PRETTYMAN, Circuit Judge.
The appellee, Lattimore, was indicted under the District of Columbia statute 1 in seven counts for perjury allegedly committed while he was testifying before a Subcommittee of the Senate Judiciary Committee. Upon a motion to dismiss, the District Court dismissed Counts I, III, IV and VII. The United States appealed from that order.
We note at the beginning of our consideration that we have before us merely the validity of the indictment. Nothing said in this opinion relates to any situation which may develop upon trial. Thus, for example, it sometimes happens that a question which appears to be material out of context may fade into immateriality when its full setting is depicted. And the same is true in respect to truth or falsity, intent, etc. No pleading has been filed by the defendant except the motion to dismiss, and no evidence has been taken. The question before us is merely whether the indictment is sufficient to put the accused to his response.
Count I, after introductory allegations, charged that Lattimore testified falsely when he said “that he had never been a sympathizer or any other kind of promoter of Communism or Communist interests”; that this testimony was untrue, “in that said defendant had been a sympathizer and promoter of Communism and Communist interests.”
The Constitution2 requires that in all criminal prosecutions an accused shall be informed of the nature and cause of the accusation against him. The crime of perjury under the District of Columbia Code, upon which this indictment is premised, is committed when a person under oath “wilfully and contrary to such oath or affirmation states or subscribes any material matter which he does not believe to be true”. Not only is it a basic rule that “Criminal statutes must have an ascertainable standard of guilt or they fall for vagueness”,3 but it is equally well established 4 that an indictment must charge an offense with such reasonable certainty that the accused can make his defense. The cases on the point are myriad, as reference to any authority quickly reveals.
We are of opinion that this First Count of the indictment is void for vagueness. The word “sympathizer” is not of sufficiently certain meaning to sustain a charge of perjury. This count is that Lattimore said he had never been a sympathizer whereas he had been a sympathizer. There is no definition of the term “sympathizer” or any concrete specification of its content either in the indictment or in the statute. Without such definition or specification the term has no certain meaning. According to the Oxford Dictionary, for example, the word “sympathize” means “To suffer with” as well as “to agree in nature, disposition, qualities, or fortunes”; and it also means “to feel compassion” or “to condole” as well as “to approve or incline to approve”.
The Government says that since “promoter” is a term of certainty the count is valid, even though “sympathizer” is invalidly vague. But that position is not tenable. Even if “promoter” were [850]*850a perfectly certain term (which we do not decide), the presence of the uncertain word is sufficient to destroy the count. The count says that Lattimore denied that he was a sympathizer or promoter whereas in truth he was a sympathizer and promoter. Thus Lattimore, under the indictment as drawn, would have to be prepared to defend himself against both charges. He must be so prepared, because if the Government upon trial should prove him to be either of the two terms a conviction on the count would stand. The accused is entitled under the Constitution to be advised as to every element in respect to which it is necessary for him to prepare a defense.
In oral argument Government counsel urged that the indictment defines “sympathizer” as a kind of promoter when it charges that Lattimore denied being “a sympathizer or any other kind of promoter”. Thus, the Government contended, if the word “promoter” is certain, the word “sympathizer” is also necessarily certain. But this contention is without value in our consideration, because the expression just quoted — “any other kind of promoter”' — may also mean that “promoter” is used in the indictment to describe a kind of “sympathizer”, whatever that term may mean.
We think the vagueness of this count cannot be cured by a bill of particulars. Details in support of a valid count can be supplied by a bill of particulars, but a count which is too vague to be valid cannot be made valid by such a bill. The prosecutor, in supplying the particulars, cannot guess at what was in the grand jury’s mind or ascribe a meaning to a charge by the grand jury if that meaning is not apparent upon the face of the indictment.
Chief Judge Stephens does not agree with this opinion upon this count and has filed a separate statement of his views upon it.
The order of the District Court on Count I is affirmed.
The Third Count charged in pertinent part that Lattimore testified falsely as follows:
“Mr. Morris. And it is your testimony that you did not know he [Asi-aticus] was a Communist?
“Mr. Lattimore. I didn’t know he was a Communist. I would have said, speaking of the late 1930’s that I would have thought he was possibly a Socialist, but not a Communist.”
and that this testimony was untrue “in that said defendant in the late 1930’s knew that ‘Asiaticus’ was a Communist.”
The key word in this charge is “know”. We think the word is sufficiently definite to support the count against a charge of invalid vagueness. Criminal charges involving knowledge, and proof of knowledge pro and con, are frequent occurrences in the courts. The Supreme Court said in American Communications Ass’n v. Douds: 5
“But courts and juries every day pass upon knowledge, belief and intent — the state of men’s minds— having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred.”
