Haywood v. United States

Citation268 F. 795
Decision Date05 October 1920
Docket Number2721.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

268 F. 795

HAYWOOD et al.

No. 2721.

United States Court of Appeals, Seventh Circuit.

October 5, 1920

Rehearing Denied December 9, 1920. [268 F. 796] [Copyrighted Material Omitted] [268 F. 797]

George F. Vanderveer and Otto Christensen, both of Chicago, Ill., for plaintiffs in error.

Charles F. Clyne and Joseph B. Fleming, both of Chicago, Ill., for the United States.

Before BAKER, ALSCHULER, and PAGE, Circuit Judges.

BAKER, Circuit Judge.

Plaintiffs in error were sentenced on each of four counts of an indictment for conspiracy to violate, or to [268 F. 798] obstruct the execution of, sundry laws of the United States. Terms of imprisonment, separately assessed against each defendant on each count, were to run concurrently. As the prison sentence under the fourth count equals or exceeds in each instance the period fixed under the other counts, it would be unnecessary, if the case sought to be made under the fourth count was adequately pleaded and proved, to inquire further, except for the fact that separate fines were levied under each count. For example, many defendants were fined $5,000 under the first count, $5,000 under the second, $10,000 under the third, and $10,000 under the fourth. And since these fines cannot be satisfied by payment under any one count, the defendants are entitled to a review of the case under each count.

Before proceeding further, we think it right to emphasize the fact that a review by an appellate tribunal is not a requirement in affording a defendant the due process of law that is secured to him by the Constitution. In England writs of error in criminal cases are of comparatively recent origin. In our country, though writs of error within certain limitations have been allowed from the beginning, the grant has been of grace or expediency, not of constitutional demand. In the court of first instance the defendant is given his day in court, his trial by jury, his opportunity to confront opposing witnesses, and all other elements of due process of law. And if Congress might have withheld entirely the privilege of review, it is self-evident that Congress may at any time reduce the previously granted privilege. From recent legislation (40 Stat.pt. 1, p. 1181, Comp. St. Ann. Supp. 1919, Sec. 1246) we gather the congressional intent to end the practice of holding that an error requires the reversal of the judgment unless the opponent can affirmatively demonstrate from other parts of the record that the error was harmless, and now to demand that the complaining party show to the reviewing tribunal from the record as a whole that he has been denied some substantial right whereby he has been prevented from having a fair trial.

By demurrer, motion for directed verdict, requests for instructions, and motion in arrest, defendants challenged the sufficiency of the case as pleaded and proved under the first count.

Section 6 of the Penal Code, a re-enactment of section 5336 of the Revised Statutes (Comp. St. Sec. 10170), is the basis of the count. It denounces conspiracies to use force to prevent, hinder, or delay the execution of any law of the United States.

Defendants, so the government contended, conspired to prevent by force the execution of the following laws: (1) The joint resolution of April 6, 1917, declaring war on Germany; (2) the President's proclamation of April 6, 1917, concerning conduct of alien enemies; (3) Act June 3, 1916, making provision for national defense; (4) Act July 6, 1916, making appropriations for fortifications; (5) Act of August 29, 1916, making appropriations for the naval service; (6) act of same date, making appropriations for the support of the army; (7) Act April 17, 1917, making appropriations to cover deficiencies; (8) Act May 18, 1917, known as the Selective Service Act; (9) Act June 15, 1917, making appropriations for urgent deficiencies; (10) Act July [268 F. 799] 24, 1917, to purchase, manufacture, and operate airships; (11) Act June 15, 1917, known as the Espionage Act; (12) the following sections of the Penal Code of March 4, 1909, namely, 4, 19, 21, 37, 42, 135, 136, 140, and 141.

