State v. Laundy

204 P. 958, 103 Or. 443, 1922 Ore. LEXIS 164

• Court: Oregon Supreme Court
• Decided: April 11, 1922
• Status: Published

Opinions

HARRIS, J.

1. It is contended that the title of Chapter 12, Laws 1919, is not broad enough to cover those provisions of the act which prohibit organizing, helping to organize, and becoming a member of a society of the character denounced. This contention of the defendant cannot be sustained. Our Constitution, Article IV, Section 20, commands that:

“Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title.”

This provision of the Constitution was designed to do away with certain abuses, among which was the practice of inserting in one bill two or more unrelated provisions so that those favoring one provision could be compelled, in order to secure its adoption, to combine with those favoring another provision, when neither, if standing alone, could succeed on its own merits. Another abuse was the practice of concealing from the members of the legislature the true nature of the proposed law by giving it a false and misleading title, and the prevention of this abuse is another object of the Constitution. Although Article IV, Section 20, is mandatory, yet the Constitution must be reasonably and liberally construed to sustain legislation not within the mischief aimed against.

2. The language of the Constitution is, “which subject shall be expressed in the title,” and hence it is the “subject” of the act, and not “matters properly connected therewith” which must be expressed in the title. The subject of the law is the matter to which the measure relates and with which it deals. The term “subject” is to be given a broad and extensive meaning so as to allow the legislature full scope to include in one act all matters having a logical or" natural connection. The word “subject” includes the chief thing to which the statute relates, and the words “matters properly connected therewith” include every matter germane to and having a natural connection with the general subject of the act; or as expressed in State v. Shaw, 22 Or. 289 (29 Pac. 1028):

“If all the provisions of the law relate directly or indirectly to the same subject, are naturally connected, and are not foreign to the subject expressed in the title, they will not be held unconstitutional.”

3. The office of the title is to advise the members of the legislature of the subject of the proposed legislation, but the details must be found in the body of the measure. If the subject of the enactment is so expressed in the title as to give reasonable notice of the contents of the law, it is sufficient: Lovejoy v. Portland, 95 Or. 459, 465 (188 Pac. 207).

4. The chief thing to which the statute relates is the advocacy and teaching and affirmative suggestion of crime, physical violence or the commission of unlawful acts as the means to accomplish industrial or political ends, change or revolution, or for profit; the object of the statute is to prohibit and prevent the advocacy and teaching and affirmative suggestion of such acts: State v. Moilen, 140 Minn. 112, 114 (167 N. W. 345, 1 A. L. R. 333); People v. Malley (Cal. App.), 194 Pac. 48, 50. In express terms the title declares that the object of the act is to prohibit “the advocacy, teaching or affirmative suggestion” of criminal syndicalism and sabotage as defined in the act. The next clause, or simple sentence, appearing in the title is a repetition of the one preceding it, for it declares in express terms that the object of the act is to prohibit “the advocacy, teaching or affirmative suggestion of crime, physical violence, or the commission of any unlawful act or thing as a means to accomplish industrial or political ends, change or revolution, or for profit”; and the succeeding clause in express terms asserts that the act prohibits “assemblages for the purpose of such advocacy, teachings or suggestions.” To prohibit the organizing of, or the helping to organize or the assembling with a society which teaches the • acts constituting criminal syndicalism or sabotage is a means which may tend directly or indirectly to accomplish the object of preventing the advocacy, teaching or affirmative suggestion of criminal syndicalism and sabotage: Lovejoy v. Portland, 95 Or. 459, 467 (188 Pac. 207). That portion of the statute which makes it unlawful to help to organize or to become a member of or voluntarily to assemble with a denounced society or assemblage embraces matters which are at least “matters properly connected” with the subject. That part of the body of the act now under examination is clearly not broader than the title of the act.

The defendant vigorously contends that the syndicalism statute is unconstitutional because it: (1) Is an unlawful infringement upon personal liberties; (2) is class legislation; (3) violates constitutional provisions concerning treason; (4) infringes upon the right of free speech, and (5) encroaches upon the right of assemblage.

5. The organic law is, of course, the fundamental law with which all other laws must conform. However, the courts will not pronounce an act of the legislature unconstitutional, unless such unconstitutionality clearly appears beyond a reasonable doubt: Miller v. Henry, 62 Or. 4 (124 Pac. 199, 41 L. R. A. (N. S.) 97).

6. When the constitutionality of a state enactment is assailed, the only question for the court to decide is one of power. The sole inquiry is, — Does the statute exceed any limitation placed upon state legislative authority by the organic law of the state or by the Constitution of the United States? State v. Jacobson, 80 Or. 648, 651 (157 Pac. 1108, L. R. A. 1916E, 1180); Kornegay v. City of Goldsboro, 180 N. C. 441 (105 S. E. 187); State v. Moilen, 140 Minn. 112 (167 N. W. 345, 1 A. L. R. 331).

7, 8. The legislature may, within constitutional limitations, make any law which promotes the order, safety, health, morals and general welfare'of society: Union Fishermen’s Co-operative Packing Co. v. Shoemaker, 98 Or. 659, 674 (193 Pac. 476, 194 Pac. 854); and, subject to constitutional limitations, it is the exclusive province of the legislature to determine what acts are inimical to the public welfare/ and to declare that such acts when done shall constitute crimes: Mugler v. Kansas, 123 U. S. 623, 661 (31 L. Ed. 205, 8 Sup. Ct. Rep. 273, see, also, Bose’s U. S. Notes); State v. Bunting, 71 Or. 259 (139 Pac. 731, Ann. Cas. 1916C, 1003, L. R. A. 1917C, 1162); State v. Moilen, 140 Minn. 112 (167 N. W. 345,1 A. L. R. 331); People v. Malley (Cal. App.), 194 Pac. 48.

9. The statute is not an unlawful interference with personal liberties. Liberty does not import an absolute right to be free from all restraint. Liberty does not imply unrestricted license. The possession and enjoyment of all rights are subject to such reasonable conditions as the governing authority may deem essential to the safety, peace and welfare of the general public: Jacobson v. Massachusetts, 197 U. S. 11 (3 Ann. Cas. 765, 49 L. Ed. 643, 25 Sup. Ct. Rep. 358); Mugler v. Kansas, 123 U. S. 623 (31 L. Ed. 205, 8 Sup. Ct. Rep. 273, see, also, Bose’s U. S. Notes). Stated broadly, the syndicalism statute penalizes the advocacy or teaching of crime as a means of effecting industrial or political ends or for profit. The acts which shall not be advocated are acts which when done are of themselves unlawful by force of statutes other than the syndicalism statute. If any one of those unlawful acts should be actually committed, tbe person so committing such unlawful act would be guilty of a crime; and surely no competent person would think of attempting to argue that his personal liberties are unconstitutionally curbed by legislation penalizing him for intentionally injuring the person or property of another. Statutes penalizing those who solicit or incite others to commit crimes are not innovations upon the criminal law. Stephen, in his Digest of Criminal Law (ed. 1877), page 33, says:

“Everyone who incites any person to commit any crime commits a misdemeanor whether the crime is or is not committed.”

If it is within the power of the legislature to declare that a given act, when done, constitutes a crime, then it is likewise within the power of the legislature to declare that to advocate the doing of such act is a crime; for if public policy requires the punishment of him who does an act, it likewise may require the punishment of him who incites the doing of such act, whether the act is actually done or not: State v. Quinlan, 86 N. J. L. 120 (91 Atl. 111). At the hearing it was argued, on the authority of Ex parte Smith, 135 Mo. 223 (36 S. W. 629, 58 Am. St. Rep. 576, 33 L. R. A. 606), that any person may, if he chooses, rightfully associate with persons having the reputation of being thieves. There is a vast difference, however, between the act of merely associating with persons having the reputation of being thieves, and the act of joining with such persons in either the commission of theft or in the advocacy of the commission of theft: State v. Hennessy, 114 Wash. 351 (195 Pac. 211).

10. The syndicalism statute is not class legislation. It affects all alike. It does not discriminate against some or favor others: State v. Hennessy, 114 Wash. 351 (195 Pac. 211); State v. Moilen, 140 Minn. 112 (167 N. W. 345, 1 A. L. R. 331). See, also, Barbier v. Connolly, 113 U. S. 27 (28 L. Ed. 923, 5 Sup. Ct. Rep. 357); Keokee Coke Co. v. Taylor, 234 U. S. 224 (58 L. Ed. 1288, 34 Sup. Ct. Rep. 856).

11. The federal Constitution defines treason thus:

“Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid or comfort.” Article III, Section 3.

The state Constitution, Article I, Section 24, provides :

“Treason against the state shall consist only in levying war against it, or adhering to its enemies, giving them aid or comfort.”

