Pierce v. United States

252 U.S. 239, 40 S. Ct. 205, 64 L. Ed. 542, 1920 U.S. LEXIS 1606

• Court: Supreme Court of the United States
• Decided: March 8, 1920
• Docket: 234
• Status: Published

Opinions

Mr. Justice Pitney

delivered the opinion of the court.

Plaintiffs in error were jointly indicted October 2, 1917, in the United States District Court for the Northern District of New York, upon six counts, of which the 4th and 5th were struck out by agreement at the trial and the 1st is now abandoned by the Government.

The 2d count charged that throughout the period from April 6,1917, to the date of the presentation of the indictment, the United States being at war with the Imperial German Government, defendants at the City of Albany, in the Northern District of New York and within the jurisdiction, etc., unlawfully and feloniously conspired together and with other persons to the grand jurors unknown to‘commit an offense against the United States, to wit, “The offense of unlawfully, feloniously and willfully attempting to cause insubordination, disloyalty and refusal of duty in the military and naval forces of the United States when the United States was at war and to the injury of the United States in, through, and by personal solicitations, public speeches and distributing and publicly circulating throughout the United States certain articles printed in pamphlets called ‘The Price We Pay/ which said pamphlets were to be distributed publicly throughout the Northern District of New York, and which said solicitations, speeches, articles and pamphlets would and should persistently urge insubordination, disloyalty and refusal of duty in the said military and naval forces of the United States to the injury of the United States and its military and naval service and failure and refusal on the part of available persons to enlist therein and should and would through and by means above mentioned obstruct the recruiting and enlistment service of the United States when the United States was at war to the injury of that service and of the United States.” For overt acts it wac alleged that certain of the defendants, in the City of Albany at times specified, made personal solicitations and public speeches, and especially that they published and distributed to certain persons named and other persons to the grand jurors unknown certain pamphlets headed “The Price We Pay,” a copy of which was annexed to the indictment and made a part of it.

The 3d count charged that during the same period and on August 26, 1917, the United States being at war, etc., defendants at the City of Albany, etc., wilfully and feloniously made, distributed, and conveyed to certain persons named and others to the grand jurors unknown certain false reports and false statements in certain pamphlets attached to and made a part of the indictment and headed “The Price We Pay,” which false statements were in part as shown by certain extracts quoted from the pamphlet, with intent to interfere with the operation and success of the military and naval forces of the United States.

The 6th count charged that at the same place, during the same period and on August 27, 1917, while the United States was at war, etc., defendants willfully and feloniously attempted to cause insubordination, disloyalty, mutiny, and refusal of duty in the military and naval service of the United States by means of the publication, circulation, and distribution of “The Price We Pay ” to certain persons named and others to the grand jurors unknown.

A general demurrer was overruled, whereupon defendants pleaded not guilty and were put on trial together, with the result that Pierce, Creo, and Zeilman were found guilty upon the 1st, 2d, 3d and 6th counts, and Nelson upon the 3d count only. Each defendant was separately sentenced to a term of imprisonment upon each count on which he had been found guilty; the several sentences of Pierce, Creo, and Zeilman, however, to run concurrently.

The present direct writ of error was sued out under § 238, Judicial Code, because of contentions that the Selective Draft Act and the Espionage Act were unconstitutional. These have since been set at rest. Selective Draft Law Cases, 245 U. S. 366; Schenck v. United States, 249 U. S. 47, 51; Frohwerk v. United States, 249 U. S. 204; Debs v. United States, 249 U. S. 211, 215. But our jurisdiction continues for the purpose of disposing of other questions raised in the record. Brolan v. United States, 236 U. S. 216.

It is insisted that there was error in refusing to sustain the demurrer, and this on the ground that (1) the facts and circumstances upon which the allegation of conspiracy rested were not stated; (2) there was a failure to set forth facts or circumstances showing unlawful motive or intent.; (3) there was a failure to show a clear and present danger that the distribution of the pamphlet would bring about the evils that Congress sought to prevent by the enactment of the Espionage Act; and (4) that the statements contained in the pamphlet were not such as would naturally produce the forbidden consequences.

