall openly, or a.t all attempt to- justify by word of mouth or writing, the commission or the attempt to commit sabotage, any act of physical violence, the destruction of or damage to any property, the injury to any person or the commission of any crime or unlawful act, with the intent to- exemplify, spread o-r teach or affirmatively suggest criminal syndicalism; or who organizes, or helps' to organize or becomes a member of o-r voluntarily assembles with -any society or assemblage of persons which teaches, advocates, or affirmatively suggests the doctrine of criminal syndicalism, sabotage, or the necessity, propriety or expediency of doing any act of physical violence o-r the commission of any crime or unlawful act as a means of accomplishing or effecting any industrial or political ends’, change or revolution, or for profit, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the State Penitentiary for a term not to exceed ten years, or by a fine of not more than five thousand dollars, or by both such fine and imprisonment. Provided, that none of the provisions of this act (Tit. 11, secs. 1261-1264) shall be construed to modify or affect Section 3764, Chapter 42 of the Revised Laws of Oklahoma, 1910 (Tit. 40 O.S.A. 1941, sec. 166). Laws 1919, ch. 70, p. 111, § 3.”

The distinction between-this case and the Shaw Case is that the Shaw and companion cases are known as the “membership” cases, and here, defendant Wood is charged with the sale and distribution of literature which it is claimed by the state was- an overt act in contravention of the statute above quoted.

The evidence of the state was- that officer Webb of the police department of Oklahoma City, on August 17, 1940, for the sum of 55 cents, purchased certain pamphlets from the defendant, Robert Wood, at the Progressive Book Store, located at No. 129 West Grand Avenue, in Oklahoma City, Oklahoma, as follows:

Save Your’ Union.

Jobs, Peace, Unity.

Must We Die?

The People’s Road to Peace.

The War and the Working Class.

Asli-Can the M-Plan-The Yanks are Not Coming.

Roosevelt Heads for War.

War and the Workers.

State and Revolution.

Foundations of Leninism.

Sunday Worker, July 21, 1940.

Daily Worker, July 22, 1940.

After these pamphlets were purchased, the police officer searched the bookstore and seized about 7,000 volumes of books. Many of these books were introduced in evidence, and are part of the record. Some of them were written by purported Communists and dealt with various phases of Communist activities and were discourses by the authors relating to his or her own private conception of what the Communist party advocated and had accomplished. There were many duplicates, among the 7,000 volumes. A detailed list of a great number of these books that were introduced in evidence over the objection and exception of the defendant is given in the Shaw Case. Many of them are in the public and private libraries of this country. Some of them were written as early as 1848, and long before the Bolshevik revolutions in Bussia which brought radical changes in the government of that 'country.

In the Shaw Case we held that the admission of these ■books, in evidence was error, for the reason that there was no evidence that they had been properly authenticated and there was no, evidence that the defendant sanctioned the principles set forth in such writings ; that there was no evidence that the principles enumerated in the books had been published or adopted as the principles of the organization allegedly advocated by defendant; and further that the pamphlet in evidence and styled “The Constitution and By-Laws of the Communist Party of the United States of America,” failed to show that the organization was one teaching or advocating the doctrine of criminal syndicalism according to the accepted definition of that term.

Much of the opinion in the Shaw Case was with reference to the fact that there was no evidence that the alleged Communists, including the defendant herein Bob-ert Wood, sanctioned the principles set forth in the various books, pamphlets and other literature seized by the police officers at the book store. In the instant case, the defendant is charged with circulating and distributing certain books, hereinbefore mentioned, and other books and pamphlets suggesting and teaching criminal syndicalism. This constitutes a specific charge of an overt act on the part of the defendant Wood. The evidence revealed that lie had personal charge of the books, and that he did sell and distribute them. While it may be said that the possession of one book by an accused would not create any presumption against him, the possession of a great number of books, under the circumstances as here revealed, might be a circumstance against him, tending to support the charge laid in the information as to the sale, distribution and circulation of the same.

We are, therefore, of the opinion that the books were admissible in evidence against the defendant Wood. This in view of the fact that in the Shaw Case we held the statute upon which this charge is based is constitutional.

However, the statute may be constitutional, yet the officers charged with its enforcement may construe and apply it in such manner as to cause it to be unconstitutional. A literal application, as contended for by the state, would punish anyone who knowingly sells, circulates, distributes or publicly displays any book or literature advocating criminal syndicalism without regard to the intent with which the distribution, sale or display was made. If this construction is to be followed it would subject many citizens to prosecution in this state who every day sell, display and circulate the very books named in the information. In fact, in the day and age in which we now live, these very books are in demand that we may be better informed of the position, thoughts and aims of those who- are antagonistic to our thoughts and ideas, to the end that we may be better prepared to meet them with sound argument if a clash between these conflicting theories of government should arise. This statute is a good one for the protection of the citizens of this state, if given the interpretation we think was the intention of the Legislature at the time of its enactment; but if it should be interpreted in the manner contended for by the state, it would be in violation of the Constitution of the United States, as interpreted by the Supreme Court.

In the Shaw Case we discussed the principle and application of the “clear and present danger” doctrine, to which reference has, so many times been made by the Supreme Court of the United States in construing statutes with reference to the applicability of the First and Fourteenth Amendments to the Federal Constitution. In the instant case, as in. the Shaw Case, this issue was not presented to the jury, 'although a number of requested instructions were offered by the defendant, and refused by the court. The identical instruction presented and set out in the Shaw Case was here offered. There the decisions of the Supreme Court were cited and reviewed. It is unnecessary to here review them at length. We merely cite the following: Herndon v. Lowry, 301 U. S. 242, 57 S. Ct. 732, 81 L. Ed. 1066; De Jonge v. Oregon, 299 U. S. 353, 57 S. Ct. 255, 81 L. Ed. 278; Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093; Stromberg v. California, 283 U. S. 359, 51 S. Ct. 532, 75 L. Ed. 1117, 73 A.L.R. 1484; Bridges v. California, 314 U. S. 252, 62 S. Ct. 190, 86 L. Ed. 192; Cantwell v. Connecticut, 310 U. S. 296, 60 S. Ct. 900, 84 L. Ed. 1213, 128 A.L.R. 1352; the concurring opinion of Justices Brandéis and Holmes in the case of Whitney v. California, 274 U. S. 357, 47 S. Ct. 641, 71 L. Ed. 1095; and the dissenting opinion of Justices Holmes and Brandéis in the case of Gitlow v. New York, 268 U. S. 652, 45 S. Ct. 625, 69 L. Ed. 1138. See, also, Hague v. Committee for Industrial Organization, 307 U. S. 496, 59 S. Ct. 954, 83 L. Ed. 1423; Schneider v. State of New Jersey, Town of Irvington, 308 U. S. 147, 60 S. Ct. 146, 84 L. Ed. 155; Carlson v. California, 310 U. S. 106, 60 S. Ct. 746, 84 L. Ed. 1104; and People v. Lloyd, 304 Ill. 23, 136 N.E. 505, 512.

Since these decisions were rendered, and on June 21, 1943, the Supreme Court decided the case of Schneiderman v. United States, 63 S. Ct. 1333, 1337, 87 L. Ed. 1796. The opinion of the court was written by Justice Murphy, and Justices Douglas and Rutledge each wrote concurring opinions, and Chief Justice Stone wrote a dissenting opinion, concurred in by Justices Roberts and Frankfurter.

In that case the court was dealing with a petition filed by the Attorney General, of the United States to cancel the certificate of citizenship granted in 1927 to the said Schneiderman. The act under which this was sought permitted cancellation on two grounds, first, “fraud,” and second, that it was “illegally procured.” The application as filed was based upon the second ground. The contention was that petitioner “was not attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same,” but that in truth and in fact petitioner was “a member of and affiliated with and believed in and supported the principles of certain organizations known as the Communist- Party of America, and the Young Communist League of America, whose principles were opposed to the principles of the Constitution of the United States, and advised, advocated and taught the overthrow of the government, Constitution and laws: of the United States by force and violence.”