The defendant argues that the Syndicalism Act, when resolved to its final analysis, declares that the doing of the prohibited act constitutes constructive treason. This argument arises out of the fact that the statute penalizes the advocacy of the commission of unlawful acts “as a means of accomplishing or effecting any industrial or political ends, change or revolution, or for profit.” A single sentence taken from the opinion delivered by Chief Justice Marshall in Ex parte Bollman, 4 Cranch (8 U. S.), 75, 126 (2 L. Ed. 554), completely answers the defendant’s contention :

“Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason.”

The Supreme Court of Washington in a -well-considered opinion reached the same conclusion: State v. Hennessy, 114 Wash. 351 (195 Pac. 211). In Frohwerk v. United States, 249 U. S. 204 (63 L. Ed. 561, 39 Sup. Ct. Rep. 249), the plaintiff in error who had been convicted of a violation of the Espionage Act of June 15, 1917, Chapter 30, Section 3, 40 Stat. 217, 219, advanced a suggestion like the one advanced in the instant case, and there Mr. Justice Holmes speaking for the court summarily-disposed of the question by saying:

• “These suggestions seem to us to need no more than to be stated.”

12. Our state Constitution, Article I, Section 8, protects the freedom of speech, for it reads thus:

“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

The same organic law assures the right of assemblage. Article I, Section 26, provides:

“No law shall be. passed restraining'any of the inhabitants of the state from assembling together in a peaceable manner to consult for their common good; nor from instructing their representatives; nor from applying to the legislature for redress of grievances.”

The same organic law which protects the right of each person to speak freely also makes him responsible for the abuse of that right. The syndicalism statute does not attempt to punish the advocacy of peaceable methods for effecting changes: See Ex parte Hartman, 182 Cal. 447 (188 Pac. 548). The same organic law which assures the right of assembling limits that right to assembling “in a peaceable manner. ’ ’ Freedom of speech does not mean unbridled license. No man can enter a crowded theater, falsely shout fire, and thus cause a panic resulting in the crushing, maiming and killing of enfeebled men, helpless women and innocent children, and then justify his conduct by brazenly proclaiming that he did no more than to exercise his constitutional right of free speech. “We venture,” as did Mr. Justice Holmes in Frohwerk v. United States, 249 U. S. 204, 206 (63 L. Ed. 561, 39 Sup. Ct. Rep. 249),

“to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder” or arson or other unlawful act “would be an unconstitutional interference with free speech.”

We likewise venture to believe that neither Mathew P. Deady nor George H. Williams, nor any of the other fifty-eight members of the convention which framed our Constitution, ever supposed that a statute prohibiting assemblages from counseling the commission of a crime would be an unconstitutional interference with the right of assemblage.

13. The Syndicalism Act does not violate the constitutional right to speak freely nor the constitutional right to assemble peaceably: State v. Boyd, 86 N. J. L. 75 (91 Atl. 586); Schenck v. United States, 249 U. S. 47 (63 L. Ed. 470, 39 Sup. Ct. Rep. 247); Frohwerk v. United States, 249 U. S. 204 (63 L. Ed. 561, 39 Sup. Ct. Rep. 249); People v. Most, 171 N. Y. 423 (64 N. E. 175, 58 L. R. A. 502); State v. Holm, 139 Minn. 267 (166 N. W. 181, L. R. A. 1918C, 304); State v. Hennessy, 114 Wash. 351 (195 Pac. 211); State v. Fox, 71 Wash. 185 (127 Pac. 1111), affirmed in Fox v. State of Washington, 236 U. S. 273 (59 L. Ed. 573, 35 Sup. Ct. Rep. 383); Ex parte Hartman, 182 Cal. 447 (188 Pac. 548). No constitutional right, federal or state, is violated by the Syndicalism Act: State v. Moilen, 140 Minn. 112 (167 N. W. 345, 1 A. L. R. 331); People v. Malley (Cal. App.), 194 Pac. 48; Ex parte McDermott, 180 Cal. 783 (183 Pac. 437).

14. The defendant insists that the statute is void because it is too vague, indefinite and uncertain, and that the indictment is likewise bad because of indefiniteness. The state Constitution, Article I, Section 11, prescribes that the accused shall have the right “to demand the nature and cause of the accusation against him.” The Code, Section 1437, Or. L., commands that the indictment shall contain—

“a statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.”

Another section of the Code, Section 1440, Or. L., declares that the indictment must be direct and certain as it regards—

“the crime charged; and, the particular circumstances of the crime charged when they are necessary to constitute a complete crime.”

The Code, Section 1448, Or. L., further provides that the indictment is sufficient if it can be understood therefrom—

“that the act or omission charged as the crime is clearly and distinctly set forth, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.”

The crime of which the defendant is accused is a statutory offense. The statute declares that any person who “helps to organize or become[s] a member of, or voluntarily assembles with any society or assemblage of persons” which teaches the prohibited doctrines shall be guilty of criminal syndicalism. The statute specifies the acts of commission which will effect the crime. The statute informs every person subject to the jurisdiction of the courts of this state that he commits the crime of criminal syndicalism if he (1) helps to organize; or (2) if he becomes a member of; or (3) if he voluntarily assembles with any society or assemblage of persons which teaches the inhibited doctrines. The statute describes the acts which constitute the crime. The indictment describes the acts with which the defendant is charged in the same language which is employed in the statute to define the prohibited acts. The indictment contains every element of the complete offense as that offense is defined by the statute. The state is not required to plead the evidence relied upon to prove the acts alleged to have been committed by the defendant. The indictment advises the defendant-not only of the nature but also of the cause of the accusation made against him. The language employed is such as to enable a person of common understanding to know what is intended. The statute defines the kind of societies and assemblages which no person can organize or help to organize or become a member of or assemble with. The indictment describes the Industrial Workers of the World in the same language which'the statute uses to describe unlawful societies. Words of description used in the indictment are just as definite and certain as are the words of description used in the statute; and assuredly the words of the statute are sufficiently definite to describe the acts intended to be prohibited and the kind of societies and assemblages intended to be banned: People v. Malley (Cal. App.), 194 Pac. 50; State v. Quinlan, 86 N. J. L. 120, 123 (91 Atl. 111); State v. Rose, 147 La. 243 (84 South. 643, 646); State v. Hennessy, 114 Wash. 351 (195 Pac. 211, 215); Waters-Pierce Oil Co. v. Texas, 212 U. S. 86 (53 L. Ed. 417, 29 Sup. Ct. Rep. 220).

15. The indictment follows the language of the statute which defines the crime, and consequently the indictment is sufficiently definite to meet the requirements of the Constitution and Code: State v. Shaw, 22 Or. 287, 290 (29 Pac. 1028); State v. Reinhart, 26 Or. 466, 477 (38 Pac. 822); State v. Ross, 55 Or. 450, 479 (104 Pac. 596, 106 Pac. 1022, 42 L. R. A. (N. S.) 601, 613); State v. Townsend, 60 Or. 223, 231 (118 Pac. 1020); State v. Runyon, 62 Or. 246, 250 (126 Pac. 259); State v. Scott, 63 Or. 444, 446 (128 Pac. 441); State v. Brown, 64 Or. 473, 475 (130 Pac. 985); State v. Mishler, 81 Or. 548, 549 (160 Pac. 382); State v. Wilbur, 85 Or. 565, 568 (166 Pac. 51, 167 Pac. 569); State v. Frasier, 94 Or. 90, 100 (180 Pac. 521, 184 Pac. 848); 14 R. C. L. 185; State v. Lowery, 104 Wash. 523 (177 Pac. 355); People v. Malley (Cal. App.), 194 Pac. 48; State v. Hennessy, 114 Wash. 351 (195 Pac. 211); Ex parte McDermott, 180 Cal. 783 (183 Pac. 437); State v. Quinlan, 86 N. J. L. 120 (91 Atl. 111).

16. The defendant contends that he was tried for two separate crimes on one indictment. He argues that the indictment must be held to be duplicitous whether it is viewed (1) standing alone and by itself, or (2) in connection with and in the light of the evidence. The defendant demurred to the indictment upon the ground, among others, that the charge embraced more than one crime. It is argued that the indictment accuses the defendant of the crime of helping to organize, and of the additional crime of becoming a member of, and of the further crime of assembling with an unlawful society and assemblage. The Code, Section 1442, Or. L., provides:

‘ ‘ The indictment must charge but one crime, and in one form only; excent that where the crime may be committed by the use of different means the indictment may allege the means in the alternative.”

