physical property. These wrongful acts, most of them already punishable by the criminal law, are denounced by the statute and made felonious when done, or advocated as a means of political or industrial change. The Criminal Syndicalism Act might be summarized as an act to punish the advocacy of crime or wrong, engaging in conspiracies to commit crime or unlawful acts, or the commission of crime or unlawful acts as a means of changing industrial or political control. It is proper to seek desired changes in political and industrial control, but when criminal or unlawful means are used to effect political control, the means is punishable under the act defining and prohibiting criminal syndicalism, as well as under the act defining the crime. The latter act is no more uncertain than the one denouncing criminal conspiracy as a conspiracy to commit any act "injurious to the public health" "or to public morals" or the "perversion and obstruction of justice" "or due administration of the laws." (Sec. 182, Pen. Code.)

This same question was considered by the supreme court of the state of Washington in State v. Hennessy, 114 Wash. 351, [195 Pac. 211, 215], and in State v. Fox, 71 Wash. 185, [127 Pac. 1111]. An act defining criminal syndicalism was sustained in the former case, and an act defining criminal anarchy in the latter case. Both acts were couched in much the same language as our Criminal Syndicalism Act. Without further discussion we accept the conclusions of the supreme court of Washington in State v. Hennessy, supra, and, although the statute there under consideration is somewhat different in terms from ours, the principle there announced is fully applicable here.

We have twice had before us the question of the validity of this act: In re McDermott, 180 Cal. 783, [183 Pac. 437], where an application for a writ of habeas corpus was denied, and in Whitney v. Superior Court, 182 Cal. 114, [187 Pac. 12]. In the case of In re McDermott, supra, the application for a writ of habeas corpus, after defendant had been held to answer, was based upon the grounds that the defendant had been held to answer without probable cause and that the law was unconstitutional. It appears from an examination of the petition therein that the points specified by the petitioner in that case as the basis for the claim of the unconstitutionality of the statute were "the ambiguity of the

statute in that a person of common intelligence cannot understand just what not to do in order not to violate any of its five subdivisions of section 2, in this, to wit: That it cannot be ascertained by reading said law whether it is a crime and a violation of said act for any person to read in public any book, paper, pamphlet, document, poster or written or printed matter in any other form; to use the language of the act; containing, or carrying written or printed advocacy, teaching, or aid and abetment of, or advising 'criminal syndicalism' as set out in subsection 3 of said act, if in said reading the person publicly displays said book, pamphlet or other written or printed matter, no matter how innocent of violating said law said person might be; that the act was ambiguous in that it cannot be ascertained therefrom just what is meant by 'unlawful methods of terrorism' as contained in section 1 of said act and elsewhere, as a person of common intelligence would reasonably conclude after reading said act that there is such a thing as 'lawful methods of terrorism'; that the complaint under which the petitioner was held was also defective and void in that it did not state a public offense because it is not sufficiently direct and certain," etc. The petition was filed July 25, 1919, and was denied July 31, 1919, without argument, because the court was thoroughly satisfied that the law was immune from the attack against it. The evidence upon which the petitioner was held to answer in that case, as in this, showed that the defendant was a member of the I. W. W. and had knowledge of its character. The decision in the McDermott case upholds the constitutionality of the Criminal Syndicalism Act in so far as it defines the crime mentioned in subdivision 4, section 2. We have considered the arguments made here attacking the constitutionality of the law, and see no reason to change the conclusion reached in the McDermott case (supra).

In the case of Whitney v. Superior Court et al., supra, an application was made for writ of prohibition to prevent the superior court of Alameda County from proceeding with the trial of the petitioner upon an information charging the petitioner with violating the Criminal Syndicalism Act. This court in denying the petition said: "We see no merit in the claim that the act under which petitioner is being prosecuted is invalid as being in violation of provisions of

our federal and state constitutions." The point of attack in that case as to the constitutionality of the law was that it violated section 24 of article IV of the constitution prohibiting a legislative act embracing more than one subject.

[5] Notwithstanding these decisions in general terms approved the constitutionality of the statute, the defendant argues with great learning that the statute under consideration violates the right of free speech guaranteed in the federal and state constitutions and for that reason is unconstitutional and void.

