(194 P.) ute, we are not prepared to hold that the bookcases in the rooms were openly displayomission to do so will prove fatal to a con- ed, and exposed for sale, large quantities of viction under the circumstances of this and pamphlets, and other printed matter, in orsimilar cases. We have already announced der to purchase any of which it was necesour conclusion that the defendant was ap- sary to consult the defendant, who stated to prised of the nature of the offense, with which a number of persons previous to his arrest he was charged, with that reasonable cer- that it was "for sale." There were introductainty to which he was entitled. This is ed in evidence as being part of the printed not one of those cases in which any further matter thus offered for sale by the defendstatement of acts, or facts, is required to ant: A copy of "The One Big Union Monthallege a complete offense, beyond the lan- ly," a magazine published by the General guage employed in the statute. It was not Executive Board of the Industrial Workers necessary, therefore, to aver the means by of the World, and devoted to the disseminawhich the defendant devoted himself to the tion of the preamble and doctrines of the dissemination of the propaganda of criminal organization, and manifestly devoted to adsyndicalism, which is the evil the statute vancing the "triumph of the one big union"; strikes at. He was sufficiently charged with "The Liberator-a Journal of Revolutionary doing certain acts which the law forbids, Progress," a considerable portion of which the doing of which is made a criminal of publication appears to be devoted to extolfense. Ex parte Foley, 62 Cal. 508; People ling Eugene V. Debs and "the invincible I. v. Hunt, 120 Cal. 281, 52 Pac. 658. W. W."; a pamphlet entitled "The Revolutionary I. W. W.," by Grover H. Perry, from which it appears, according to its author, that "the I. W. W. is fast approaching the stage where it can accomplish its mission"; "The Red Dawn-The Bolsheviki and the I. W. W.," in which "the lesson of the Bolsheviki and the road to power of the I. W. W." are offered as a means of advancement to industrial freedom; a leaflet entitled "Poison Gas and Violence"; two books of songs, one entitled "I. W. W. Songs-To Fan the Flames of Discontent," and the other bearing a frontispiece depicting a female figure bearing a shield on which are the words "Solidarity, Class Consciousness," holding aloft a blazing torch, and standing on a platform upon which are the words "I Will Win"; a pamphlet entitled "I. W. W., One Big Union of all the Workers, The Greatest Thing on Earth"; a Russian revolutionary pamphlet, entitled "Lessons of the Revolution, by Vladimir Oulianow (N. Lenin), translated from the Russian original and published by the Bureau of International Revolutionary Propaganda attached to the commissariat for foreign affairs of the Provisional Workmen's and Peasants' Government of the Russian Republic." This pamphlet, which bears a rubber stamp indorsement "I. W. W. Hall, 1135 Mission St.," accords "all power to the Soviets," which "means a complete surrender of the administration of the country and of control over its economic resources to the workmen and peasants, whom no one would dare to resist, and who would soon learn by experience, from their own practice, justly to distribute the bread, the land, and the necessities." [8] Even though the indictment was defective, in not identifying the matter circulated and displayed by the defendant, which we do not in the least admit, it was but an error in pleading, and following the mandatory direction of the Constitution (section 41⁄2 of article 6), the judgment should not be reversed unless the error of pleading has, in the opinion of this court, formed after an examination of the entire case, resulted in a miscarriage of justice. People v. Griesheimer, 176 Cal. 44, 49, 167 Pac. 521; People v. Bonfanti, 181 Pac. 80. No indictment is insufficient, in this state, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect which does not tend to the prejudice of a substantial right of the defendant upon its merits. Pen. Code, § 960; People v. Rozelle, 78 Cal. 84, 90, 20 Pac. 36; People v. Ah Sing, 95 Cal. 654, 656, 30 Pac. 796. That phase of the case we shall presently consider. [9] It was not necessary to specify the books, papers, pamphlets, or documents alleged to have been circulated and displayed by the defendant, in order to protect him from a second prosecution for the offense. If he should be again prosecuted for the offense, he may plead his conviction in the manner provided by the Code, and establish the identity of the cases by evidence; the burden being upon him. People v. Faust, 113 Cal. 172, 176, 45 Pac. 261; People v. Burke, 18 Cal. App. 72, 80, 122 Pac. 435. [10] The appellant contends that the evidence in this case is insufficient to warrant his conviction. He was shown to be a member and the secretary of the San Francisco branch of the Industrial Workers of the World, an international organization, or movement, commonly known and designated as the "I. W. W." As such secretary he was in charge of its headquarters and the place of assemblage of the members of the organization. On tables, and in We do not think it is necessary to make long