17. In this jurisdiction it is not permissible to join two or more counts in a single indictment. An indictment must in the language of our statute “charge but one crime,” and consequently if an indictment charges a defendant with two or more distinct and substantive offenses, it is bad for duplicity. If, however, the facts charged constitute but a single offense, the indictment is not duplicitous, and therefore acts which form component parts of a single transaction may be charged together, and acts entering into a single and continuous transaction ordinarily can be charged together: 22 Cyc. 378. It has been held, for example, that although the deposit of a single letter concerning a lottery in the mails is a distinct offense, the deposit of numerous letters at about the same time and constituting a single transaction, may be charged in one count: United States v. Patty, 2 Fed. 664, 9 Biss. 429; 22 Cyc. 379.

18. The general rule is that where a single offense may be committed by several means it may be charged in a single count to have been so committed, if the ways or iñeans are not repugant; and in this state as in other states it is provided by statute that when the crime may be committed by the use of different means the indictment may allege the means in the alternative: Section 1442, Or. L.

19. It is a generally recognized rule of criminal pleading that when an offense against a criminal statute may be committed in one or more of several ways specified by tbe statute, tbe indictment may in a single count charge the commission of the offense in any or all of the ways specified by the statute; and when a statute mentions several acts disjunctively and prescribes that each act shall constitute the same offense and be subject to the same punishment, an indictment may .charge any or all of such acts conjunctively, as a single offense. But the rule does not apply when repugnancy results from charging the acts conjunctively; nor does the rule apply where the acts are distinct and are performed at different times and do not constitute component parts of one transaction: 22 Cyc. 380-382; State v. White, 48 Or. 416, 421 (87 Pac. 137); State v. Dale, 8 Or. 229, 232; State v. Bergman, 6 Or. 341, 345; State v. Humphreys, 43 Or. 44, 47 (70 Pac. 824); Cranor v. Albany, 43 Or. 144, 147 (71 Pac. 1042); State v. Emmons, 55 Or. 352, 356 (104 Pac. 882, 106 Pac. 451); State v. Bilyeu, 64 Or. 177, 180 (129 Pac. 768); Astoria v. Malone, 87 Or. 88, 95 (169 Pac. 749).

20. When the court ruled upon the demurrer, the evidence had not yet been heard, and consequently the only question which at that stage of the proceeding was presented for decision was whether or not the indictment standing alone and by itself was sufficient as a pleading. The several acts which are charged conjunctively in the indictment are-stated disjunctively in the statute. ' No one of the acts is necessarily repugnant to any of the others. The indictment does not expressly declare, nor does it even intimate that the several acts were done at different times; but, on the contrary, the indictment expressly avers that all of the acts were done at the same time and place. . It has sometimes been stated in jurisdictions permitting the joinder of two or more counts in one indictment that each count must contain an express declaration that the offense charged in such count arose out of the same transaction from which arose the other offenses charged in the other counts. Such statements are inapplicable in this jurisdiction, where the indictment can contain but one count. The indictment filed against Laundy in effect declares that at the same time and at the same place he committed specified acts constituting connected overt acts composing a single transaction: See State v. Dodd, 84 Wash. 436, 441 (147 Pac. 9). The indictment was framed in strict accordance with the rules which have been established here and are generally recognized elsewhere. The demurrer to the indictment was properly overruled.

21. When the cause came on for trial, and before the selection of a jury, the defendant renewed his contention that the indictment contained more than one charge and moved that the plaintiff be required to elect one of the acts as the one upon which the state intended to reply for conviction. The motion for an order requiring an election at that stage of the trial presented the same question which was submitted to the court upon the demurrer to the indictment. The order denying the motion was warranted for the same reasons that warranted the overruling of the demurrer to the indictment.

22. When the state rested its case in chief the defendant argued that the evidence conclusively showed that the several acts charged in the indictment and relied upon by the state were separate, disconnected and distinct offenses which were not parts of one and the same transaction, and the defendant therefore moved that the state be compelled to designate one of the several offenses as the offense for which the defendant was to be tried. This second motion for an election made after the state had rested its case in chief presents a question which, because of the evidence is entirely different from the motion which was made before the selection of the jury. When deciding the first motion the court could look to nothing except the indictment; and since the indictment in effect declared that the several acts enumerated in it were committed in one transaction, it was sufficient when tested by demurrer. When deciding the second motion, however, the court was required to read the indictment in the light of the evidence. The trial court ruled that it would not be proper to submit to the jury that phase of the indictment which charged that the defendant did “help to organize,” on the theory that there was no evidence tending to show that the defendant helped to organize the Industrial Workers of the World; but the court refused to require the state to make an election of one of the two remaining acts specified in the indictment, and told the jury, when instructing them that if they found that the defendant became “a member of or voluntarily assembled with” the Industrial Workers of the World, they should find him guilty, provided of course such organization was of the kind described by the indictment. in order to determine whether the act of becoming a member and the act of assembling constituted in the attending circumstances- two separate offenses it will be necessary to notice the evidence. But before directing attention to the evidence we may with propriety supplement the general rules previously noticed by making reference to individual cases where the rules have been expressed and applied. In State v. Carr, 6 Or. 134, the defendant was accused of gambling by an indictment in which it was alleged that he did as proprietor, “deal, play and carry on,” a game of faro. It was held that the indictment was not duplicitous, and the court said:

“True, the offense is committed by dealing or playing, but we apprehend that dealing and playing and carrying on a ‘game of faro’ all at the same time and at one sitting, and between the same parties, would constitute but one offense; and such an indictment may be supported by showing that the defendant has done one of these things.”

In State v. McCormack, 8 Or. 237, a horse, saddle and bridle were taken at the same time and place and from the same person. It was held that “the whole transaction constituted but one crime.” In State v. Fiester, 32 Or. 254 (50 Pac. 561), the indictment charged that the defendant murdered his wife,

“by then and there beating her with his fists, and by choking her, and by pushing and dragging her into the water, and holding her under the water, whereby she was drowned.”

The court held:

The means being known to the grand jury, it was proper to allege them conjunctively, for it may have been that, in consequence of the alleged beating and choking of the deceased, the defendant was enabled to drag her to and hold her under water until life was extinct; and, if such were the case, and the facts were known to the grand jury, all these acts constituted the means by with the deed was accomplished. ’ ’

In Wong Sing v. Independence, 47 Or. 231 (83 Pac. 387), the general rule is recognized and the court stated that if a defendant were charged with the sale of spirituous and malt liquors, the charge might be upheld on the theory

“that under a single sale spirituous and malt liquors might have been mixed, so as to constitute but one violation of the provisions of the ordinance.”

In State v. Clark, 46 Or. 140 (80 Pac. 101), the indictment alleged that the defendants did

“take, steal and ride away and drive away and lead away one mare and two geldings; said mare and one of said geldings being”

the property of Frank Miller and the other gelding being the property of Harrison. Kelly. The court held that the wording of the indictment was

“equivalent to an allegation that the defendants did at the time and place specified, and as one transaction, commit the several acts charged.”

In State v. Belle Springs Creamery Co., 83 Kan. 389 (111 Pac. 474, L. R. A. 1915D, 515), the court stated that

“the exposing for sale and selling, as charged, appears to have been simultaneous, and each as part of one act.”

In Herman v. People, 131 Ill. 594 (9 L. R. A. 182), the court said:

“If two or more offenses form parts of one transaction, and are of such a nature that a defendant may be guilty of both or all, the prosecution will not, as a general rule, be put to an election. The right of demanding an election, and the limitation of the prosecution to one offense, is confined to charges which are actually distinct from each other, and do not form parts of one and the same transaction.”

In State v. Sherman, 81 Kan. 874 (107 Pac. 33, 135 Am. St. Rep. 403), the information charged that the defendant

“did then and there unlawfully and wrongfully take and receive an order for malt, vinous, spirituous, fermented and other intoxicating liquors and did then and there contract with Gv J.. Deines for the sale of malt, vinous, spirituous, fermented, and other intoxicating liquors.”

The defendant moved to quash the information on the ground that it was void for duplicity. The appellate court upheld the information and observed that:

“Apparently this was all done at the same time and place and in the same transaction.”

■ The syllabus, which was prepared by the appellate court, reads as follows:

“Where the statute makes either of two or more dis+inct acts connected with the same general offense, and subject to ‘the same measure and kind of punishment, indictable separately and as distinct crimes, when each shall have been committed- by different persons and at different times, they may, when committed by the same person and at the same time, be coupled in one count as constituting altogether one offense only. . In such cases the offender may be informed against as for one combined act in violation of the statute, and proof of either of the acts mentioned in the statute and set forth in the information will sustain a conviction.”

In Stedman v. State, 80 Fla. 547 (86 South. 428), the indictment alleged that the defendant unlawfully deserted his wife and unlawfully withheld from his wife and his minor child means of support. Referring to the desertion and to the withholding of support, the court said:

“While either the unlawful desertion or the unlawful withholding the means of support by a husband from his wife may be a distinct act from the desertion or withholding of the means of support by a father from his child or children, and each or either of such acts may be indictable and punishable as separate offenses under the statute, yet when such desertion or withholding of means of support from the wife and child or children is by the same person at the same time, such conduct may, under the statute, be regarded as constituting ohe offense.”