This count is also attacked upon other grounds. They are based upon the Resolution and the investigation. The Institute of Pacific Relations was founded in 1925. It is described as a loose federation of some ten or twelve national institutes devoted to the study of the problems of the Pacific — economic, social, political, etc. It published a quarterly magazine known as “Pacific Affairs”. Ap-pellee Lattimore was editor of this magazine from 1934 to 1941.
In 1950 the Senate adopted a Resolution.6 After the Whereas clauses the Resolution read as follows:
“Resolved, That the Committee on the Judiciary, or any duly author[851]*851ized
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PRETTYMAN, Circuit Judge.
The appellee, Lattimore, was indicted under the District of Columbia statute 1 in seven counts for perjury allegedly committed while he was testifying before a Subcommittee of the Senate Judiciary Committee. Upon a motion to dismiss, the District Court dismissed Counts I, III, IV and VII. The United States appealed from that order.
We note at the beginning of our consideration that we have before us merely the validity of the indictment. Nothing said in this opinion relates to any situation which may develop upon trial. Thus, for example, it sometimes happens that a question which appears to be material out of context may fade into immateriality when its full setting is depicted. And the same is true in respect to truth or falsity, intent, etc. No pleading has been filed by the defendant except the motion to dismiss, and no evidence has been taken. The question before us is merely whether the indictment is sufficient to put the accused to his response.
Count I, after introductory allegations, charged that Lattimore testified falsely when he said “that he had never been a sympathizer or any other kind of promoter of Communism or Communist interests”; that this testimony was untrue, “in that said defendant had been a sympathizer and promoter of Communism and Communist interests.”
The Constitution2 requires that in all criminal prosecutions an accused shall be informed of the nature and cause of the accusation against him. The crime of perjury under the District of Columbia Code, upon which this indictment is premised, is committed when a person under oath “wilfully and contrary to such oath or affirmation states or subscribes any material matter which he does not believe to be true”. Not only is it a basic rule that “Criminal statutes must have an ascertainable standard of guilt or they fall for vagueness”,3 but it is equally well established 4 that an indictment must charge an offense with such reasonable certainty that the accused can make his defense. The cases on the point are myriad, as reference to any authority quickly reveals.
We are of opinion that this First Count of the indictment is void for vagueness. The word “sympathizer” is not of sufficiently certain meaning to sustain a charge of perjury. This count is that Lattimore said he had never been a sympathizer whereas he had been a sympathizer. There is no definition of the term “sympathizer” or any concrete specification of its content either in the indictment or in the statute. Without such definition or specification the term has no certain meaning. According to the Oxford Dictionary, for example, the word “sympathize” means “To suffer with” as well as “to agree in nature, disposition, qualities, or fortunes”; and it also means “to feel compassion” or “to condole” as well as “to approve or incline to approve”.
The Government says that since “promoter” is a term of certainty the count is valid, even though “sympathizer” is invalidly vague. But that position is not tenable. Even if “promoter” were [850]*850a perfectly certain term (which we do not decide), the presence of the uncertain word is sufficient to destroy the count. The count says that Lattimore denied that he was a sympathizer or promoter whereas in truth he was a sympathizer and promoter. Thus Lattimore, under the indictment as drawn, would have to be prepared to defend himself against both charges. He must be so prepared, because if the Government upon trial should prove him to be either of the two terms a conviction on the count would stand. The accused is entitled under the Constitution to be advised as to every element in respect to which it is necessary for him to prepare a defense.
In oral argument Government counsel urged that the indictment defines “sympathizer” as a kind of promoter when it charges that Lattimore denied being “a sympathizer or any other kind of promoter”. Thus, the Government contended, if the word “promoter” is certain, the word “sympathizer” is also necessarily certain. But this contention is without value in our consideration, because the expression just quoted — “any other kind of promoter”' — may also mean that “promoter” is used in the indictment to describe a kind of “sympathizer”, whatever that term may mean.
We think the vagueness of this count cannot be cured by a bill of particulars. Details in support of a valid count can be supplied by a bill of particulars, but a count which is too vague to be valid cannot be made valid by such a bill. The prosecutor, in supplying the particulars, cannot guess at what was in the grand jury’s mind or ascribe a meaning to a charge by the grand jury if that meaning is not apparent upon the face of the indictment.
Chief Judge Stephens does not agree with this opinion upon this count and has filed a separate statement of his views upon it.
