301 U.S. 242 (1937), Herndon v. Lowry

Citation:301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066
Party Name:Herndon v. Lowry
Case Date:April 26, 1937
Court:United States Supreme Court

Page 242

301 U.S. 242 (1937)

57 S.Ct. 732, 81 L.Ed. 1066




United States Supreme Court

April 26, 1937



1. A federal constitutional question going to the validity of a conviction of crime under a state statute was not decided on an appeal to the state supreme court because not properly raised (see Herndon v. Georgia, 295 U.S. 441). Afterwards, that court considered the question and decided it against the convict, in a habeas corpus proceeding. Held, that the scope of habeas corpus, in the circumstances, was a local question, and that the ruling on the federal question was open to review by this Court. P. 247.

2. A state statute punishing as a crime the acts of soliciting members for a political party and conducting meetings of a local unit of that party, where one of the doctrines of the party, established by reference to a document not shown to have been exhibited to anyone by the accused, may be said to be ultimate resort to violence in the indefinite future against organized government, unwarrantably invades the liberty of free speech and so violates the Fourteenth Amendment. P. 260.

3. The power of a State to abridge freedom of speech and of assembly is the exception, rather than the rule; and the penalizing even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government. The limitation upon individual liberty must have appropriate relation to the safety of the State. Legislation which goes beyond this need violates the Constitution. P. 258.

4. The affirmance by the Supreme Court of a State of a conviction under a statute as having support in the evidence necessarily construes the statute as authorizing punishment for the act so proven. P. 255.

5. Section 56 of the Penal Code of Georgia, as construed by the Supreme Court of the State, punishes, as an attempt to incite to insurrection, any attempt to induce others to join in any combined resistance to the lawful authority of the State. As an element, the accused must have contemplated resistance by force, but in this respect he may be found guilty if he intended that an insurrection

should happen during any time within which he might reasonably expect his influence to continue to be directly

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operative in causing such action by those whom he sought to induce.

Held, that the statute, as construed and applied in this case, is repugnant to the Fourteenth Amendment in that it furnishes no sufficiently ascertainable standard of guilt and interferes unduly with freedom of speech and of assembly. Pp. 253, 261.

12 Ga. 582, 186 S.E. 429, reversed.

Appeals from judgments, rendered on cross-appeals, in a habeas corpus proceeding. The court below sustained the trial court in deciding that the criminal statute involved did not infringe liberty of speech and assembly, but differed with its holding that the statute was too vague and indefinite, and reversed its decision discharging the appellant here.

ROBERTS, J., lead opinion

MR. JUSTICE ROBERTS delivered the opinion of the Court.

The appellant claims his conviction in a state court deprived him of his liberty contrary to the guarantees of the Fourteenth Amendment. He assigns as error the action of the Supreme Court of Georgia in overruling his claim and refusing him a discharge upon habeas corpus. The petition for the writ, presented to the superior court of Fulton county, asserted the appellant was unlawfully detained by the appellee as sheriff under the supposed authority of a judgment pronouncing him guilty of attempting to incite insurrection, as defined in Section 56 of the Penal Code (Code 1933, § 26-902), and sentencing him to imprisonment

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for not less than eighteen nor more than twenty years. Attached were copies of the judgment and the indictment and a statement of the evidence upon which the verdict and judgment were founded. The petition alleged the judgment and sentence were void and appellant's detention illegal because the statute under which he was convicted denies and illegally restrains his freedom of speech and of assembly and is too vague and indefinite to provide a sufficiently ascertainable standard of guilt, and further alleged that there had been no adjudication by any court of the constitutional validity of the statute as applied to appellant's conduct. A writ issued. The appellee answered, demurred specially to, and moved to strike, so much of the petition as incorporated the evidence taken at the trial. At the hearing, the statement of the evidence was identified, and was conceded by the appellee to be full and accurate. The court denied the motion to strike, overruled the special demurrer and an objection to the admission of the trial record, decided that the statute, as construed and applied in the trial of the appellant did not infringe his liberty of speech and of assembly, but ran afoul of the Fourteenth Amendment because too vague and indefinite to provide a sufficiently ascertainable standard of guilt, and ordered the prisoner's discharge from custody. The appellee took the case to the Supreme Court of Georgia, assigning as error the ruling upon his demurrer, motion, and objection, and the decision against the validity of the statute. The appellant, in accordance with the state practice, also appealed, assigning as error the decision with respect to his right of free speech and of assembly. The two appeals were separately docketed, but considered in a single opinion which reversed the judgment on the appellee's appeal and affirmed on that of the appellant,1 concluding:


