Com. v. Nelson

• Decision Date: 25 January 1954
• Citation: 104 A.2d 133,377 Pa. 58
• Parties: COMMONWEALTH v. NELSON.
• Court: Pennsylvania Supreme Court

Page 133

104 A.2d 133

377 Pa. 58

COMMONWEALTH v. NELSON.

Supreme Court of Pennsylvania.

Jan. 25, 1954.

Rehearing Denied April 27, 1954.

Hymen Schlesinger, Pittsburgh, Louis F. McCabe, Philadelphia, for appellant.

James F. Malone, Jr., Dist. Atty., Pittsburgh, William F. Cercone Asst. Dist. Atty., Pittsburgh, for appellee.

William Allen Rahill, Julian E. Goldberg, Philadelphia, amici curiae, Newell G. Alford, Jr., Herbert Monte Levy, Arthur Garfield Hays, New York City, of counsel.

Before STERN, C. J., and STEARNE, JONES and CHIDSEY, JJ.

JONES, Justice.

The appellant Nelson was convicted in the Court of Oyer and Terminer of Allegheny County on all twelve counts of an indictment charging him, inter alia, with an attempt to overthrow the government of the United States by force and violence contrary to the Pennsylvania Sedition Act of 1919, re-enacted as a part of Pennsylvania's Criminal Code of 1939; see Section 207 of the Act of June 24, 1939, P.L. 872, 18 P.S. § 4207. The prosecution's evidence consisted in large part of proof of the defendant's membership and official position in the Communist Party, his attendance at Party meetings and the introduction of a mass of documentary evidence consisting of books, papers and pamphlets advocating teaching or promulgating Communist doctrine, found in the Party headquarters and bookstore in Pittsburgh of which the defendant was a supervising principal. The defendant's motions for a new trial and in arrest of judgment were denied by the court en banc in an opinion written by the trial judge. Nelson was thereupon sentenced to pay a fine of $10,000, the costs of prosecution (amounting in taxable items to $13,000) and to undergo imprisonment for a term of 20 years. On appeal from the judgment of sentence, the Superior Court affirmed per curiam. See 172 Pa.Super. 125, 151, 92 A.2d 431. Upon petition of the defendant, we allowed an appeal as our statute required us to do because of the constitutional questions involved. See Act of Assembly of June 24, 1895, P.L. 212, § 7(e), 17 P.S. § 190; also, Commonwealth v. Gardner, 297 Pa. 498, 499, 147 A. 527, and Commonwealth v. Caulfield, 211 Pa. 644, 61 A. 243.

In support of his motion for a new trial, the appellant, in addition to his contentions on constitutional grounds, ¹ cites numerous instances of alleged trial error which raise serious questions as to whether his conviction resulted from a fair and impartial trial,-- one devoid of bias and prejudice. As the defendant has, at all times, admitted his membership and position in the Communist Party, obviously his views are so extremely unpopular with a vastly preponderant majority of the citizenry of our Country as to amount virtually to an anathema in the public mind. That very circumstance makes it especially incumbent upon a court, in reviewing the conviction of such a person for an alleged offense against the body politic, to scrutinize the record with utmost care to see that he received a trial that fully comports with our concept of traditional due process,--quite apart from any question of trial error in the admission or rejection of evidence or in alleged excesses or deficiencies in the court's instructions to the jury.

Thus, the appellant charges that he was refused a reasonable postponement of the trial, which he sought in order to pursue his effort to obtain counsel, and was thereby denied due process of law, citing Powell v. State of Alabama, 287 U.S. 45, 53 S.C.t. 55, 77 L.Ed. 158; that the trial judge, who was an incorporator, officer and member of the executive committee of a local nonprofit corporation, known as 'Americans Battling Communism' [172 Pa.Super. 125, 92 A.2d 445], which had publicly demanded the defendant's indictment, deprived him of due process by refusing to disqualify himself, citing Tumey v. State of Ohio, 273 U.S. 510, 534, 47 S.Ct. 437, 71 L.Ed. 749, and Snyder's Case, 301 Pa. 276, 290, 152 A. 33, 76 A.L.R. 666; that the prosecutor in the information upon which the indictment was founded and chief witness against the defendant at the trial was a member of the same court in which the indictment was returned and the trial had; and that the district attorney indulged in improper, prejudicial and inflammatory remarks throughout the trial and, particularly, in his address to the jury. These and other matters of fundamental importance to a question of due process, if true, appear to have sufficient factual basis in the record to require that they be pondered conscientiously and well before being passed over as unsubstantial.