The evidence produced against the petitioner was very much stronger than that in the instant case against the defendant Wood. The facts are undisputed. We quote:

“Petitioner came to this country from Russia in 1907 or 1908 when he Yvas approximately three. In 1922, at the age of sixteen, he became a charter member of the Young Workers (noYV Communist) League in Los Angeles and remained a member until 1929 or 1930. In 1924', at the age of eighteen, he filed his declaration of intention to become a citizen. Later* in the same year or early in 1925, he became a member of the Workers Party, the predecessor of the Communist Party of the United States. That membership has continued to the present. His petition for naturalization was filed on January 18, 1927, and his certificate of citizenship was¡ issued on June 10, 1927, by the United States District Court for the Southern District of California. He had not been arrested o*r subjected to censure prior to 1927, and there is nothing in the record indicating that he was ever connected Yvith any overt illegal or violent action or with any disturbance of any sort.
“ * --- * As a boy he lived in Los Angeles in poverty stricken circumstances and joined the Young Workers League to study Avhat the principles of Communism had to say about the conditions of society. He considered his membership and activities in the League and the Party during the five-year period between the ages of sixteen and twenty-one before he Avas naturalized, as an attempt to investigate and study the causes and reasons behind social and economic conditions. Meanwhile he was working his Avay through night high school and college. Prom 1922 to about 1.925 he Avas ‘educational director’ of the League. The duties of this non-salaried position were to organize classes, open to the public, for the study of Marxist theory, to register students and to* send out no-tic.es for meetings; petitioner did no teaching. During 1925 and 1926 he was corresponding secretary of the Party in Los; Angeles; this was a clerical, not an executive position. In 1928 he became an organizer or official spokesman for the League. His first executive position with the Party came in 1930 when he was made an organizational secretary first in California, then in Connecticut and later in Minnesota, where he was the Communist Party candidate for Governor in 1932. Since 1934 he has been a member of the Party’s National Committee. At present he is secretary of the Party in California.
“Petitioner testified further that during all the time he has: belonged to the League and the Party he has subscribed to the principles of those organizations.. He stated that he ‘'believed in the essential correctness of the Marx theory as applied by the Communist Party of the United States,’ that he subscribed ‘to the philosophy and principles of Socialism as manifested in the writings of Lenin’, and that his understanding and interpretation of the program, principles and practice of the Party since he joined ‘were and are essentially the same as those enunciated’ in the Party’s 1938 Constitution. He denied the charges of the complaint and specifically denied that he or the Party advocated the overthrow of the Government of the United States by force and violence, and that he was not attached to. the principles of the Constitution. He considered membership in the Party compatible with the obligations of American citizenship. He stated that he believed in retention of personal property for personal use but advocated social ownership of the means of production and exchange, with compensation to the owners. He believed and hoped that socialization could be achieved here by democratic processes but history showed that the ruling minority has always used force against the. majority before surrendering power;. By dictatorship of the proletariat petitioner meant that the ‘majority of the people shall really direct their own destinies and use the instrument of the state for these truly democratic ends.’ He stated that he would bear arms, against his native Russia if necessary.”

Two* witnesses, Humphreys and Hynes, who were formerly members of the Communist Party but who had both been expelled therefrom, testified as to the principles! of that party. We quote from the opinion:

“Humphreys testified that he had been a member of the Communist Party and understood he was expelled because he refused to* take orders from petitioner. He had been taught that present forms of government would have to be abolished ‘through the dictatorship of the proletariat’ Avhich would be established by ‘a revolutionary •process’. He asserted that the program of the Party was the socialization of all property without compensation. With regard to advocacy of force and violence he said: ‘the Communist Party took the defensive and put the* first users of force upon the capitalistic government; they claimed that the capitalistic government would resist the establishment of the Soviet system through force and violence, and that the working’ class would be justified in using force and violence to* establish the Soviet system of society.’ ”

The testimony of Hynes was somewhat to* the: same effect:

“Hynes: testified that he had been a member of the Party for eight months in 1922. He stated that the Communist method of bringing about a change in the form of government is one of force and violence; he based this statement upon: ‘knowledge I have gained as a member in 1922 and from Avhat further knowledge I have gained from reading various: official publications, published and circulated by the Communist Party and from observation and actual contact with the activities of the Communist Party * * ".’ On cross-examination Hynes admitted that he never attempted a philosophic analysis of the literature he read, but only read it to secure evidence, reading and underscoring those portions which, in his opinion, ‘had to do with force or violence or overthrowing of this system of government other than by lawful means provided in the Constitution.’ He testified that he never saw any behavior on petitioner’s part that brought him into conflict with any law.
“The testimony of the two professors discussed Marxian theory as evidenced by the writings of Marx, Engels and Lenin, and concluded that it did not advocate the use of force and violence as a method of attaining its objective.”

We have stated fully the facts with reference to petitioner’s connection with the Communist Party. There is no- evidence in the instant case of the defendant Wood’s! “advocacy” of the principles of the Communist Party, but there are sufficient circumstances to- find that he was a member thereof, and that he was active in the management of its affairs in this state. The evidence is that he managed or controlled the Communist book store, and that he sold the books as heretofore stated, and that the other books were taken from the store and his home. The fact that he was a member under the charges here filed, was only admissible on the question of “intent.” This question Avas not presented to- the jury by proper instructions.

The court in its- opinion calls attention to- the fact that it is not dealing Avith a naturalization proceeding: where one is asking to be made a citizen of this country, but to cancel a certificate of citizenship, granted 12 years before, after a hearing in the manner proAdded by laAV, and at which a solemn judgment was rendered granting citizenship.

The court in the opinion gives a lengthy discussion of the question, of Communism, and the very books mentioned in the information in this case, and many of those Avhich were brought or seized and offered in evidence, are reviewed. The court comes to the conclusion that the evidence against the petitioner, aside from the fact that lie was a member of the Communist Party and participated in its activities, did not reveal that he believed in and advocated the employment of force or violence, instead of peaceful persuasion, as a means of attaining poi-litical ends.

With reference to the Constitution of the Communist Party in 1938, the court says:

“The 1938 Constitution of the Communist Party of the United States, which petitioner claimed to be the first and only written constitution ever officially adopted by the Party and which he asserted enunciated the principles of the Party as he understood them from the beginning of his membership, ostensibly eschews resort to force and violence as an element of Party tactics.”

A copy of this Constitution was introduced in evidence by the state in the instant case, and is a, part of the record. Tt reads, in part:

“Article X, Section 5. Party members found to be strike-breakers, degenerates, habitual drunkards, betrayers of Party confidence, provocateurs, advocates of terrorism and violence as a method of Party procedure, or members whose actions are detrimental to the Party and the working class, shall be summarily dismissed from positions of responsibility, expelled from the Party and exposed before the general public.”

If the defendant is to be punished by reason of his membership ’ in the Communist party, the principles of the party in -1941, at the time of the charge against him, should be considered, and this, was governed by the constitution of 1938, by the terms of which the Supreme Court said that it did not advocate the overthrow of the government by force and violence. However, we are not passing upon that question, but only that the issue of clear and present danger should have been submitted to the jury, as requested by the defendant.

The court discusses the “clear and imminent danger” doctrine, to which reference has heretofore been, made, and which was discussed by this court in the Shaw Case. It says:

“There is a material difference between agitation and exhortation calling for present violent action which creates a clear and present danger of public disorder or other substantive evil, and mere doctrinal justification or prediction of the use of force under hypothetical conditions at some indefinite future time — 'prediction that is not calculated or intended to be presently acted upon, thus leaving opportunity for general discussion and the calm processes of thought and reason. Cf. Bridges v. California, 314 U. S. 252, 62 S. Ct. 190, 86 L. Ed. 192, and Justice Brandeis’ concurring, opinion in Whitney v. California, 274 U. S. 357, 372-380, 47 S. Ct. 641, 647-650, 71 L. Ed. 1095 [1104-1108]. See also Taylor v. Mississippi, 319 U. S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600, this term. Because of this difference we may assume that Congress intended, by the general test of ‘attachment’ in the 1906 Act, to deny naturalization to persons falling] into the first category but not to' those in the second. Such a construction of the statute is, to, be favored because it preserves for novitiates as well as citizens the full benefit of that freedom, of thought which is a fundamental feature of our political institutions. Under the conflicting evidence in this case we cannot say that the ■Government has proved by such a. preponderance of the evidence that the issue is not in doubt, that the attitude of the Communist Party of the United States in 1927 towards force and violence was not susceptible of classification in the second category. Petitioner testified that he subscribed to' this interpretation of Party principles when he was naturalized, and nothing in his conduct is inconsistent with that testimony. We conclude that the Government has not carried its burden of proving by ‘clear, unequivocal, and convincing’ evidence which does not leave ‘the issue in doubt’, that petitioner obtained his citizenship illegally. In so' holding we do not decide what interpretation of tlie Party’s attitude toward force and violence is the most probable on the basis of the present record, or that petitioner’s testimony is acceptable at face value. We hold only that where twoi interpretations of an organization’s program are possible, the one reprehensible and a bar to naturalization and the other permissible, a court in a denaturalization proceeding, assuming that it can re-examine a finding of attachment upon a charge of illegal procurement, is not justified in canceling a certificate of citizenship by imputing the reprehensible interpretation to a member of the organization in the absence of overt acts indicating that such teas his interpretation. So uncertain a chain of proof does not add up to the requisite 'clear, unequivocal, and convincing’ evidence for setting aside a naturalization decree. Were the law otherwise, valuable rights would rest upon a slender reed, and the security of the status of our naturalized citizens might depend in considerable degree upon the political temper of majority thought and the stresses of the times. Those are consequences foreign to the best traditions of this nation, and the characteristics of our institutions.”

