250 U.S. 616 (1919), 316, Abrams v. United States

Docket Nº:No. 316
Citation:250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173
Party Name:Abrams v. United States
Case Date:November 10, 1919
Court:United States Supreme Court

Page 616

250 U.S. 616 (1919)

40 S.Ct. 17, 63 L.Ed. 1173



United States

No. 316

United States Supreme Court

Nov. 10, 1919

Argued October 21, 22, 1919




Evidence sufficient to sustain anyone of several counts of an indictment will sustain a verdict and judgment of guilty under all if the sentence does not exceed that which might lawfully have been imposed under any single count. P. 619.

Evidence held sufficient to sustain a conviction of conspiracy to violate the Espionage Act by uttering, etc., circulars intended to provoke and encourage resistance to the United States in the war with Germany, and by inciting and advocating, through such circulars, resort to a general strike of workers in ammunition factories for the purpose of curtailing production of ordnance and munitions essential to the prosecution of the war. Pp. 619 et seq.

When prosecuted under the Espionage Act, persons who sought to effectuate a plan of action which necessarily, before it could be realized, involved the defeat of the plans of the United States for the conduct of the war with Germany must be held to have intended that result notwithstanding their ultimate purpose may have been to prevent interference with the Russian Revolution. P. 621.


The case is stated in the opinion.

CLARKE, J., lead opinion

MR. JUSTICE CLARKE delivered the opinion of the court.

On a single indictment, containing four counts, the five plaintiffs in error, hereinafter designated the defendants, were convicted of conspiring to violate provisions of the

Page 617

Espionage Act of Congress (§ 3, Title I, of Act approved June 15, 1917, as amended May 16, 1918, 40 Stat. 553).

Each of the first three counts charged the defendants with conspiring, when the United States was at war with the Imperial Government of Germany, to unlawfully utter, print, write and publish: in the first count, "disloyal, scurrilous and abusive language about the form of Government of the United States;" in the second count, language "intended to bring the form of Government of the United States into contempt, scorn, contumely and disrepute;" and in the third count, language "intended to incite, provoke and encourage resistance to the United States in said war." The charge in the fourth count was that the defendants conspired,

when the United States was at war with the Imperial German Government, unlawfully and willfully, by utterance, writing, printing and publication, to urge, incite and advocate curtailment of production of things and products, to-wit, ordnance and ammunition, necessary and essential to the prosecution of the war.

The offenses were charged in the language of the act of Congress.

It was charged in each count of the indictment that it was a part of the conspiracy that the defendants would attempt to accomplish their unlawful purpose by printing, writing and distributing in the City of New York many copies of a leaflet or circular, printed in the English language, and of another printed in the Yiddish language, copies of which, properly identified, were attached to the indictment.

All of the five defendants were born in Russia. They were intelligent, had considerable schooling, and, at the time they were arrested, they had lived in the United States terms varying from five to ten years, but none of them had applied for naturalization. Four of them testified as witnesses in their own behalf, and, of these, three frankly avowed that they were "rebels," "revolutionists,"

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"anarchists," that they did not believe in government in any form, and they declared that they had no interest whatever in the [40 S.Ct. 18] Government of the United States. The fourth defendant testified that he was a "socialist," and believed in "a proper kind of government, not capitalistic," but, in his classification, the Government of the United States was "capitalistic."

It was admitted on the trial that the defendants had united to print and distribute the described circulars, and that five thousand of them had been printed and distributed about the 22nd day of August, 1918. The group had a meeting place in New York City, in rooms rented by defendant Abrams under an assumed name, and there the subject of printing the circulars was discussed about two weeks before the defendants were arrested. The defendant Abrams, although not a printer, on July 27, 1918, purchased the printing outfit with which the circulars were printed, and installed it in a basement room where the work was done at night. The circulars were distributed, some by throwing them from a window of a building where one of the defendants was employed and others secretly, in New York City.

The defendants pleaded "not guilty," and the case of the Government consisted in showing the facts we have stated, and in introducing in evidence copies of the two printed circulars attached to the indictment, a sheet entitled "Revolutionists Unite for Action," written by the defendant Lipman, and found on him when he was arrested, and another paper, found at the headquarters of the group, and for which Abrams assumed responsibility.

Thus, the conspiracy and the doing of the overt acts charged were largely admitted, and were fully established.

On the record thus described, it is argued, somewhat faintly, that the acts charged against the defendants were not unlawful because within the protection of that freedom

Page 619

of speech and of the press which is guaranteed by the First Amendment to the Constitution of the United States, and that the entire Espionage Act is unconstitutional because in conflict with that Amendment.

This contention is sufficiently discussed and is definitely negatived in Schenck v. United States and Baer v. United States, 249 U.S. 47, and in Frohwerk v. United States, 249 U.S. 204.

The claim chiefly elaborated upon by the defendants in the oral argument and in their brief is that there is no substantial evidence in this record to support the judgment upon the verdict of guilty, and that the motion of the defendants for an instructed verdict in their favor was erroneously denied. A question of law is thus presented, which calls for an examination of the record not for the purpose of weighing conflicting testimony, but only to determine whether there was some evidence, competent and substantial, before the jury, fairly tending to sustain the verdict. Troxell v. Delaware, Lackawanna & Western R.R. Co., 227 U.S. 434, 442; Lancaster v. Collins, 115 U.S. 222, 225; Chicago & Northwestern Ry. Co. v. Ohle, 117 U.S. 123, 129. We shall not need to consider the sufficiency, under the rule just stated, of the evidence introduced as to all of the counts of the indictment, for, since the sentence imposed did not exceed that which might lawfully have been imposed under any single count, the judgment upon the verdict of the jury must be affirmed if the evidence is sufficient to sustain anyone of the counts. Evans v. United States, 153 U.S. 608; Claassen v. United States, 142 U.S. 140; Debs v. United States, 249 U.S. 211, 216.

The first of the two articles attached to the indictment is conspicuously headed, "The Hypocrisy of the United States and her Allies." After denouncing President Wilson as a hypocrite and a coward because troops were sent into Russia, it proceeds to assail our Government in general, saying:

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His [the President's] shameful, cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington and vicinity.

It continues:

He [the President] is too much of a coward to come out openly and say: "We capitalistic nations cannot afford to have a proletarian republic in Russia."

Among the capitalistic nations, Abrams testified, the United States was included.

Growing more inflammatory as it proceeds, the circular culminates in:

The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your enemy and mine!

Yes! friends, there is only one enemy of the workers of the world and that is CAPITALISM.

This is clearly an appeal to the "workers" of this country to arise and put down by force the Government of the United States which they characterize as their "hypocritical," "cowardly" and "capitalistic" enemy.

It concludes:

Awake! Awake! you Workers of the World!


The second of the articles was printed in the Yiddish language and, in the translation, is headed, "Workers -- Wake up." After referring to "his Majesty, Mr. Wilson, and the rest of the gang; dogs of all colors," it continues:

"Workers, [40 S.Ct. 19] Russian emigrants, you who had the least belief in the honesty of our Government," which defendants admitted referred to the United States Government,

must now throw away all confidence, must spit in the face the false, hypocritic, military propaganda which has fooled you so relentlessly, calling forth your sympathy, your help, to the prosecution of the war.

The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic

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appeals in behalf of the Government of the United States, and to cease to render it assistance in the prosecution of the war.

It goes on:

With the money which you have loaned, or are going to loan them, they will make bullets not only for the Germans, but also for the Workers Soviets of Russia. Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom.

It will not do to say, as is now argued, that the only intent of these defendants was to prevent injury to the Russian cause. Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce. Even if their primary purpose and intent was to...

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