In People v. Shotwell, 27 Cal. 394, the indictment consisted of two counts. By the first count the defendant was accused of having forged and counterfeited a check; and by the second count it was charged that at the same time and place the defendant attempted to pass and did alter and pass as true and genuine a forged check. The defendant contended that the indictment charged the commission of several distinct offenses. The statute upon which the indictment was based declared that the forging or counterfeiting of a check for the payment of money by any person with'the intent to damage or defraud any person or persons constituted the crime of forgery, and that the uttering, passing or attempting to pass as true and genuine a forged check constituted the crime of forgery. The criminal practice act provided that an indictment

“shall charge but one offense, but it may set forth that offense in different forms under different counts.”

The following excerpt explains the views of the court:

“If it appeared from the indictment that the check described in the second count was the same as that described in the first, . the objection that several offenses were charged in the indictment could not be maintained; for if the same person be guilty of making a forged or counterfeit Check,, and also of attempting to pass it, or of passing it (which involves the attempt), as true or genuine, with the intent to damage or defraud another, he might be indicted and tried for all these, connected and consecutive acts as constituting one transaction, or lie might be indicted and convicted for each distinct crime of which he might be proved to be guilty. The doctrine on this subject is laid down in Wharton’s Criminal Law (141) as follows: ‘Where a statute makes two or more distinct acts, connected with the same transaction, indictable, each one of which may be considered, as representing a stage in the same offense, it has in many cases been ruled, they may be coupled in one count. Thus setting up a gaming table, it has been said, may be an entire offense; keeping a gaming table and inducing others to bet upon it, may also constitute a distinct offense; for either, unconnected with the other, an indictment will lie. Yet, when both are perpetrated by the same person, at the same time, they constitute but one offense, for which one count is sufficient, and for which but one penalty can be inflicted.’ ”

In State v. Souse, 55 Iowa, 466 (8 N. W. 307), the statute made it a crime by false pretenses to obtain property or to obtain the signature of another to a written instrument. The indictment contained two counts. One count charged that the defendant obtained property by false pretenses, and the other count accused the defendant of obtaining a signature. The court held that since both counts had reference to the same transaction the indictment charged but one offense, which might properly have been embraced in a single count. The court pertinently observed that:

“It will be understood that if the üvo counts had been based upon separate transactions both could not have been joined in one count, nor in one indictment.”

In 22 Cyc. 376 the editor says:

“An indictment or information must not in the same count charge the defendant with the commission of two or more distinct and substantive offenses, and ip case it does so it is bad for duplicity, if the offenses are either inherently repugnant, or so distinct that they cannot be construed as different stages in one transaction. * # A substantive offense is one which is complete of itself and is not dependent upon another. ’ ’

In 1 Bishop’s New Criminal Procedure, Section 436, the author states:

“A statute often makes punishable the doing of one thing, or another, or another,' sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a person who in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has ‘or,’ and it will not be double, and it will be established at the trial by proof of any one of them.”

The following are a few of the great number of precedents which are to the same effect as the foregoing: State v. White, 48 Or. 416 (87 Pac. 137); State v. Waymire, 52 Or. 281 (97 Pac. 46, 132 Am. St. Rep. 699, 21 L. R. A. (N. S.) 56); State v. Atwood, 54 Or. 526 (102 Pac. 295, 104 Pac. 195, 21 Ann. Cas. 516); State v. Leonard, 73 Or. 451 (144 Pac. 113, 144 Pac. 681); State v. Molin, 99 Wash. 210; Irvin v. State, 52 Fla! 51 (41 South. 785, 10 Ann. Cas. 1003); Woodford v. People, 62 N. Y. 117 (20 Am. Rep. 464); Schulze v. State (Tex; Cr.), 56 S. W. 918; State v. Sutcliffe, 18 R. I. 53 (25 Atl. 654); People v. Johnson, 81 Mich. 573 (45 N. E. 1119); Jones v. State, 17 Ala. App. 283 (84 South. 627); Goddard v. State, 73 Neb. 739 (103 N. W. 443); Cook v. State, 16 Lea (Tenn.), 461 (1 S. W. 254); Paine v. State, 143 Tenn. 168 (226 S. W. 189); Gantling v. State, 40 Fla; 237 (23 South. ); Murray v. State, 25 Fla. 528 (6 South. 498); Presley v. State, 61 Fla. 46 (54 South. 367); People v. Evanoff (Cal. App.), 187 Pac. 54; People v. Frank, 28 Cal. 507; Hayworth v. State, 14 Ind. 590.

23. Turning to Chapter 12, Laws of 1919, it will be noticed that it is made unlawful to “become a member of” any society or assemblage of persons within the prohibition of the statute, and that the legislature did not in express terms declare that it was unlawful to be a member of such prohibited society. The trial court construed the words “become a member of” to mean “the act of joining, or entering into the status of membership.” This construction was correct: State v. Berquist, 109 Kan. 368 (199 Pac. 101). Lexicographers define.the word “become” to mean “to pass from one state to another; to enter into some state or condition by a change from another state, or by assuming or receiving new properties or qualities, additional matter, or a new connection”: Webster’s Dictionary; Century Dictionary. As used in the indictment, the words “become a member of” sig'nify that the defendant committed the act of joining the Industrial Workers of the World. The legislative assembly, which convened next after the assembly that passed Chapter 12, Laws of 1919, re-enacted the criminal syndicalism statute and that body of lawmakers was careful to make it unlawful to be a member, for the law now reads, “who shall be or become a member of, or organize or help to organize”: Chapter 34, Laws 1921. In short, Chapter 12, Laws of 1919, made the act of joining a crime; the indictment accused the defendant of the act of joining; and he was tried for the act of joining. The question for decision then is, were the acts of joining and assembling parts of the same transaction?

The defendant admitted that he joined the Industrial Workers of the World, but he claimed that he joined in 1917, while the state insisted that he joined in April, 1919. If the defendant joined in 1917, he could not be lawfully convicted of joining, because the statute prohibiting the act of joining did not become effective until February 3, 1919. The evidence relied upon by the state to support its theory that the act of joining occurred in April, 1919, consisted of admissions said to have been made by the defendant, and a membership book delivered up by him to the police: On the night of November 11, 1919, a meeting attended by fifty or fifty-five persons was being held in a hall at 128% Second Street, in Portland. Acting on orders, a number of policemen went to the hall at about 8 p. m. A knock at the door was answered by Laundy, who, when asked, “if it was an I. W. W. meeting, ’ ’ stated that it was not an I. W. W. meeting but was a meeting of the Council of Workers, Soldiers and Sailors. The policemen entered the hall, took Laundy and others to the police station and there interrogated him. Two witnesses testified that Laundy declared, when at the police station, that he had been a member of the I. W. W. for about seven months; and there was also testimony to the effect that on this same occasion at the police station the defendant delivered up a membership book which was received in evidence and shows that Joseph Laundy was “initiated by Clara Ford” on April 26, 1919.

The act of joining the Industrial Workers of the World does not necessarily involve assembling with the society or with an assemblage of persons. A member of the organization may, if a “delegate,” alone and by himself initiate another person into membership. The process of initiation is simple. The delegate hands the candidate an application blank. The candidate signs the blank, pays the prescribed fees, receives an “I. W. W. card” from the delegate, and thereby becomes a member. The uncontradicted evidence is that if the defendant joined in April, 1919, he did so by the simple process of being initiated by Clara Ford alone, and the initiation did not involve an assembling with an assemblage of persons.

It is our understanding that the Industrial Workers of the World is an international organization, or movement, with headquarters at Chicago, and it is commonly known and designated as “the I. W. W.” It appears that, among other branches, there are two Portland branches, one of which is known as the Construction Workers Industrial Union No. 573, and the other as The Lumber Workers Industrial Union No. 500. Referring to these two branches, the defendant was asked: “Did you attend some of the meetings of those organizations?” And he answered, “Yes, sir.” However, the record does not disclose whether the meetings so attended by the defendant occurred before or after February 3, 1919. The defendant contended that the meeting which was broken up by the police on the night of November 11, 1919, at 128% Second Street was a meeting of the Council of Workers, Soldiers and Sailors. The state contended that the meeting was in reality an I. W. W. meeting. It is not necessary to detail ■ the circumstances which, according to the theory of the state, indicated that the assembly was an I. W. W. meeting. But it is sufficient to say that there was evidence which, if believed by the jury, was adequate to support a finding that it was an I. W. W. meeting. Although in the printed brief submitted by the state attention is directed to the defendant’s admission that he had attended some of the meetings of the two Portland branches, yet the record indicated that at the trial the state relied upon the evidence relating to the meeting of November 11, 1919, to support the charge of assembling. However, if the defendant did attend meetings of the two branches after February 3, 1919, his attendance upon any of those meetings was not, when considered as an inhibited act, any different from the act of assembling on November 11, 1919. In other words, if the act of assembling of November 11, 1919, and the act of joining on April 26, 1919, were not parts of one transaction, neither were any of the acts of attending meetings of either of the two mentioned branches and the act of joining parts of the same transaction; and hence we may with propriety confine our investigation to the act of assembling on November 11, 1919, and the act of joining on April 26, 1919, assuming of course that the defendant joined on that date and not in 1917.

