Faville, J.
Chapter 382 of, the Acts of the Thirty-eighth General Assembly defines the crime of criminal syndicalism and prescribes the punishment therefor. Said statute is as follows:
"Section 1. Criminal syndicalism is the doctrine which advocates crime, sabotage, violence or other unlawful methods of terrorism as a means of accomplishing industrial or political reform. The advocacy of such doctrine, whether by word of mouth or writing, is a felony punishable as in this act otherwise provided.
"Sec. 2. Any person who:
"A. By word of mouth or writing, advocates or teaches the duty, necessity or propriety of crime, sabotage, violence or other unlawful methods of terrorism as a means of accomplishing industrial or political reform; or
"B. Prints, publishes, edits, issues or knowingly circu- , lates, sells, distributes or publicly displays any book, paper, document or written matter in any form, containing or advocating, advising or teaching the doctrine that industrial or political reform should be brought about by crime, sabotage, violence or other unlawful methods of terrorism; or
[97]*97“C. Openly, willfully and deliberately justifies, by word of mouth or writing, the commission or the attempt to commit crime, sabotage, violence or other unlawful methods of terrorism with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism; or
“D. Organizes -or helps to organize, or becomes a member of or voluntarily assembles with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism, is guilty of a felony and punishable by imprisonment in the state penitentiary or reformatory for not mofe than ten years (10) or by a fine of not more tibian five thousand dollars ($5,000.00) or both.”
The appellant was indicted by the grand jury of Linn County, Iowa, charged with the offense of conspiracy to commit the act of criminal syndicalism. The indictment was brought under Section 5059 of the Code, which is as follows:
“If any two or more persons conspire or confederate together with the fraudulent or malicious intent wrongfully to injure the ’ person, character, business, property or rights in property of another, or to do any illegal act injurious to the public trade, health, morals or police, or to the administration of public justice, or to commit any felony, they are guilty of a conspiracy, and every such offender, and every person who is convicted of a conspiracy at common law, shall be imprisoned in the penitentiary not more than three years. ’ ’
I. A demurrer to the indictment was interposed by the appellant, and was overruled. It is urged that it should have been sustained. Appellant’s chief contention in this regard is 'that the indictment does not sufficiently comply with Sections 5297 and 5490 of the Code. Said ,. « sections are as follows:
“Section 5297. In an indictment for conspiracy, where an overt act is required by law to constitute the offense, the defendant cannot be convicted unless one or more overt acts be expressly alleged therein.”
“Section 5490, Upon a trial for conspiracy, a defendant cannot be convicted unless one or more overt acts alleged in the indictment are proved, when required by law to constitute the [98]*98offense, but other overt acts not alleged in the indictment may be given in evidence.”
The point urged is that the indictment failed to expressly • allege one or more overt acts.
It is to be noticed that in each of said sections of the statute there is a qualifying clause to the effect that an overt act must be alleged when such overt act is “required by law to constitute the offense.” The indictment in the instant ease did not charge any such overt act. It did charge that the defendant and divers other persons to the grand jury unknown did conspire, agree, and confederate together, with the fraudulent and malicious purpose and intent to commit a felony, to wit, the crime of criminal syndicalism, by doing the various things which are prohibited by the terms of the said statutes, which said things are detailed and set out in extenso.
The indictment is in four counts, conforming to the four paragraphs of Section 2 of said statute.
The precise question now urged by the appellant was before us in State v. Poder, 154 Iowa 686, wherein we said:
“The appellant challenges the sufficiency of the indictment, in that it fails to charge an indictable offense, and is void for duplicity. It is said, among other things, that the indictment fails to charge any overt act, and will not therefore sustain a conviction. The objection is unsound. It may be, and doubtless is, true that in some cases the offense of conspiracy is not complete without some overt act, and, when such is the ease, the act must be alleged and proved. To this class of cases, Code Sections 5297 and 5490, on which counsel rely, are applicable, but the conspiracy charged in the present case'is of statutory creation. See Code Section 5059, which makes it an indictable offense to conspire to do ‘any illegal act injurious to public morals.’ When, therefore, the accusation is made in the language of the statute and the particular illegal act injurious to public morals, which act is the subject of the alleged conspiracy, is stated, the charge is complete.” •
See, also, State v. Soper, 118 Iowa 1; State v. Loser, 132 Iowa 419; State v. Rayburn, 170 Iowa 514, 521; State v. Madden, 170 Iowa 230.