We have quoted at length from the Schneiderman Case because it has been decided by the Supreme Court of the United States since the opinion in the Shaw Case was rendered by this court. A reading of the opinion reveals that many of the thoughts expressed by this court are clearly upheld in that case. It again reaffirms the "clear and present danger” doctrine, as shown by the quotation above set forth. It also points out that there was a decided change in the principles of the Communist Party after 1927, the time considered by the court in that case, and the principles announced by the party in-the constitution of 1938, under which the party was acting at the time of the charge preferred against this de fend ant.

The only books mentioned in the information and which were alleged to have been sold and distributed by the defendant Wood were the ones relied upon by the government in the Schneiderman Case to prove that he was not attached to the Constitution or government, because he believed in the use of force or violence instead of peaceful democratic methods to achieve his desires. Yet, after a consideration of these books and documents, the Supreme Court, in what might be termed a quasi civil proceeding, came to the conclusion that “under the conflicting evidence in this case we cannot say that the government has proved by such a preponderance of the evidence that the issue is not in doubt, that the attitude of the Communist Party of the United States in 1927 towards force and violence was not susceptible of classification in the second category.” Yet in the instant case, defendant was charged with the violation of a criminal statute, which demanded proof of his guilt beyond a reasonable doubt before he could be convicted. There was not a line of proof in the instant case interpreting the books which this defendant sold, or giving the principles of the Communist Party at the time defendant was charged. Nor was there any evidence that defendant advocated or believed in the principles or doctrines of the authors of the books which he sold to officer Webb, or that were sold in the bookstore, or found in his home. The question of “clear and imminent danger” was not submitted to the jury, and an instruction to this effect which is quoted in the Shaw Case was refused by the court.

On June 14, 1943, and since the decision in the Shaw Case, the Supreme Court of the United States has also decided the cases of Taylor v. Mississippi, Benoit v. Mississippi, and Cummings v. Mississippi, 63 S. Ct. 1200, 87 L. Ed. 1600, all being appealed from the Supreme Court of Mississippi. These cases involved the validity of a statute with reference to saluting the American Flag. The statute is somewhat similar to our Criminal Syndicalism statute. We quote it as follows:

“That any person who individually, or as a member of any organization, association, or otherwise, shall intentionally preach, teach, or disseminate any teachings, creed, theory, or set of alleged principles, orally, or by means of a phonograph or other contrivance of any kinds or nature, or by any other means or method, or by the distribution of any sort of literature, or written or printed matter, designed and calculated to encourage violence, sabotage, or disloyalty to the government of the United States, or state of Mississippi, or who by action or speech, advocates the cause of the enemies of the United States or who gives information as to the military operations,, or plans of defense or military secrets of the nation or this state, by speech, letter, map or picture which would incite any sort of racial distrust, disorder, prejudices or hatreds, or which reasonably tends to' create an attitude of stubborn refusal to salute, honor or respect the flag or government of the United States, or of the state of Mississippi, shall be guilty of a felony and punished by imprisonment in the State penitentiary until treaty of peace be declared by the United 'States 'but such im--prisonment shall not exceed ten years.” Laws Miss. 1942, c. 178.

These defendants were indicted for disseminating and distribution of literature and printed matter contrary to the statutes above quoted. The cases were reversed in an opinion, by Justice Roberts, in conformity with the decision of West Virginia State Board of Education v. Barnette, 319 U. S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628, decided at the. October, 1942, term of the court.

in the concluding paragraphs of the opinion in the Taylor case [319 U. S. 624, 63 S. Ct. 1204, 87 L. Ed. 1628], the court says:

“The statute as construed in these cases makes it a criminal offense to communicate to others views and opinions respecting governmental policies, and prophecies concerning the future of our own and other nations. As applied to the appellants it punishes them although what they communicated is not claimed or shown to have been done with an evil or sinister purpose, to have advocated or incited subversive action against the nation or state, or to have threatened any clear and present danger to our institutions or our government. What these appellants communicated were their beliefs and opinions concerning domestic measures and trends in national and world affairs..
“Under our decisions criminal sanctions cannot be imposed for such communication.”

The state in its brief in this case cites a,nd relies upon the case of Gitlow v. New York, supra, and Whitney v. California, supra.

We have carefully' read and re-read these cases. Insofar as the Gitlow Case is concerned upon the question of a “clear and imminent danger” being necessary, the court, in our opinion, sustains the proposition that it is not necessary that there be a “clear and imminent danger”, that the act done would constitute a destruction or overthrow of the existing government by force and violence. Some of the cases have attempted to' distinguish its terms by referring to the fact that the record reveals that at the time in question there existed “a clear and imminent danger.” But our impression of the case is that it did not recognize this right. However, the dissenting opinion by Justice Holmes, concurred in by Justice Brandéis, did clearly recognize this right. He said [268 U. S. 652, 45 S. Ct. 632, 69 L. Ed. 1138] :

“Mr. Justice Brandéis and I are of opinion that this judgment should he reversed. The general principle of free speech, it seems to' me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to- Congress by the sweeping language that governs or ought to govern the laws of the United States. If I am right then I think that the criterion sanctioned bv the full Court in Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct, 247, 249, 63 L. Ed. 470, [473], applies: ‘The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that (the state) has a right to prevent.’ It is true that in mv opinion this criterion was departed from in Abrams v. United States, 250 U. S. 616, 40 S. Ct. 17, 63 L. Ed. 1173, but the convictions that I expressed in that case are too deep for it to be possible for me as yet to believe that it and Schaefer v. United States, 251 U. S. 466, 40 S. Ct. 259, 64 L. Ed. 360, have settled the law. If what I think the correct test is ajjplied, it is manifest that there wa,s no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant’s views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement a,t its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.
“If the publication of this document had been laid as an attempt to' induce an uprising against government at once and not at some indefinite time in the future it would have presented a different question. The object would have been one with which the law might deal, subject to the doubt whether there was any danger that the publication could produce any result, or in other words, whether' it was not, futile and too- remote from possible consequences. But the indictment alleges the publication and nothing more.”

In the Whitney Case Justice Brandéis wrote what is labelled a concurring opinion, since he agreed to an affirmance of the case by reason of a technical practice, but his opinion is: a strong dissent from the principles announced in the majority opinion, and he again expresses the views of himself and Justice Holmes, who- concurs, as to the necessity of the “clear and imminent danger” doctrine, when he said [274 U. S. 357, 47 S. Ct. 648, 71 L. Ed. 1095] :

“To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious, one. * * * But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is. nothing to- indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence ivas to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.”

It will be noted that in the Whitney Case, defendant did not raise the question that there “was no clear and present danger of serious evil.” Nor did she request that the existence of these conditions of a valid measure thus restricting the rights of free speech and assembly be passed upon by the court or a jury. In the instant case, as has heretofore been stated, a requested instruction to this effect was presented to the trial court, and refused.

The cases decided by the Supreme Court of the United States since the decisions in the Gitlow and Whitney Oases, most of which have heretofore been cited, have modified and overruled the principles announced in those, cases, and have adhered to the principles announced in the dissenting opinions of Justices Holmes and Brandéis, as applied to the “clear and present danger” doctrine. Herndon v. Lowry, supra; Hague v. C. I. O., supra; Schneider v. State of New Jersey, Town of Irvington, supra; Thornhill v. Alabama, supra; Carlson v. California, supra; Schneiderman v. United States, supra; Taylor v. Mississippi, supra; West Virginia State Board of Education v. Barnette, supra.

