Fraina v. United States

• Citation: 255 F. 28
• Decision Date: 11 December 1918
• Docket Number: 19.
• Parties: FRAINA et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

255 F. 28

FRAINA et al. v. UNITED STATES.

No. 19.

United States Court of Appeals, Second Circuit.

December 11, 1918

Winter Russell, of New York City (Horace L. Cheyney, of New York City, of counsel), for plaintiff in error Cheyney.

Boudin & Liebman, of New York City (Louis B. Boudin, of New York City, of counsel), for plaintiff in error Fraina.

Francis G. Caffey, U.S. Atty., of New York City (Vincent H. Rothwell Asst. U.S. Atty., of New York City, of counsel), for the United States.

The indictment in two counts rests upon sections 37 and 332 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1096 1152 (Comp. St. Secs. 10201, 10506)) and section 6 of the Selective Service Act of May 18, 1917, c. 15, 40 Stat. 80 (Comp. St. 1918, Sec. 2044f).

Both counts charged a conspiracy on the part of the plaintiffs in error and others to the grand jurors unknown. The object of the conspiracy described in the first count is stated as an agreement to commit an offense against the United States viz. that they (plaintiffs in error and the persons unknown) 'should fail and neglect fully to perform duties required of them in the execution of' the said Selective Service Act.

The second count similarly charges an agreement to commit an offense against the United States, viz. that they (plaintiffs in error and the persons unknown) 'should aid, abet, counsel, command, induce and procure divers persons whose names are to the grand jurors unknown, unlawfully to evade and to aid others to evade the requirements of' the Selective Service Act, and further that they 'should aid, abet, counsel, command, induce and procure divers persons whose names are to the grand jurors unknown, unlawfully to fail and neglect fully to perform duties required of them in the execution of' the said Selective Service Act.

The overt acts enumerated in respect of both counts all consisted of sundry alleged doings of one or both of the plaintiffs in error at what is described as 'a mass meeting of so-called conscientious objectors held' within the Southern district of New York. Said overt acts may be summarized thus: Cheyney was chairman of said mass meeting; both plaintiffs in error and other persons, whose names are unknown, distributed certain pamphlets entitled 'Conscientious Objectors' at the said meeting, Fraina being the author of said pamphlet, the same purporting to be issued by the 'League of Conscientious Objectors,' and that Fraina at the said meeting and in a speech there delivered uttered certain words set forth at length.

The applicable language of section 37 is that, 'if two or more persons conspire either to commit any offence against the United States, * * * and one or more of such parties do any act to effect the object of the conspiracy, each of the parties' shall be fined or imprisoned.

Section 332 provides: 'Whoever * * * aids, abets, counsels, commands, induces or procures' the commission of 'any act constituting an offence in any law of the United States' is a principal.

Section 6 of the Selective Service Act contains these material words: 'Any person who * * * evades or aids another to evade the requirements of this act, * * * or who, in any manner, shall fail or neglect fully to perform any duty required of him in the execution of this act,' shall be guilty of a misdemeanor.

Plaintiffs in error were acquitted upon the first count and convicted on the second, and, sentence having been passed upon them, they took this writ.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

This record presents several most substantial defects in practice:

1. There is no bill of exceptions. Both parties have agreed to call what is probably a transcript of the stenographer's minutes by that name; but giving it the requisite name does not make it the lawful thing. The consent was worthless, and it is of grace only that we consider the points argued. On this matter we spoke plainly in Linn v. United States, 251 F. 476, . . . C.C.A. . . . .

2. The record is also incumbered with what are called 'Additional and Supplemental Assignments of Error. ' Certain errors were assigned, and presented with the application for writ and citation, as required by rule. Thereafter it seems certain, from the internal evidence of the transcript, that counsel combed through the minutes, specified anything they did not like, whether excepted to contemporaneously or not, called the result of their labors 'additional and supplemental assignments of error,' and filed the document without any leave of court, so far as shown. It also is worthless, first, wholly, because no leave is shown; and second, in so far as the assignment rests on no exceptions, even if leave had been obtained.