[99]*99Tbe indictment was sufficient, and the demurrer was properly overruled.
II. On or about the 14th day of November, 1919, the appellant was in the city of Marion, and presented a check made payable to himself, which had been drawn by the officers of the Industrial Workers of the World, in the city of Chicago. Some suspicions were aroused from tliis circumstance, with others, and the appellant was arrested by a deputy sheriff and taken to jail. At the jail he was searched by a deputy sheriff, who at that time found upon his person a letter addressed to the appellant, purporting to have been written from the headquarters of the Industrial Workers of the World, commonly known as the “I.W.W.,” and some small articles of personal use.
After the appellant had been placed in the jail, it appears that the county attorney, without the knowledge of appellant, went to the Royal Hotel in Marion, where the appellant was registered as a guest, and where he had been stopping for a few days, and took from the hotel a suitcase and hand-bag belonging to the appellant, and carried the same to the sheriff’s office. The record is not exactly clear as to whether the suitcase and hand-bag. were taken from the room in the Royal Hotel occupied by the appellant, or from the lobby in the hotel where the appellant had placed them. Thereafter, -while the appellant was confined in the jail and before a preliminary hearing was had, he was brought to the sheriff’s office and the suitcase and hand-bag were then opened in his presence and in the presence of the county attorney and sheriff and two deputies. The contents of the bags consisted of some personal effects of the appellant, including a razor, some wearing apparel, and similar matters, and a very large amount of literature pertaining to the “I. W. W.” organization. At that time, the officers told the appellant to take anything of his personal property in the bags that he cared to take with him, and the appellant then took his. razor, brush, hone, and probably one or two other articles. He was asked if there was anything else that he wanted, and was told, if so, to take it; and he said he “guessed that was all he wanted.” The remaining contents of the two bags consisted of a large amount of books, pamphlets, letters, [100]*100buttons, badges, and similar matters pertaining to the organization, principles, and practices of the “I.W.W.” These comprised about 225 exhibits, which are set out in the record.
After his indictment, and prior to the trial, the appellant filed in said cause a petition for the return of all of said articles, setting up, under oath, the manner in which he claimed they were taken from him, and praying an order for their return. A resistance to this application was filed by the county attorney, and the petition for the return of the papers was denied by the court. Upon the trial of the cause, the contents of the said two suitcases were offered in evidence by the State. Objection thereto was interposed by the appellant, which was overruled. The appellant insists that the action of the lower court constituted error, both in admitting the exhibits in evidence and in refusing to order their restoration to appellant.
Assuming that the seizure of appellant’s said property was without lawful authority, the first pertinent question that arises is whether or not such fact alone rendered the property so taken inadmissible in evidence against the appellant.
A similar question has been before the courts of this country frequently, and it must be conceded that the decisions are by no means ufiiform on the subject. At an early day, courts and text-writers laid down the general rule that evidence that had been unlawfully obtained from a defendant might be used against him, if relevant and pértinent to the issue being tried.
The rule seems to be general that, where a defendant is personally searched at or about the time of his arrest, property taken from him which is. in any way connected with the crime charged or which may serve in identifying the prisoner may be used in evidence against him on a-trial. We have recognized such rule. Commercial Exch. Bank v. McLeod, 65 Iowa 665; State v. Lyon, 176 Iowa 171, 176. It is claimed, however, that the property offered in evidence in this case was obtained by an unlawful search of the premises occupied by the appellant, and that a different rule pertains in such a case..
Really, two propositions are involved at this point: (1) Is such evidence inadmissible; and (2) should the court, upon application, order the property so taken restored to the defendant ?
[101]*101Tlie first proposition suggested has been before the courts repeatedly, and with few exceptions the rule has been followed that evidence which is pertinent and relevant is admissible upon the trial of a defendant, even though the same was obtained by an unlawful search of defendant’s premises. A few illustrations will show the holdings of vai’ious courts on this question.
In Commonwealth v. Dana, 2 Metc. (Mass.) 329, an early case, certain lottery tickets had been seized illegally, and were offered in evidence. The court said:
“If the search warrant were illegal, or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done; but this is no good reason for excluding the papers seized as evidence, if they were pertinent to the issue, as they unquestionably were. When papers are offered in evidence, the court can take no notice how they were obtained, whether lawfully or unlawfully; nor would they form a collateral issue to determine that question. ’ ’
The question arose in Stevison v. Earnest, 80 Ill. 513, wherein the court said:
“It does not logically follow, however, that the records, being obtained, cannot be used as instruments of evidence; for the mere fact of [illegally] obtaining them does not change that which is written in them.”