From a reading of the opinions of the Supreme Court of the. United States, it may be noted that they have been very jealous of their expressions concerning any activity which had a tendency to infringe upon the freedom of speech or of the press. Lovell v. Griffin, 303 U. S. 444, 58 S. Ct. 666, 82 L. Ed. 949; Grosjean v. American Press Co., 297 U. S. 233, 56 S. Ct. 444, 80 L. Ed. 660; Schneider v. State, supra.

As we have so often stated, it is the highest court in the land. Its decisions considering the applicability of state statutes to the terms of the Constitution of the United States are final and have and will be followed by this court. Lyons v. State, 76 Okla. Cr. 41, 133 P. 2d 898; Pendley v. State, 76 Okla. Cr. 41, 141 P. 2d 118; Gore v. State, 24 Okla. Cr. 394, 218 P. 545; McCord v. State, 2 Okla. Cr. 209, 101 P. 135.

Prom these opinions we find tlie rule announced that in the field of legislation there is a general rule that acts of the. Legislature will be presumed to- be constitutional, and it must be shown that the state has abased its power before the same will he declared unconstitutional. But there is a.n exception to the rule, when the right of freedom of speech or of the press, or of religious worship is involved, and when these questions are raised the burden is upon the state of justifying its application in each instance. In carrying out this principle, it has been thought necessary, before utterances may be penalized, justification must be found in a reasonable apprehension of danger to our government.

The limitation upon individual liberty must have appropriate relation to* the safety of the state. When the legislative act exceeds this need, the principles of constitutional freedom are violated. As applied to the case at bar, the statute may be perfectly regular on its face and reveal no constitutional defects but if its application is such that one is deprived of personal constitutional liberties, a conviction must he set aside as viola,-tive of due process. De Jonge v. Oregon, supra; Herndon v. Lowry, supra; Schneider v. State of New Jersey, Town of Irvington, supra.

It cannot be doubted hut that the application placed upon the statute under consideration, by the instructions given, and the refusal to give the instructions requested by the defendant, constituted an abridgment of the rights guaranteed by the 14th Amendment to the Constitution of the United States.

Under tlie instructions of the trial court, a conviction was proper under the statute if the jury found that tbe defendant had sold or displayed the books in question, and they further found that these books contained language which in the jury’s opinion advocated force and violence. This, without proof that the defendant advocated what was in the books, or that there was present a “clear and present danger” by the disbursing of the same. This construction and application of the statute a,mounted to holding that anyone who at any time and for any reason displayed or sold books of this character is presumed to have advocated the doctrines therein announced. Under this construction, any bookstore owner or manager, or librarian selling or circulating such a book would be guilty of violation of the statute:. We cannot feel that this application and construction was intended by the Legislature of this state at the time of the enactment of the act. If it is to be so construed, it comes in direct conflict with the provisions of the Federal Constitution which guarantees freedom of speech and of the press, as construed by the many decisions of the Supreme Court of the United States. By the denial of the requested instructions, the jury was not given an opportunity to pass upon the issues above mentioned. This was clearly error, and denial of a fundamental right.

The brief of the state filed in this case is a, strong denunciation of the principles of the Communist Party. The arguments made before the jury by the county attorney, and the assistant county attorney are a part of the record. They are assigned as one of the errors in the case. It is unnecessary for us to pass upon these issues, or to even mention them. Our personal opinions are not here involved. Courts are the ultimate resorts for the vindication of the Bill of Rights. These constitutional questions must be solved by a careful and dispassionate consideration of the facts presented in each, case, wholly without consideration of extrajudicial matter.! ’•The final question is, did the defendant have that fair and impartial trial to which he was entitled under the Constitution and laws? If he did not have this', then justice demands that it be given him.

It is our conclusion that the failure of the court to submit by proper instructions the question as to whether defendant had an unlawful intent to bring about an industrial or political change in our government by unlawful means, in the sale, displaying and circulation of the literature in question, was an error which materially prejudiced the rights of the defendant and constituted an unconstitutional application of the statute. Further, as has been heretofore pointed out, the court should have instructed the jury that they must find beyond a, reasonable doubt not only that defendant knowingly sold and distributed the literature advocating criminal syndicalism as charged in the information with an unlawful intent, but that they must further find that the selling, publicly^ displaying, and distributing of said literature by" defendant was reasonably likely to result within the immediate future, in the commission of crime, serious violence, or other unlawful acts for the purpose of bringing about political or industrial change or revolution by such methods. The jury under the instructions of the court was not permitted to pass upon these issues.

For the reasons above stated, the judgment and sentence of the district court of Oklahoma county is reversed, and the case remanded.

JONES, P. J., concurs. DOYLE, J., dissents.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    STATE v. C. B. DABNEY.
    No. A-9973.
    Sept. 15, 1943.
    (141 P. 2d 303.)

      Mac Q. Williamson, Atty. Gen., and P. C. Lackey and J. Walker Field, Asst. Attys. Gen., for plaintiff in error.
    S. E. Dunn, of Tulsa, for defendant in error.
   JONES, P. J.

The defendant, O. B. Dahney, wad charged in the court of common pleas of Tulsa county, by information, with the crime of blacklisting. The information alleged that the defendant “did unlawfully, wilfully, maliciously and knowingly blacklist one Alize Gray in way and manner as follows : He, the said O. B. Dabney, then and there was the Business Manager of the Commercial Business College, located at 117 South Birmingham Avenue, in the city of Tulsa, Oklahoma, and that on the 2nd day of June, 1910, one Alize Gray entered said business college as an apprentice instructor in said institution and remained in said institution as said instructor for something like two weeks, when she, the said Alize Gray voluntarily resigned as apprentice instructor in said institution of her own free will, and shortly thereafter she, the said Alize Gray, secured employment at S. H. Kress & Company, a corporation, at the lunch counter, and thereafter, to-wit: On the 15th day of August, 1910, in order to blacklist and cause her, the said Alize Gray, to lose her job, the said defendant wrote a letter to the manager of the S. H. Kress & Company, a corporation, in which he stated that she was a trouble-maker and that she, the said Alize Gray, also made trouble in his organization, and a true and correct copy of said letter is hereto attached and made a, part of this information, and said letter was written and mailed to the S. H. Kress & Company at their address in the city of Tulsa, Okla., for the purpose of blacklisting and causing her, the said Alize Gray to lose lier job in said institution, contrary to the form of the statutes in such cases made and. provided and against the peace and dignity of the state.”

Attached to the information was a letter allegedly written by defendant which reads:

“G. B. Dabney,
“Business Manager
“Assistant Instructors Margaret Miller
“Ruth Edmonds
“Commercial Business College
“Tulsa, Oklahoma, August 15, 1940
“Manager,
“S. II. Kress & Company,
“Tulsa, Oklahoma
“Dear Sir:
“About twenty five years ago your company gave my first start when my school days were over. In August, 1916, I made my first trip to the Navy Recruiting Station at Muskogee-, Oklahoma. I was sixteen years of age at that time and would be seventeen on the 11th day of November. It bad always been my boyhood ambition to join the Navy the day that I became old enough and I wanted to see if the recruiting officer could give me any idea as to my ability to pass the examination. He informed me that Í was seven pounds under weight and a little flat footed but he said that if I could gain the weight necessary, I could practice humping up my arches and maybe fool him when I came back. He told me that the best way to gain weight would be to get a job at some soda fountain where I could eat enough ice cream to make up the shortage in weight and suggested that I go over to Kress’ and put in my application, and this I did. I was working within three weeks. ■ On my birthday, I passed the examinations and was soon on my way. When I think of it now, it was a stinky trick. I wasn’t underfed and my father could have purchased the necessary ice cream for me but I never thought of that. I took the first suggestion but never-the-less I’m still grateful. The unsolicited favour and the only one which I have ever been able to offer in return for the one received may not be appreciated but at least I have the best of intentions.
“At one of the lunch counters in your basement, I see a girl by the name of Alize Gray. I do not know if she is listed with you by that name or not but I can furnish photo upon request. On June 2nd of this year she entered this institution on the pretense of being an apprentice instructor. A few days later my suspicions were aroused by numerous questions regarding other help in this school and who each and every student was. When I came about she was nearly always engaged in confidential conversation with others. On June 13th some of the other help informed me that she had told them that she was being paid as an investigator by the Better Business Bureau to find all that she could about our business. I held a meeting a day or so later in which she was invited to sit. It was a very business like meeting and a few days later she resigned of her own free will after I made a trip to the police station and consulted Mr. Blaine, Chief of Detectives, at which time he called the Bureau regarding the matter. The Bureau denied the accusation but from the many things which had happened, I am still of the opinion that she was telling the truth. Just after the meeting in which she was invited to sit she threatened with a good beating up of all that she had informed as to her two way position.
“1 do not know if yonr company subscribes to the Better Business Bureau or not but for your information, I have enclosed some information about them. You may obtain one of these fifteen page booklets from the Bureau of Records without charge, by writing for a copy of decisions handed down by Congress in 1933 regarding the Bureaus and their rackets.
“This girl kept trouble brewing in the organization practically all of the time that she was here and while I have no intentions of inferring that she may be a trouble maker in yonr organization, I realize that I was fortunate to have had so many loyal persons here.
“Trusting that you will receive this letter in the spirit in which it was written, I am,
“Yours very truly,
“(Signed) C. B. Dabney,
“1117 South Birmingham Ave.”