What we have recited of the 2d count shows a sufficiently definite averment of a conspiracy and overt acts under the provisions of Title I of the Espionage Act.¹ The 4th section makes criminal a conspiracy “to violate the provisions of sections two or three- of this title,” provided one or more of the conspirators do any act to effect the object of the conspiracy. Such a conspiracy, thus attempted to be carried into effect, is none the less punishable because the conspirators fail to agree in advance upon the precise method in which the law shall be violated. It is true the averment of the conspiracy cannot be aided by the allegations respecting the overt acts. United States v. Britton, 108 U. S. 199, 205; Joplin Mercantile Co. v. United States, 236 U. S. 531, 536. On the other hand, while under § 4 of the Espionage Act, as under § 37 of the Criminal Code, a mere conspiracy, without overt act done in pursuance of it, is not punishable criminally, yet the overt act need not be in and of itself a criminal act; still less need it constitute the very crime that is the object of the conspiracy. United States v. Rabinowich, 238 U. S. 78, 86; Goldman v. United States, 245 U. S. 474, 477.

As to the second point: Averments that defendants unlawfully, willfully, or feloniously committed the forbidden acts fairly import an unlawful motive; the, 3rd count specifically avers such a motive; the conspiracy charged in the 2d and the willful attempt charged in the 6th necessarily involve unlawful motives.

The third and fourth objections point to no infirmity in the averments of the indictment. Whether the statements contained in the pamphlet had a natural tendency to produce the forbidden consequences, as alleged, was a question to be determined not upon demurrer but by the jury at the trial. There was no error in overruling the demurrer.

Upon the trial, defendants’ counsel moved that the jury be directed to acquit the defendants, upon the ground that the evidence was not sufficient to sustain a conviction. Under the exceptions taken to the refusal of this motion it is urged that there was no proof (a) of conspiracy, (b) of criminal purpose or intent, (c) of the falsity of the statements contained in the pamphlet circulated, (d) of knowledge on defendants’ part of such falsity, or (e) of circumstances creating a danger that its circulation would produce the evils which Congress sought to prevent; and further (f) that the pamphlet itself could not legitimately be construed as tending to produce the prohibited consequences.

The pamphlet — “The Price We Pay ” — was a highly colored and sensational document, issued by the national office of the Socialist Party at Chicago, Illinois, and fairly to be construed as a protest against the further prosecution-of the war by the United States. It contained much in the way of denunciation of war in general, the pending war in particular; something in the way of assertion that under Socialism' things would be better; little or nothing in the way of fact or argument to support the assertion. It is too long to be quoted in full. The following extracts will suffice; those indicated by italics being the same that were set forth in the body of the 3d count:

“Conscription is upon us; the draft law is a fact!

“Into , your homes the recruiting officers are coming, they will take your sons of military age and impress them into the army;

“Stand them up in long rows, break them into squads and platoons, teach them to deploy and wheel;

“Guns will be put into their hands; they will be taught not to think, only to obey without- questioning.

. “Then they wall be shipped thru the submarine zone by the hundreds of thousands to the bloody quagmire of Europe.

“Into that seething, heaving swamp of torn flesh and floating entrails they will be plunged, in regiments, divisions and armies; screaming as they go.

“Agonies of torture will rend their flesh from their sinews, will crack their bones and dissolve their lungs; every pang will be multiplied in its passage to you.

“Black death will be a guest at every American fireside. Mothers and fathers and sisters, wives and sweethearts will know the weight of that awful vacancy left by the bullet which finds its mark.

“And still the recruiting officers will come; seising age after age, mounting up to the elder ones and taking the younger ones as they grow to soldier size;

“And still the toll of death will grow.

* * * * * ‡ $

“The manhood of America gazes at that seething, heaving swamp of bloody carrion in Europe, and say ‘Must we — be that! ’

“You cannot avoid it; you are being dragged, whipped, lashed, hurled into it; Your flesh and brains and entrails-must be crushed out of you and poured into that mass of festering decay;

“It is the price you pay for your stupidity — you who have rejected Socialism.

* / * * * * * * *

“Food prices go up like skyrockets; and show no sign of bursting and coming down.

********

“The Attorney General of the United States is so busy sending to prison men who do not stand up when, the Star Spangled Banner is played, that he has no time to protect the food supply from gamblers.

*,*******

“This war began over commercial routes and ports and rights; and underneath all the talk about democracy versus autocracy, you hear a continual note, and undercurrent, a subdued refrain;

“‘Get ready for the commercial war that will follow this war.’

“Commercial war preceded this war; it gave rise to this war; it now gives point and meaning to this war;

********

“This, you say, is a war for the rights of small nations and the first land sighted when you sail across the Atlantic is the nation of Ireland, which has suffered from England for three centuries more than what Germany has inflicted upon Belgium for three years.

“But go to it! Believe everything you are told — you always have, and doubtless always will, believe them.