Again, in Shields v. State, 104 Ala. 35, the court said:
‘ ‘ The law appoints the remedy for the redress of the wrong, but the exclusion of the evidence criminating the defendant is not within the scope of the remedy, or the measure of redress. Evidence is not infrequently obtained by methods which are reprehensible in good morals, offensive to fair dealing, subjecting it to unfavorable inferences, the party relying upon it must neutralize, to entitle it to full credence. And evidence is sometimes obtained under circumstances which meet with the unqualified disapprobation of the courts. The evidence, however unfairly and illegally obtained, is not subject to exclusion, if it be of facts in themselves relevant, except when a patty accused of crime has been compelled to do some positive, affirmative act inculpating himself; or an admission or confession has [102]*102been extorted from him by force, or drawn from him by appliances to his hopes or fears..”
In People v. Adams, 176 N. Y. 351, the defendant’s office was searched by officers, and private personal property belonging to the defendant was seized. It being material in the trial court, it was offered in evidence, and objection was made that it had been unlawfully seized, and was, therefore, inadmissible. The Court of Appeals of New York said:
“The underlying principle obviously is that the court, when engaged in trying a criminal cause, will not take notice of the manner in which witnesses have possessed themselves of papers or other articles of personal property which are material and properly offered in evidence. In the case before us, if there has been any illegal invasion of .the rights of this defendant, by x’eason of alleged unlawful searches and seizures of private papers, his remedy is in an indepexxdexit proceediixg not necessary to be considered at this time.”
It is unnecessary that we quote fx’oixx the great number of state authorities recogxxizing the admissibility of evidence obtained by illegal seizure. See, however, People v. Mayen, (Cal.) 205 Pac. 435; State v. Anderson, 31 Idaho 514 (174 Pac. 124); State v. Schmidt, 71 Kan. 862 (80 Pac. 948); State v. Flynn, 36 N. H. 64; People v. Aldorfer, 164 Mich. 676 (130 N. W. 351); State v. Reed, 53 Moxit. 292 (163 Pac. 477); Starchman v. State, 62 Ark. 538; State v. Griswold, 67 Conn. 290; Williams v. State, 100 Ga. 511; State v. Sawtelle, 66 N. H. 488 (32 Atl. 831); Gindrat v. People, 138 Ill. 103 (27 N. E. 1085); State v. Pomeroy, 130 Mo. 489, 497 (32 S. W. 1002); Benson v. State, 149 Ark. 633 (233 S. W. 758); Younger v. State, 80 Neb. 201 (114 N. W. 170); State v. Harley, 107 S. C. 304 (92 S. E. 1034); Hughes v. State, 145 Tenn. 544 (238 S. W. 588) ; State v. Madison, 23 S. D. 584 (122 N. W. 647) ; Salt Lake City v. Wight, (Utah) 205 Pac. 900; State v. Douglass, 20 W. Va. 770, 791; Rippey v. State, 86 Tex. Cr. Rep. 539 (219 S. W. 463; State v. Boyce, 38 Wash. 111 (80 Pac. 268) ; State v. Suiter, 78 Vt. 391 (63 Atl. 182); Chastang v. State, 83 Ala. 29 (3 So. 304); State v. Kaub, 15 Mo. App. 433.
In State v. Turner, 136 Am. St. 129, the authorities are collected in an exhaustive note.
[103]*103See, also, 1 Greenleaf on Evidence (16th Ed.), Section 254a; 3 Wigmore on Evidence, Section 2183.
The United States Supreme Court expressed the opposite view in Boyd v. United States, 116 U. S. 616, decided in 1885. This case has been the subject of frequent discussion by the courts of the country, as the cases cited supra will readily disclose, many state courts expressly refusing to follow it. Of course, the inferior Federal courts follow the rule laid down in the Boyd case.
The rule announced in the Boyd case has been reaffirmed by the .Supreme Court .of the United States in Adams v. New York, 192 U. S. 585; Holt v. United States, 218 U. S. 245; Gouled v. United States, 255 U. S. 298; Amos v. United States, 255 U. S. 313; Weeks v. United States, 232 U. S. 383; Silverthorne Lbr. Co. v. United States, 251 U. S. 385.
