1. The California statute defining and punishing criminal
syndicalism is not violative of the Fourteenth Amendment.
Whitney v. California, post, p.
274 U. S. 357. P.
274 U. S.
330.
Page 274 U. S. 329
2. An instruction to a jury must be considered in connection
with the evidence bearing on the matter to which it refers and with
the charge as a whole. P.
274 U. S.
331.
3. To advocate among workers such acts as maliciously stowing
the cargo of a ship so that it will shift and cause her to list and
return to port is to teach and abet "sabotage," which is defined by
the California statute as meaning "willful and malicious damage or
injury to physical property;" it is also to teach and abet "crime"
and "unlawful methods of terrorism." P.
274 U. S.
332.
4. In a prosecution under the California Act Against Criminal
Syndicalism, it is not necessary to show that the elements of
criminal syndicalism were advocated or taught with the precision of
statement required in indictments for criminal acts involved. The
purpose and probable effect of the printed matter circulated and of
the things said in furtherance of the declared purposes of the
organization are to be considered, having regard to the capacity
and circumstances of the persons sought to be influenced. P.
274 U. S.
335.
5. Exceptions to a charge must be specifically made in order to
give the court opportunity then and there to correct errors and
omissions, if any, and where a series of instructions are excepted
to in mass, the exception will be overruled if any one of them is
correct. P.
274 U.S.
336.
6. An Instruction in a criminal case authorizing the jury to
consider certain facts must be sustained when the record does not
purport to contain all the evidence relating to the things referred
to, and where it cannot be said as a matter of law that they would
be improper for consideration if taken in connection with other
facts. P.
274 U.S. 336.
Affirmed.
Error to a judgment of the district court sentencing Burns upon
his conviction of the crime of criminal syndicalism, under the
California law as extended to Yosemite National Park.
Page 274 U. S. 330
MR. JUSTICE BUTLER delivered the opinion of the Court.
An Act of Congress of June 2, 1920, § 4, c. 218, 41 Stat. 731,
provides that, if any offense shall be committed in the Yosemite
National Park which is not prohibited by a law of the United
States, the offender shall be subject to the same punishment as the
laws of California prescribe for a like offense. Plaintiff in error
was indicted for violating within that park the California Criminal
Syndicalism Act, c. 188, California Statutes 1919. The indictment
was in two counts. The verdict was guilty on the first count and
not guilty on the second. Plaintiff in error, by demurrer and by
motion to arrest the judgment, insisted that the statute
contravenes the Constitution of the United States. His contention
was overruled. The case is here under § 238 of the Judicial Code
before the amendment of February 13, 1925.
The applicable provisions follow:
"Section 1. 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 willful 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."
"Sec. 2. Any person who . . . organizes or assists in
organizing, or is or knowingly becomes a member of, any
organization, society, group or assemblage of persons organized or
assembled to advocate, teach, or aid and abet criminal syndicalism,
. . . is guilty of a felony. . . ."
Plaintiff in error here contends that, as applied in the
district court, these provisions are repugnant to the due process
and equal protection clauses of the Fourteenth Amendment. The only
attack upon the validity of the law was by the demurrer and motion
in arrest. In each
Page 274 U. S. 331
of these, he asserted that the statute "is in violation of the
Fourteenth Amendment of the Constitution of the United States and
is void for uncertainty." But that point is determined adversely to
his contentions in
Whitney v. the California, post, p.
274 U. S. 357.
The substance of the count on which plaintiff in error was
adjudged guilty is that, on or about April 10, 1923 at Yosemite
National Park, he did
"organize, and assist in organizing, and was, is, and knowingly
become a member of an organization, society, group and assemblage
of persons organized and assembled to advocate, teach, aid, and
abet criminal syndicalism, to-wit, the Industrial Workers of the
World, commonly known as I.W.W."
