390 U.S. 29 (1968), 502, Epton v. New York

Docket Nº:No. 502, Misc.
Citation:390 U.S. 29, 88 S.Ct. 824, 19 L.Ed.2d 808
Party Name:Epton v. New York
Case Date:January 22, 1968
Court:United States Supreme Court
 
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390 U.S. 29 (1968)

88 S.Ct. 824, 19 L.Ed.2d 808

Epton

v.

New York

No. 502, Misc.

United States Supreme Court

January 22, 1968

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF NEW YORK

19 N.Y.2d 496, 227 N.E.2d 829, certiorari denied in No. 502, Misc., and appeal dismissed in No. 771, Misc.

Per curiam opinion.

PER CURIAM.

The petition for a writ of certiorari is denied in No. 502, Misc. The motion to dismiss is granted in No. 771, Misc., and the appeal is dismissed for want of a substantial federal question.

STEWART, J., concurring

MR. JUSTICE STEWART, concurring in the denial of certiorari and the dismissal of the appeal.

I join the denial of certiorari in No. 502, Misc., and the dismissal of the related appeal in No. 771, Misc., but only because Epton has been sentenced to serve three concurrent one-year terms: one for conspiring to riot, New York Penal Law (1944 and 1966 Cum.Supp.), §§ 580, 2090; one for advocating criminal anarchy, §§ 160, 161, and one for conspiring to engage in such advocacy, §§ 580, 160, 161. I think the riot conviction presents no substantial federal question, ** [88 S.Ct. 825] and since the three sentences

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were ordered to run concurrently, I conclude that these cases do not require the Court to consider either the criminal anarchy conviction or the associated conspiracy conviction. See Hirabayashi v. United States, 320 U.S. 81, 85; Lanza v. New York, 370 U.S. 139. If the constitutionality of New York's criminal anarchy laws were properly presented, however, I would vote to grant the petition for certiorari and note probable jurisdiction of the appeal, to reconsider the Court's decision in Gitlow v. New York, 268 U.S. 652, and to decide whether the New York anarchy statutes, either on their face or as applied in these cases, violate the First and Fourteenth Amendments.

DOUGLAS, J., dissenting

MR. JUSTICE DOUGLAS, dissenting.

I would hear argument in these cases, since I am of the opinion that all questions presented, including those under the first count of the indictment for conspiring to riot, present substantial federal questions.

In the first count, the State alleged the commission of 15 overt acts by Epton in furtherance of the alleged conspiracy to riot. The alleged acts consisted in part of speeches made by Epton and his participation in the preparation and distribution of certain leaflets. Such activities, of course, are normally given the protection of the First Amendment, with exceptions not now

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necessary to state. See Yates v. United States, 354 U.S. 298; Dennis v. United States, 341 U.S. 494; Terminiello v. Chicago, 337 U.S. l; Thomas v. Collins, 323 U.S. 516; Bridges v. California, 314 U.S. 252; Gitlow v. New York, 268 U.S. 652, 672 (dissenting opinion); Abrams v. United States, 250 U.S. 616, 624 (dissenting opinion); Schenck v. United States, 249 U.S. 47; Chaplinsky v. New Hampshire, 315 U.S. 568; Feiner v. New York, 340 U.S. 315, 329 (dissenting opinion).

Under New York law, a conviction for conspiracy requires both an agreement to commit an unlawful act and at least one [88 S.Ct. 826] overt act in furtherance of that agreement.1 Whether the overt act required to convict a defendant for conspiracy must be shown to be...

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