People v. Mintz , 106 Cal. App. 725 ( 1930 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The appellants were charged, in the first count of the information, with a violation of the provisions of section 403a of the Penal Code; in the second count, with a conspiracy to violate the provisions of that section. The defendant Yetta Stromberg was found guilty upon the first count, and all of the defendants appealing were found guilty upon the second count. From the judgments upon conviction these defendants appeal.

The part of section 403a necessary to be considered in passing upon the questions raised by the appeal, reads as follows:

"Any person who displays a red flag, . . . in any meeting place, . . . as an aid to propaganda that is of a seditious character is guilty of a felony."

[1] We shall consider first the question raised as to the sufficiency of the second count of the information, upon which all of the defendants were convicted. It is agreed by the appellants, and admitted by respondent, that the judgment on this count, alleging a conspiracy, cannot be sustained, for the reason that no overt act of the conspirators, in furtherance of the object of their alleged agreement, is charged.

"No agreement amounts to conspiracy, unless some overt act, besides such agreement, be done within this state, to effect the object thereof, . . . (Pen. Code, sec. 184)."

"Upon a trial for conspiracy . . . the defendant cannot be convicted unless one or more overt acts are expressly alleged in the indictment or information, . . . (Id., sec. 1104)."

This disposes of the case except as to the judgment against defendant Yetta Stromberg upon the first count.

In the briefs filed by appellants it was urged that the trial court committed errors in the charge to the jury, but in the oral argument to this court their counsel stated that he was satisfied that the instructions were correct, and waived any claim of error on that account.

From the evidence introduced at the trial it appears that there was an organization in the city of Los Angeles known as the Pioneer Summer Camp Conference, an association composed of independent organizations, some of which were communistic in character, the others having members who were communists. The purpose for which the Camp Conference was organized was to establish a summer camp for children of the so-called "working class."

Several meetings of the Conference were had to make arrangements for the camp and its organization, which were concluded at a meeting held on July 8, 1929. Grounds for the camp were based on the hills in San Bernardino County, and it was established with the gathering together there of a number of children under the care of the defendants, and the leadership of the defendant Stromberg, who was a member of one of the communistic organizations composing the Camp Conference. In the minutes of the meeting on the above date which were introduced in evidence, as part of the directions for preparation for the camp appears this entry:

"Library: Need pamphlets and books. Try to get some at Communist Party Headquarters."

In the conduct of the daily camp program, the first order was that the children, when they arose about 6:30 in the morning, stood by their cots and saluted a red flag on which was a device of sickle and hammer, and announced themselves "ready." This flag-raising ceremony was under the direction of the defendant Stromberg. The flag used was shown to be the flag of the communist party, and of the "Third International," with which the party was affiliated, and of the Soviet Government of Russia. This defendant, as a witness for the defendants, testified that she had instructed the children in taking the communist pledge, which was in these words:

"I pledge allegiance to the workers' red flag, and to the cause for which it stands, one aim throughout our lives, freedom for the working class."

In the camp library were found a number of leaflets, tracts and papers of communistic literature, contributed by participating organizations, which were introduced in evidence over the objection of the defendants. This library was in charge of the defendant Stromberg. There was no evidence that any of the books or papers were ever read by the children. It does appear, however, that there were daily study hours, conducted by the defendant Stromberg, in which history from the communistic standpoint was taught.

Excerpts from these exhibits were read to the jury over defendants' objection, many of them advocating armed force to overthrow the present economic and governmental organization of the country. One quotation will illustrate many of the propositions either openly stated or broadly suggested by the texts.

"Communists do not think it necessary to conceal their views and intentions. They openly declare that their goal can be achieved only by the violent overthrow of the whole of the present social system."

[2] All of these documents were properly admitted in evidence as tending to show that the camp was conducted as a school of armed revolutionary propaganda and that the flag was exhibited as a symbol of that teaching, and the evidence, if believed by the jury, was sufficient to support their verdict.

It is contended also that the evidence was insufficient because it was not proven that the place where the camp was located was a "public place." The expressions "public place" and "meeting place" are used in the statute in the alternative. It is sufficient to say that it could hardly be claimed that the place where these children and their attendants and instructor met was not a "meeting" place, whether it was public or not.

[3] Misconduct on the part of the district attorney in his argument to the jury is laid as one of the grounds for reversal of the case. The district attorney began a statement that the trial was being watched with great interest not only by citizens of the county, but of the state and nation, when he was interrupted by defendants' counsel with an objection. The judge struck out the statement, and admonished the jury to disregard it, as there was no such evidence before them, and instructed the district attorney to confine himself to the evidence. It is not likely that any jury would be much impressed by such a remark, and the prompt action of the court would certainly have dispelled any prejudicial effect on their minds.

[4] A number of other statements of the district attorney are cited in support of appellants' contention, but, while some of them were rather florid and had perhaps as well have been left unsaid, we do not think them of such a character as to have been prejudicial to the right of the defendants to a fair trial. No objection to any of these statements was made at the time, and they cannot, for that reason, be considered on this appeal. (People v. Ong Mon Foo, 182 Cal. 697 [189 P. 690]; People v. Steelik, 187 Cal. 361 [203 P. 78].)

[5] During a midday recess of the court one of the jurors was seen by appellants' counsel in conversation with a witness for the prosecution. This conversation is assigned by appellants as misconduct of the juror, for which they should have been granted a new trial. After the recess, appellants' counsel cross-examined the witness, who gave a circumstantial account of the conversation. There was nothing in it from which it might be even remotely inferred that it could have influenced the juror, as the subject of the trial was not mentioned between them.

[6] Appellants contend that the trial judge was guilty of prejudicial misconduct in cross-examining one of the defendants other than the defendant Stromberg. The questions asked were whether the witness had ever forbidden or discouraged the children from taking a pledge to the flag which the defendants were charged with displaying, or knew of any order having been given to them by anyone in charge of the camp, forbidding the display of the flag or pledge of allegiance to it. There was nothing in the form of the questions suggesting any prejudice on the part of the judge, and as appellants' counsel states that he was eminently fair in his attitude toward the defendants throughout the trial the incident could have had no prejudicial effect on the minds of the jury.

The final contention of appellant is that section 403a is void as in contravention of the Fourteenth Amendment to the federal Constitution and of section 9 of article I of the California Constitution. The part of the Fourteenth Amendment which might be applicable to the case is the provision that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Among these privileges, undoubtedly, are the rights of free speech and of lawful assembly, which are guaranteed by our state Constitution. No matter how revolutionary, in the general sense, a doctrine may be, of our present form of government, if its adoption in practice is advocated by peaceful and constitutional means, — and our Constitutions, state and national, provide the means, — the open and public advocacy of such doctrine cannot be interfered with.

But it is inconceivable that the state has not the right to prohibit by penal laws the wilful and deliberate training of traitors to itself under the guise of protection of the right of free speech, particularly, as in this case, among those who by reason of youth and inexperience have no chance to form an independent judgment. Appellants' counsel concedes that sedition laws which "interdict against the use of force or violence" are consistently upheld by the courts, and all of the authorities cited by him support that proposition.

"Any person who displays a red flag, . . . in any meeting place, . . . as an aid to propaganda that is of a seditious character is guilty of a felony."

Sedition is defined as the stirring up of disorder in the state, tending toward treason, but lacking an overt act. Certainly the "advocacy of force or violence" in overturning the government of a state falls within that definition.

The statute is constitutional, and the conviction under it must be upheld.

The judgment of conviction of the defendants on the second count of the information is reversed.

The judgment of conviction of the defendant Yetta Stromberg on the first count of the information is affirmed.