A demurrer was filed by the defendant to the information alleging that the same fails to state a cause of action against defendant. The demurrer was sustained and defendant discharged. The state excepted to the action of the court and this appeal was filed by the state.

40 O. S. 1941 §§ 172 and 173 provide:

“No firm, corporation or individual shall blacklist or require a letter of relinquishment, or publish, or cause to be published, or blacklisted, any employe, mechanic or laborer, discharged from or voluntarily leaving the service of such company, corporation or individual, with intent and for the purpose of preventing such employe, mechanic or laborer, from engaging in or securing similar or other, employment from any other corporation, company or individual.
“Any person, firm or corporation violating the preceding section shall be fined in any sum not less than one-hundred dollars, nor more than five hundred dollar's, and any person so blacklisted shall have a right of action to recover damages.”

These statutes were adopted by the Territorial Legislature in 1897 and they exist today as a part of our Code without any change having been made since their original enactment by the Territorial Legislature. In the 50 years since its adoption, no appellate court of this state has had occasion to interpret this statute.

Most of the states of the Union have enacted similar statutes. Some of these states, with a citation of their respective statutes, are set forth in a note following the opinion in the case of Wabash R. Co. v. Young, 4 L.R.A., N.S., 1091, 1123.

So far as the citations of authorities contained in the respective briefs of the parties filed herein and the research of this court have disclosed, all of the states in which the validity of a similar statute has been attacked have sustained its constitutionality. See State ex rel. Scheffer v. Justus, 85 Minn. 279, 88 N.W. 759, 56 L.R.A. 757, 89 Am. St. Rep. 550; Johnson v. Oregon Stevedoring Co., 128 Or. 121, 270 P. 772; Mattison v. Lake Shore & M. S. Ry. Co., 3 Ohio Dec. 526; Dick v. Northern Pac. Ry. Co., 86 Wash. 211, 150 P. 8, Ann. Cas. 1917A, 638; 11 C.J.S., Blacklist, p. 354.

In Mattison v. Lake Shore & M. S. Ry. Co., supra, it is stated:

“It is for the public interest and for the public good that the right of a man to seek his own employment in any honest work which he may seek, should not be interfered with or violated. This, of course, does not interfere at all with the right of a company, or of a man, to judge himself wlm he will have work for him; and it makes no difference whether he refuses to let a, man work for him because be is incompetent or because be dislikes him; be lias a. right- to seek his, employees; but, as is frequently said, one man’s right ends where another man’s commences, and the right of the employer to discharge ends with his own employment, and he must not trench upon the right of the employee to seek other employment by which he may support himself and his family, and it is for the public interest that the largest liberty to seek employment should be before every man whatever may be his employment, or whatever may be his business, trade or occupation.”

Counsel for defendant cites only one case, which was a decision by the Supreme Court of Oklahoma in the case of Chicago, R. I. & P. R. Co. et al. v. Medley, 55 Okla. 145, 155 P. 211, L.R.A. 1916D, 587. The Supreme Court did not consider the statute on blacklisting, herein-above quoted, in that case; but merely determined that a service letter issued by a railroad company to' its former employee was not libelous on its face. The suit was an action for damages for libel brought by Medley against the railroad company for issuance and publication of a false service letter. We have carefully read this case and have found no language in it which might assist us in an interpretation of the statute herein involved.

Our first consideration is whether the term “blacklist,” as used in the statute, not being defined by the Legislature, is too indefinite to show with reasonable certainty Avhat acts or omissions the Legislature, intended to punish. The statute provides that:

“No firm * * * shall blacklist * * * any employe * * * discharged from or voluntarily leaving * * * with intent and for the purpose of preventing such employe * * * from * * * securing * * * other employment.”

In Black’s Law Dictionary (3rd Ed.) the term “blacklist” is defined:

“A list of persons marked out for special avoidance, antagonism, or enmity on the part of those who prepare the list or those among whom it is intended to circulate; as where a trades-union ‘blacklists’ workmen who refuse to conform to its rules, or where a list of insolvent or untrustworthy persons is published by a commercial agency or mercantile association.”

Webster defines the term:

“A list of individuals regarded as suspect or as deserving of censure or adverse discrimination.”

These definitions, or ones very similar, were quoted with approval in Johnson v. Oregon Stevedoring Co., supra, and Dick v. Northern Pac. R. Co., supra. A similar definition of “blacklisting” will be found in all modern dictionaries. We must conclude, therefore, that the term “blacklist” has a well-defined meaning.

In State v. Barnett, 60 Okla. Cr. 355, 69 P. 2d 77, 78, it is held:

“Where the language of a statute is unambiguous and its meaning is evident, it must be held to mean what it plainly expresses, and no room is left for the application of rules of construction and interpretation.
“A court in determining what acts may be punished under a statute must apply the rule that the terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.
“A penal statute is sufficiently certain, although it may use general terms, if the offense is soi defined as to convey to a person of ordinary intelligence what acts are prohibited.”

In the body of the opinion it is stated:

“It is a well-settled rule that a penal statute must be construed with such strictness as, to carefully guard tbe rights of the accused, and at the same time preserve the obvious intention of the Legislature; what the legislative intention was, however, can be derived only from the words used in the statute. State v. Young, 20 Okla. Cr. 383, 203 P. 484.
“In Kepner v. United States, 195 U. S. 100, 24 S. Ct. 797, 802, 49 L. Ed. 114, 1 Ann. Cas. 655, it is said:
“‘It is a well-settled rule of construction that language used in a statute which has a settled and well-known meaning, sanctioned by judicial decision, is- presumed to be used in that sense- by the legislative body.’ ”

In the case of Groskins v. State, 52 Okla. Cr. 197, 4 P. 2d 117, this court held:

“A penal statute is sufficiently certain, although it may use general terms, if the offense is so defined as- to convey to- a person of ordinary intelligence an adequate description of the evil intended to be prohibited.”

In 4 L.R.A., N.S., 1123, note, supra, it is s-tated:

“It is manifest that, if the practice of ‘blacklisting’ is permitted to- go on unchecked, the employers of o-u-r own. times will be able, by private compacts, to place large bodies of employees in a position analogous, to that which would result from the operation of such a statute, and to which they are still subjected by the laws of some of the countries of continental Europe. A passport system of the kind has always been found to- be productive of serious evils, even when it is worked by public officials, and it must be immeasurably more dangerous to leave in the hands of private parties- so- formidable an instrument of potential tyranny, capable of being used, and, as human nature is constituted, certain to be used, in many instances, as a means of gratifying personal animosity or class hatred.”