How was the execution of these various laws to be prevented by force? Defendants were officers and agents of the Industrial Workers of the World. That organization was opposed to capitalism and the wage system, believed that the 'workers' should seize the 'tools of industry,' was hostile to our system of government, denounced our entry into the war as the result of the influence and desire of the 'ruling, capitalistic classes,' and undertook to block our efforts to win. Defendants, having control of that organization as an instrument, conspired to have their members, who were workmen in factories engaged in producing war munitions and supplies, break machinery, spoil materials, strike, and use force to prevent other workmen from taking their places; also to have their members refrain from registering in obedience to the Selective Service Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 2044a-2044k), to have them desert, if brought into registration offices, and to rescue them by force, if caught; and also, in defiance of the Espionage Act, to cause all whom they could influence by speeches, pamphlets, and newspapers to keep out of the military service.

Those parts of the case under the first count that have to do with violations of the Selective Service Act and the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 10212a-10212h) must here be eliminated for the following reasons: Count 3 is for conspiracy to violate the Selective Service Act. Count 4 is for conspiracy to violate the Espionage Act. Granting that section 6 of the Penal Code, on which count 1 is predicated, is broad enough in its terms to cover conspiracies to use force in preventing, hindering, or delaying the execution of the Selective Service Act and the Espionage Act, the penal provisions of these last-named acts constitute the specific directions of Congress for the punishment of all obstructions, forcible or otherwise, of the recruiting and enlistment service. Congress did not intend, in the face of the constitutional prohibition, to inflict punishment twice for the same offense. Under the familiar maxim, 'generalia specialibus non derogant,' these specific provisions effected pro tanto a repeal of section 6. Snitkin v. United States (C.C.A.) 265 F. 489.

There remains, then, the question whether forcible interference with the operations of producers from whom the government was expecting to buy or had contracted to buy war munitions and supplies constituted a forcible prevention of the execution of the acts of Congress in declaring war and making appropriations therefor.

Undoubtedly Congress, under the war power, could have protected by legislation the operations of such producers from all interference, forcible or otherwise, and as the war progressed various strengthening laws were enacted. But the question now before us concerns the true meaning of section 6. That was enacted long before the war. It must be enforced after the war is officially ended. Manifestly in [268 F. 800] each period, before, during, and after, it must be given the same meaning and effect.

So the question under section 6 covers not only war supplies, but also any peacetime supplies which the government might intend to buy or had contracted to buy. The Government Printing Office is conducted under laws directing, and making appropriations for, its operations. Any direct interference by force with its operations might possibly be held to be a forcible prevention of the execution of laws of the United States. (Running a printing office, however, is a proprietary rather than a governmental function.) But the printing office cannot operate without paper. Suppose the workmen in a paper mill that has a contract to supply paper to the printing office, with knowledge of the contract and with intent to prevent the mill from fulfilling it, go on strike and forcibly prevent the running of the mill. Suppose that workmen in a hemlock forest, whose owner has a contract to supply logs to the paper mill that has a contract to supply paper to the printing office, with knowledge of those contracts and with the intent to prevent their execution, go on strike and forcibly stop the timberman's operations. And so on, along the whole imaginable line of 'the house that Jack built.' Are these forcible stoppers of industrial production guilty under section 6? How are the laws of the United States executed? By officials upon whom the duty is laid. Performance of that duty cannot be delegated. Producers, who have contracts to furnish the government with supplies, are not thereby made officials of the government. Defendants' force was exerted only against producers in various localities. Defendants thereby may have violated local laws. With that we have nothing to do. Federal crimes exist only by virtue of federal statutes; and the lawmakers owe the duty to citizens and subjects of making unmistakably clear those acts for the commission of which the citizen or subject may lose his life or liberty. Section 6 should not be enlarged by construction. Its prima facie meaning condemns force only when a conspiracy exists to use it against some person who has authority to execute and who is immediately engaged in executing a law of the United States.

Baldwin v. Franks, 120 U.S. 678, 7 Sup.Ct. 656, 32 L.Ed. 766, is the leading case. By a treaty between China and the United States Chinese persons were guaranteed certain civil rights in the United States. That treaty was a part of the supreme law of our land. In pursuance of a conspiracy, Baldwin, by force exerted upon the bodies of certain Chinese persons, prevented them from enjoying the rights guaranteed by the treaty. Section 6, the court said,

'means something more than setting the laws themselves at defiance. There

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