Powe v. United States

• Decision Date: 17 January 1940
• Docket Number: No. 9130.,9130.
• Parties: POWE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

109 F.2d 147 (1940)

POWE et al. v. UNITED STATES.

No. 9130.

Circuit Court of Appeals, Fifth Circuit.

January 17, 1940.

Harry T. Smith, D. R. Coley, Jr., and George A. Sossaman, all of Mobile, Ala., for appellants.

Francis H. Inge, U. S. Atty., of Mobile, Ala., for appellee.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

The five appellants were indicted (with another who was acquitted) for conspiring to injure, oppress, threaten and intimidate a named citizen of the United States in the free exercise of his right and privilege as such citizen to speak and publish his views in certain newspapers. Their several demurrers were overruled and appellants were convicted and sentenced. Of the numerous rulings asserted to be error on this appeal we need consider only the judgment upon the demurrers.

The grounds of demurrer to each count include these: That no crime against the United States is charged; that the right of free speech and free press is not secured by the Constitution and laws of the United States against infraction by individuals, but only by federal or State action; and that the counts are too vague. The eight counts are varying statements of the same conspiracy. Some of them say the conspiracy was to prevent future publications; others to oppress and injure because of past publications. Some counts state the nature of the publications, and the means to be used to oppress the writer; others fail so to state, baldly alleging in the words of the statute a conspiracy to injure and oppress the citizen of the United States in the exercise of or for having exercised his privilege of free speech and free press. One of the fullest statements is the second count, which charges that the conspiracy was to injure and oppress the executive editor of the Mobile Register and the Mobile Press, newspapers published in Mobile, Alabama, he being a citizen of the United States, in his exercise of his right and privilege secured to him by the Constitution and laws of the United States, to write and print in said newspapers his editorials exposing and condemning various forms of illegal gambling and illegal lotteries in Mobile County, Alabama, and calling upon the officials of the City of Mobile and County of Mobile, charged with the suppression thereof, to take action to suppress the same and to punish the offenders; the plan being to procure a photograph of the editor in a lewd or obscene act and to use the same in threatening to show the photograph, and in threatening to use it as evidence in prosecuting the editor, and thus to stop his publications; numerous overt acts to carry out the plan being alleged. Do these facts make an offense against the United States?

The statute relied on in support of the indictment originated as Section 6 of the Act of May 31, 1870, 16 Stat. 141, entitled "An Act of enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes." It appeared in the Revised Statutes with some alteration as Section 5508; was carried without change into the Criminal Code as Section 19; and now appears as Section 51 of Title 18 of the United States Code, 18 U.S.C.A. § 51. The applicable language is: "If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same * * * they shall be fined not more than $5,000 and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States." Some of the Sections of the Enforcement Act of 1870 were repealed in 1909, but Section 6, as then reenacted, stands good for whatever it properly covers. United States v. Moseley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355.

In its construction it is proper to apply the rule that criminal laws are to be construed strictly, and to bear in mind that other rule that a construction is to be avoided, if possible, that would render the law unconstitutional, or raise grave doubts thereabout. In view of these rules it is held that "citizen" means "citizen of the United States", and not person generally, nor citizen of a State; and that the "rights and privileges secured by the Constitution or laws of the United States" means those specially and validly secured thereby. Thus limited, this section has been enforced as constitutional. Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; United States v. Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; United States v. Moseley, supra. In the Yarbrough case the right involved was that to vote in a Congressional election, as it was in the Moseley case; in the Waddell case it was the right to make a federal homestead entry; and in the Logan case it was the right to be secure from lawless violence while a prisoner in the hands of a United States Marshal. These matters, all within the federal power, Congress could protect under the general authority to pass "all necessary and proper laws", under U.S. C.A.Constitution, Art. 1, Sect. 8, Par. 18. But Section 5519 of the Revised Statutes, which undertook similarly to punish conspiracies against any person to deprive him of the equal protection of the laws, or to prevent State authorities from affording such protection, was held unconstitutional, because neither the Fourteenth Amendment nor any other part of the Constitution put the matter of conspiracies by individuals touching such matters within the power of Congress, but only gave power to correct wrong action by the State or its officers. It was so held in United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290, where the person mobbed was in the custody of a State Sheriff; and in Baldwin v. Franks, 120 U.S. 678, 7 S.Ct. 656, 763, 30 L.Ed. 766, where the rights of a Chinese under a treaty of the United States were involved. It was again held that the power of Congress was not extended to protect against violations by individuals of the general rights of persons and citizens by the mention of such rights in the Fourteenth Amendment, U.S.C.A., in the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. The reasoning of these cases, though opposed by some dissents, is full and convincing, and the conclusion reached as to the effect upon federal power of the Fourteenth Amendment has stood for more than two generations.

Pursuing further the application of the statute now before us, in Baldwin v. Franks, supra, it was held the word "citizen" means citizen of the United States in a political sense, and did not include a resident Chinese. Again in Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65, the section was invoked against conspirators who were charged with interfering with citizens in their right or liberty of contracting to work in a lawful occupation, but the court held that this was a common right of all persons, and the Fourteenth Amendment did not put it under federal protection except against State action; and the fact that the persons there involved were negroes did not bring the matter within the special ambit of the Thirteenth Amendment. Similarly in United...