1. Plaintiff in error argues that he is entitled to a new trial
because the charge contains the following:
"Now, there has been presented to you evidence . . . to the
effect that this organization, amongst other things, advocated what
is known as slowing down on the job, slack or scamped work, such as
loading of a ship in such a way that it took a list to port or
starboard and therefore had to limp back to port, and things of
that kind. I instruct you that, under the definition as laid down
by the legislature of California, that any deliberate attempt to
reduce the profits in the manner that I have described would
constitute sabotage."
He calls attention to the language in § 1, and says the merely
loading telephone poles on a ship so as to occasion more work is
not physical damage or injury to physical property within the
meaning of the statute.
If that instruction stood alone, it might be thought to permit
the jury erroneously to expand the meaning of sabotage beyond that
defined in the Act. But it does not stand alone, and the mere
comparison of the quoted language of the instruction with the words
of the statute is not sufficient to disclose whether there was
prejudicial error. The instruction must be taken in connection
with
Page 274 U. S. 332
the evidence bearing on the matter referred to, and is to be
considered in the light of the charge as a whole.
New York
Cent. & H.R. Co. v. United States, 212 U.
S. 509,
212 U. S. 508;
Hotema v. United States, 186 U. S. 413,
186 U. S. 416;
C. M. Spring Drug Co. v. United States, 12 F.2d 852, 856;
People v. Scott, 6 Mich. 287, 291. There is no contention
that plaintiff in error was not connected with the organization
substantially as alleged, or that the evidence failed to show it to
be the kind of organization specified in the indictment. The record
shows that, for a number of years, he had been a member of the
organization; that, at the time alleged and when arrested, he was
its authorized delegate, and had a quantity of its literature in
his possession; that he solicited others to become members, and was
authorized to initiate new members and to collect initiation fees
and dues. It also shows that the organization disseminated large
amounts of printed matter declaring its purposes and advocating
means to accomplish them. A "preamble" was contained in practically
all its publications, and was printed on the membership card of
plaintiff in error. It declares that the working class and
employing class have nothing in common; that a struggle must go on
between them until the workers organize, take possession of the
earth and the machinery of production and abolish the wage system;
that the trade unions aid the employing class to mislead the
workers into the belief that they have interests in common with
their employers; that, "instead of the conservative motto,
A
fair day's wages for a fair day's work,' we must inscribe on our
banner the revolutionary watchword, `Abolition of the wage
system;'" that it is the mission of the working class to do away
with capitalism; that the army of production must be organized to
carry on when capitalism shall have been overthrown; that "by
organizing industrially, we are forming the structure of the new
society within the shell of the old."
Page 274 U. S.
333
Sabotage, as the evidence indicates it to have been advocated
and taught by the organization, is not confined, as is the
definition contained in the Act, to physical damage and injury to
physical property. The organization's printed matter that was
received in evidence contains no precise definition of sabotage,
but does give a number of descriptive explanations of what it
means. As fairly illustrative, we take the following:
"Three versions are given of the source of the word. The one
best known is that a striking French weaver cast his wooden shoe --
called a
sabot -- into the delicate mechanism of the loom
upon leaving the mill. The confusion that resulted, acting to the
workers' benefit, brought to the front a line of tactics that took
the name of sabotage. Slow work is also said to be at the basis of
the words, the idea being that wooden shoes are clumsy, and so
prevent quick action on the part of the workers. The third idea is
that sabotage is coined from the slang term that means 'putting the
boots' to the employers by striking directly at their profits
without leaving the job. The derivation, however, is unimportant.
It is the thing itself that causes commotion among employers and
politicians alike."