quotations from these various publications, which were introduced in evidence, in order to illustrate the nature of their contents. One excerpt from the pamphlet "The Revolutionary I. W. W.," by Grover H. Perry, will suffice. The pamphlet defines the I. W. W. organization as a "labor union that aspires to be the future society," sets forth the "interests in common" of all workers and the power that the I. W. W. would have if, when a strike is called, a whole industry could be paralyzed, and thus an employer "would be forced to accede to the demands of the workers. That is the way the I. W. W. proposes to organize." Further along we find this language: "The Industrial Workers of the World is an international movement; not merely an American movement. We are 'patriotic' for our class, the working class. We realize that as workers we have no country. The flags and symbols that once meant great things to us have been seized by our employers. To-day they mean naught to us but oppression and tyranny. As long as we quarrel among ourselves over differences of nationality, we weaken our cause; we defeat our own purpose. The practice of some craft unions is to bar men because of nationality or race. * ** * "Organizing a New Social System.-The I. W W. is fast approaching the stage where it can accomplish its mission. This mission is revolutionary in character. The preamble of the 1. W. W. constitution says in part: 'By organizing industrially we are forming the structure of the new society within the shell of the old.' That is the crux of the I. W. W. position. We are not satisfied with a fair day's wages for a fair day's work. Such a thing is impossible. Labor produces all wealth. Labor is therefore entitled to all wealth. We are going to do away with capitalism, by taking possession of the land and the machinery of production. We don't intend to buy them, either." As was well said by the writer of the opinion in Kumpula v. United States, 261 Fed. 49, 52, 171 C. C. A. 645, 648, in commenting on this identical language: play of printed matter, in any form, contain- [12] Appellant's arrest, and subsequent conviction, followed not long after the enactment of the law. When arrested, the defendant declared that he was not a citizen of the United States, and that he had no desire to be one. A copy of the Criminal Syndicalism Act, under which this prosecution is lodged, was posted conspicuously upon the wall in the headquarters. We are satisfied from the record that the defendant distributed the literature under his control, and in his possession, with full understanding of its nature; and this, of itself, furnished a ground of at tributing to him an intent to bring about, and for finding that he was thereby attemptup-ing to bring about, any and all such consequences as might reasonably be anticipated from its distribution. Pierce V. United States, 252 U. S, 239, 40 Sup. Ct. 205, 209, 64 L. Ed. 542. "If the preamble and constitution of the organization are correctly expounded by the Perry pamphlet, the flag of the nation means only 'oppression' and 'tyranny,' and the 'mission' and purposes of the I. W. W. organization are to be accomplished by force, violence, and other unlawful means.' [11] We have already alluded to the design and purpose of the Legislature in the enactment of the statute. "Sabotage," in the ordinary sense of the word, means the "malicious waste or destruction of an employer's property by workmen during labor troubles." Webster's New International Dictionary. Its legal meaning, as applied by the Legislature is found in the statute which defines criminal syndicalism as "any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change." The circulation or dis [13] The question presented in this case is whether the printed matter was circulated under such circumstances, and is of such nature as to create a clear and present danger, or to bring about an evil, that the Legislature had a right to prevent; or, started in another way: Does this case so made show an advocacy and teaching of the form of sabotage, or the other methods of terrorism designed to effect industrial and political ends which the statute condemns? It was held in State v. Moilen, supra, 167 N. W. 348, that the question was one for the jury. What interpretation ought to be placed upon the printed matter circulated and displayed by the defendant, what would be the probable effect of its circulation in the mode adopted, and what were defendant's motives in so doing, were questions for the jury to decide, in view of all the circumstances of the time and manner of its distribution. Pierce v. United States, supra; Schenck v. United States, 249 U. S. (194 P.) 47, 52, 39 Sup. Ct. 247, 63 L. Ed. 470. Its decision, on evidence which we deem sufficient, is against the defendant. We do not think it necessary to dwell longer upon this phase of the question, important as it is, for the reason that the eminent authorities already cited seem to conclusively set the matter at rest, both as to the nature of the evidence, and the power of the jury to make the ultimate decision in the matter. [14] During the trial the court admitted in evidence on behalf of the prosecution certain translations from Russian writings, and a copy of “I. W. W., Its