People v. Armentrout | Cases | Westlaw

In three complaints the five defendants were charged with the violation of two sections *764 of what is known as the Los Angeles city “anti–picketing” ordinance. Ordinance No. 20586 N. S. The first count of each of these complaints charged violation of section 1 through the making of loud and unusual noises for the purpose of inducing, influencing, and attempting to induce and influence, persons to refrain from entering the Rialto Theatre at 812 South Broadway, in the city of Los Angeles. Defendants Thomas W. Armentrout, Joseph P. Dufrane, and James Doyle are charged with the commission of the offense on December 3, 1930. No. 19535. In another complaint, Ernest Apac and Joe Hough are charged with the commission of the offense of December 4, 1930. No. 19537. In a third complaint, Joe Hough and James Doyle are charged with the commission of the offense on December 11, 1930. No. 19735. As to the second count, which charged loitering and picketing, the trial court granted a new trial. The defendants were found guilty by a jury, and judgment was pronounced by the court on March 24, 1931. The defendant Armentrout was fined $250, Dufrane was fined $50, the others were fined $25, upon count I of the complaint. As to count II the trial court granted a new trial.

The determination of the sufficiency of the evidence to sustain the conviction requires a discussion of the section 1 of the anti–picketing ordinance under which the prosecution was had. Before doing so, however, it is well to state briefly that the defendant Armentrout was the assistant business manager of the Projectionists' Union, consisting of motion picture machine operators. The union was engaged in a controversy with the proprietor of the Rialto Theatre, who had locked out the members of the union, whom he had previously employed. For several weeks prior to the dates covered by the complaints, newsboys had been stationed by Dufrane, acting as circulation manager, upon the street, at the north and south property line of the theater, to sell copies of the Los Angeles Citizen, a newspaper of general circulation, published by the labor movement in Los Angeles, and to cry the headlines of the newspaper. On November 28, 1930, the editor of the newspaper issued, at the request of T. H. Eckerson, business manager of the union, a special edition of 500 copies, which contained *765 all the material published in the regular edition, except that the front page had been changed by printing thereon in large type headlines: “Trade Unionists and their families and friends will need no further information to have them decide that they do not patronize the Rialto Theatre because it is on the unfair list of Organized Labor. By T. H. Eckerson, Business Representative of the Moving Picture Projectionists Union No. 150.” The front page also carried a banner line in large type: “Rialto, Broadway are yet on the unfair list.” On page 3 of this edition was the article relating to the controversy, which appeared also in the regular edition.

For crying out loud certain words claimed to be the headlines of this special edition, the prosecution was instituted. And it is the contention of the defendants that they were merely selling newspapers, and that, assuming they were making loud and unusual noises in so doing, these were not unusual, but such as are made by newsboys everywhere, and are clearly recognized and legalized by the exception to what it known as the “ballyhoo” or street advertising ordinance of the city of Los Angeles. Ordinance No. 6859 N. S.

In passing upon this contention, it is well to consider the anti–picketing ordinance, in the light of certain rights of laboring men which are recognized by law, and the right of every citizen to speak freely in peace time, without being subjected to legislative or administrative restrictions, not covered by the law of libel, contempt, and/or regulatory measures passed pursuant to the police power. Section 1 of the ordinance reads: “It shall be unlawful for any person, in or upon any public street, alley or public place in the City of Los Angeles, to make any loud or unusual noise, or to speak in a loud or unusual tone or to cry out or proclaim, for the purposes of **559 inducing or influencing, or attempting to induce or influence, any person to refrain from entering any works or factory or any place of business or employment, or for the purpose of inducing or influencing, or attempting to induce or influence, any person to refrain from purchasing or using any goods, wares, merchandize or other article or articles, or for the purpose of inducing or influencing, or attempting to induce or influence, any person to refrain *766 from doing or performing any service or labor in any works, factory, place of business or employment, or for the purpose of intimidating, threatening or coercing any person who is performing, seeking or obtaining service or labor in any works, factory, place of business or employment.”

The ordinance has been declared a valid exercise of the police power. Matter of Williams, 158 Cal. 550, 111 P. 1035. Similar ordinances have been upheld elsewhere. Thomas v. Indianapolis, 195 Ind. 440, 145 N. E. 550, 35 A. L. R. 1194; Ex parte Stout, 82 Tex. Cr. R. 183, 198 S. W. 967, L. R. A. 1918C, 277; Watters v. Indianapolis, 191 Ind. 671, 134 N. E. 482. See note, “The boycott as a weapon in industrial dispute,” 16 A. L. R. 230, 27 A. L. R. 651, 6 A. L. R. 909.

