Pierce v. United States

• Decision Date: 08 March 1920
• Docket Number: No. 234,234
• Citation: 64 L.Ed. 542,252 U.S. 239,40 S.Ct. 205
• Parties: PIERCE et al. v. UNITED STATES
• Court: U.S. Supreme Court

252 U.S. 239

40 S.Ct. 205

64 L.Ed. 542

PIERCE et al.

v UNITED STATES.

No. 234.

Argued Nov. 18 and 19, 1919.

Decided March 8, 1920.

Mr. Frederick A. Mohr, of Auburn, N. Y., for plaintiffs in error.

Mr. Assistant Attorney General Stewart, for the United States.

Mr. Justice PITNEY delivered the opinion of the Court.

Plaintiffs in error were jointly indicted October 2, 1917, in the United States District Court for the Northern District of New York, upon six counts, of which the fourth and fifth were struck out by agreement at the trial and the first is now abandoned by the government.

The second count charged that throughout the period from April 6, 1917, to the date of the presentation of the indictment, the United States being at war with the Imperial German government, defendants at the city of Albany, in the Northern district of New York and within the jurisdiction, etc., unlawfully and feloniously conspired together and with other persons to the grand jurors unknown to commit an offense against the United States, to wit:

'The offense of unlawfully, feloniously and willfully attempting to cause insubordination, disloyalty and refusal of duty in the military and naval forces of the United States when the United States was at war and to the injury of the United States in, through, and by personal solicitations, public speeches and distributing and publicly circulating throughout the United States certain articles printed in pamphlets called 'The Price We Pay,' which said pamphlets were to be distributed publicly throughout the Northern district of New York, and which said solicitations, speeches, articles and pamphlets would and should persistently urge insubordination, disloyalty and refusal of duty in the said military and naval forces of the United States to the injury of the United States and its military and naval service and failure and refusal on the part of available persons to enlist therein and should and would through and by means above mentioned obstruct the recruiting and enlistment service of the United States when the United States was at war to the injury of that service and of the United States.'

For overt acts it was alleged that certain of the defendants, in the city of Albany, at times specified, made personal solicitations and public speeches, and especially that they published and distributed to certain persons named and other persons to the grand jurors unknown certain pamphlets headed 'The Price We pay,' a copy of which was annexed to the indictment and made a part of it.

The third count charged that during the same period and on August 26, 1917, the United States being at war, etc defendants at the city of Albany, etc., willfully and feloniously made, distributed, and conveyed to certain persons named and others to the grand jurors unknown certain false reports and false statements in certain pamphlets attached to and made a part of the indictment and headed 'The Price We Pay,' which false statements were in part as shown by certain extracts quoted from the pamphlet, with intent to interfere with the operation and success of the military and naval forces of the United States.

The sixth count charged that at the same place, during the same period and on August 27, 1917, while the United States was at war, etc., defendants willfully and feloniously attempted to cause insubordination, disloyalty, mutiny, and refusal of duty in the military and naval service of the United States by means of the publication, circulation, and distribution of 'The Price We Pay' to certain persons named and others to the grand jurors unknown.

A general demurrer was overruled, whereupon defendants pleaded not guilty and were put on trial together, with the result that Pierce, Creo, and Zeilman were found guilty upon the first, second, third, and sixth counts, and Nelson upon the third count only. Each defendant was separately sentenced to a term of imprisonment upon each count on which he had been found guilty; the several sentences of Pierce, Creo, and Zeilman, however, to run concurrently.

The present direct writ of error was sued out under section 238, Judicial Code (Comp. St. § 1215), because of contentions that the Selective Draft Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 2044a-2044k) and the Espionage Act (40 Stat. 217) were unconstitutional. These have since been set at rest. Selective Draft Law Cases, 245 U. S. 366, 38 Sup. Ct. 159, 62 L. Ed. 349, L. R. A. 1918C, 361, Ann. Cas. 1918B, 856; Schenck v. United States, 249 U. S. 47, 51, 39 Sup. Ct. 247, 63 L. Ed. 470; Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. 249, 63 L. Ed. 561; Debs v. United States, 249 U. S. 211, 215, 39 Sup. Ct. 252, 63 L. Ed. 566. But our jurisdiction continues for the purpose of disposing of other questions raised in the record. Brolan v. United States, 236 U. S. 216, 35 Sup. Ct. 285, 59 L. Ed. 544.