But, with any or all of that, we need not now be concerned. The appellant's principal and cogent contention is that the Pennsylvania Sedition Act was suspended by operation of law upon the enactment by Congress of Title I of the Act of June 28, 1940, c. 439, 54 Stat. 670, known as the Smith Act ² which defines sedition against the United States and prescribes punishments therefor. If the Pennsylvania Act was so superseded, then the defendant's conviction cannot be sustained. Accordingly, we are met at the outset with this question which was pressed timely in the trial court, was urged upon the Superior Court on appeal and has been stressed before us. In our opinion, the contention is well founded. Consequently, the motion in arrest of judgment should have been granted and the indictment quashed.

The question is obviously one of greatest importance. It not only revolves about a serious offense allegedly committed against the Government of the United States but it also calls for a consideration and understanding of the relationship between the Federal Government and the several States and the limitations upon the actions of each in respect of the other. As the question is basic to the appeal, our plain and immediate duty, therefore, is to decide it in accordance with what we take to be the applicable and controlling principles of law as declared by the Supreme Court of the United States. Article VI of the Federal Constitution provides that 'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'

Under our federal system, as is generally known, there are functions of government which a State may not exercise because such matters have been committed, either expressly or impliedly, by the Constitution of the United States to the care of the Federal Government. See State of Tennessee v. Davis, 100 U.S. 257, 266, 25 L Ed. 648. A State may not, for instance, set up its own postal system, coin money, impose duties on imports or exports, declare war, make treaties or do a number of things which are exclusively within the federal province. There are, however, other matters with respect to which both the Federal Government and a State may concurrently legislate. But, even there, if the inference is reasonably deducible that it was the purpose of Congress by its enactment to preempt the particular field, State legislation on the same subject is automatically suspended. This is so regardless of the validity in general of the state statute which is simply superseded and, thus, rendered inefficacious so long as the federal statute endures.

The criteria for determining the congressional purpose in such connection may be evidenced in several ways as was indicated by the Supreme Court in Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447, where it was said that 'The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Pennsylvania R. Co. v. Public Service Commission, 250 U.S. 566, 569, 40 S.Ct. 36, 37, 64 L.Ed. 1142; Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 786, 62 S.Ct. 491, 86 L.Ed. 754. Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581. Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. Southern R. Co. v. Railroad Commission, 236 U.S. 439, 35 S.Ct. 304, 59 L.Ed. 661; Charleston & W. C. R. Co. v. Varnville Furniture Co., 237 U.S. 597, 35 S.Ct. 715, 59 L.Ed. 1137; New York Central R. Co. v. Winfield, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045; Napier v. Atlantic Coast Line R. Co., supra [272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432]. Or the state policy may produce a result inconsistent with the objective of the federal statute. Hill v. [State of] Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782.'

As was also recognized in the Rice case, supra,--'It is often a perplexing question whether Congress has precluded state action or by the choice of selective regulatory measures has left the police power of the States undisturbed except as the state and federal regulations collide.' But, the congressional purpose to pre-empt a particular field is not made to depend upon a positively expressed legislative intent to that end. Such purpose can as readily be evidenced objectively by what the circumstances reasonably indicate as being necessary for the complete and unhampered effectuation of the federal aims and objectives. 'For when the question is whether a Federal act overrides a state law, the entire scheme of the statute must, of course, be considered, and that which needs must be implied is of no less force than that which is expressed.' Savage v. Jones, 225 U.S. 501, 533, 32 S.Ct. 715, 726, 56 L.Ed. 1182, (Emphasis supplied). So readily does the inference of federal pre-emption arise, when the National Government...