In State ex rel. Scheffer v. Justus, supra [85 Minn. 279, 88 NW. 760, 56 L.R.A. 757, 89 Am. St. Rep. 550], it is; stated:

“Again, it is insisted that an employer of labor lias the natural right, under the Constitution, state and federal, to give such advice and information as he desires with respect to his employes, whether they have been discharged for cause or without cause, or whether they have voluntarily left the employment. This leads: to a consideration of what the offense is, as set forth by the provisions of section 2. An employe who voluntarily leaves his employment is one who has the right to- do so. He violates no contract obligations. Presumably, he is an employe in good standing, and leaves because it is to his advantage so to do; and if he seeks employment elsewhere he is. entitled to the presumption that his reputation as an employe has been unharmed by the fact of his leaving. The fact that such an employe voluntarily abandons his employment does not give the employer a right to prejudice his employment elsewhere. Under such circumstances, a communication designed to prevent such employment is presumably a reflection'upon the standing of the employe. It is no> answer to say that the employer may have cause for making such communication; that it may be to the advantage of the new employer, and for the mutual advantage of all such employers, to have notice of the character of the employe. If there is any valid reason for such communication, it would be available only as a matter of defense. The act does not attempt to interfere with the right of an employer to discharge an employe for cause or -without cause. It does not seek to prohibit an employer from communicating, to other employers the nature and character of hist employes', when the facts would be for their interests:. While such interference by an employer is not expressly characterized as malicious, that intent is necessarily implied. It is. the purpose of this law to protect employes in the enjoyment of those natural rights and privileges guaranteed them by the Constitution, viz., the right to sell their labor and acquire property thereby.”

Although the statute itself is not attacked by defendant, the above authorities abundantly sustain its validity.

With the validity of the statute established, we must next consider the allegations of the information to see Avhether they are sufficient to charge a.n offense under the terms of the said statute. The allegations of the in-forma,tion follow the wording of the statute in that they allege that defendant did unlawfully blacklist one Alize Gray. It, further alleges that the said Gray was employed by defendant in the business college for approximately two weeks, when she voluntarily resigned and secured employment at another company and that defendant, in order to blacklist and cause her to lose her job, did write a certain letter to said company stating that she was a trouble-maker' and had made trouble in his organization, all of which was done for the purpose of blacklisting and causing her, the said Alize Gray, to lose her job.

An intent to, injure by preventing future employment is the essence of the offense of blacklisting. The allegations of the information and the letter attached are sufficient to come within the prohibition of the statute. The letter plainly states that the said Gray was employed by a burea,u which was conducting a racket and Stirling up trouble in certain organizations. It plainly infers that the said Gray is such a person as would probably be a source of trouble in any organization by whom she may be employed.

It should be understood that we are here only passing upon the sufficiency of the allegations of the information. Whether defendant actually wrote the letter, his good faith in writing the same, and whether he had any intent to injure the said Gray by preventing future employment, are questions of fact to, be determined by a jury. If the allegations of the information are correct, the letter which was written is apparently just such an act at which the statute is directed.

Although the words used in the letter allegedly written by defendant are not libelous per se, they are sufficient, when considered with the allegations of the information, to bring the alleged act of defendant within the terms of the statute. The statute herein involved does! not purport to specify the kind of words which must be used in blacklisting an individual. The libel statute, 21 O. S. 1941 § 771, construed by our Supreme Court in the Medley Case, supra, cited and relied on by defendant, requires that the publication be such as exposes the person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation. All that is required under the statute here under consideration is that the former employer blacklist a former employee with the intent and for the purpose of preventing such former employee from thereafter obtaining work. While the words that may be used may not be such as subject said former employee to public hatred, ridicule or obloquy, if they are such! as to show that they were published with the intent of injuring such former employee in her seeking to obtain work, then they are sufficient under the terms of the statute.

For the reasons hereinabove stated, the judgment of the court of common pleas of Tulsa county sustaining- a demurrer to the information filed herein is reversed and said case remanded for further proceedings consistent with the views expressed in this opinion.

BAREFOOT, J., concurs. BOYLE, J., absent and not participating.


author: BAREFOOT, J.

text:
    HARRY DAVES v. STATE.
    No. A-10145.
    Sept. 22, 1943.
    (141 P. 2d 603.)

      Ovvnby & Warren and Ward & Ward, ail of Tulsa, for plaintiff in error.
    Mac Q.. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Tlie defendant was charged in the district court of Tulsa county with the crime of indecent exposure of his person and private parts in a public place, was tried, convict,ed and sentenced to serve a term of 10 years in the penitentiary, and has appealed.

The statute Tinder which defendant was charged, 21 O.S.A. 1941 § 1021, is as follows::

“Every person who wilfully and lewdly either:
“First. Exposes his person, or private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; * * *
“* * * is guilty of a felony and upon conviction therefor shall be punished by the imposition of a fine not less than Ten ($10.00) Dollars nor more than One Thousand ($1,000.00) Dollars or by imprisonment for not less than thirty (30) days nor more than ten (10) years, or by both such fine and imprisonment.”

It is first contended that the allegations of the information are insufficient to charge the commission of the crime of indecent exposure. The charging part of the information is as follows:

“* " " did unlawfully, willfully, lewdly, and feloni-ously expose bis person and private parts in a public place, towit: Owen Parle in the City of Tulsa, and in a place where there was present another person to be offended and annoyed thereby, towit: Peggy Jean Walkup.”

Said information further charges:

“Said defendant was, on the 11th day of October, 1937, convicted of the crime of Indecent Exposure in the District Court of Tulsa County, Oklahoma, and was sentenced to pay a fine of $50.00’ and costs, same being case No. 8248, of the records of said Court, * * *.”

The contention that the allegations of the information are insufficient is based upon the fact that the alleged offense was committed in “a public place,” without alleging any facts or circumstances “constituting the said park as a public place,” as contemplated by law.

We think the allegations of the information are sufficient and that it was unnecessary to allege the facts or circumstances which made the park “a public place.” Spelling v. State, 55 Okla. Cr. 195, 28 P. 2d 584.

The defendant relies upon the case of Davidson v. State, 20 Okla. Cr. 368, 209 P. 779, 780, to support his contention. We have examined this case, and see a substantial difference in the allegations of the information in that case, and in the one at bar. There it was alleged:

“The defendant Hid then and there (on the 22d day of March, 1918) intentionally, willfully, and unlawfully and lewdly expose his person and private parts in a public place, towit, on the public highway, before a great number of female school children.’ ”

Here it is alleged that the defendant “did unlawfully, willfully, lewdly and feloniously expose his person and private parts in a public place, to wit: Owen Park in the City of Tulsa, and in a place where there was present another person to be offended and annoyed thereby, to wit: Peggy Jean Walkup.’

The court in the Davidson Case held the information insufficient for the reason that there was not a specific description of the place on the public highway stating that there were probably as many as 100 miles of public highway in Caddo county, holding that defendant should have been informed definitely or approximately where or upon what highway the offense charged was said to have been committed.

This reasoning could not apply to the allegations in the instant case. Here the defendant was charged with the commission of the offense “in a public place, towit: Owen Park in the City of Tulsa.” We do not think it was- necessary under the statute to allege in what particular part of the park the offense occurred. That was a matter of proof under the charge, which was alleged in the rvords of the statute.

In the Spelling Case, supra, it is pointed out that under the statute, a crime is committed if one commits the act in a public place, or if it be committed at any place where there are other persons to be annoyed thereby. ■ Here the offense was alleged to have been committed in a public place, and the evidence supported this charge. It was in the words of the statute, and we think was sufficient.

We next consider the assignment of error that the evidence is insufficient to sustain the verdict.

To sustain the charge in this case, the state relies upon the testimony of three young children, Peggy Jean Walkup, nine years of age, Harold Walkup, her brother, six years, and Betty Joan Milliken, a cousin, nine years of age. There are some discrepancies in the evidence of these children, as would naturally be expected in children of that age. The main story which they told was that the grandmother of the Walk up childr en sent them to play in Owen Park in the city of Tulsa on the morning of July 26, 1940. They carried their lunch, and while they were eating it, the defendant, whom they identified, was sitting on a bench a short distance from them. He had a box of ice cream which he was eating, and came to near where they were. He gave them some cigarettes, and some of them smoked. The defendant then went behind some bushes, and exposed his person. Peggy Jean testified:

“Q. Well, what did you see him do¡ — just a minute— now did he take out anything out and ware it at you? A. Uh huh. Q. What was that? A. (Witness laughs) I am not going to tell you. Q. Well, I don’t blame you. A. It was something under beneath. Q. Huh? A. It was something under beneath. Q. Did he take it out of his clothes? A. Uh huh-. Q. Whereabouts on him did he take it from his clothes? A. He unbuttoned his pants. Q. Unbuttoned his pants, and he took something out? A. Uh huh. Q. And waved it at you? A. IJh huh. Q. What did he say, then? A. Sajas, ‘would you like to see me — would you like for me to give a little squirt,’ or something — I forgot what he said. Q. ‘A little squirt or something?’ A. Uh huh. Q. Plow far was he from you at that time? A. Well, he was just by a bush, and we was sitting on a bench. * * * Q. * * * And where did you go after you came back out from under the bridge? A. He told us he would give us a nickel if we would let him touch it. I told him, ‘no, I am not going to do it.’ ”

Harold Walkup testified:

“Q. What did you see him do that day? A. When he took us down there in a plaice, I don’t know where it was, but he told me and Frankie to get up- in a tree and watch and see if anybody was coming. Q. Who was down there on the ground then? A. Peggy and Dorothy. Q. Was Peggy there that day? A. Uh huh.”