The holding in the Boyd case rests on the theory that the offered evidence was obtained from the defendant by unlawful search, in contravention of the Fourth Amendment to the Federal Constitution, which provides that:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
It has been frequently held that the Fourth Amendment to the Constitution of the United States applies only to the Federal government and its agencies. Weeks v. United States, supra; State v. Peterson, 27 Wyo. 185 (194 Pac. 342); Gindrat v. People, supra; City of Sioux Falls v. Walser, (S. D.) 187 N. W. 821; Brown v. New Jersey, 175 U. S. 172; People v. Mayen, supra; State v. Harley, supra; State v. District Court, 59 Mont. 600 (198 Pac. 362).
However, the Constitution of this state, Article 1, Section 8, is identical in its language with the Fourth Amendment to the Federal Constitution.
In State v. Van Tassel, 103 Iowa 6, we had before us the question of the admission in evidence of certain letters, papers, and documents surreptitiously taken from the premises and possession of the defendant, without his consent. It was contended that this compelled him' to give evidence against himself. We held that, under the record, the papers were not taken [104]*104surreptitiously, nor was the defendant compelled to give evidence against himself. We said: “The case is very different in its facts from Boyd v. United States, 116 U. S. 616.”
We again considered the question somewhat in the case of State v. Height, 117 Iowa 650. In that case, the defendant, while confined in jail, was subjected to an examination by certain physicians who were called as witnesses by the State, to testify in regard to the result of such examination. We cited the Boyd case as sustaining the proposition that evidence so obtained could not be used against the defendant upon the trial of the crime. The case really turns, however, upon the proposition that the officers acted unlawfully in compelling the defendant to submit to the examination, which was, in effect, requiring him to furnish evidence against himself.
The Boyd case was again before us for consideration in State v. Sheridan, 121 Iowa 164. In that case, a search warrant was obtained, and the defendant’s premises searched, and certain evidence obtained which was sought to be used in the trial against him. It was conceded that the search warrant was issued without authority of law, and that the search and seizure were wrongful, and for the sole purpose of obtaining testimony against the defendant. We said:
“For the purposes of this appeal we may admit it has often been held that the mere fact that evidence has been developed by the wrongful act or trespass of an officer or any other person will not necessarily render it inadmissible, but we are confronted by the further fact that the evidence objected to was obtained by a palpable abuse of judicial process.”
We held, citing the Boyd case, that the evidence so received should have been excluded upon the trial.
We had the question before us again recently in the case of State v. Rowley, (Iowa) 187 N. W. 7, in which we followed the rule of the Boyd case, as announced in the Height case and the Sheridan case. That case is now pending on rehearing before this court.
We are now squarely confronted with the proposition as to whether or not we will continue to follow the Supreme Court of the United States in the rule of the Boyd case. The consideration of such a proposition may well “give us pause.” [105]*105The question is of great importance in the administration of the criminal laws of the state.
Speaking of the Boyd case, Prof. Wigmore, in a recent article in the American Bar Association Journal, Vol. VIII, No. 8, p. 480, says:
“The foregoing doctrine [of the admissibility of evidence obtained by unlawful search] was never doubted until the appearance of the ill-starred majority opinion of Boyd v. United States, in 1885, which has exercised unhealthy influence upon subsequent judicial opinion in many states. That opinion, thoroughly incorrect in its historical assertions, and traveling outside the question at issue, advanced two fallacious conclusions, viz.: first, that the Fourth Amendment to the Constitution (prohibiting unreasonable search' and seizure) was so related to the Fifth Amendment (prohibiting compulsory self-incrimination) that the Fifth Amendment could be invoked by an accused to withhold from surrender doctuuents sought by even a lawful official search; and secondly, that documents obtained by unlawful official search could be excluded from evidence, as a consequence of the Fourth Amendment.”
We cannot, within the reasonable length of an opinion, attempt to review all of the many cases that have expressly repudiated the doctrine of the Boyd case. The very decided weight of the decisions of the courts of the several states is against the rule of the Boyd case, which may appropriately be designated as the “Federal rule.”
In addition to the cases cited supra, see also Siebert v. People, 143 Ill. 571, 583 (32 N. E. 431); Trask v. People, 151 Ill. 523 (38 N. E. 248); People v. Paisley, 288 Ill. 310 (123 N. E. 573); Lawrence v. State, 103 Md. 17 (63 Atl. 96); Commonwealth v. Tibbetts, 157 Mass. 519 (32 N. E. 910); State v. Mausert, 88 N. J. L. 286 (95 Atl. 991); State v. Wallace, 162 N. C. 622 (78 S. E. 1); Knight v. State, 16 Okla. Cr. 298 (182 Pac. 736).