24. The act of joining was in nowise a continuing offense. When the defendant received his membership book the act of joining was completed; the crime was done; the offense was consummated; and the transaction was ended: State v. Quinlan, 86 N. J. Law, 120, 127 (91 Atl. 111). The statute did not punish the status of being a member; it punished the act of becoming a member, the act of joining: State v. Berquist, 109 Kan. 368 (199 Pac. 101). The-act of assembling on November 11, 1919, was utterly distinct and separate from the act of joining. Neither act had any relation to or connection with the other. The two acts were not two steps taken in the commission of a single offense; they were not connected parts of a single and continnons transaction. A conviction or an acquittal of the act of assembling would not bar a subsequent trial for the offense of joining on April 26, 1919: State v. Howe, 27 Or. 138 (44 Pac. 672); State v. Magone, 33 Or. 570 (56 Pac. 648).

25. But it may be argued that the I. W. W. as an - organization continued to exist and that its continued existence spanned the interval between the act of joining and the act of assembling and thus .connected the two acts, making them parts of one transaction. The Code bans bawdy-houses and it also provides, by the terms of Section 2081, Or. L., that it is unlawful for a minor to go into a house of prostitution for any purpose whatever. Now, suppose that a minor entered into such a house on April 26, 1919, and that subsequently on November 11, 1919, he went into the same house. Could it be said that the two visits were parts of the same transaction and constituted a single offense, even though it be also assumed that the house had been maintained continuously and without-interruption?

Section 2105, Or. L., makes it a crime to deal, play or carry on a game of faro. Suppose that a game of faro is carried on by an owner and employees and that the game runs continuously from April 26th to November 11th with the same dealers, but each dealer taking his turn, and the players changing every few hours. Could it be said that if A played on April 26th and then on November 11th played again, the two acts constituted a single crime? A careful reading of the opinion in State v. Carr, 6 Or. 134, 135, makes it plain that that precedent is- authority for the conclusion that in the case which we have supposed the two acts of playing would constitute two separate offenses and not a single crime. The Code, Section 2112, Or. L., also declares that it is unlawful for any person to maintain a nickel-in-the-slot machine, and it is likewise unlawful for any person to play or use a nickel-in-the-slot machine. Suppose A maintains such a machine from April 26th to November 11th and suppose B plays the machine on April 26th and again on November 11th. If it be said that one of the purposes of the statute is to prevent the existence and use of nickel-in-the-slot machines, so, too, it can be said that one of the purposes of the criminal syndicalism statute is to prevent the existence of societies of the kind named in the statute. The act of playing the nickel-in-the-slot machine on April 26th and the act of playing on November 11th each contributed towards the maintenance of the machine and tended to defeat the purpose of the statute; and so, too, would the act of joining on April 26th and the act of assembling on November 11th contribute towards the continued existence of the Industrial Workers of the World and tend to defeat the purpose of the statute. The nickel-in-the-slot machine continued to exist from April 26th to November 11th; and so, too, did the Industrial Workers of the World continue to exist from April. 26th to November 11th. Can it be said that the continued existence of the nickel-in-the-slot machine spanned the interval of time between April 26th and November 11th so as to make the two acts of playing the commission of a single offense? We venture the thought that not a single judicial decision reported in the thousands upon thousands of printed books can be found holding that in such instances only one offense has been committed. Suppose that on April 26th the defendant joined a given branch of the I. W. W. in Multnomah County and on November 11th he assembled with another branch in Lake Connty. Conld it be contended with any show of reason that an' acquittal or conviction in Lake County on an indictment charging the act of assembling would bar a prosecution in Multnomah County on an indictment charging the act of joining? And yet the I. W. W. as an organization has continued without interruption; nor is the supposed case any different from the actual case presented by the record except that in the supposed case both acts did not occur in the same county, while in the actual case both acts did happen in the same county, assuming of course the truth of the indictment. If in the instant case the act of joining in Multnomah County on April 26th and the act of assembling in that county on November 11th are parts of the same transaction, then in the supposed case the act of joining in Multnomah County and the act of assembling in Lake County are parts of one transaction and constitute a single offense; and a conviction or acquittal in one county bars a prosecution in the other county. Chapter 12, Laws of 1919, made it an offense to sell a book teaching sabotage. Suppose that the Industrial Workers of the World printed a prohibited book on April 26, 1919, and on that day Laundy joined the I. W. W. in Multnomah County and subsequently on November 11, 1919, sold one of those books in some other county, could it be said that the act of joining and the act of selling constituted parts of the same transaction? And yet the I. W. W. as an organization has been in existence during the intervening period and the prohibited book has likewise been in existence during the same period. If Laundy had met with a group of persons at a given time and place and all those persons had been organized with Laundy helpiúg, and if at the same time and place and as a part of the same transaction Laundy had been initiated and had assembled with them, then the act of helping to organize, the act of becoming a member and the act of assembling wonld undoubtedly be parts of the same transaction and whether taken singly or in combination would constitute but one offense; but such is not the fact situation in the instant case. The act of joining.and the act of assembling seven months later were in no wise connected. with each other. Each act was a' separate and distinct transaction and hence a separate and distinct offense. The defendant was prosecuted for two crimes in one trial: State v. Hennessy, 114 Wash. 351 (195 Pac. 211, 213). The law guarantees to every person the right to be tried for one offense at a time, no matter what that offense may be and regardless of whether the offense be some petty offense against property or a grave offense against the very government which guarantees that right to be tried for one offense at a time. When the state rested its case in chief it had made a record showing that the defendant was being prosecuted for two separate and distinct offenses although each was a violation of the same statute, and the defendant’s motion to require the state to make an election should have been allowed.

The state caused 59 exhibits to be marked for identification. Exhibit 42 was admitted as defendant’s exhibit 2-D. Exhibits 51 and 52 were merely marked for identification, but they were not. offered as evidence. Exhibits 58 and 59 were offered by the state but were rejected by the court. Exhibit 6, a receipt, was received as evidence for the state and was also marked as defendant’s exhibit 2-N. The remainder of the 59 exhibits were admitted as evidence for the state. The defendant claimed that the owner of the hall at 128% Second Street leased the premises to the Council of Workers, Soldiers and Sailors; that he, the defendant, was the secretary of the Council of Workers, Soldiers and Sailors at a salary of $30 per week and that he was not employed by the Industrial Workers of the World; he testified that the office equipment included, among other things, 250 chairs, desks, paper-rack, and reading-tables; that at his request the Council of Workers, Soldiers and Sailors subleased desk room for two desks to Lumber Workers Industrial Union No. 500 of the I. W. W. and Construction Workers Industrial Union No. 573 of the I. W. W. The defendant explained that his desk was “on the northwest corner * * right by the window in front of the hall,” and that the other two desks installed under the sublease were in “the southwest corner directly across the hall from” his desk, and that these two desks were separated from the remainder of the hall by a railing.

