Commonwealth v. Nelson

• Decision Date: 12 November 1952
• Docket Number: 7450
• Citation: 172 Pa.Super. 125,92 A.2d 431
• Parties: COMMONWEALTH v. NELSON.
• Court: Pennsylvania Superior Court

92 A.2d 431

172 Pa.Super. 125

COMMONWEALTH v. NELSON.

No. 7450

Superior Court of Pennsylvania

November 12, 1952

[Copyrighted Material Omitted]

Louis F. McCabe, Philadelphia, Victor Rabinowitz, Belle Seligman New York City, for appellant.

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

Before RHODES, P. J., and HIRT, RENO, DITHRICH and ROSS, JJ.

The following is the opinion of Judge Montgomery in the court below:

Following his conviction on January 30, 1952 for violating the Sedition Law of this State as presently stated in Section 207 of the Penal Code, adopted June 24, 1939, P.L. 872, 18 P.S. § 4207, the defendant filed motions for a new trial and in arrest of Judgment which are now before us for disposition.

I. This court has jurisdiction.

One of the reasons asserted in support of the motions is, that this court is without jurisdiction because the Federal Government has preempted this field of jurisdiction and therefore has exclusive jurisdiction. This reason is untenable. There is no question that where jurisdiction is exclusive in the Federal Government or where its jurisdiction is supreme in a field where the states may act in the absence of Federal legislation, the state may not interfere by legislation it may pass: Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581, in which case it was held that the registration of aliens is within such fields. The Alien Registration Act of June 28, 1940, C. 439, 54 Stat. 670, 8 U.S.C.A. § 451 et seq., therefore, supersedes the Pennsylvania Act of 1939, P.L. 652. The reason for this is that nationals of other countries everywhere as well as our citizens abroad are protected by treaties which are in the exclusive hands of the Federal Government under our Constitution. However, since the defendant is a naturalized citizen of this country, the matter of treaty is not involved; and further, lack of citizenship is no defense in prosecutions under state criminal laws. Therefore, the Alien Registration Act does not supersede the legislation under which defendant was prosecuted.

Defendant argues further that the Smith Act and the McCarran or Internal Security Act together preempted this same field and therefore precluded the Commonwealth of Pennsylvania from acting. ^[1] These Acts are very broad and include the protection of the national as well as the state government from the ravages of Communism. However, that alone does not nullify the state legislation. As we have just stated, that nullification comes about only when the Federal Government's jurisdiction is exclusive or when it is supreme, and in the latter case the Federal Government must expressly or by necessary implication indicate its intention of superseding or precluding the action of the states, 22 C.J.S., Criminal Law, § 16, p. 65. We find nothing in the Smith Act or the McCarran Act, expressly precluding the states from acting and we do not read in the Acts any necessary implication to that effect. On the contrary, the latter Act expressly provides, Sect. 1750, U.S.C.A. § 796, the following:

We are of the opinion that the legislation upon which this prosecution is based comes under the head of 'concurrent jurisdiction' as described in U. S. v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 142, 67 L.Ed. 314, wherein the Court said:

'We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the amendment. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.'

Also, Westfall v. U.S. 274 U.S. 256, 47 S.Ct. 629, 71 L.Ed. 1036, wherein the Court said:

'Of course an act may be criminal under the laws of both jurisdictions.'

In Commonwealth v. Blankenstein, 81 Pa.Super. 340, our Superior Court, in speaking of the Pennsylvania Sedition Act, said:

'No one, whether as an alien or citizen, has any warrant in the Constitution to overthrow its authority by violence and the right to counteract violences includes the power to prohibit conduct the purpose of which is to produce public disorder and antagonism against the state.'