Even some of the inferior Federal courts have been loath to follow the rule of the Boyd case, although it has been announced by the Supreme Court of the United States. See United States v. Snyder, 278 Fed. 650; United States v. O’Dowd, 273 Fed. 600.
[106]*106It cannot be denied that the overwhelming weight of authority in the state courts is against the rule announced in the Boyd case; The due administration of the criminal law would be seriously hampered, and in many cases entirely subverted, by a strict adherence to this rule. We would not detract one iota from the full protection vouchsafed to the citizen by the constitutional provisions. A trespassing officer is liable for all wrong done in an illegal search or seizure. The constitutional provision is a sacred right, and one which the courts will rigidly enforce; but that does not mean that the State, in the prosecution of crime, cannot use any proper evidence available to it, without stopping to conduct art independent inquiry in the criminal proceeding as to how that evidence was obtained. Great public interests are involved in the due and efficient prosecution of crime. The vital question is whether or not the evidence is competent and lALevant to the issue on trial.
The instant case furnishes a good example of the evil results that might readily follow from a rigid adherence to the rule of the Boyd case. The appellant was engaged in spreading the propaganda of the organization known as the “I. W. W.” He was arrested, and shortly thereafter his suitcases, were taken,' without a search warrant, from the hotel where he was staying. These suitcases contained a large amount of evidence which was relevant and of great importance to the State, as bearing on the issue of appellant’s guilt of the offense for which he was on trial. There is nothing to show that the officers knew, at the time of the seizure, that the suitcases contained this very important evidence. An information as the basis for a search warrant would necessarily have had to be predicated largely, if not wholly, on conjecture and suspicion. No one will question that, had this literature been seized in the presence of the appellant, when he was in the act of making a speech and distributing and dispensing the same; it would have been admissible on the trial of the criminal case. Why is it not equally admissible when seized a few minutes after his arrest, although not in his actual presence? It was just as germane to the question being tried, Suppose it had been stolen from the appellant, and then offered in evidence against him upon the trial of this case, — would it have been excluded? Certainly not. [107]*107Burdeau v. McDowell, 256 U. S. 465; Wigmore on Evidence, Section 2183.
As is said in Gindrat v. 1~eople, supra:
"Courts, in the administration of the criminal law, are iiot accustomed to be over-sensitive in regard to the sources from which evidence comes, and will avail themselves of all evidence that is competent and pertinent and not subversive of some constitutional or legal right."
The due enforcement of criminal law would be most seriously handicapped in many instances, if not wholly crippled, by a strict adherence to the rule contended for by appellant. The exhibits taken from app~llant's suitcases and offered in evidence upon the trial of this case were relevant to the question involved therein. They were, therefore, properly admissible, even though it is conceded that they were obtained by a search and seizure without warrant or strict legal authority. In this connection, it is also, perhaps, proper to observe that the constitutional provision applies only to "unreasonable searches and seizures.''
In Un'itcd $ta~os v. $nydor, supra, the court said:
"The amendment provides `not that no arrest, search, or seizure should be made without a warrant, but prescribes that there shall be no unreasonable search and seizure; in other words, that the people shall be secure in their persons, houses, papers, and effects against unreasonable searches and seizures; `not against all searches and seizures, but simply against un~ reasonable searches and seizures."
Notwithstanding our previous holdings, and notwithstand~ ing tha rule recognized by the Supreme Court of the United States, we are dispose~l to and do hold that the objection to this evidence, when offered in behalf of the State, on the ground that it was obtained by an unlawful search, was not well taken, and that the court did not err in overruling said. objection.
III. Furthermore, the appellant may well be held to have waived any right to claim that the exhibits in ~uestion could not be used in evidence against him. The suitcases and their contents were taken to the appellant, and he was asked to take therefrom anything he wanted. He removed a few articles, and left the re[108]*108mainder with the officers, without objection or protest. He could, and we think did, waive any right to insist that the exhibits could not be used against him. This he may do, even under the Federal rulé. Perlman v. United States, 247 U. S. 7.
IV.. It logically follows from the foregoing that the court did not err in refusing to grant appellant’s petition for a return of the property that had been seized. In the Weeks ease, the Supreme Court of the United States recognized this as a proper procedure. But not many state courts have followed this rule.