The defendant also testified that Fred Myers was the secretary of Construction Workers Industrial Union No. 573 of the I. W. W., and that Myers’ desk was the “west one of those two desks.” A reading table was maintained in the hall and near the defendant’s desk. Papers and books, pamphlets and other printed matter were kept in the hall “by the desk” of the defendant and were available to those who cared to read. The defendant stated that he had been elected chairman of the propaganda committee of the I. W. W. “a couple of times”; and he also stated that the I. W. W. “were given permission to put their book-case outside of the railing, as there wasn’t storeroom inside of the railing”; hnd in answer to a question, “Did you have any of their literature hanging on the wall?” The defendant said: “Yes.” The policemen who interrupted the meeting and took Laundy into custody did so without a warrant of arrest, and they also took from the hall without a search-warrant the larger portion of the exhibits offered by the state and received in evidence. According to the testimony of a witness for the state, policemen remained in the hall for a short time after Laundy was taken to the police station, and the work of gathering up books, pamphlets, printed matter and other things was completed, and then all the things so gathered up were removed to the police station. According to the testimony of the defendant he himself locked the door to the hall; and at the hearing it was claimed in behalf of defendant that the police returned to the hall after Laundy was taken to the police station and removed books, papers and other things from Laundy’s desk and from the hall. Thirty-seven of the state’s exhibits were taken from the hall at 128% Second Street on the night of November 11, 1919. Concerning fifteen of these thirty-seven exhibits no testimony was offered, except testimony to the effect that they were found in the hall on the night of the arrest; and consequently we need not now notice this group of fifteen further than to say that they consisted of books of due stamps, books, documents and publications which tended to show that the hall was used as headquarters for the I. W. W., and to say that there was no evidence to indicate that any one of those fifteen exhibits was taken from the inside of any desk or otherwise than from the paper-rack or reading-table. Two of the exhibits found in the hall were “on a desk”; and it is not now necessary to state more concerning them except to state that there was no evidence to show which of the desks they were on. One of the exhibits received in evidence was merely the imprint of a seal and another was the imprint of a stamp, and so these two exhibits may be eliminated from further notice. Exhibit No. 48 was fonnd hanging on the wall, and it tended to prove that the hall was used as headquarters for the I. W. W. There was no testimony concerning exhibits 56 and 57, which are included among the 37 exhibits taken from .the hall, except the testimony of the defendant; and his testimony indicated that these two exhibits were in the open in the hall. Exhibit 1 came “off of one of those desks” (behind the railing). Exhibit 4 was found on Myers’ desk. There was no evidence relating to exhibit 33, except an explanation of its use by the I. W. W. and testimony that it was found in the hall. Exhibit 2 which purports to be a lease to the “Council of Workers, Sailors and Soldiers of Portland” was according to one witness “at one of these desks,” and according to the testimony of Laundy was in the desk used by him. The remaining thirteen exhibits found in the hall and numbered 5,' 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, included publications entitled, in the order named thus: The Evidence and Cross-examination of William D. Haywood, Tridon’s New Unionism, The G-eneral Strike by William D. Haywood, Evolution of Industrial Democracy, Industrial Communism of the I. W. W., The Advance of the Proletariat, Preamble and Constitution of the I. W. W., Industrial Unionism, Perry’s Revolutionary I. W. W., The Onward Sweep, I. W. W. Songs (Joe Hill Ed. — 15th Ed.), I. W. W. Songs (Hen. Def. Ed.), I. W. W. Songs (15th Ed.). Exhibit 29 was found in Myers’ desk but the remainder of these thirteen exhibits were found, in some instances hanging on the wall, and in other instances on tables or out in the open. The number of copies of the different publications varied from one to three hundred. A. E. Allen and William J. Josh gave testimony concerning each of these thirteen exhibits and James F. Mitchell gave testimony concerning one of them, exhibit 29. Allen testified that he joined the I. W. W. at Seattle, Washington, in the latter part of April, 1919, and continued to be a member until the latter part of November, 1919; that he was “an organizer and delegate?’ and that his duties were to get new members and “to help spread propaganda, literature.” This witness stated that he was familiar with the literature used by the I. W. W. and that he handled it in Seattle “from the time I joined until I quit.” Josh joined the I. W. W. at Tacoma, Washington, on May 30, 1919, and he continued his membership until “the last of October, or first of November” in 1919. Josh says that he distributed I. W. W. literature during the course of his membership. The literature distributed by Allen and Josh was, according to their testimony obtained from official representatives of the I. W. W. in Seattle, Washington. Referring to this group of thirteen exhibits, Allen testified that copies of each of them were among copies of I. W. W. literature distributed by him .in Seattle; and, excluding only one of them Josh stated that he saw copies of them in the I. W. W. hall in Tacoma and that he disposed of copies' of them there during the course of his membership. Mitchell was a police officer of Spokane, Washington. He had been brought in touch with the activities of the I. W. W. in Spokane, was familiar with I. W. W. literature, and. as such officer had “handled a great deal of it.” Mitchell says that an open I. W. W. hall was maintained in Spokane until April 4, 1918, or May 4, 1918, at which time “we closed it out,” and since that date “no open hall” has existed. According to this witness the I. W. W. maintained secret headquarters at different places in Spokane from May 4, 1918, until December 29, 1919. Mitchell also testified “we raided” the secret headquarters. Referring to exhibit 29, Mitchell stated that he had seen copies of it in I. W. W. halls in Spokane “prior to April 4, 1918, and up until May 4, 1918;. and copies as late as November, 1919.” The story of the exhibits has thus far included only the exhibits found in the hall at 128% Second Street in Portland.

The state offered in evidence copies of certain publications which had been distributed by the authority of the I. W. W. in Spokane, Tacoma, and Seattle, Washington. This group includes exhibits 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 53 and 54 and are respectively entitled as follows: One Big Union, Pouget’s Sabotage, Smith’s Sabotage, When the Leaves Come Out, The I. W. W. Its History, Structure and Methods by Vincent St. John, Eleven Blind Leaders, Financial Statement, I. W. W. in the Lumber Industry, Stickers (not found among exhibits), Proletarian & Petit Bourgeoise, Sabotage, and I. W. W. Songs.

According to the testimony of Allen, he distributed in Seattle during the period of his membership copies of most of the publications included in this group of twelve exhibits, and, furthermore, all of the copies so distributed by him were obtained from I. W. W. officers in the I. W. W. hall where the literature was kept. According to the testimony of Josh, he disposed of copies of most of these same exhibits in Tacoma during the period of his membership, and the copies so disposed of by him were likewise obtained from I. W. W. officers at the I. W. W. hall in Tacoma where the literature was kept. Mitchell testified that in a raid made on secret headquarters in Spokane in August, 1919, he found a number of copies of Smith on Sabotage, exhibit 35, and that he saw copies of “When the Leaves Come Out,” exhibit 36, in the I. W. W. hall “up and until April 4, 1918, and May 4, 1918.” Referring to I. W. W. songs, exhibit 54, Mitchell stated that he had seized many of them in Spokane on April 4, 1918, and as late as November 4, 1919. Another witness P. P. Keefe, a policeman of Seattle, stated that he had gotten copies of Pouget’s Sabotage, exhibit 34, on December 9, 1919, from one of the secret headquarters of the I. W. W. Still another witness, E. T. Gouch, testified concerning two of the exhibits included in this group of twelve. Gouch was United States Immigration Inspector at Astoria, Oregon; he explained that the I. W. W. maintained a hall in Astoria from the fall of 1916 until the middle of September, 1917; that literature was “on sale there at the I. W. W. hall”; that the literature consisted of financial reports and different kinds of booklets and pamphlets and the quantity on hand varied from fifty to one thousand copies; that he bought “two or three pieces in that hall, and then A. E. Soper, the organizer and the head of the I. W. W. brought me two or three copies up to my office at my request and I paid him for them.” Gouch identified Pouget’s Sabotage, exhibit 34, and Smith’s Sabotage, exhibit 35, as copies of the publications purchased by him from Soper. Exhibit 55, a placard, is not with the exhibits accompanying the bill of exceptions. However, there is no evidence in the record relating to this exhibit except the testimony of one witness that he saw it on a wall in an I. W. W. hall in Portland on February 25, 1919. Exhibit 3 is the defendant’s membership book. The remaining exhibit, 43, need not be noticed further.

26. The defendant argued that it was error to receive the testimony of Josh, Allen, Mitchell and Keefe concerning the possession or distribution in the state of Washington of literature attributed to the I. W. W. The indictment charges that the defendant became a member of and voluntarily assembled with the Industrial Workers of the World, and then the indictment proceeds and characterizes the Industrial Workers of the World as a society or assemblage of persons which teaches the doctrines denounced by the statute. The organization, described in the indictment, is one which has its main headquarters in one place with branches in different places throughout the country. If we find a society or organization with its main headquarters centered at a given point with branches scattered throughout the country, and if we find copies of a given publication, attributable to that society as an organization, kept in halls of that society and in secret headquarters maintained in different cities, whether within or without this state, and if we find officers and members of that society disposing of copies in those different cities, then assuredly those facts constitute evidence from which we may infer that such society teaches and advocates the doctrines announced in such publication. All the publications concerning which Allen, Josh, Mitchell and Keefe testified contained matter from which it could be argued that they taught the prohibited doctrines, and, indeed, some of them contained highly inflammatory matter. The court did not err in receiving the testimony of these four witnesses concerning the possession, sale and distribution in the state of Washington of publications attributable to the I. W. W.: State v. Lowery, 104 Wash. 523 (177 Pac. 355); State v. Hestings, 115 Wash. 19 (196 Pac. 13); State v. Hemhelter, 115 Wash. 208 (196 Pac. 581); State v. Gibson, 115 Wash. 512 (197 Pac. 611); State v. Payne, 116 Wash. 640 (200 Pac. 314); State v. Hennessy, 114 Wash. 351, 195 Pac. 211.