We may, under the familiar rule of court, notice 'a plain error not assigned'; but these additional assignments do not per se require us to notice them at all, except to disapprove their existence.

3. A number of the exceptions and following assignments rest on the refusal of the trial judge to repeat to the jury, when rephrased in a request, what he had already correctly stated in substance. When the law has once been fairly presented to the jury, 'neither party has a right to complain because the trial judge preferred his own language to that of counsel. ' Green v. United States, 240 F. 949, 153 C.C.A. 635. To such assignments no further attention need be paid.

The facts shown at trial were few, and substantially uncontradicted. Outside a building was a poster announcing a meeting within; inside a large audience and a platform, on which sat defendant Cheyney who presided, defendant Fraina, and one Sonnenschein. Of those present very many were obviously of the age rendering them liable to conscription. Men moved through the audience, distributing gratis a printed speech by Fraina, obtaining the same from the platform on which defendants sat.

Cheyney opened the proceedings with a speech. Most of the sentences began with 'I object,' and his objections extended to the war with Germany and every step taken to make it effective, also to all war, because 'you cannot achieve anything by force. ' He also denied 'the right of any individual to compel me to do anything against my will,' and exhorted his hearers 'not (to) go across the seas in order to fight a foreign fight' but to fight autocracy 'through industrial and economic means,' and closed with the following peroration:

'Those are the grounds upon which I am a conscientious objector: On the ground that it is immoral to fight at all; on the ground that it is each individual is the master of his own mind, the captain of his own soul; that it is his to say as to whether he should do a thing or not do it. Those are the grounds on which I am a conscientious objector.

'Now, I won't take your time any longer, because there is a man to follow me, a man you all know, a man much more eloquent than I, who can point home in words more eloquent than I can the tyranny of big business in this country. I have the pleasure of introducing to you Mr. Louis Fraina, the New Internationalist.'

Fraina then spoke at greater length, though not differing in universal objection from Cheyney. He said inter alia:

'We find they are going to conscript the conscientious objector. The conscientious objector refuses to be conscripted. It is against his principle, it is against his conscience, to serve in the army, and to perform military service, * * * but we are told in a measure if we persist in our objection, in the measure we cling to our principles, we are hampering the process of war, that we are helping to kill our own boys at the front.

'In the first place, that is a dastardly lie. In the second place, it is immaterial to me what happens at the front; it is immaterial to me what happens in a war which is imposed upon me, because in this case one must exercise a sense of proportion. * * * The government in this conscription law recognizes only those conscientious objectors that are affiliated with some recognized religious association, cult, or creed, such as the Quakers, for instance. Now, the other conscientious objectors are not recognized by the conscription law. * * * But since when must a man necessarily belong to a church, belong to a creed, a recognized creed, before he can have a conscience? * * * The government, in making conscientious objection to war a part of religion or creed, is placing a premium upon religion. It is placing a premium upon the superstitions of religion, it is placing a premium upon the passive attitude of the religion of the Quakers. * * *

'Now, the nonreligious conscientious objector is a distinctly different type. The nonreligious conscientious objector is one of the people, a social being, and as such has an objection to war. I do not object to war because my father was a Quaker and I inherited his religion. I object to war because I have acquired my conscientious convictions, I have acquired the objection by experience, by thinking, action, and I have felt it flow into my conscience and my life.

'The government is perfectly content in placing a premium upon religious conscientious objection, and penalizing the nonreligious ones, because the system of things that this government represents, the infamous system of capitalism, has nothing to fear from the religious conscientious objector; * * * but it has everything to fear from the nonreligious, from the social, conscientious objector, because the nonreligious conscientious objector is not interested in his conscience alone, but interested in his social principle that his conscience represents, and is trying to overthrow a system of things that produces war and produces other evils. * * *

'We

...