And Betty Joan Milliken testified:

“Q. Wei], Avhat did yon see this man do over there— what did yon see him do over there; jnst tell the men what you saw the defendant do and say? A. Well, he gave ns ice cream and— Q. Then what did he do? A. He unbuttoned his pants. Q. Unbuttoned his pants.; where, in front? A. Yes. Q. Did he take anything out — do you know what he took out? A. • Uh huh. Q. Well, what did he do with it when he took it out? A. He made us feel of it. Q. Made you feel of it? A. Yes. Q. What did he say? A. He just said he was going to give us some ice cream. Q. Going to give you some ice cream. Now, was that another — do you know whether Peggy Jean and Harold had been over there at another time before that? A. Huh uh; I was just there the first time. Q. You were just there this, time that you were there? A. Uh huh. Q. You don’t know whether that Avas the time that Peggy Jean was first there, though? A. Huh uh. Q. Well, then did you all do Avhat he said; did you — what did he say then? Did he say he wanted you to feel— A. Yes. Q. And did you do that? A. Yes. Q. And then he got some ice cream for you? A. Yes.”

These witnesses reported to their parents and grandparents, and the result was the filing of these charges,.

The testimony of the three children Avas to the same general facts as above related. There are some discrepancies in their testimony, as above stated, but in general the testimony of each is practically the same. The two little girls Avere in the third grade, and the little boy in the first grade.

Police Officers W. N. Robbins and Harry Stege testified that complaints had been made to the police department of young girls being bothered by some one in OAven Park. That on the 30th day of July, 1940, which was some four or five days after the above happenings, they went to Owen Park, and while sitting in the park they saw the defendant beckoning' to some small children. One of the officers remained with the defendant, and the other went after these children, who testified. The little boy immediately identified the defendant as the party who had been molesting them. Defendant was arrested and taken to the police station. His automobile was parked near the park.

Beulah. Johnston, a police matron, testified that the children were brought to the city jail after the arrest of defendant, and she questioned them separately, and each of them identified the defendant as the party whom they had seen a,t the park.

A. A. Brodie testified that he was deputy court clerk, and there was introduced in evidence a judgment and sentence, entered against the defendant, Hany Daves, in case No. 8248 in the district court of'Tulsa, county,' wherein the defendant entered a plea of guilty to the crime of indecent exposure in October, 1937, and was fined in the sum of $50 and costs. Beulah Johnston testified that she was interested in the prosecution of that case, and that the defendant was the same party who received the sentence, and bis lawyer admitted that he paid the fine.

The defense of the defendant was that he did not commit this crime, and that lie wasi not the party whom the children had seen in the park. He did not take the witness stand, as was his right.

Defendant introduced as a, witness Ed Slater, who testified that both he and the defendant worked for the Shannon Furniture Company. That defendant worked under him during the month of July, 1940, and that they worked from 8 in the morning until 6 in the afternoon, and took one hour off for lunch, from 12 to 1 o’clock. That they usually had lunch together, just around the corner from where they worked, and it took them from 15 to- 30 minutes. That he could not testify positively as to whether they had lunch together on the 26th day of July, hut that he had never known defendant to be late in reporting for work after lunch during that month. That the only time he knew him -to be late was on the date he was arrested, July 30, 1940. That they generally ate their lunch near where they worked, and that Owen Park was a distance of 15 blocks from the Shannon Furniture Company. He testified that the defendant was repairing stoves and furniture to be ready for delivery, and that he generally wore work clothes. His daughter, Eddie Ruth Slater, 10 years of age, testified that she knew the defendant, that he worked where her daddy worked; that she lived near Owen Park and was at the park in the spring and summer of 1940; that on two or three occasions she saw a man over therel who looked like Mr. Daves, the defendant, and that she told her father and mother-about it.

The defendant also offered the testimony of Harry L. Dyer, but the court did not permit him to testify at length. He was one of the public defenders, and had been appointed by the court to defend a man by the name of William Bell, about two weeks before the trial of defendant, on a charge of indecent exposure in Owen Park and that- he had been sesg£. to the insane asylum. It Avas dictated into- the recoil that he would testify:

“That William Bell, the person referred to by the Avitness in his testimony, is of the same height, weight, and apparent ag'e and that he bears a physical resemblance to the defendant herein, Harry Daves, in his face.”

The record does not disclose when this party ivas seen in the park. If it could have 'been shown to be during the time that defendant was identified as being there, this evidence would have been competent as a circumstance for the consideration of the jury. This error would not be of sufficient importance to justify the reversal of this case.

From the above statement of the evidence, it cannot be said that the same is insufficient to sustain the verdict. If the jury believed the testimony of the three children who positively identified the defendant, and their testimony is not unreasonable, they had the right to come to the conclusion that defendant was guilty as charged. Their evidence is strongly corroborated by that of the police officers, who found the defendant at the park on July 3'0tli, beckoning to these identical children. His being there on this date, having come in his own car, is inconsistent with his, defense that he had not theretofore gone to the park during the noon hour, and is strong circumstantial evidence that he was there on prior dates, as related by the children, especially that part of the evidence of the officers that he was seen beckoning to these children.

Counsel for defendant have prepared an elaborate brief,, and have raised a number of assignments of error. Some of them are very technical, but are well presented. It -is contended that the evidence of the three children was with reference to events which occurred at different times and dates, and therefore constituted separate and distinct crimes. We have carefully examined this evidence, and do not find it, to be such as to' subject it to this objection. .Tt is true that they testified to two- different times, but they would come within the rule that they were a part of a common scheme and plan, and as a part of the same transaction and would he dearly admissible-. It was the same children on each occasion, and the same defendant, and it shows a plan or scheme on the part of the defendant to acts of familiarity of the same kind and character of Avhich he was charged. Johnson v. State, 70 Okla. Cr. 270, 106 P. 2d 149.

We have examined the authorities cited by the defendant, and do not think they are applicable to the facts here presented.

It is also- complained that the defendant was not properly identified at the police station by the children, and that the officers testified that the children identified defendant. This evidence may not have- been competent, but Avas not such that it prejudiced the defendant, in Aiew of the Avliole record in this case.

There is also complaint that the proof of former conviction of the defendant Avas insufficient to- permit this issue to be presented to the jury. We have already stated the manner in which this Avas presented. It was- by the introduction of the judgment and sentence, and the testimony of a Avitness that the defendant was- the identical person named in the judgment and sentence. Pitzer v. State, 69 Okla. Cr. 363, 103 P. 2d 109; Spann v. State, 69 Okla. Cr. 369, 103 P. 2d 389; Leasure v. State, 46 Okla. Cr. 70, 283 P. 1023; Bassett v. State, 42 Okla. Cr. 126, 274 P. 893; and O’Neil v. State, 76 Okla. Cr. 107, 134 P. 2d 1033. The fact that the judgment and sentence was signed by the judge at a later date was not such error that would defeat this proof.

The contention that defendant Avas not identified, by the children who testified because they referred to-him as “he”, “him”, “the man here,” “there he is,” “that man, Avhoever he Avas,” and “that man right there,” does not need consideration. These small children only used the terms that any small child Avould use in identifying a strange person. They would not be expected to use the name “Harry Daves,” as suggested by counsel.

The contention that the venue ivas not proven in this case is untenable. The testimony of Peggy Jean Walkup was that she lived at 10 North Sante Fe street, and it was only a short distance to Owen Park. The officers also testified as to the identity of Owen Park, and defendant’s own witness, Ed Slater, testified that Owen Park was only 15 blocks from Shannon Furniture Company in Tulsa, where defendant worked. This evidence was sufficient to establish the venue.