“For this war — as every one who thinks or knows anything will say, whenever truth-telling becomes safe and possible again, — This war is to determine the question, whether, the chambers of commerce of the allied nations or of the Central Empires have the superior right to exploit undeveloped countries.

“It is to determine whether interest, dividends and profits shall be paid to investors speaking German or those speaking English and French.

“Our entry into it was determined by the certainty that if the allies do not win, J. P. Morgan's loans to the allies will be repudiated, and those American investors who bit on his promises would be hooked.”

These expressions were interspersed with suggestions that the war was the result of the rejection of Socialism, and that Socialism was the “salvation of the human race.”

It was in evidence that defendants were members of the Socialist Party — a party “organized in locals throughout the country” — and affiliated with a local -branch in the City of Albany. There was evidence, that at a meeting of that branch, held July 11, 1917, at which Pierce was present, the question of distributing “The Price We Pay ” was brought up, sample copies obtained from the national organization at .Chicago having been produced for examination and consideration; that the pamphlet was discússed1, as well as the question of ordering a large number of copies from the national organization for distribution; it was stated that criminal proceedings were pending in the United States District Court for the District of Maryland against parties indicted for distributing the same pamphlet; some of the members present, one of them an attorney, advised against its distribution, and a motion was adopted not to distribute it until it was known to be legal. However, some action appears to have been taken towards procuring copies for distribution, for on July 17th a large bundle of them, said to have been 5,000 copies, was delivered at Pierce’s house by the literature agent of the Albany local. At a meeting held July 25 the subject was again brought up, it having, become known that in the criminal proceedings before mentioned the court had directed a verdict-of acquittal; thereupon the resolution of July 11 was rescinded and distributors were called for. On July 29, defendants Pierce, Creo, and Zeilman met at Pierce’s house about half past 5 o’clock in the morning, and immediately began distributing the pamphlets in large numbers throughout ■the City of Albany. Each of them took about 500 copies, and having agreed among themselves about the division of the territory, they went from house to house, leaving a copy upon each doorstep. They repeated this on successive Sundays until August 26, when they were arrested. Nelson acted with them as a distributor on the latter date, and perhaps on one previous occasion.

There was evidence that in some instances a leaflet entitled “Protect Your Rights,” and bearing the Chicago address of the national office of the Socialist Party, was folded between the pages of the pamphlet.. The leaflet was a fervid appeal to the reader to join the Socialist Party, upon the ground that it was the only organization that was opposing the war. It declared among other things: “This organization has opposed war and conscription. It is still opposed to war and conscription. . . . Do you want to help in this struggle? .' . . The party needs you now as it never needed you before. You need the party now as you never needed it before. Men are going to give up their lives for a cause which you are convinced is neither great, or noble, will you then be-, grudge your best efforts to the cause that you feel certain is both great and noble and in which lives the only hope and promise of the future? ” And there was evidence of declarations made by Pierce on the 16th and 17th of August, amounting to an acknowledgment of a treasonable purpose in opposing the drafi, which he sought to excuse on the ground that he had “no use for England.”

It was shown without dispute that defendants distributed the pamphlet — “The Price We Pay ” — with full understanding of its contents; and this of itself furnished a ground for attributing to them an intent to bring about, and for finding that they attempted to bring about, any and all such consequences as reasonably might be anticipated from its distribution. If its probable effect was at all disputable, at least the jury fairly might believe that, under the circumstances existing, it would have a tendency to cause insubordination, disloyalty, and refusal of duty in the military and naval forces of the United States; that it amounted to an obstruction of. the recruiting and enlistment sendee; and that it was intended to interfere with the success of our military and naval forces in the war in which the United States was then engaged. Evidently it was intended, as the jury found, to interfere with the conscription and recruitment sendees; to cause men eligible for the service to evade the draft; to bring home to them, and especially to their parents, sisters, wives, and sweethearts, a sense of impending personal loss, calculated to discourage the young men frorq entering the service; to arouse suspicion as to whether the chief law officer of the. Government was not more concerned in enforcing the strictness of military discipline than in protecting the people against improper speculation in their food supply; and to produce a belief that our participation in the war was the product of sordid and sinister motives, rather than a design to protect the interests and maintain the honor of the United States.

What interpretation ought to be placed upon the pamphlet, what would be the probable effect of distributing it in the mode adopted, and what were defendants’ motives in doing this, were questions for the jury, not the court, to decide. Defendants took the witness-stand and severally testified, in effect, that their sole purpose was to gain converts for Socialism, not to interfere with the operation or success of the naval or military forces of the United States. But their evidence was far from conclusive, and the jury very reasonably might .find — as evidently they did — that the protestations of innocence were insincere, and that the real purpose of defendants — indeed, the real object of the pamphlet — was to hamper the Government in the prosecution of the war.