“After striking, the employees may engage in a boycott, as that word is here employed. As here employed it means not only the right to the concerted withdrawal of social and business intercourse, but the right by all legitimate means of fair publication, and fair oral or written persuasion, to induce others interested in or sympathetic with their cause, to withdraw their social intercourse and business patronage from the employer. They may go even further than this, and request of another that he withdraw his patronage from the employer, and may use the moral intimidation and coercion of threatening a like boycott against him if he refuse so to do. This last proposition necessarily involves the bringing into a labor dispute between A and B, C, who has no difference with either. It contemplates that C, upon the request of B, and under the moral intimidation lest B boycott him, may thus be constrained to withdraw his patronage from A, with whom he has no controversy. * * * In this respect this court recognizes *767 no substantial distinction between the so–called primary and secondary boycott. Each rests upon the right of the union to withdraw its patronage from its employer and to induce by fair means any and all other persons to do the same, and in exercise of those means, as the unions would have the unquestioned right to withhold their patronage from a third person who continued to deal with their employer, so they have the unquestioned right to notify such third person that they will withdraw their patronage if he continues so to deal.” Pierce v. Stablemen's Union, 156 Cal. 70, 76, 77, 103 P. 324.

“Labor unions are recognized by the Clayton Act as legal when instituted for mutual help and lawfully carrying out their legitimate objects. They have long been thus recognized by the courts. They were organized out of the necessities of the situation. A single employee was helpless in dealing with an employer. He was dependent ordinarily on his daily wage for the maintenance of himself and family. If the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and to resist arbitrary and unfair treatment. Union was essential to give laborers opportunity to deal on equality with their employer. They united to exert influence upon him and to leave him in a body in order by this inconvenience to induce him to make better terms with them. They were withholding their labor of economic value to make him pay what they thought it was worth. The right to combine for such a lawful purpose has in many years not been denied by any court. The strike became a lawful instrument in a lawful economic struggle or competition between employer and employees as to the share or division between them of the joint product of labor and capital. To render this combination at all effective, employees must make their combination extend beyond one shop. It is helpful to have as many as may be in the same trade in the same community united, because in the competition between employers they are bound to be affected by the standard of wages of their trade in the neighborhood. Therefore, they may use all lawful propaganda to enlarge their membership and especially among those whose labor at lower wages will injure their whole guild. It is impossible to hold such persuasion and propaganda without *768 more, to be without excuse and malicious.” American Steel Foundries v. Tri–City Central Trades Council, 257 U. S. 184, 42 S. Ct. 72, 66 L. Ed. 189, 27 A. L. R. 360; Sayre's Cases on Labor Law, 213, 219, 220.

“So, also, the laborers have the right to fix a price upon their labor, and to refuse to work unless that price is obtained. Singly, or in combination, they have this right. They may organize in order to improve their condition and secure better wages. They may use persuasion to induce men to join their organization or to refuse to work except for an established wage. They may present their cause to the public in newspapers or circulars **560 in a peaceable way, and with no attempt at coercion. If the effect in such case is ruin to the employer, it is damnum absque injuria, for they have only exercised their legal rights.” Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 77 N. W. 13, 42 L. R. A. 407, 415, 74 Am. St. Rep. 421.

“Those who labor for wages have certain rights equally unquestioned. They may contract for employment on whatever terms they see fit, and, unless restrained by a binding contract, may cease employment when they please. They have a right to form unions for the purpose of improving their economic and social conditions, or to refrain from joining such unions if they choose. They have a right to strike in concert when the object of the strike is for their collective benefit. They have a right to acquaint the public with the fact of its existence and the causes thereof, and appeal for sympathetic aid by a request to withhold patronage. * * *

“It is clear that any resort to the primary boycott, if in any degree successful, will result in damage to the business of the person boycotted; but, where it is lawfully conducted, this is one of the inconveniences for which the law does not afford a remedy.” Robison v. Hotel & Restaurant Employees Local No. 782, 35 Idaho, 418, 207 P. 132, 27 A. L. R. 642.

“Liberty of circulation is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.” Ex parte Jackson, 96 U. S. 727, 24 L. Ed. 877, 879.

*769 “The word ‘publish’ ordinarily means to disclose, reveal, proclaim, circulate or make public.” In re Monrovia Evening Post, 199 Cal. 263, 266, 248 P. 1017.