In State v. Mausert, supra, the Court of Errors and Appeals of New Jersey considered a case where a defendant was convicted of keeping a disorderly house. The defendant made application to the court for an order to direct the prosecutor to return to him a register of the hotel which, it was claimed, had been obtained by an officer of the state, who forcibly entered the defendant’s house and took away said register. The prosecutor admitted that the officer who took the book did not have a search warrant, and that the only warrant he held was a warrant for the apprehension of the defendant. The book was openly displayed on the counter at the hotel where the defendant was arrested. The court refused to order the book returned. The court reviewed the Boyd case and the Weeks case, and said:
“These books were in actual use as a means of carrying on an unlawful business, and were as much in defendant’s possession and under his control when arrested as if he had them under his arm and dropped them on the floor. It is not a case where papers were secreted and intended to -be kept private, nor of requiring the production of papers of like character; but rather, the taking of evidence of a crime then being committed, in the commission of which the books were a useful element.”
In State v. Hassan, 149 Iowa 518, we had before us a somewhat similar situation. We said:
“On February 12th, defendants filed a motion for leave to inspect certain exhibits introduced before the grand jury, in which it was alleged that certain merchandise belonging to defendants had been taken from them without their authority, [109]*109at the time of their arrest; that they were denied the right of access thereto; and that, without examination, they could not properly prepare their defense. This motion was overruled, and exception taken. This proposition is argued upon the theory that the overruling of the motion deprived defendants of some constitutional right; the thought being, as we understand it, that the taking of the goods constituted an unreasonable search and seizure, and that thereby, and by reason of the ruling denying them access to the goods, they were deprived of their liberty without due process of law. State v. Height, 117 Iowa 650, and Boyd v. United States, 116 U. S. 616 (6 Sup. Ct. Rep. 523, 29 L. Ed. 746), are cited in support of the proposition. Neither case is in point. When defendants were arrested, it was the duty of the sheriff to take and care for their property; and if, perchance, any of the property so taken, in itself or when considered with other circumstances, bore some evidence of defendants’ guilt, it was their misfortune. No unreasonable search or seizure was shown, nor were defendants deprived of any constitutional right. The trial court did not abuse its discretion in denying the motion. The indictment which was then pending against defendants was afterwards dismissed, and the motion was not renewed after the indictment on which the case was tried was returned. Again, there was no such showing regarding the necessity for the production of the property as would justify us in interfering with the order.”
Furthermore, the application for the return of the property was in the nature of an independent proceeding, wholly collateral to the issue involved in the trial upon the indictment in this ease. It is, to say the least, doubtful if we could review the ruling on this petition in an appeal from a conviction of the crime charged in the indictment. See People v. Mayen, supra.
We hold that the court did not err in denying the appellant’s application for a restoration of thé seized property, before trial.
[110]*110[109]*109Y. The State produced as a witness one McDonald, who testified that he lived in the city of Chicago, and was a police officer of said city, and for five years “had been detailed in [110]*110cliarge of the field work of all revolutionary organizations that exist in the city of Chicago, and their propaganda.” He testified that he had made a special investigation and study of the principles and purposes of the “I.W.W.” organization, and thereafter, in answer to interrogatories, testified at length in regard to his experiences with said organization, and its teachings and purposes as so learned by him.
We think the evidence was proper. The testimony of the witness was largely corroborated by the literature previously referred to, offered in evidence by .the State, disclosing the teachings and purposes of the ‘ ‘ I.W.W. ’ ’ organization.
In State v. Laundy, (Ore.) 204 Pac. 958, the defendant was indicted for the crime of criminal syndicalism. In this case, the defendant was arrested in a public hall, and a large number of exhibits pertaining to the “I.W.W.” organization were gathered -up at the time of the arrest, and were introduced in evidence. The court recognized the general rule that the arresting officers may, at the time of making the arrest, lawfully take articles in the control of the prisoner, if they supply evidence of guilt.
In this case, the State offered in evidence the testimony of witnesses concerning the possession and distribution in the state of Washington of literature contributed to the “I.W.W.” The court said:
“The organization described in the indictment is one which had 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 mat[111]*111ter 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.”
See, also, State v. Pettilla, 116 Wash. 589 (200 Pac. 332).