27. The defendant claims that the court erred in admitting evidence of acts done prior to February 3, 1919, the date when the Syndicalism Act became effective. This objection relates particularly to the testimony of Couch concerning the purchase in 1917 from Soper of the two publications on sabotage, and to the testimony of Mitchell concerning literature seen by him in Spokane in 1918. The testimony of these two witnesses was competent. It was evidence which together with testimony concerning I. W. W. activities after February 3, 1919, could be considered by the jury in determining whether the I. W. W. was or was not at the time specified in the indictment a society that taught the denounced doctrines. The court carefully instructed the jury that this evidence could be considered only in determining what the I. W. W. advocated “at the time and as charged in the indictment. ’ ’

28. The defendant asserts that he cannot be held guilty of the crime of joining the I. W. W. unless he joined in Multnomah County and unless the situs of the I. W. W. was localized in that county. The statute makes it an offense to join a society which teaches the prohibited doctrines, and we agree with the statement made by the Supreme Court of Kansas in State v. Berquist, 109 Kan. 367 (199 Pac. 101),—

“But where a person joins in this state a society of that character he could not escape liability by showing that it had never made Kansas a field of its propaganda..”

See also: State v. Hennessy, 114 Wash. 351 (195 Pac. 211, 217). If, therefore, the defendant joined the I. W. W. in Multnomah County and at the time of such joining the I. W. W. was a society, which taught the denounced doctrines, then he was guilty of a violation of the syndicalism statute even though the I. W. W. had not localized its situs in Oregon.

The defendant complains because of the denial of his petition for the return of his membership book which was taken from him at the police station, and the papers, publications, and things, comprising thirty-seven of the state’s exhibits which were taken from the hall. The exhibits, for the return of which the defendant petitioned, may be divided into four classes: (1) Things taken from the defendant’s person, and this includes the membership book; (2) things in Laundy’s desk and taken from it, and this includes the lease; (3) things in Myers’ desk and taken from it; and (4) things in open view in the hall; as, for example, the papers and pamphlets which hung on the wall or were on the reading-table.

The defendant relies upon Article IV of the amendments to the federal Constitution forbidding unreasonable searches and seizures, and upon that part of Article V of the same amendments which protects every person from being compelled to be a witness against himself. The defendant also relies upon Article I, Section 9, of our state Constitution, which, although not in the identical language, is in effect and meaning the same as Article IV of the federal Constitution; and, furthermore, he has invoked the protection of that portion of Article I, section 12, of the state Constitution, which declares that no person shall be compelled in any criminal prosecution to testify against himself.

29. In Brown v. New Jersey, 175 U. S. 172, (44 L. Ed. 119, 20 Sup. Ct. Rep. 77, see, also, Rose’s U. S. Notes), it was held that—

“The first ten amendments to the federal Constitution contain no restrictions on the powers of the state, but were intended to operate solely on the federal government.”

See also Weeks v. United States, 232 U. S. 383 (Ann. Cas. 1915C, 1177, L. R. A. 1915B, 834, 58 L. Ed. 652, 34 Sup. Ct. Rep. 341). The inquiry is, Were the rights of the defendant violated when the policemen removed the thirty-seven exhibits from the hall, and when the membership card was taken from him at the police station? As a preliminary, it is appropriate to say, in the language used by the national Supreme Court in Weeks v. United States: “This protection” against unreasonable search and seizure guaranteed by our state Constitution “reaches all alike whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted”, with the enforcement of the laws.

30. The Supreme Court of the United States in a series of decisions has made plain the rule of practice to be followed by the federal courts in order to secure to “all alike” the protection intended to be given by the national Constitution. An accused person whose property is taken by an officer of the federal government in violation of the Fourth Amendment is entitled to an order of the court, upon the filing of a timely petition, directing the return of the wrongfully seized property. Ordinarily such a petition must be filed prior to the commencement of the trial, because as a general rule the courts will not, after the trial has begun, suspend the trial of the accused and frame and determine a collateral issue concerning the means by which an article, competent as evidence in the trial, was obtained. This court, it is true, has held in conformity with the rulings of most of the other courts, including the Supreme Court of the United States, that the relevancy of a given article is not affected by the circumstances that it was wrongfully seized; and hence inquiry will not ordinarily be made during the trial concerning a collateral issue: State v. McDaniel, 39 Or. 161, 168 (65 Pac. 520); State v. Wilkins, 72 Or. 77, 80 (142 Pac. 589); State v. Ware, 79 Or. 367, 377 (154 Pac. 905, 155 Pac. 364); Williams v. State, 100 Ga. 511 (28 S. E. 624, 39 L. R. A. 269); Weeks v. United States, 232 U. S. 383 (Ann. Cas. 1915C, 1177, L. R. A. 1915B, 834, 58 L. Ed. 652, 34 Sup. Ct. Rep. 341); Burdeau v. McDowell, 256 U. S. 465 (65 L. Ed. 1048, 41 Sup. Ct. Rep. 574,13 A. L. R. 1159); 8 R. C. L. 196. If, however, the accused does not know until the paper or other article is offered in evidence that it was obtained by an unlawful seizure, he is nevertheless entitled at that time to an order of the court directing a return of the property: Weeks v. United States, 232 U. S. 383 (Ann. Cas. 1915C, 1177, L. R. A. 1915B, 834, 58 L. Ed. 652, 34 Sup. Ct. Rep. 341); Gouled v. United States, 255 U. S. 298 (65 L. Ed. 647, 41 Sup. Ct. Rep. 261); Amos v. United States, 255 U. S. 313 (65 L. Ed. 654, 41 Sup. Ct. Rep. 266). This rule of practice sanctioned by the Supreme Court of the United States ought, for the same reasons which recommended it to the court, be adopted and followed by the courts of this state. In the instant case the defendant filed a timely petition, and therefore if his constitutional rights were violated his petition ought to have been allowed. The question to be answered then is, Was the right granted by Article I, Section 9, of our state Constitution violated? If the membership book and all of the thirty-seven exhibits were taken lawfully, or if they were taken without violating any of Laundy’s rights, he cannot complain.

31. The policemen who entered the hall and arrested Laundy did so without a warrant of arrest and without a search-warrant; and, therefore, if their conduct in taking the membership book and the thirty-seven exhibits removed from the hall was lawful, it was so only because the arrest was lawful. The Code, Section 1745, declares that “a peace officer is * * a * * marshal, or policeman of a town.” The policemen who arrested Laundy were therefore peace officers. Section 1754, Or. L., provides:

“An arrest may be either, — (1) By a peace officer, under a warrant; (2) By a peace officer, without a warrant. ’ ’

Section 1763, Or. L., states:

“A peace officer may, without a warrant, arrest a person, — (1) For a crime committed or attempted in his presence; (2) When the person arrested has committed a felony, although not in his presence; (3) When a felony has in fact been committed, and he has reasonable' cause for believing the person arrested to have committed it.”

Section 3 of Chapter 12, Laws of 1919, declares that a person who does any of the acts prohibited by that section “is guilty of a felony.” The arrest was therefore made lawfully, and consequently the policemen had a right to do whatever they could have done if they had held a warrant of arrest: Smith v. State, 3 Ga. App. 326 (59 S. E. 934); Jenkins v. State 4 Ga. App. 859 (62 S. E. 574). See also State v. Hassan, 149 Iowa, 518, 524 (128 N. W. 960).

32. An arresting officer who makes a lawful arrest may search his prisoner, and in the language of Bishop,

“if he finds on the prisoner’s person, or otherwise in his possession, either goods or money which he reasonably believes to be connected with the supposed crime, as its fruits, or as the instruments with which it was committed, or as supplying proofs relating to the transaction, he may take and hold them to be disposed of as the court directs.” 1 Bishop’s New Criminal Procedure, § 211.

If the arrest of a prisoner is lawful, a search of the person of the prisoner is lawful; and the officer making such lawful arrest and lawful search may take from the prisoner not only instruments of the crime but also such articles as may be of use as evidence on the trial: Weeks v. United States, 232 U. S. 383 (Ann. Cas. 19150, 1177, L. R. A. 1915B, 834, 58 L. Ed. 652, 34 Sup. Ct. Rep. 341); State v. Edwards, 51 W. Va. 220 (41 S. E. 429, 59 L. R. A. 465); 1 Wharton’s Criminal Procedure (10 ed.), § 97 et seq.; 2 R. C. L. 469; 5 C. J. 434; 35 Cyc. 1271. The search is justifiable as an incident to the lawful arrest: 2 R. C. L. 197; 5 C. J. 434. The taking of the membership book was lawful.