The evidence shows that the organization advocated, taught, and
aided various acts of "sabotage" that are plainly within the
meaning of that word as defined by the Act. Some examples are:
injuring machinery when employed to use it, putting emery dust in
lubricating oil, damaging materials when using them in manufacture
or otherwise, scattering foul seed in fields, driving tacks and
nails in grape vines and fruit trees to kill them, using acid to
destroy guy wires holding up the poles provided to support growing
vines, putting pieces of wire and the like among vines to destroy
machines used to gather crops, scattering matches and using
chemicals to start fires to destroy property of employers. One of
the witnesses testified:
"I heard . . . a member of the I.W.W. say in
Page 274 U. S. 334
a speech on May 10, 1923: 'When you go back to work, if we do
have to go to work, we will put on the wooden shoe.' Then he
said:"
"In case you are loading telephone poles on a ship down there,
sometime the boss is not looking, you can slip a couple of poles
crossways and then cover up, and then when that ship goes to sea
naturally she will start rolling and the cargo will shift, and then
she will come in listed like the one you see out in the harbor,
then she has got to tie up to the dock, and she will have to unload
the telephone poles and put them in again and put them straight,
and then we will get paid for the loading originally, and get paid
for unloading it and get pay for loading it again, and that will
hit the bosses hard in the pocketbook."
The foregoing sufficiently shows the foundation of fact for the
portion of the charge complained of. Before giving that
instruction, the court warned the jury that the government must
establish beyond reasonable doubt that the I.W.W. was such an
organization as is denounced by the act. The definition of criminal
syndicalism was given the jury in the exact words of the statute.
The court then gave a number of lexicographers' definitions of
sabotage. They are broader than the meaning of the word as defined
in the Act, and are not confined to physical damage or injury to
physical property. Then, by way of contrast, the statutory
definition of sabotage was repeated, and by the repetition it was
emphasized. The court said: "The statute itself, you will notice,
however, denounces sabotage as meaning willful and malicious
physical damage or injury to physical property." The instruction
complained of followed. It referred to the evidence indicating that
the organization advocated acts such as loading a ship so that it
would list and have to return,
and things of that kind.
And in that connection, the court said that any deliberate attempt
to reduce profits "
in the manner that I have described"
would
Page 274 U. S. 335
constitute sabotage. The language excepted to was followed by an
instruction containing this:
"If you find, therefore, that this organization advocated
sabotage or any
other criminal matters mentioned in
the section that I have read, either for the purpose of
bringing about a change in industrial control or a political
change, then it would constitute criminal syndicalism."
While one of the purposes of such improper loading of ships may
be to create more work for the men, and so to inflict loss on
employers, it is also plainly calculated to endanger the vessels,
their cargoes, and the lives of those aboard. By the instruction
complained, of the consideration of the jury was limited to "things
of that kind." The advocating of the malicious commission of such
acts is to teach and abet sabotage -- physical damage and injury to
physical property; it also is to teach and abet crime and unlawful
methods of terrorism. It was not necessary for the prosecution to
show that the elements of criminal syndicalism were advocated or
taught with the precision of statement required in indictments for
criminal acts involved.
Cf. Wong Tai v. United States,
273 U. S. 77. The
purpose and probable effect of the printed matter circulated and of
the things said in furtherance of the declared purposes of the
organization are to be considered having regard to the capacity and
circumstances of the persons sought to be influenced. When there is
taken into account the evidence referred to and the parts of the
charge preceding and following the part of the charge here assailed
-- and especially the giving and reiteration of the statutory
language defining sabotage -- it is quite apparent that the
instruction was not erroneous.
Both sides have dealt with the case here as if the question were
properly raised, and we have considered its merits.
McNitt v.
Turner, 16 Wall. 352,
83 U. S. 362;
Baltimore & Potomac Railroad v. Mackey, 157 U. S.
72,
157 U. S. 86;
Norfolk
Page 274 U. S. 336
& Western Ry. v. Earnest, 229 U.
S. 114;
cf. West v. Rutledge Timber Co.,
244 U. S. 90,
244 U. S.
99-100. But, after examining the record, we think
plaintiff in error failed to make any objection or effectively to
take exception to the charge complained of. The exception there
indicated did not call the court's attention to the instruction now
attacked. It was general in form, and applied to the series of
statements that followed it, covering about two pages of the
record. Plaintiff in error does not contend that all of them are
erroneous, and obviously they are not. The rule is well established
that, where a series of instructions are excepted to in mass, the
exception will be overruled if any one of them is correct.
Johnson v.