History, Structure and Methods, by Vincent St. John," which were found in the desk of the defendant. Later, upon the suggestion of the district attorney, they were withdrawn. The court thereupon ordered the exhibits stricken out, and instructed the jury to disregard them. Defendant contends that prejudicial error resulted from the admission of these exhibits, which was not cured by their subsequent withdrawal, and the instructions of the court. He fails to point out, however, where any error resulted, relying merely upon People v. Derbert, 138 Cal. 470, 71 Pac. 564, which deals with alleged misconduct on the part of the district attorney, in persisting, against the ruling of the court, in asking improper questions. The decision has no bearing on the facts of the case at bar. In the absence of any affirmative showing, it will be presumed that no prejudice resulted from the act of the court in this regard. People V. Lapara, 183 Pac. 545. JONES v. KEHRLEIN et al. (Civ. 3286.) (District Court of Appeal, First District, Division 1, California. Oct. 23, 1920.) I. Master and servant 302 (1) - Theater usher held acting within authority in excluding negro from particular section. A theater usher who had general orders to seat all members of the so-called dark races in a particular section of the theater was acting within his authority in refusing plaintiff, a negro, a seat in a different section. 2. Civil rights 2-Statute held valid. Civ. Code, § 51, requiring all persons to be awarded equal accommodations and privileges in theaters, etc., and section 52, making persons denying any such rights except for reasons applicable alike to every race and color liable in damages, are valid. 3. Civil rights 6-Refusal of theater seat except in section set apart for members of plaintiff's race held violation of statute. It was a violation of Civ. Code, §§ 51, 52, for the management of a moving picture theater to refuse plaintiff, a negro, a seat except in a section set apart for the so-called dark races, solely on account of plaintiff's color and race. 4. Civil rights 6-Provision of theater ticket invalid so far as authorizing seating in particular section solely because of race. [15] Appellant's last contention is that the court erred in reading all of sections 1 and 2 of the Criminal Syndicalism Act in its charge, instead of instructing the jury that While a theater ticket by which the holder the defendant was only charged with violatwas to be admitted to such seat as might be ing subdivision 3 of said section 2, which assigned by the management gave the managespecifically relates to the printing, publish- ment a right to adjust the seating of the audiing, and displaying, of certain printed mat- ence and to select, within legal bounds and for ter. The court, however, read the indict-legal reasons, the seats of its various patrons, ment in full, and charged the jury that it must find the defendant guilty "of the crime as set forth in the indictment beyond all reasonable doubt," or not at all. This was a sufficient express limitation of the terms of the act to the allegations contained in the indictment. Hargrave v. State (Tex. Cr. App.) 30 S. W. 444; Simons v. State (Tex. Cr. App.) 34 S. W. 619, 620; People v. Young, 186 Pac. 383. The defendant was charged with a public offense in an indictment which was sufficient for that purpose. His guilt was established to the satisfaction of the jury upon evidence of sufficient probative force to warrant the conviction. No miscarriage of justice resulted from any matter occurring in connection with the overruling of the demurrer, or rulings of the court during the trial. it was invalid so far as it authorized the management to require a negro to sit in a particular section solely because of his race and color. 5. Civil rights 6-Purchase of theater ticket held not contract to submit to discrimination so as to prevent recovery. thorizing the management to assign him a A negro, by purchasing a theater ticket auseat, did not contract to submit to a violation of his legal rights so as to prevent recovery for refusing him a seat in a particular part of the theater because of his race and color. 6. Civil rights 6-Minor held entitled to re cover for discrimination. Civ. Code, § 53, making it unlawful to refuse admittance to any theater, etc., to any person over 21 presenting a ticket of admission, does not prevent a minor from recovering under sections 51 and 52 for refusal to allow For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes him to sit anywhere except in a particular section, where he was not discriminated against because of his minority, but because he was a negro. tion, and the significant answer was, "You know the reason why," and further, "Because you people can't sit there," and again, “Because it is the orders of the management." Appeal from Superior Court, Fresno Coun- The defendant Kehrlein subsequently stated ty; D. A. Cashin, Judge. Action by Errol Jones, a minor, etc., against Oliver Kehrlein, Jr., and others. From a judgment for plaintiff, defendants appeal. Affirmed. in conversation with the father of the plaintiff that the management put all of the dark races (with whom he included colored persons, Japanese, Chinese, and Mexicans) on the left side, not, as