33. The right of the arresting officer to seize articles of evidentiary value is not confined to the right to search and take property from the person of a prisoner. Stated broadly, the general rule is that the arresting officer may at the time of making the arrest lawfully take articles in the possession or under the control of the prisoner, if they supply evidence of guilt: Asparren v. Ferret, 44 Nev. - (191 Pac. 571, 11 A. L. R. 678); Hotker v. Hennessy, 141 Mo. 527 (42 S. W. 1090, 64 Am. St. Rep. 524, 39 L. R. A. 165); Getchell v. Page, 103 Me. 387 (69 , 125 Am. St. Rep. 307, 18 L. R. A. (N. S.) 253); Gamble v. Keyes, 35 S. D. 644 (153 N. W. 888). Articles appearing in open view, the discovery of which requires no search, may be taken if of evidentiary value: State v. Quinn, 111 S. C. 174 (97 S. E. 62, 3 A. L. R. 1500); State v. Mausert, 88 N. J. L. 286 (95 Atl. 991, L. R. A. 1916C, 1014); Newman v. People, 23 Colo. 300 (47 Pac. 278). Indeed, the arresting officer may in some circumstances search the room or place where the accused is arrested: Smith v. Jerome, 47 Misc. Rep. 22 (93 N. Y. Supp. 202); People v. Cona, 180 Mich. 641 (147 N, W. 525); Getchell v. Page, 103 Me. 387 (69 Atl. 624, 125 Am. St. Rep. 307, 18 L. R. A. (N. S.) 253); State v. Robbins, 124 Ind. 308 (24 N. E. 978, 8 L. R. A. 438).

34. It must be borne in mind that the instant case is not one where the arrest was made in the home of the defendant or in his private office; and hence we need not and do not attempt to ascertain the limits of the right to search in the home or private place of the prisoner, nor need we attempt to ascertain the limits of the right of the arresting officer to search any other kind of a room or building in which the arrest is made, although stated in general language the rule seems to be that an arresting officer may, if making a lawful arrest, at the time of the arrest search the room or place where the accused is arrested. If the thirty-seven exhibits were gathered up at the time of the arrest and as a part of that transaction, the situation is entirely different from one where entry, search and seizure were begun and made m the private home of the accused after his arrest in such home and removal therefrom; and so too, the instant case is quite different from one where the accused is arrested in a place other than his home or place of business, and his home or place of business is searched contemporaneously with or after his arrest: See Weeks v. United States, 232 U. S. 383 (Ann. Cas. 1915C, 1177, L. R. A. 1915B, 834, 58 L. Ed. 652, 34 Sup. Ct. Rep. 341); Silverthorn Lumber Co. v. United States, 251 U. S. 385 (64 L. Ed. 319, 40 Sup. Ct. Rep. 182); Gamble v. Keyes, 35 S. D. 644 (153 N. W. 888). Furthermore, the instant case is not one where a search and seizure are made without a warrant and then subsequently a warrant of arrest is issued and an arrest made: See State v. Marxhausen, 204 Mich. 559 (171 N. W. 557, 3 A. L. R. 1505). Regardless of the character of the hall, whether it was public or a giiasi-public or private place, the seizure of all of the articles which were in open view was lawful.

35. If any articles were unlawfully taken from Myers’ desk, the defendant cannot complain for the reason that if the right of any person was violated it was that of Myers or that of some other third person, and not that of the defendant.

36. We have thus far disposed of all of the thirty-seven exhibits except the lease which was taken from Laundy’s desk. This paper was not the private paper of Laundy’s. The lease was, according to Laundy’s own testimony, the property of the Council of Workers, Soldiers and Sailors; and the only inference to be drawn from the record is that the desk in which the paper was kept was not the private property of Laundy’s, nor was the desk used for his own private purposes. The hall was at least a quasi-public place. The hall was not the home of Laundy, or his private place of business. It is not necessary to decide whether or not there is such a degree of intimacy between Sections 9 and 12 of Article I of our state Constitution as to make of them a unity in the ■ sense attributed by the Supreme Court of the United States to the Fourth and Fifth Amendments to the federal Constitution: See 3 Wigmore on Evidence, § 2264. It is our conclusion that no constitutional right of the defendant was violated by the taking of any of the state’s exhibits, even though it be assumed that the constitutional right of some other person or persons was violated. Moreover, the' defendant himself testified as a witness in his own behalf about the lease; and this testimony formed a substantive part of his defense against the charge in the indictment, rather than against any inferences that might have been drawn from the introduction of the lease.

37. The defendant insists that intent and knowledge are essential elements; and he therefore assails the indictment because: (a) It does not aver that he knew that the Industrial Workers of the World taught the prohibited doctrines; and (b) it does not allege that he intended to aid in the dissemination of the unlawful doctrines. • The defendant complains because the court refused to give certain instructions requested by the defendant concerning intent and knowledge. The legislature may as a general rule penalize the doing of an act without regard to the intent or knowledge of the doer; and yet this legislative power is not without constitutional limitations,, for as expressed by Mr. Chief Justice Rudkin in State v. Strasberg, 60 Wash. 106 (110 Pac. 1020, Ann. Cas; 1912B, 925, 32 L. R. A. (N. S.) 1216), “we can scarcely conceive of a valid penal law which would punish a man for the commission of an act which the utmost care and circumspection on his part would not enable him to avoid.”

38. The circumstance that the word “knowingly,” or its equivalent, does not appear in a statute is not conclusive; but the question whether words expressing criminal intent or guilty knowledge are to be implied is a matter of construction to be determined by considering the subject matter of the statute, the language of the act, the evil sought to be eradicated or prevented, and the consequences of the several constructions to which the statute may be susceptible. If the language and subject matter of the statute show clearly that it was the manifest intention of the legislature to make the doing of an act a crime, regardless of the knowledge or intent of the doer, the courts will give effect to the intention of the legislature even though the statute may seem to operate harshly in a given instance; but as stated in People v. Rice, 161 Mich. 657 (126 N. W. 981), courts are ‘ ‘ slow to find a legislative intention to condemn a man for not knowing that which he cannot know.”

39. We are now examining only a portion of the syndicalism statute. No word appearing in the statute qualifies “organizes” or “helps to organize” or “become a member of ,” and the only word which qualifies “assemble” is the word “voluntarily.” Moreover, it is significant that the words “with the intent,” although not connected with the portion of the statute now under examination, are found connected with the immediately preceding clause. The statute neither expressly nor impliedly makes guilty knowledge or criminal intent essential elements of the crime: State v. Hennessy, 114 Wash. 351 (195 Pac. 211); People v. Malley (Cal. App.), 194 Pac. 54. As said by Mr. Justice Field in United States v. Kirby, 7 Wall. 482 (19 L. Ed. 278),—

“All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law, in such cases, should prevail over its letter.”

40. The court instructed the jury

“to voluntarily assemble within the meaning of the statute means to meet with and take part in the proceedings of an assemblage of persons with the purpose of aiding and abetting in carrying out the common design of said meeting.”

The defendant was not entitled to an instruction more favorable than the one given by the court.

41. The court also instructed the jury:

“Belative to the question as to whether or not the defendant, at the time he is alleged to have become a member of this organization had knowledge of its alleged unlawful character or purposes as charged in the indictment, the court instructs you that before you can find against the defendant on this phase of the case by reason of his alleged membership in said organization, you must be satisfied from the evidence beyond a reasonable doubt that at the time of becoming a member in said organization, as charged herein, if you find that he did so become a member, he knew or had reasonable grounds of believing, or had a reasonable opportunity to learn, of the alleged unlawful purposes or character of said organization.”

The defendant was not entitled to more than was given him by the last quoted instruction; for by that instruction the court prevented the jury from adjudging the defendant guilty of that which he could not know: State v. Cox, 91 Or. 518 (179 Pac. 575).

The court properly refused to give defendant’s seventh and tenth requested instructions. The trial court likewise properly refused to direct a verdict of not guilty.

The syndicalism statute is a constitutional and valid law, and therefore any person who violates it commits a crime and is punishable. If the defendant violated the syndicalism statute in either of the particulars alleged in the indictment he committed a crime for which he can be punished. The indictment is sufficient and complies with all of the requirements of the law. The' court did not receive incompetent evidence concerning the character of the I. W. W., nor concerning the act of joining the I. W. W., nor concerning the alleged act of assembling. The indictment alleges that at one time and at one place the defendant joined and assembled with the I. W. W. But the evidence relied upon by the state tended to show that the defendant joined the I. W. W. on April 26, 1919, and that on the following eleventh day of November he assembled with persons belonging to the I. W. W. The indictment charged one crime. But the defendant was tried for two crimes; one, the crime of joining on April 26th and, the other, the act of assembling on November 11th. The defendant was tried for two crimes on an indictment which charged only one crime. The law gave to the defendant the right to be tried for one crime at a time. He insisted upon that right; he was denied that right; and because of such denial the judgment must be reversed and a new trial granted. Reversed.

Burnett, C. J., and McCourt, J., not sitting. Bean, J., dissents.