This same right is recognized by our laws even when applied to the individual citizen. His right of self-defense justifies homicide; likewise, the state need not depend upon the vigilance and action of the Federal authorities and thereby risk its own existence. The right of the state to exercise its police power to protect itself is as important to it as the same attribute of the Federol Government and in the absence of any delegation of that right by the state to the Federal Government it would still remain with it under the Tenth Amendment to the U. S. Constitution. ^[2] We find nothing in our Constitutions that would indicate an intention of depriving the Commonwealth of Pennsylvania of that right or the transferring of it to the Federal Government unless it be Article I, Section 8, Clause 15 of the United States Constitution which delegates to Congress the right 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions'. In our opinion, this provision does not lend itself to an interpretation that the state is deprived of the right to make criminal acts that could and are intended to cause public disorder even though such acts might eventually lead to insurrection. Sec. 102, Title II of the McCarren Act also supports this position because it is therein provided that the declaration by the President of 'internal security emergencies' is contingent upon the happenings of those things mentioned in the foregoing Constitutional provision, to-wit: 'invasion and insurrection and declaration of war.' ^[3]

The police power is the greatest and most important attribute of government; on it the very existence of the state depends. If the exercise of the police power should be in irreconcilable opposition to a constitutional provision or right the police power would prevail. See Commonwealth v. Widovich, 93 Pa.Super. 323 and 295 Pa. 311(318), 145 A. 295, and cases therein cited. The importance of the matter dictates that jurisdiction be concurrent so that every means of protection is available.

In this connection, we are of the further opinion that the acts of defendant within the Commonwealth of Pennsylvania were not such as to be:

'* * * interwoven with contemporary national policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government * * *.'

Nor do we place any merit upon the further argument that the federal field has been invaded because certain U.S.S.R. information bulletins presented in evidence, were published by the Embassy of the Union of Soviet Socialist Republics and circulated under an agreement between the Soviet Union and the United States. These pamphlets did not form the basis for the prosecution; they were incidental thereto and were offered merely to throw light on the defendant's intentions in his use of other literature upon which the indictment depended. He was not prosecuted for circulating these bulletins and there was therefore no violation of the agreement between the two governments; or the invasion of any field in which the jurisdiction of the national government was exclusive or supreme.

II. The Sedition Act is constitutional.

We are next asked to rule upon the constitutionality of the Act involved and to ignore the decisions of our Appellate Courts particularly Commonwealth v. Widovich, 93 Pa.Super. 323, reviewed by the Supreme Court at 295 Pa. 311, 145 A. 295; Commonwealth v. Lazar, 103 Pa.Super. 417, 157 A. 701; Commonwealth v. Blankenstein, supra, and others. The answer to this argument is found and clearly stated in the case of Townsend Trust Co., 349 Pa. 162, 36 A.2d 438, 441:

'* * * a lower court has no right to ignore the latest decision of the Superior Court of this Commonwealth on an issue which has been squarely decided. Until that decision should be overruled by the * * * Supreme Court, it is still the law of this Commonwealth, regardless of the decisions of any other court in the country, including the Federal courts.'

This rule is also supported by Statute, in Act of 1895, June 24, P.L. 212, § 10, 17 P.S. § 198, and is applicable to constitutional questions: Gerlach v. Moore, 243 Pa. 603, 90 A. 399; and Keator v. Lackawanna County, 292 Pa. 269, 141 A. 37. It is only inapplicable when other statutes have been the subject of consideration; Commonwealth ex rel. Margiotti v. Lawrence, 326 Pa. 526, 193 A. 46; Heisler v. Thomas Colliery Co., 274 Pa. 448, 118 A. 394, 24 A.L.R. 1215.

In the absence of any decision of our Pennsylvania Appellate Courts contrary to or in modification of the Widovich, supra and Lazar, supra, cases, we must, therefore, accept them as establishing the constitutionality of the Act now before us.

However defendant argues that since Par. (c) of the Act, 18 P.S. § 4207, was excepted from the discussion in the Widovich case (no charge having been laid thereunder in that indictment) there is no precedent established by an Appellate Court that is binding and therefore we should pass on the constitutionality of that particular paragraph since certain counts of the present indictment (2, 3, 4 and 8) are based upon it. In support of the argument, a portion of the charge to the jury by O'Brien, J., in the trial of Onda and Dolsen under this present indictment is offered. The substance of the offered matter is that Sect. (c...