he claimed, because of any prejudice of his own against them, but Everts & Ewing, of Fresno, and J. R. Fitch, for the reason that doing otherwise would of Oakland, for appellants. hurt his business. There is, then, no question E. Burton Ceruti, of Los Angeles, for re- that young Jones was refused a seat among spondent. BEASLY, Justice pro tem. This is an appeal from a judgment obtained by plaintiff against the defendants. those for which his ticket called, and ordered into the section set apart for colored people, Japanese, Chinese, and Mexicans, solely because he was a negro. [1] The first point made for reversal is that the usher who endeavored to seat Jones in the "dark" section of the theater acted without authority of the management. It was admitted by defendants' counsel at the trial that the usher was acting under the authority of the management. It is now claimed, however, that this stipulation was general in its nature, and did not include acting under authority of the management in doing the specific and tortious act complained of by the plaintiff. The testimony of the plaintiff's father as to Kehrlein's declarations above referred to, accepted as it was by the court, shows that the ushers acted under sweeping general orders of the management to seat all so-called "dark" races in the section to which young Jones was directed. This was authority to discriminate against the plaintiff sufficient to bind the defendant Kehrlein. The plaintiff is a minor, a citizen of the United States and a negro. The defendants conduct a moving picture show at Fresno, and on June 20, 1918, sold to plaintiff two tickets to the show, upon presentation of which plaintiff and his young woman friend were admitted to the showroom. He was thereupon directed by an usher, acting under general orders from the management to seats on the right side of the house, which were set apart by the management for the use of what the defendants termed "the dark races." The boy declined to follow the direction of the usher, and requested a seat in a part of the house not so set aside, namely, in the rear of the center section, where, incidently there were plenty of vacant and unsold chairs. The ticket was of the kind which in the hands of one not of the “dark races" admitted the holder to seats in this latter section of the house. This request on his part The statutory law governing this case is was refused, and he and his companion there- embodied in part 2 of the Civil Code, emupon left the theater. He subsequently bracing, among others, the four sections brought this action to recover $5,000 as dam-numbered 51 to 54, inclusive. Section 51, as ages because of the incident, and was awarded judgment for $100. The defendants appeal from this judgment. In response to allegations of the complaint the trial court found that the plaintiff was refused a seat in the center section of the lower floor of the theater solely because he was a negro, and that he was thereby denied the full accommodation and privileges of the theater because of his race and color and without any other cause applicable to all citizens of every race and color, to his humiliation and damage in the sum of $100. it existed at the time of the incident out of which this case grows and before it was amended in 1919, provided that all persons within this state are entitled to the full and equal accommodations, advantages, facilities, and privileges of theaters and all other places of public amusement, subject only to the conditions and limitations established by law and applicable alike to all citizens; and at the same time and before its amendment in 1919 section 52 provided that whoever should violate the provisions of section 51 by denying to any citizen, except for reasons applicaThese findings are supported by the fol- ble alike to every race and color, the rights lowing facts in evidence: Each of the tickets enumerated in that section, or whoever purchased by plaintiff provided for admission should make any discrimination on account of one person to such seat as might be as- of color or race, or except for good cause apsigned its holder by the management. It was plicable alike to all citizens of every color or of the class of tickets which were honored race whatever, in respect to the admission to by giving to those presenting them seats or treatment in any theater or other place in the rear of the center section of the thea- of public amusement, or should aid or incite ter. When the young man was told that he thereto, should be liable in damages in a sum could not sit in the center section of the not less that $50, which might be recovered house, he asked the reason for this distinc-in an action at law brought for that purpose. (194 P.) It is contended that the facts in the rec- | 110 N. Y. 418, 18 N. E. 245, 1 L. R. A. 293, ord, while showing segregation of the plain- 6 Am. Rep. 389, both the policy and contiff, do not establish a discrimination against stitutionality of a statute of the state of him. This is another way of saying that New York almost identical with the provithe plaintiff's personal rights under part 2 sions of our Code were strongly upheld; and of the Civil Code were not violated by the in Ferguson v. Gies, 82 Mich. 358, 46 N. W. act