Jones, 1 Black 209,
66 U. S. 220;
Beaver v. Taylor, 93 U. S. 46,
93 U. S. 54;
McDermott v. Severe, 202 U. S. 600,
202 U. S. 610.
Exceptions to a charge must be specifically made in order to give
the court opportunity then and there to correct errors and
omissions, if any.
Pennsylvania R. Co. v. Minds,
250 U. S. 368,
250 U. S. 375,
and cases cited;
Allis v. United States, 155 U.
S. 117,
155 U. S. 122.
Even if some of the instructions were erroneous, the exceptions
taken were not such as to require a new trial.
2. Plaintiff in error complains of another part of the
charge:
"There has been evidence here that advertisements were published
in the official organs of the Industrial Workers of the World, what
they call also stickerettes, calling upon people to boycott the
entire state of California and its products. That would only be
legal in the event that it was in furtherance of a strike, and by
'legal' I mean as established by the State of California -- that is
to say, if it was in furtherance of a strike, if it was in good
faith, an attempt to better their conditions, and if it did not
indulge in maliciousness or misrepresentation. If, however, you
should find from the evidence that that was not so, then it would
be an illegal
Page 274 U. S. 337
boycott and you could take it into consideration in determining
the facts of this case."
The record does not contain all the evidence, and fails to show
that it includes all relating to the matter referred to in this
instruction. We think it cannot be said as a matter of law that the
things there mentioned, when taken in connection with other facts,
may not have been proper for consideration in connection with some
element of the criminal syndicalism charged. Moreover, no objection
was made or exception properly taken to that part of the charge.
Here again, the exception failed specifically to point out the
instruction now assailed as erroneous.
Judgment affirmed.
MR. JUSTICE BRANDEIS, dissenting.
This writ of error was allowed, under § 238 of the Judicial
Code, on constitutional grounds prior to the amendment of February
13, 1925. All alleged errors at the trial which were properly
excepted to are therefore before us.
Chaloner v. Sherman,
242 U. S. 455,
242 U. S. 457.
There was at least one error committed which, in my opinion,
justifies reversal and which does not involve a constitutional
question. For that reason, according to the practice approved by
the court, I refrain from discussing the constitutional questions
presented.
See Liverpool, N.Y. & Phila. Steamship Co. v.
Emigration Comm'rs, 113 U. S. 33,
113 U. S. 39;
Chicago & G. T. R. Co. v. Wellman, 143 U.
S. 339,
143 U. S. 345;
Howat v. Kansas, 258 U. S. 181,
258 U. S.
184.
The defendant was convicted on the count which charges him with
becoming a member of an organization formed to advocate criminal
syndicalism. The California statute defines criminal syndicalism as
advocating sabotage, among other things, and it defines sabotage
"as
Page 274 U. S. 338
meaning willful and malicious physical damage or injury to
physical property." To prove the crime, the government undertook to
show that the defendant was a member of the I.W.W. and that the
I.W.W. advocated, among other things, the use of sabotage. On that
subject, the trial judge gave the following instruction, which was
duly excepted to:
"Sabotage has been variously defined. Webster's New
International Dictionary defines it as 'scamped work; malicious
waste or destruction of an employer's property by workmen during
labor troubles.' Funk & Wagnalls' New Standard Dictionary
defines it as 'any poor work or other damage done by dissatisfied
workmen; also, the act of producing it; plant wrecking.' Nelson's
Encyclopedia defines it thus: 'The organized hampering of
production by slack work, skillful disabling of machinery, or the
publication of trade secrets.' The New International Encyclopedia
defines it thus:"
"Sabotage may consist in throwing the progress of production out
of order, through tampering with machinery, improper use of
material, or loitering at work."
"The Encyclopedia Americana defines it as:"
"A method used by labor revolutionists to force employers to
accede to demands made by them. It consists in willful obstruction
and interference with the normal process of industry. It aims at
inconveniencing and tying up of production, but stops short of
actual destruction or of endangering human life directly."