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the pleadings and the evidence, which embraced the record on the trial that resulted in the conviction, the court erred, in the habeas corpus proceeding, in refusing to remand the prisoner to the custody of the officers.

The federal questions presented, and the manner in which they arise, appear from the record of appellant's trial and conviction embodied in the petition, and from the opinions of the state Supreme Court in the criminal proceeding.

At the July term, 1932, of the Superior Court of Fulton County, an indictment was returned charging against the appellant an attempt to induce others to join in combined resistance to the lawful authority of the state with intent to deny, to defeat, and to overthrow such authority by open force, violent means, and unlawful acts; alleging that insurrection was intended to be manifested and accomplished by unlawful and violent acts. The indictment specified that the attempt was made by calling and attending public assemblies and by making speeches for the purpose of organizing and establishing groups and combinations of [57 S.Ct. 734] white and colored persons under the name of the Communist Party of Atlanta for the purpose of uniting, combining, and conspiring to incite riots and to embarrass and impede the orderly processes of the courts and offering combined resistance to, and, by force and violence, overthrowing and defeating the authority of the state; that, by speech and persuasion, the appellant solicited and attempted to solicit persons to join, confederate with, and become members of the Communist Party and the Young Communist League and introduced into the state and circulated, aided, and assisted in introducing and circulating, booklets, papers, and other writings with the same intent and purpose. The charge was founded on § 56 of the Penal Code, one of four related sections. Section 55 defines insurrection, § 56 defines an attempt to incite insurrection, § 57 prescribes the death

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penalty for conviction of the offenses described in the two preceding sections unless the jury shall recommend mercy, and § 58 penalizes, by imprisonment, the introduction and circulation of printed matter for the purpose of inciting insurrection, riot, conspiracy, etc. The sections are copied in the margin.2

The appellant was brought to trial and convicted. He appealed on the ground that, under the statute as construed by the trial court in its instructions to the jury, there was no evidence to sustain a verdict of guilty. The Supreme Court affirmed the judgment upon a broader and different construction of the act.3 The appellant moved for a rehearing, contending, inter alia, that, as so construed, the statute violated the Fourteenth Amendment. The court refused to pass upon the constitutional questions thus raised, elaborated and explained its construction of the statute in its original opinion, and denied

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a rehearing.4 The appellant perfected an appeal to this court claiming that he had timely raised the federal questions and we, therefore, had jurisdiction to decide them. We held we were without jurisdiction.5 Upon his commitment to serve his sentence he sought the writ of habeas corpus.

In the present proceeding, the Superior Court and Supreme Court of Georgia have considered and disposed of the contentions based upon the Federal Constitution. The scope of a habeas corpus proceeding in the circumstances disclosed is a state, and not a federal, question, and, since the state courts treated the proceeding as properly raising issues of federal constitutional right, we have jurisdiction, and all such issues are open here. We must, then, inquire whether the statute, as applied in the trial, denied appellant rights safeguarded by the Fourteenth Amendment.

The evidence on which the judgment rests consists of appellant's admissions and certain documents found in his possession. The appellant told the state's officers that, some time prior to his arrest, he joined the Communist Party in Kentucky and later came to Atlanta as a paid organizer for the party, his duties being to call meetings, to educate and disseminate information respecting the party, to distribute literature, to secure members, and to work up an...

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