The right of free speech was guaranteed to prevent legislation which would by censorship, injunction, or other method prevent the free publication by any citizen of anything that he deemed it was necessary to say or publish. (See notes, 15 Ann. Cas. 3, 4; 6 R. C. L., sec. 239 et seq.) The right of free speech does not include the right to advocate the destruction or overthrow of government or the criminal destruction of property. The Criminal Syndicalism Act does not violate the right of free speech. (State v. Hennessy, supra; People v. Most, 171 N. Y. 423, [58 L. R. A. 509, 64 N. E. 175].) It is expressly provided in our constitution that the publisher is liable for an abuse of this power and for any unlawful publication. This statute does not prevent the publication; it punishes the publisher, and declares punishable the character of publication denounced by the act as illegal. The legislature has power to punish propaganda which has for its purpose the destruction of government or the rights of property which the government was formed to preserve. (People v. Most, supra.) It is clear that the statute does not violate the right of free speech as defined by law. [6] The defendant, however, is not in a position to raise the point, for he is not charged with or convicted of a violation of the Criminal Syndicalism Act involving anything that he said or published as herein before indicated.

[7] Appellant contends that the offense with which he is charged comes under the common-law definition of constructive treason, and that therefore he cannot be punished because of the definition of treason contained in the federal and state constitutions. These definitions are merely for the purpose of limiting the number of offenses which can be punishable as treason under the common law, and in nowise

limits the power of the legislature to provide for the punishment of acts inimical to the public welfare which theretofore might have been punished as constructive treason. (State v. Hennessy, supra; Ex parte Bollman, 8 U. S. (4 Cranch) 75, [2 L. Ed. 554, see, also, Rose's U. S. Notes].)

On the whole, therefore, we hold that the record justifies the conviction of the defendant of the offense of criminal syndicalism in that he knowingly belonged to an organization which in its nature was a criminal conspiracy to change industrial control and government by unlawful and criminal methods.

It remains to consider the various objections to the evidence presented by the defendant. The principal one is to the testimony of two members of the I. W. W. as to various criminal acts committed by members of that organization before the defendant joined the organization and before the passage of the Criminal Syndicalism Act. It is urged that the defendant is not bound by the conduct of his associates before he joined with them, and that to convict him in this proceeding with a violation of a statute subsequently passed would make the law, in effect, an ex post facto law.

[8] In this case, the only question the defendant can be heard upon is whether or not the evidence of the conduct of members of the I. W. W. before the passage of the act is admissible as tending to establish the character of the organization after the passage of the act and during the time the defendant belonged thereto. It seems too clear for discussion that where the issue involves the character of an organization it is proper to determine the character of the organization from the conduct of its members and officers, including the propaganda which it publishes. It is no doubt true that the presumption of innocence would overcome the legal presumption that when the nature of a thing is once shown, it is presumed that it continues thereafter as long as such thing usually continues (Code Civ. Proc., sec. 1963, subd. 32). But where such proof is fortified by actual proof that subsequent to the passage of the act the organization continued to publish the same sort of propaganda, it is proper to consider the evidence of the conduct of the organization both before and after the passage of the statute in order to determine whether or not it is such an organization as is denounced by the statute. As the defendant knowingly con

tinued his membership in the organization after such conduct had been denounced by the statute as criminal, he is liable, not for what the organization did before he joined it or for its character before the statute was passed, but because after the statute was passed he violated the terms thereof by knowingly remaining a member thereof.

It is contended that the evidence of these members of the I. W. W. was inadmissible for the further reason that it consisted of declarations of co-conspirators and was not admissible until the conspiracy was established by other evidence than such declarations. In making this contention the appellant wholly misconceives the applicability of the rule with reference to the declarations of co-conspirators. The evidence adduced in court by the co-conspirators as witnesses are not declarations of conspirators, but direct testimony to the facts to which they testify. Aside from the discredit which attaches to them as accomplices, their evidence is entirely competent to establish the facts to which they testify. The rule for which counsel contends is applicable only when it is sought to introduce extrajudical declarations and statements of co-conspirators.

[9] Probably the most serious complaint made by appellant is that of misconduct on the part of the district attorney in his argument to the jury. It was partly because of the character of the argument, portions of which were set out in the opinion of the district court of appeal of the second district, second division, that we ordered a transfer to this court. The misconduct alleged consisted of vigorous and scathing denunciation of the defendant and particularly of his counsel. During this denunciation the defendant made no objection. He neglected to call the attention of the court to the character of the argument and statements or the prejudicial effect anticipated therefrom. The court however, instructed the jury that it must disregard the remarks of the counsel and not consider them as evidence, and would only be justified in convicting upon the evidence upon the trial of the case. It is well settled that an appellate court will not consider a claim as to the misconduct of counsel in argument unless objection is made at the time. (People v. Fleming, 166 Cal. 357, 371, 377, [Ann. Cas. 1915B, 881, 136 Pac. 291].).