The order of the District Court on Count I is affirmed.
The Third Count charged in pertinent part that Lattimore testified falsely as follows:
“Mr. Morris. And it is your testimony that you did not know he [Asi-aticus] was a Communist?
“Mr. Lattimore. I didn’t know he was a Communist. I would have said, speaking of the late 1930’s that I would have thought he was possibly a Socialist, but not a Communist.”
and that this testimony was untrue “in that said defendant in the late 1930’s knew that ‘Asiaticus’ was a Communist.”
The key word in this charge is “know”. We think the word is sufficiently definite to support the count against a charge of invalid vagueness. Criminal charges involving knowledge, and proof of knowledge pro and con, are frequent occurrences in the courts. The Supreme Court said in American Communications Ass’n v. Douds: 5
“But courts and juries every day pass upon knowledge, belief and intent — the state of men’s minds— having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred.”
This count is also attacked upon other grounds. They are based upon the Resolution and the investigation. The Institute of Pacific Relations was founded in 1925. It is described as a loose federation of some ten or twelve national institutes devoted to the study of the problems of the Pacific — economic, social, political, etc. It published a quarterly magazine known as “Pacific Affairs”. Ap-pellee Lattimore was editor of this magazine from 1934 to 1941.
In 1950 the Senate adopted a Resolution.6 After the Whereas clauses the Resolution read as follows:
“Resolved, That the Committee on the Judiciary, or any duly author[851]*851ized subcommittee thereof, is authorized and directed to make a complete and continuing study and investigation of (1) the administration, operation, and enforcement of the Internal Security Act of 1950; (2) the administration, operation, and enforcement of other laws relating to espionage, sabotage, and the protection of the internal security of the United States; and (3) the extent, nature, and effects of subversive activities in the United States, its Territories and possessions, including, but not limited to, espionage, sabotage, and infiltration by persons who are or may be under the domination of the foreign government or organizations controlling the world Communist movement or any other movement seeking to overthrow the Government of the United States by force and violence.”
The first question involved in these other attacks upon the indictment is: Was the Resolution valid under the First Amendment? We held in Barsky v. United States 7 that sufficient information had been submitted to the Congress by responsible authorities, to the effect that Communism and the Communists represent an actual threat to the security of this country, to justify inquiry into the subject by the Congress. Other events since then, descriptions of which are embodied in judicial decisions, executive pronouncements, and legislative enactments, have further established that the antagonism between organized Communism and the Government of this country is not merely a conflict of ideologies but includes potential violence. Expressions to the effect that Barsky was an approval by this court of congressional restriction upon the mere expression of political opinion spring from misconceptions.8 We adhere to the view expressed in that case and hold that Congress had power to study and investigate the administration, etc., of the Internal Security Act of 1950, other laws relating to espionage, sabotage, and the protection of the internal security of the United States, and the extent and nature of subversive activities, including infiltration by persons who are or may be under the domination of a foreign government or organizations controlling the world Communist movement.
The second question is whether the inquiry being conducted by the Subcommittee of the Senate Judiciary Committee was authorized by the Resolution. According to the allegations of the indictment, which we must accept for purposes of the motion to dismiss, the inquiry was directed in part to the nature of the activities employed and in part to the extent to which agents of the world Communist movement may have worked through the Institute to the point where they exerted influence on the Far Eastern policy of the United States. An inquiry of the sort thus described was a natural and proper part of the inquiry which the Subcommittee was directed to make.
The third query is whether the question which is the subject of this Third Count was material to the inquiry. “Asiaticus” was the pen name for a writer who contributed to “Pacific Affairs”. In view of the nature of the Institute and of its magazine, as an admitted source of scholarly matter on Asiatic problems, we cannot at the present juncture rule as a matter of law that it was not material to the study being made by the Subcommittee to inquire whether contributors to the magazine were or were not Communists. The duty of the Subcommittee embraced a complete study of the nature and extent of alleged infiltration by Communists. Whether the editor of a publication such as “Pacific Affairs” was conscious of the fact, if it was a fact, that a contributor of articles to the magazine was a Communist, might be shown [852]*852to be material to that inquiry, we think. Perhaps it was not important, but it was within the realm of materiality in so far as appears upon the face of the indictment. Of course, to obtain a conviction the Government must prove, in the trial court, materiality as an element of the offense.