The contention that the three witnesses were so young and immature that their evidence Ayas such that it should not be received cannot be sustained. It is true they Avere young and especially the little boy, but the trial judge was in a better position to see and know whether these children Avere of such mentality that they could testify and knew the seriousness of their testimony. They seem to be abo've the average and Ave do not think the court erred in permitting them to testify, and that he did not abuse his discretion by so doing.

In the early case of Walker v. State, 12 Okla. Cr. 179, 153 P. 209, 212, this court had this question under consideration in a case where the facts were very similar to the facts here presented. The witness Avas nine years of age, and Judge Doyle in speaking for the court said:

“The first question presented is, Did the court err in holding the child, Bessie Burgess, competent as a witness?
“Our statute provides:
“ ‘The folloAving persons shall be incompetent to testify:
“ ‘.First. Persons who are of unsound mind at the time of their production for examination.
“ ‘Second. Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.’
“Section 5050, Rev. Laws [12 O. S. 1941 § 385],
“Under the statute, when a witness: is objected to, on the ground of incompetency by reason of nonage, or want of intelligence, it is the province of the trial court to determine the witness’ competency, and its decision will not be reviewed unless there is a clear abuse of discretion, or the court admits or rejects the witness upon an erroneous view of a legal principle. Adams v. State, 5 Okla. Cr. 347, 114 P. 347.
“The examination of the witness Bessie Burgess shows that she was 9 years: old; that she knew when she held up her hand she was swearing to tell the truth; that she had attended Sunday school and had learned about God, and if she was a good girl and always tell the truth she would go to God; that if she would tell a story she would go to the Boogerman.
“Counsel for the defendant then asked her if she knew ‘the meaning of an oath.’ She answered, ‘No, sir.’ It is contended that this answer of the witness shows incapacity and incompetency and therefore ‘The court committed an abuse of discretion in permitting her to be sworn and to testify as a witness.’
“There is no precise age fixed at which children are excluded from giving evidence. Under the statute the competency of children is to be determined, not by their age, but by the degree of understanding which they appear to possess. As a general rule, the child should appear capable of distinguishing between good and evil, and should be of sufficient intelligence to have a just appreciation of the difference between right and wrong and a proper consciousness of the punishment of false swearing.
“In this case no question seems to have been made as to the witness’ capacity to receive just impressions respecting the facts upon which she was to> be examined. While she stated that she did not understand the nature of an oath, as possibly many an adult might do if required to define the nature of the crime of perjury, we are satisfied that she understood the difference between right and wrong and the danger of false swearing-, and that she was of sufficient intelligence to appreciate the conditions in which she was placed. Courts of justice should regard substance, not words, and a child that has an adequate sense of the impropriety of falsehood does understand the nature of an oath in the proper sense of the term, even though she may not know the meaning of the word ‘oath,’ and may never have heard that word used. Williams v. United States, 3 App. D. C. 335.
“In this case if does not appear by the preliminary examination of the witness that she was incapable of receiving just impressions of the facts about which she was to testify or of relating them truly. For the reasons given, we are of the opinion that this witness was properly permitted to testify.”

See, also, Cargill v. State, 25 Okla. Cr. 314, 220 P. 64, 35 A. L. R. 133; Darneal v. State, 14 Okla. Cr. 540, 174 P. 290, 1 A.L.R. 638; Moore v. State, 51 Okla. Cr. 13, 299 P. 239; Barker v State, 33 Okla. Cr. 25, 242 P. 274.

It is next contended that the argument of the assistant county attorney ivas such that it ivas prejudicial to the rights of the defendant and that it was of such an inflammatory nature that the defendant was prejudiced before the jury.

In the first place, no exception was taken to the argument at the time it Avas delivered. It Avas only after counsel had finished his argument that counsel for defendant moved the court for a mistrial. This has been held not to be the proper mode of exception. Buck v. Territory, 1 Okla. Cr. 517, 98 P. 1017; Chambers v. State, 28 Okla. Cr. 156, 229 P. 646; Rice v. State, 66 Okla. Cr. 434, 92 P. 2d 857; Peters v. State, 71 Okla. Cr. 175, 110 P. 2d 300.

Aside from this, we have read the argument as presented in the case-made. It is true that counsel’s argument to the jury was in vigorous language and evidently from the verdict rendered, it had an effect upon the jury. But in cases of this character it may be expected' that forceful arguments will be made. We have not found any statement in the record that would justify a reversal of this case for this reason. We shall refer to this contention when considering the last assignment of error.

The most difficult question presented is whether this ■case should be reversed and remanded for a new trial, or the judgment and sentence modified. The punishment assessed was the maximum of ten years in the penitentiary. It is strenuously insisted that this punishment is excessive, and is the result of passion and prejudice, as a result of the argument of the assistant county attorney, newspaper articles, and other conditions that existed in Tulsa county at the time of this trial.

We have heretofore discussed certain alleged errors, and have come to the conclusion that they were insufficient to alone cause a reversal of this case. We now under the above contention look at this record as a whole.

The statutes of 1910 re-enacted paid of this identical statute, which had been adopted from the Dakota Code. Both of these statutes: made the penalty for a violation thereof a “misdemeanor,” which under our statute provided for punishment of not to exceed $500, or imprisonment not to exceed one year. The Legislature of 1935 amended this statute. The only change made therein was that the penalty was changed from a misdemeanor to a felony, and the punishment was provided of a “fine not less than Ten ($10.00) Dollars nor more than One Thousand ($1,000.00) Dollars or by imprisonment for not less than thirty (30) days nor more than ten (10) years, or by both such fine and imprisonment.”

The reason for this change does not appear, and it need not be questioned. The Legislature had the right and power to so amend the statute.

An examination of the authorities, so far as we have been able to examine them, reveals that in similar statutes of the different states, crimes of this character are designated as misdemeanors, and punishment consists of a fine or jail sentence, or both, at the discretion of the jury or court. We have not found any statute which malees a, crime of this nature a felony.

We have examined the Oklahoma cases which have construed this statute. All of these were prior to the amendment in 1935. They are: Davidson v. State, supra; Spelling v. State, supra; and McKinley v. State, 33 Okla. Cr. 131, 211 P. 208.

In the Davidson Case the penalty was assessed at $500 fine and 60 days in jail. This case was reversed. It was somewhat similar to the instant case, as the party was charged with exposing his person in a public park to small school girls. In the McKinley Case, the punishment was a fine of $25 and costs; and in the Spelling Case the punishment was assessed at six months in jail.

We realize that the punishment given in these cases is not controlling in the case at bar, but they do show Mews of the courts and juries in cases of this character, and while not condoning the acts and conduct of this de-fen dan t, we cannot but come to the conclusion, that the jury in rendering- the verdict they did in this case acted under passion and prejudice.

As Ave have so- often said, after the verdict of the jury, the only relief that can be granted by the trial court is to set the verdict aside and grant the defendant a new trial. This,, of course-, is often a burden and extra cost upon the county which causes the trial court to hesitate. Under the law this court has- the right to modify the judgment and sentence, without the necessity of the expense of a neAV trial and the burdens thereof. Johnson v. State, supra; Bright v. State, 76 Okla. Cr. 67, 134 P. 2d 150 and Kilpatrick v. State, 75 Okla. Cr. 28, 128 P. 2d 246.

Tt is not the purpose of this court to refuse to reverse and remand cases where error has been committed, and the defendant by reason thereof has suffered substantial prejudice. Nor is it our purpose to modify the judgment and sentence Avlien these errors exist. It is only when the record dearly reveals the guilt of the defendant, and the errors are such that they did not deprive the defendant of a fair and impartial trial, or of a statutory or constitutional right, that this power avxU be exercised. But the facts in the instant case justify the necessity and rightfulness of this- power.

The Legislature in 1935 evidently had a good reason for raising the penalty in this class of casesi from a misdemeanor to a felony. The facts in the instant case, if true, and Ave may assume from the verdict of the jury that they are true, are revolting to the public. The defendant should be punished, but it should be within the bounds of justice and reason, and should' not be the result of passion and prejudice.

We tliink that justice will be best subserved by modifying the judgment and sentence in this case from ten years in the penitentiary to a term of one year in the penitentiary; and as so modified, the judgment and sentence of the district court of Tulsa county is affirmed.

JONES, P. J., concurs, DOYLE, J., dissents.