"The statute, itself, you will notice, however, denounces
sabotage as meaning willful and malicious physical damage or injury
to physical property."
"Now there has been presented to you evidence, of the truth or
falsity of which, however, you are the exclusive judges, to the
effect that this organization, amongst other things, advocated what
is known as slowing down on the job, slack or scamped work, such as
loading of a ship in such a way that it took a list to port or
starboard,
Page 274 U. S. 339
and therefore had to limp back to port, and things of the kind.
I instruct you that, under the definition as laid down by the
Legislature of California, any deliberate attempt to reduce the
profits in the manner that I have described would constitute
sabotage."
The testimony referred to by the court in the above instruction
was this:
"Under similar circumstances, I heard Leo Stark, a member of the
I.W.W., say in a speech on May 10, 1923: 'When you go back to work,
if we do have to go to work, we will put on the wooden shoe.' Then
he said:"
"In case you are loading telephone poles on a ship down there,
sometime the boss is not looking, you can slip a couple of poles
crossways and then cover up, and then when that ship goes to sea,
naturally she will start rolling and the cargo will shift, and then
she will come in listed like the one you see out in the harbor,
then she has got to tie up to the dock, and she will have to unload
the telephone poles and put them in again and put them straight,
and then we will get paid for the loading originally and get paid
for unloading it and get pay for loading it again, and that will
hit the bosses hard in the pocketbook."
"Mr. Lewis: I move that that answer be stricken out as
immaterial, irrelevant, and incompetent, not within the definition
of sabotage as laid down in the statute, or the criminal
syndicalism law."
"THE COURT: I cannot see it. As I said before, I cannot see but
what any deliberate act, the purpose of which is to reduce the
profits of the physical thing, is not equally an injury. Motion
denied."
"MR. LEWIS: I Note an exception."
The exception to the charge is insisted on, although the
objection to the admission of the evidence is not urged here. The
charge was clearly erroneous. It plainly directed the jury that
"slowing down on the job" and "scamped work" constituted sabotage
within the meaning
Page 274 U. S. 340
of the statute. Since the jury must have taken it to be an
exposition or interpretation of the words of the statute, the error
was not cured by definition, elsewhere in the charge, of sabotage
in the terms of the statute. The court ruled throughout the course
of the trial that evidence to show a program of scamped work was
admissible. Much of the government's evidence consisted of
documents showing such a program on the part of the I.W.W. The
charge inevitably led the jury to think that all such evidence
showed the guilty character of the organization.
It is said that the charge, if erroneous, was not prejudicial,
because the illegal character of the organization was established
by other evidence than that which formed the basis of the charge,
and because even the latter evidence showed the advocacy of acts
which amounted to a malicious destruction of property, and so might
properly support a conviction even under proper construction of the
statute. Even in civil cases, erroneous rulings, especially those
embodied in instructions, are presumptively prejudicial.
Fillippon v. Albion Slate Co., 250 U. S.
76,
250 U. S. 82;
United States v. River Rouge Co., 269 U.
S. 411,
269 U. S. 421.
The illegal character of the organization was not conceded. There
was evidence from which the illegal character might have been
deduced. But the evidence related, in the main, to the acts of
individuals. The effort of the defense was to disavow those
acts.
It is also said that the exception to the charge was not
properly taken. The defendant excepted specifically to that portion
of the charge which dealt with sabotage. The precise ground of the
exception was not set forth. But the continued objections to the
admission of evidence upon the ground here urged, and the court's
adverse rulings thereon, could have left no doubt in the mind of
the court as to what was meant by the exception here in question.
Moreover, the case comes to this
Page 274 U. S. 341
Court from a lower federal court. We have therefore the power to
correct errors committed below although objection was not taken
there. That power has been repeatedly exercised in criminal cases.
See Wiborg v. United States, 163 U.
S. 632,
163 U. S.
658-660;
Clyatt v. United States, 197 U.
S. 207,
197 U. S.
221-222. This case, I think, warrants its exercise.
The judgment should be reversed.