Whether the printed words would in fact produce as a proximate result a material interference with the recruiting or enlistment service, or the operation or success of the forces of the United States, was a question for the jury to decide in vievf of all the circumstances of the time and considering the place a^d manner of distribution. Schenck v. United States, 249 U. S. 47, 52; Frohwerk v. United States, 249 U. S. 204, 208; Debs v. United States, 249 U. S. 211, 215.

. Concert of action on the part of Pierce, Creo, and Zeilman clearly, appeared, and, taken in connection with the nature of the pamphlet and their knowledge of its contents, furnished abundant evidence of a conspiracy and overt acts to sustain their conviction upon the second coünt.

The validity of the conviction upon the third count (the only one that includes Nelson),depends upon whether there was lawful evidence of the falsity of the statements contained in the pamphlet and tending to shoy that, knowing they were false, or disregarding their probable falsity, defendants willfully circulated it, with intent to interfere with the operation or success of the military or naval forces of the United States. The criticism of the evidence admitted to show the untruth of the statements about the Attorney General and about J. P. Morgan’s loans to the Allies is not well founded; the evidence was admissible; but we hardly see that it was needed to convince a reasonable jury of the falsity of these and other statements contained in the pamphlet. Common knowledge (not to mention the President’s Address to Congress of April 2, 1917, and the Joint Resolution of April 6 declaring war, which were introduced in evidence) would have sufficed to show at least that the statements as to the causes that led to the entry of the United States into the war against Germany were grossly false; and such common knowledge went to prove also that defendants knew they were untrue. That they were false if taken in a literal sense hardly is disputed. It is argued that they ought not to be taken literally. But when it is remembered that the pamphlet was intended to be circulated, and so far as defendants acted in the matter was circulated, among readers of all classes and conditions, it cannot be said as matter of law that no considerable number of them would understand the statements in a literal sense and take them seriously. The jury was warranted in finding the statements false in fact, and known to be so by the defendants, or else distributed recklessly, without effort to ascertain the truth (see Cooper v. Schlesinger, 111 U. S. 148, 155), and circulated willfully in order to interfere with the success of the forces of the United States. This is sufficient to sustain the conviction of all of the defendants upon the third count.

There being substantial evidence in support of the charges, the court would have erred if it had peremptorily directed an acquittal upon any of the . counts. The question whether the effect of the evidence was such as to overcome any reasonable doubt of guilt was for the jury, not the court, to decide.

It is suggested that the clause of § 3 — “Whoever, when-the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies” — cannot be construed to cover statements that on their face, to the common understanding, do not purport to convey anything new, but only to interpret or comment on matters pretended to be facts of public knowledge; and that however false the statements and with whatever evil purpose circulated, they- are not punishable if accompanied with a pretense of commenting upon them as matters of public concern. We cannot accept such a construction; it unduly restricts the natural meaning of the clause, leaves littleTor it to operate upon, and disregards the context and the circumstances, under which the statute was-passed. In effect, it would allow the professed advocate of disloyalty to escape responsibility for statements however audaciously false, so long as he did but reiterate, what, had been said before; while his ignorant dupes, believing his statements and thereby persuaded to obstruct the recruiting or enlistment service, would be punishable by fine or imprisonment under the same section.

Other assignments of error pointing to rulings upon evidence and instructions given or refused to be given to the jury are sufficiently disposed of by what we have said.-

The conceded insufficiency of the first Count of the indictment does not warrant a reversal, since the sentences imposed upon Pierce, Creo, and Zeilman did not exceed that which lawfully might have been imposed under the second, third, or sixth counts, so that the concurrent sentence under the first cc mt adds nothing to their punishment. Claassen v. United States, 142 U. S. 140, 146; Evans v. United States, (2 cases) 153 U. S. 584, 595, 608; Putnam v. United States, 162 U. S. 687, 714; Abrams v. United States, 250 U. S. 616, 619.

Judgments affirmed.

1 Extract from Act of June 15, 1917, c. 30, 40 Stat. 217, 219.

See. 3. Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.

Sec. 4. If two or more persons conspire to violate the provisions of sections two or three of this title, and one or more of such persons does any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as in said sections provided in the case of the doing of the act the accomplishment of which is the object of such conspiracy. Except as above provided conspiracies to commit offenses under this title shall be punished as provided by section thirty-seven of the Act to codify, revise, and amend the penal laws of the United States approved March fourth, nineteen hundred and nine.