complained of. In support of this conten- 718, 9 L. R. A. 589, 21 Am. St. Rep. 576, the tion the appellants cite Younger v. Judah, Supreme Court of Michigan upheld a statute 111 Mo. 303, 19 S. W. 1109, 16 L. R. A. 558, similar to our own Code provisions. There 33 Am. St. Rep. 527, a Missouri case. In is no doubt as to where the weight of authat case the Court of Appeals of the state of thority lies on this point. It upholds such Missouri held that segregating the negro statutes, and also holds that conduct such as patrons of a theater in the gallery, and refus- that of the defendants toward plaintiff coning them seats in the orchestra, did not vio- stitutes a discrimination against the negro late the rights of colored citizens under the on account of his color and race in violation Fourteenth Amendment to the Constitution of his rights under such civil rights bills. of the United States; but it is distinctly said The construction placed upon the acts of deeven there that "a discrimination against fendant Kehrlein by the trial court is that colored persons by permitting them to sit the refusal to seat Jones in any other poronly in the balcony of a theater is not un- tion of the house than that set apart for the lawful, in the absence of any statute to the so-called colored races constituted an illegal contrary." The fact that there was no civil discrimination against him under sections rights act in Missouri at the time that case 51 and 52 of the Civil Code. arose distinguishes it from the case now before us, and the distinction is clearly pointed out in the Missouri case, where it is said: "This state has enacted no law having any application to the present case. It does not undertake to say how theaters and other places of amusement shall be managed. As the state does not by itself or through the city of Kansas undertake to regulate theaters, and as the clauses of the Fourteenth Amendment before noted are prohibitory of state action only, they have nothing to do with the question at hand. There is nothing upon which the prohibitions can operate. Many of the states have enacted laws known as 'civil rights statutes,' and we are cited to cases upholding and giving effect to such laws. Under them it has been held that the proprietor of a theater will be liable in damages for a refusal to admit a colored person (Joseph v. Bidwell, 28 La. Ann. 382; Donnell v. State, 48 Miss. 661), and for a refusal to admit a colored person to the several circles or grades of seats in a theater (Baylies v. Curry, 128 Ill. 287)." [4] A further point is made to the effect that the provisions of the ticket by which the holder was to be admitted to such seat as might be assigned by the management gave the management the absolute right to assign to the holder any seat which they might designate, including a seat in what might be called the segregated section. It is true that the management had the right to adjust the seating of its audience, as the manager claimed on the witness stand, and to select within legal bounds and for legal reasons the seats of its various patrons holding this form of ticket; but, if this provision of the ticket is to be interpreted as giving them the right to seat young Jones and his girl friend in the segregated section because of his race or color, the provision of the ticket is to that extent illegal and void; for the right to full and equal treatment, as prescribed in section 51 of the Civil Code, is subject only to conditions and limitations established by law and So that even this case recognizes the force applicable alike to all citizens. This proviof such statutes as ours. The appellants also, in support of this contention, cite Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. 1138, 41 L. Ed. 256. This case arose out of a statute of Louisiana which provided that railroads operating in that state should furnish different coaches for white and negro passengers, and that neither race should be permitted to occupy the coaches designed for the other. It was there held that such a statute was not in conflict with the Fourteenth Amendment; but here the question is not the constitutionality of such a statute segregating the races and providing equal accommodation for each. There is no such statute in California nor any similar statute here applicable to theaters. [2, 3] On the contrary, in a case entitled People of the State of New York v. King, sion in the ticket, if meant to give the management the right to discriminate against plaintiff in seating him on account of his race and color, is to that extent illegal and void. [5] It is also contended that in purchasing the tickets with the provision permitting the management to assign him a seat Jones did so with his eyes open, and that if he did not like the conditions he need not buy. But it is clear that in purchasing the ticket Jones made no contract that bound him to submit to being seated in violation of his legal rights. The language of the ticket conferred and could confer no such right upon the management to discriminate against him in violation of the rights guaranteed him by part 2 of the Civil Code. The truth is, as found by the court, that the whole transaction with young Jones was tainted from the beginning with illegality arising |