It is suggested that the reporter’s transcript of the hearings before the Subcommittee, from which these charges arose,9 show the question in the Third Count to be immaterial. That transcript was not introduced in evidence in the trial court; in fact no evidence whatever has yet been taken. So far as appears from the record before us, no formal request that the trial court take judicial notice of the hearings was made or considered. The matter was before the trial court and is before us upon the indictment and the motion to dismiss.10 Nevertheless the hearings have been cited and quoted in numerous ways. The indictment itself contains citations to the hearings. The motion to dismiss contained references to them, and the District Court made similar references and based many factual statements on them. The Government, in its Points and Authorities, filed March 17,1953, in the District Court in Opposition to the Motion to Dismiss, not only referred to but quoted extensively from the hearings. In its brief in this court the Government strenuously opposes reference to the hearings, but it apparently limits its opposition to “matters evidentiary, which have no bearing upon the legal sufficiency of the indictment.” In its reply to a memorandum filed in this court by appellee on January 28, 1954, the Government stresses its opposition to use of the hearings in respect to “controverted issues of fact”.
We think it proper to draw from the hearings explanatory material necessary to an understanding of terms and parts of the indictment. But we think it not permissible to refer to them for facts which may become issues upon the pleas and may be subject to dispute. The sole question upon this appeal is the validity of the indictment against a motion to dismiss. Upon such a motion the allegations of the indictment must be accepted as they are written. What they may turn out to be upon the trial, when the evidence is in, is another and different problem. For example, materiality upon the face of an indictment and materiality in the light of all the evidence may be critically different. At this present stage we must, as the Government contends, refrain from making, or appearing to make, factual findings outside those which bear upon the legal sufficiency of the indictment as returned by the grand jury. Some explanatory material is necessary to that purpose. We go no further than that. Of course, if the hearings were in the record in the trial court — as, for example, by affidavit in a motion for summary judgment, or by agreed formal judicial notice, or upon admission in evidence, — other problems might be presented. We think we should not go outside the record for facts other than mere clarifying references.
In this connection Lattimore cites United States v. Darby,11 but that case deals with judicial notice of hearings forming part of the legislative history of a statute the meaning or validity of which is under scrutiny. That is not our present problem.
Lattimore says this count is invalid for vagueness, in that the word “Communist” has no certain meaning and so the meaning of neither the question nor the answer can be ascertained. He says that some eight months and 3,500 printed pages after the question [853]*853and answer upon which this count is based, the committee members attempted unsuccessfully to reach a common understanding with him as to its meaning. As we have already pointed out, the transcript of the hearings is not in the court record; any defense based upon it must be by way of plea and proof. So far as the face of the indictment is concerned the question put to Lattimore was whether he knew something. Upon the face of it Lattimore understood the question. His alleged answer not only reflected an understanding of the term used by his questioner but indicated a specific and clearly defined understanding of it. Answering, he drew a line between a Socialist and a Communist, surely an act which would not be attempted except by one who thought he knew what the subject of the question was. It may be true that the word “Communist” may be used with different shades, gradations or variations of meaning, but all such are within a clearly established generic meaning. The word is not without a meaning which can be used with mutual understanding by a questioner and an answerer. The face of this indictment indicates that the term was so understood. If it was not so — if there was a misunderstanding between the two men' — that fact should be asserted and shown as part of the defense. We cannot say that upon the face of this alleged question and answer the term used in the answer was too vague to put Lattimore to his defense as to its truth. After the evidence has been taken it may or may not appear that Lattimore understood the question when he answered that he would have thought Asi-aticus was “possibly a Socialist, but not a Communist.” But that situation is not before us.
In sum, then, upon Count III we are of opinion that this count was sufficiently certain to be valid, that the Senate Resolution was valid, and that the inquiry was authorized and the question cannot from the face of the indictment be held to be immaterial. We hold the count to be valid, and the order of the District Court in respect to it is reversed.
Judges Edgerton, Clark, Wilbur K. Miller, and Bazelon are of opinion that the order on Count III should be affirmed.
The pertinent part of the Fourth Count was that Lattimore testified falsely as follows:
“Mr. Morris. When you were editor of the publication ‘Pacific Affairs’ did you ever publish an article by a person whom you knew to be a Communist?
“Mr. Lattimore. Apart from Russian contributions, no.”;
that “the aforesaid testimony of said defendant as he then and there well knew and believed, was untrue, in that said defendant had, when editor of ‘Pacific Affairs’, published articles (other than Russian contributions) by persons whom he knew to be Communists.”
What we have said in respect to the Third Count applies to the Fourth Count. We think this count is sufficiently certain and that, so far as appears from the face of the indictment, it was a valid and proper inquiry.