VI. Error is predicated upon the admission in evidence of a letter addressed to the appellant. •
It appears that this letter was found upon the person'of the appellant at the time of his arrest; that it was a letter addressed to him, and contained the check which the appellant was seeking to have cashed at or about the time of his arrest. It appears that the appellant had not on¡y reeeived this letter containing .the check, but had acted upon it, by appropriating the check and endeavoring to cash the same. The fact of its being in the possession of the appellant when he was arrested, and that he apparently had accepted it and acquiesced in it, and was acting upon it in endeavoring to cash the cheek therein contained, was a circumstance that might properly be considered by the jury in the case, as tending to show appellant’s connection with the organization known as the “I.W.W.” The appellant could not be bound by statements of the writer of said letter, that in no way connected the appellant with the organization referred to. This would, of course, be hearsay. The purpose for which the letter could be considered by the jury would be a matter for the court to cover by instruction.
Upon the record as presented, we find no error in the admission of this exhibit.
VII. The statute providing for the punishment of criminal syndicalism did not go into effect until the 4th day of July, 1919.
The State offered evidence in regard to the acts, teachings, propaganda, and other similar matters of the “I.W.W.” organization prior to the said 4th day of July, 1919. Much is said in argument in regard to this matter, and there is an extensive citation of authorities by appellant in regard to the passage of an ex-[112]*112post-facto law, and also in regard to the admission in evidence of proof of other similar offenses against a' defendant who is on tidal, charged with a crime. None of this evidence tended to show any act on the part of the appellant prior to the 4th day of July, 1919, nor was it offered for any such purpose. The appellant could not be prosecuted under the statute in question for anything he did prior to the time such statute became effective. The purpose, however, of this evidence was to show the beliefs, teachings, and propaganda of the organization known, as'the “I.W.W.,” of which it was admitted the appellant was a member. There was no attempt to charge the appellant with having violated this statute by doing any unlawful act prior to July 4, 1919; but it was admissible to show that, prior to said time, the organization of which he was a member believed in and promulgated certain doctrines and teachings, and that, since the statute became effective in Iowa, the appellant was a member of said organization, and was since said time promulgating the principles, practices, and doctrines of the said organization. These, once having been established and proved to have existed prior to July 4, 1919, were presumed to have continued subsequent to. that date. We think the evidence was admissible for the purpose above suggested, and it does not appear from the record that it was offered or used for any other purpose. Furthermore, the court in' the instant case instructed the jury that the appellant could be liable only for acts committed by him since the passage of the statute under which the indictment was brought.
VIII. The court gave the jury the following instruction:
“A reasonable doubt is, as the words import, a doubt of guilt which is founded in reason. It must be a real, substantial doubt, and not one that is merely 'fanciful or imaginary. It must not be sought after, nor should the evideuce be strained to create or induce it; for when it is such a doubt as the law recognizes, it must arise fairly and naturally in the mind, upon a full consideration of all the facts and circumstances shown in the evidence in the case. If, upon such consideration, the mind hesitates and is unable to arrive at a conclusion of guilt that is entirely satisfactory to itself, this will be a reason[113]*113able doubt; and defendant should be given the benefit of it as such. If, however, the facts and circumstances proved are, in your judgment, so clear and satisfactory as to exclude from your minds all such doubts, they should be taken as trae; and if they go to the whole ease, and are against the defendant, you should convict of the offense as charged, as hereinafter stated. ’ ’
We cannot approve of this instruction. A reasonable doubt is not necessarily one that arises from a consideration of the facts and circumstances as shown in evidence in the case. A reasonable doubt, as a general rule, arises from a want of evidence. This instruction is similar in effect to one disapproved by us in State v. Smith, 192 Iowa 218 and in State v. Smith, 194 Iowa 639. Such an instruction should be avoided, although of itself it would not constitute reversible error.
IX. Complaint is made of Instruction 4, wherein the court told the jury the provisions of the statute defining criminal syndicalism, and instructed the jury that the State must satisfy ^he beyond a reasonable doubt, from the evidence, that the advocacy of the doctrines of the “I.W.W.” is a violation of the statutes above referred to.
' It is argued that this instruction made the jury the judges of the law. The objection is not well taken. The instructions must be read as a whole. This instruction was merely preliminary, in advising the jury of the particular statute under which the'indictment was brought. Subsequent instructions definitely informed the jury in regard to the acts which must be proved by the State beyond a reasonable doubt, in order -to justify a conviction of the appellant for violation of the statute.
We find no error at this point.
X. Complaint is made of the giving of Instruction No. 5, defining the word “sabotage.”
The statute, Chapter 382, Acts of the Thirty-eighth General Assembly, among other things declares that “criminal syndicalism is the doctrine that advocates crime, sabotage,” etc.