The portion of the ordinance under which the defendants stand convicted was aimed more at boycotting than at picketing. It was aimed at oral means of inducing persons not to enter the premises or trade or work upon them. The use of printed means is covered by section 2. The Supreme Court has expressed doubts about the constitutionality of that section, particularly as it applies to “loitering.” Matter of Williams, supra. We take it that even that section, in so far as it prohibits the use of banners, signs, and other similar physical means of persuasion, was aimed at banners or signs or circulars which are exhibited or offered free and not those which are, like a newspaper, offered for sale. The persuasion at which the section is directed is the direct persuasion not to patronize or work, and not the indirect persuasion which comes from adhering to a cause by being convinced of its justness. Were it othwise, if *770 a labor union should induce a newspaper of general circulation to publish an article in advocacy of its cause, in the course of a labor difficulty, the circulation of the newspaper in the vicinity of another's place of business might be entirely prohibited upon the ground that the reader might by reading it be convinced of the rightness of the union's cause and be induced to refuse to patronize or work. At the oral argument counsel for the people contended for such power. But we know of no decision which would recognize such right. The statement in Crouch v. Central Labor Council, 134 Or. 612, 293 P. 729, to the effect that the display of a newspaper is “equivalent to carrying a banner or wearing a sash with objectionable reference” and that such display might be prohibited, was not made in an action under a statute or ordinance prohibiting the doing of the act. It arose in a proceeding in equity. The same court, in interpreting an anti–picketing ordinance has held that such an ordinance cannot be sustained if it denies the lawful doing of a lawful act, such as the right to strike. Hall v. Johnson, 87 Or. 21, 169 P. 515, Ann. Cas. 1918E, 49. And while courts have upheld laws aimed at the suppression of particular issues of indecent publications we doubt if any constitutional authority or principle could be found which would sustain an ordinance which sought to suppress the circulation of a newspaper in the vicinity of a place of business, merely because its purchase by prospective patrons might result in the withdrawal of patronage or work. Freedom of the press would become illusory if it hung on so slight a thread. What precedes relates more to section 2 of the ordinance. It may seem beyond the issues here involved, because the trial court granted a new trial as to the counts based upon it. It is referred to because **561 a good portion of the argument of counsel for the people is directed to the point that the acts of the defendants amounted to picketing. “Picketing” proper is denounced by section 2 of the ordinance. The first part of section 1, under which count I of the three complaints was drawn, is directed at boycotting. The purpose alleged in the complaint is “for the purpose of inducing, influencing and attempting to induce and influence persons to refrain from entering a certain place of business; and for the purpose of inducing, influencing and attempting to induce and influence *771 persons to refrain from purchasing tickets from a certain place of business, to–wit: Rialto Theatre, located at 812 South Broadway in the City of Los Angeles.”

“A principal, in order to be held criminally liable, must be shown to have knowingly and intentionally aided, advised, or encouraged the criminal act committed by the agent.” People v. Doble, 203 Cal. 510, 511, 265 P. 184.

“Before one can be convicted of a crime by reason of the acts of his agent a clear case must be shown. The civil doctrine that a principal is bound by the acts of his agent within the scope of the agent's authority has no application to criminal law.” People v. Green, 22 Cal. App. 45, 50, 133 P. 334.

Such is also the law elsewhere. 2 Corpus Juris, p. 855; 8 R. C. L., pp. 65, 66, et seq.; Rex v. Huggins, 2 Ld. Raymond 1574, 92 English Reports, 518, a leading case on the subject.

“If, at common law, crime when committed by the individual consists of acts done with an evil intent, in statutory offenses created in the exercise of police power, unless a wrongful intent or guilty knowledge, commonly designated by the use of the words ‘wilfully’ or ‘maliciously’, is made an essential element of the prohibited act, the violator may be convicted and punished, even if he has no design to disobey the law.” *773 Commonwealth v. N. Y. C. & H. R. R. Co., 202 Mass. 394, 88 N. E. 764, **562 23 L. R. A. (N. S.) 350, 351, 132 Am. St. Rep. 507, 16 Ann. Cas. 587.

The liquor selling cases, and the police power regulation cases draw the same distinction. People v. O'Brien, 96 Cal. 171, 175–179, 31 P. 45; People v. McClennegen, 195 Cal. 445–469, 234 P. 91; People v. Dillon, 199 Cal. 1, 7–9, 248 P. 230; People v. Le Baron, 92 Cal. App. 550, 568, 268 P. 651, 269 P. 476. For the law elsewhere, see Commonwealth v. Warren, 160 Mass. 533, 36 N. E. 308; Commonwealth v. Sacks, 214 Mass. 72, 100 N. E. 1019, 43 L. R. A. (N. S.) 1, Ann. Cas. 1914B, 1076, and note thereto at 43 L. R. A. (N. S.) 2 et seq.; Spokane v. Patterson, 46 Wash. 93, 89 P. 402, 8 L. R. A. (N. S.) 1104, 123 Am. St. Rep. 921, 13 Ann. Cas. 706. Where “willful”–ness is made a vital ingredient of a crime, it implies “knowledge and purpose to do wrong.” People v. Swiggy, 69 Cal. App. 574, 581, 232 P. 174.

“He, (the principal) must be liable, if at all, at the time the act is done.” Clark & Marshall on Crimes (3d Ed.) § 194, p. 255.

“He only is criminally punishable, who immediately does the act, or permits it to be done.” Rex v. Huggins, supra, at page 1580 of 2 Ld. Raymond.

Intent of this character cannot be imputed to a person through an agent, without the principal's direct participation.

To be guilty of this intent there must be command, direction, or consent by the principal to the doing of the very act. There is no such consent shown here as to the defendant Armentrout.

The judgment as to Armentrout should be reversed. As to the other defendants, the judgments are affirmed.