It is insisted that there was error in refusing to sustain the demurrer, and this on the ground that (1) the facts and circumstances upon which the allegation of conspiracy rested were not stated; (2) there was a failure to set forth facts or circumstances showing unlawful motive or intent; (3) there was a failure to show a clear and present danger that the distribution of the pamphlet would bring about the evils that Congress sought to prevent by the enactment of the Espionage Act; and (4) that the statements contained in the pamphlet were not such as would naturally produce the forbidden consequences.

What we have recited of the second count shows a sufficiently definite averment of a conspiracy and overt acts under the provisions of title 1 of the Espionage Act.¹ The fourth section makes criminal a conspiracy 'to violate the provisions of sections two or three of this title,' provided one or more of the conspirators do any act to effect the object of the conspiracy. Such a conspiracy, thus attempted to be carried into effect, is none the less punishable because the conspirators fail to agree in advance upon the precise method in which the law shall be violated. It is true the averment of the conspiracy cannot be aided by the allegations respecting the overt acts. United States v. Britton, 108 U. S. 199, 205, 2 Sup. Ct. 531, 27 L. Ed. 698; Joplin Mercantile Co. v. United States, 236 U. S. 531, 563, 35 Sup. Ct. 291, 59 L. Ed. 705. On the other hand, while under section 4 of the Espionage Act, as under section 37 of the Criminal Code (Comp. St. § 10201), a mere conspiracy, without overt act done in pursuance of it, is not punishable criminally, yet the overt act need not be in and of itself a criminal act; still less need it constitute the very crime that is the object of the conspiracy. United States v. Rabinowich, 238 U. S. 78, 86, 35 Sup. Ct. 682, 59 L. Ed. 1211; Goldman v. United States, 245 U. S. 474, 477, 38 Sup. Ct. 166, 62 L. Ed. 410.

As to the second point: Averments that defendants unlawfully, willfully, or feloniously committed the forbidden acts fairly import an unlawful motive; the third count specifically avers such a motive; the conspiracy charged in the second and the willful attempt charged in the sixth necessarily involve unlawful motives.

The third and fourth objections point to no infirmity in the averments of the indictment. Whether the statements contained in the pamphlet had a natural tendency to produce the forbidden consequences, as alleged, was a question to be determined, not upon demurrer, but by the jury at the trial. There was no error in overruling the demurrer.

Upon the trial, defendants' counsel moved that the jury be directed to acquit the defendants, upon the ground that the evidence was not sufficient to sustain a conviction. Under the exceptions taken to the refusal of this motion it is urged that there was no proof (a) of conspiracy; (b) of criminal purpose or intent; (c) of the falsity of the statements contained in the pamphlet circulate (d) of knowledge on defendants' part of such falsity; or (e) of circumstances creating a danger that its circulation would produce the evils which Congress sought to prevent; and further (f) that the pamphlet itself could not legitimately be construed as tending to produce the prohibited consequences.

The pamphlet—'The Price We Pay'—was a highly colored and sensational document, issued by the national office of the Socialist party at Chicago, Ill., and fairly to be construed as a protest against the further prosecution of the war by the United States. It contained much in the way of denunciation of war in general, the pending war in particular; something in the way of assertion that under Socialism things would be better; little or nothing in the way of fact or argument to support the assertion. It is too long to be quoted in full. The following extracts will suffice; those indicated by italics being the same that were set forth in the body of the third count:

'Conscription is upon us; the draft law is a fact!

'Into your homes the recruiting officers are coming. They will take your sons of military age and impress them into the army;

'Stand them up in long rows, break them into squads and platoons, teach them to deploy and wheel;

'Guns will be put into their hands; they will be taught not to think, only to obey without questioning.

'Then they will be shipped thru the submarine zone by the hundreds of thousands to the bloody quagmire of Europe.

'Into that seething, heaving swamp of torn flesh and floating entrails they will be plunged, in regiments, divisions and armies, screaming as they go.

'Agonies of torture will rend their flesh from their sinews, will crack their bones and disslove their lungs; every pang will be multiplied in its passage to you.

'Black death will be a guest at every American fireside. Mothers and fathers and sisters, wives and sweethearts will know the weight of that awful vacancy left by the bullet which finds its mark.

'And still the recruiting officers will come; seizing age after age,...