State v. Laundy | Cases | Westlaw

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

*455 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 **963 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 4, § 20, is mandatory, yet the Constitution must be reasonably and liberally construed to sustain legislation not within the mischief aimed against.

“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.”

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.

“Every one 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.Law, 120, 91 Atl. 111. At the hearing it was argued, on the authority of Ex parte Smith, 135 Mo. 223, 36 S.W. 629, 33 L.R.A. 606, 58 Am.St.Rep. 576, 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.

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

The state Constitution (article 1, § 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, 8 U.S. (4 Cranch) 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.”

*461 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, 39 Sup.Ct. 249, 63 L.Ed. 561, the plaintiff in error, who had been convicted of a violation of Espionage Act June 15, 1917, c. 30, tit. 1, § 3, 40 Stat. 217, 219 (U.S.Comp.St.1918, U.S.Comp.St.Ann.Supp.1919, art. 10212c), 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.”

“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 1, § 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 **965 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 *462 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, 39 Sup.Ct. 249, 250 (63 L.Ed. 561), “to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counseling 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 58 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. 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.Law, 75, 91 Atl. 586; Schenck v. United States, 249 U.S. 47, 39 Sup.Ct. 247, 63 L.Ed. 470; Frohwerk v. United States, 249 U.S. 204, 39 Sup.Ct. 249, 63 L.Ed. 561; 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, 35 Sup.Ct. 383, 59 L.Ed. 573; Ex parte *463 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.

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 *464 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. **966 People v. Malley (Cal.App.) 194 Pac. 50; State v. Quinlan, 86 N.J.Law, 120, 123, 91 Atl. 111; *465 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, 29 Sup.Ct. 220, 53 L.Ed. 417. 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.Law, 120, 91 Atl. 111.

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

“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—

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 which 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 *471 “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 **968 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, 22 N.E. 471, 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, *472 fermented and other intoxicating liquors, and did then and there contract with G.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 Supreme 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 Supreme Court, reads as follows:

“Where the statute makes either of two or more distinct 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 (Fla.) 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 *473 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 one 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 *474 as constituting one transaction, or he 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. House, 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 **969 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 two 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 in case it does so it is bad for duplicity, if the offenses *475 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, § 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, 21 L.R.A.(N.S.) 56, 132 Am.St.Rep. 699; 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, 681; Seattle v. Molin, 99 Wash. 210, 169 Pac. 318; 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.R.) 56 S.W. 918; State v. Sutcliffe, 18 R.I. 53, 25 Atl. 654; People v. Johnson, 81 Mich. 573, 45 N.W. 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; Raine v. State, 143 Tenn. 168, 226 S.W. 189; Gantling v. State, 40 Fla. 237, *476 23 South. 857; 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.

“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” signify 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 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 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?

*477 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 50 or 55 persons was being held in a hall at 128 ½ 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 **970 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 *478 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 ½ 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. *479 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 of November 11, 1919. In other words, if the act of assembling on 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.

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 employés, and that the game runs continuously from April 26 to November 11 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 26 and then on November 11 played again, the two acts constituted a single crime? A careful reading of the opinion in State v. Carr, 6 Or. 134, 135, makes **971 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 *481 (section 2112, Or.L.) also declares that it is unlawful for any person to maintain a nickle-in-the-slot machine, and it is likewise unlawful for any person to play or use a nickle-in-the-slot machine. Suppose A. maintains such a machine from April 26 to November 11, and suppose B. plays the machine on April 26 and again on November 11. If it be said that one of the purposes of the statute is to prevent the existence and use of the nickle-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 nickle-in-the-slot machine on April 26 and the act of playing on November 11 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 26 and the act of assembling on November 11 contribute towards the continued existence of the Industrial Workers of the World and tend to defeat the purpose of the statute. The nickle-in-the-slot machine continued to exist from April 26 to November 11; and so, too, did the Industrial Workers of the World continue to exist from April 26 to November 11. Can it be said that the continued existence of the nickle-in-the-slot machine spanned the interval of time between April 26 and November 11 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 26 the defendant joined a given branch of the I.W.W. in Multnomah county and on November 11 he assembled *482 with another branch in Lake county; could 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 26 and the act of assembling in that county on November 11 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 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 helping, and if at the *483 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 would 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. 211, 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 *484 state. The defendant claimed that the owner **972 of the hall at 128 ½ 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 bookcase outside of the railing, as there wasn't storeroom inside of the railing”; and in answer to the question, “Did you have any of their literature hanging on the wall?” the defendant said *485 “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 the 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 ½ Second street on the night of November 11, 1919. Concerning 15 of these 37 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 15 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 these 15 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 *486 received in evidence was merely the imprint of a seal, and another was the imprint of a stamp, and so these 2 exhibits may be eliminated from further notice. Exhibit No. 48 was found 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 “Counsel 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 13 exhibits found in the hall and numbered 5, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, and 31 included publications entitled, in the order named, thus: The Evidence and Cross-Examination of William D. Haywood, Tridon's New Unionism, The General 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 (Gen.Def.Ed.), I.W.W. Songs (15th Ed.). Exhibit 29 was found in Myers' desk, but the remainder of these 13 exhibits were found in some instances hanging on the wall, and in other instances on tables or out in the *487 open. The number of copies of the different publications varied from 1 to 300. A.E. Allen and William J. Josh gave testimony concerning each of these 13 exhibits, and James F. Mitchell gave testimony concerning one of them, Exhibit 29. Allen testified **973 that he joined the I.W.W. at Seattle, Wash., 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, Wash., 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, Wash. Referring to this group of 13 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, Wash. 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 *488 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 that “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 ½ 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, Wash. 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 and 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 12 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 *489 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.F. 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 2 of the exhibits included in this group of 12. Gouch was United States immigration inspector at Astoria, Or. 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 50 to 1,000 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 *490 the defendant's membership book. The remaining Exhibit 43, need not be noticed further.

“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.”

*492 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 37 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 4 of the amendments to the federal Constitution, forbidding unreasonable searches and seizures, and upon that part of article 5 of the same amendments which protects every person from being compelled to be a witness against himself. The defendant also relies upon article 1, § 9, of our state Constitution, which, although not in the identical language, is in effect and meaning the same as article 4 of the federal Constitution; and, furthermore he has invoked the protection of that portion of article 1, § 12, of the state Constitution which declares that no person shall be compelled in any criminal prosecution to testify against himself.

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

See, also, Weeks v. United States, 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann.Cas. 1915C, 1177.

The inquiry is: Were the rights of the defendant violated when the policemen removed the 37 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:

**975 “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.

“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 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.

*496 [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, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann.Cas. 1915C, 1177; State v. Edwards, 51 W.Va. 220, 41 S.E. 429, 59 L.R.A. 465; 1 Wharton's Criminal Procedure (10th 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.

“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 **977 circumspection on his part would not enable him to avoid.”

*501 “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.”

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

“Relative 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 *502 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 11th 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 11. 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.