The court gave the jury the following instruction:
[114]*114[113]*113“As to the meaning of the word ‘sabotage,’ you are instructed that, as here used, it means the practice which teaches the withdrawal of efficiency: that is, either to slacken up and [114]*114interfere with quality or production, or give poor 'service, or the destruction, directly or indirectly, or injury to the property rights of an empi0yer by an employee, or one acting for him, in the furtherance of industrial or political ends, or his own pecuniary interest.”
Our statute makes no definition of the word “sabotage.” The Century dictionary defines it as follows:
“Malicious injury done by an employee to the industrial establishment of his employer.”
Webster’s New International Dictionary defines it as “malicious waste or destruction of an employer’s property by workmen during labor troubles.”
The instruction given by the court was too broad and inclusive. It did not conform to the usual and approved definitions of the word “sabotage.” As used in the statute, the word “sabotage” necessarily includes two elements: (1) malice and (2) injury to property. Neither of these elements was incorporated in the definition given by the court, and other elements were incorporated.
• The instruction was erroneous. We think it was prejudicial to the appellant.
XI. By giving Instruction No. 6, the court used the following language:
“But if the aims and purposes of the association to which the defendant belongs and its teachings and practices are' all legitimate and peaceful, and that no injurious consequences can reasonably be apprehended, and does not come wrthin the meaning of criminal syndicalism, as defined, then the defendant is not guilty, and you should acquit him.”
The point is urged that the clause “and that no injurious consequences can reasonably be apprehended” left it to the jury to determine what might be “injurious consequences” that might follow from the teachings and practices of the “I.W.W.” The criticised clause should have been omitted from the instruction. It opened a door for the jury to speculate as to what “injurious consequences” they thought might be apprehended [115]*115from the teachings of the association. This was an unwarranted latitude. We cannot say that it was nonprejudieial.
The giving of this instruction was error.
XII. Complaint is made of the following portion of Instruction No. 11: •
“It is a fair and reasonable rule that, when a person joins or becomes a member of a conspiracy or association, that he adopts all the tenets, beliefs, and plans of such company or association as his own; and is as much responsi- ’ ^or restL^s and doings of such association as are the original members thereof. ’ ’
The appellant criticises this portion of the instruction. When standing isolated and alone, as an abstract proposition, this clause may be subject to criticism. In Commonwealth v. Hunt, 4 Metc. (45 Mass.) 111, the Supreme Court of Massachusetts, speaking by Chief Justice Shaw, said:
“But in order to charge all those who become members of an association with the guilt of a criminal conspiracy, it must be averred and proved that the actual, if not the avowed, object of the association was criminal. An association may be formed, the declared objects of which are innocent and laudable, and yet they may have secret articles, or an agreement communicated only to the members, by which they are banded together for purposes injurious to the peace of society or the rights of its members. Such would undoubtedly be a criminal conspiracy, on proof of the fact, however meritorious and praiseworthy the declared objects might be. The law is not to be hoodwinked.by colorable pretenses. It looks at truth and reality, through whatever disguise it may assume. But to make such an association, ostensibly innocent, the subject -of prosecution as a criminal conspiracy, the secret agreement which makes it so is to be averred and proved, as the gist of the offense. But when an association is formed for purposes actually innocent, and after-wards its powers are abused by those who have the control and management of it, to purposes of oppression and injustice, it will be criminal in those who thus misuse it or give consent thereto, but not in the other members of the association. ’ ’
There was no claim in the instant case, however, that the “I.W.W.” was formed for purposes actually innocent, and that [116]*116afterwards its powers were abused by those in control. Appellant admitted his membership in the organization, and also his knowledge of its practices, objects, and purposes, and his full sympathy therewith. As applied to the facts in the instant case, the instruction was pertinent and proper.
XIII. Other errors are assigned in regard to portions of other instructions that were given by the court, and also in regard to the refusal to give certain instructions that were requested by the appellant. •
Nearly every instruction is dissected by appellant’s counsel, and the several parts subjected to microscopic examination. Most of the objections urged are highly technical and hypercritical. The subject-matter of the requested instructions, in so far as they embodied correct propositions of law, was covered by the instructions given by the court. The alleged errors are not likely to occur upon a retrial. The constitutionality of the statute is not challenged. With the wisdom of its enactment, the courts have no concern.
For the errors pointed out, the judgment of the district court is — Reversed.
Evans, Stevens, Arthur, and De Graee, JJ., concur.
Preston, C. J., and Weaver, J., concur in part and dissent in part.