At the conclusion of oral argument in this court Lattimore added to his brief an insert to the effect that subsequent passages in the hearings show a total absence of perjury in this count. He says he had previously, in his initial statement to the Subcommittee, described a Chinese Communist contributor to “Pacific Affairs” and that after the answer quoted in the indictment he materially qualified that answer so as to correct an inadvertent error. He cites Meyers v. United States12 and Fotie v. United States.13 But those cases concerned convictions after trial, when the evidence was in. We think this issue is one of defense and should be considered when it has been raised by a plea and the evidence has been taken.
[854]*854The order of the District Court in respect to this Count IV is reversed.
Judges Edgerton, Clark, Wilbur K. Miller, and Bazelon are of opinion that the order in respect to Count IV should be affirmed.
The Seventh Count of the indictment charged that Lattimore testified falsely as follows:
“Mr. Morris. And before you went beyond that line of demarcation, it would be necessary to have the Communist authorities’ permission, isn’t that right?
“Mr. Lattimore. No.
******
“Mr. Morris. Is it your testimony that you or anybody in your party did not make any prearrangement with the Communist Party in order to get in?
“Mr. Lattimore: None whatever.” ;
that “the aforesaid testimony of said defendant, as he then and there well knew and believed, was untrue, in that before being received at Communist Headquarters in Yenan, said defendant and persons in his party had made prearrange-ments with the Communist authorities.”
The United States, agreeing with the District Court, says this count charges Lattimore with lying when he denied arrangements with the Communist Party, the second portion of the testimony above quoted. That is to say, the alleged falsity does not lie in Lattimore’s denial that it was necessary to make arrangements with the Communist authorities in order to cross the line of demarcation, but lies in his denial that arrangements were actually made with the Communist Party to get into Yenan.
We must look to the hearings to ascertain what the expression “line of demarcation” in this count means. The portion of the examination of Lattimore immediately preceding the quotation in this count began with a discussion of the efforts of newspaper correspondents and others in the spring of 1937 to get into Yenan. Then the interrogator said, “You are going from Nationalist China to Communist China, and I presume there is a line of demarcation between the two.” Lattimore said, “There was a line of demarcation between the City of Sian.”14 Then came the question first quoted in Count VII: “And before you went beyond that line of demarcation, it would be necessary to have the Communist authorities’ permission, isn’t that right ?” Then followed questions and answers, indicated by asterisks in the indictment, referring to “government authorities” and the “Nationalist government”, and immediately thereafter came the key question in this count: “Is it your testimony that you or anybody in your party did not make any prearrangement with the Communist Party to get in?”
It seems clear from this explanatory context that in the first question put to Lattimore, as quoted in this count of the indictment, the interrogator and he were talking about “Communist China” and had in mind Chinese Communist government authorities, as contrasted with the Chinese Nationalist government authorities. The interrogator then apparently changed the subject to “the Communist. Party” and asked the question about arrangements with the Party. But the-specification in the count alleged that the-falsity of Lattimore’s reply to that question is in the fact that before going to-Yenan arrangements were made with “the Communist authorities”. It seems, clear to us that in this context “Communist authorities” and “the Communist. Party” were two different things. That Lattimore made arrangements with “the-Communist authorities”, as that term, had been used in the immediately preceding context, would not mean that he testified falsely when he answered that no-arrangements had been made with “the: Communist Party”.
[855]*855We hold this count invalid because of a fatal variance in its terms. The order of the District Court in respect to this Count VII will be affirmed.
Chief Judge Stephens states his views on this count in the separate opinion filed with this one. Judge Danaher is of opinion that the order as to this count should be reversed. He feels that taken in context the substance of the question was, and was so understood to be, whether or not Communist leaders authorized or made prearrangements for the Lattimore trip into Communist China.
It is urged as a general contention in respect to the whole indictment that this prosecution impinges upon First Amendment rights. But clearly the freedom of speech to which the people protected their right by this clause in the Constitution does not include freedom to lie under oath. Even if Lattimore, as the editor of a publication, had a right not to speak,15 he did not have a right to speak falsely. When he chose to speak under oath he was obliged to speak truly and was subject to the penalties of perjury if he lied on a material matter.
It is said that the atmosphere, manner and persistence of the examination of Lattimore by the Subcommittee were such as to void its validity. But the course of the hearings is not in the record in the present proceeding, as we have already noted.
The order of the District Court in respect to Counts I and VII is affirmed, and in respect to Counts III and IV it is reversed.
Affirmed in part and reversed in part.