Stilson v. United States Sukys v. Same

• Decision Date: 10 November 1919
• Docket Number: Nos. 264 and 265,s. 264 and 265
• Parties: STILSON v. UNITED STATES. SUKYS v. SAME
• Court: U.S. Supreme Court

250 U.S. 583

40 S.Ct. 28

63 L.Ed. 1154

STILSON

v UNITED STATES.

SUKYS

v. SAME.

Nos. 264 and 265.

Argued Oct. 20 and 21, 1919.

Decided Nov. 10, 1919.

Messrs. Henry John Nelson and Henry J. Gibbons, both of Philadelphia, Pa., for plaintiffs in error.

Mr. Robert P. Stewart, Asst. Atty. Gen., for the United States.

Mr. Justice DAY delivered the opinion of the Court.

The plaintiffs in error were indicted with two others, not apprehended, and were convicted under the conspiracy section (4) of the Espionage Act (Act of June 15, 1917, c. 30, tit. 1, 40 Stat. 217, 219 [Comp. St. 1918, § 10212d]). The section which the plaintiffs in error were charged with a criminal conspiracy to violate (3) provides:

'* * * Whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, * * * shall be punished by a fine of not more than $10,000, or imprisionment for not more than twenty years, or both. * * *' Comp. St. 1918, § 10212c.

A second count in the indictment charged a conspiracy to violate certain provisions of the Selective Service Act (Act May 18, 1917, c. 15, 40 Stat. 76 (Comp. St. 1918, §§ 2044a-2044k). The sentences imposed, within the act upon either count of the indictment, were three years' imprisonment for Stilson and three months for Sukys. The government does not press the conviction upon the second count.

The overt acts charged to have been committed in pursuance of the conspiracy consisted of the publication and distribution of a certain newspaper called 'Kova' and circulars published in the Lithuanian language. The cases come directly to this Court because of constitutional questions raised and decided in the court below. Since the proceedings in that court some of the constitutional questions have been determined, and need not be considered. Schenck v. United States, 249 U. S. 47, 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, 39 Sup. Ct. 252, 63 L. Ed. 566.

Counsel for plaintiffs in error in view of these decisions only press for consideration certain assignments of error comprised in the following summary.

1. Whether or not, in ruling that there could be no severance of defendants and that a peremptory challenge by one defendant should count as a challenge by all defendants, the trial judge was in error under Article VI of the Amendments of the United States Constitution.

2. Whether or not the trial judge erred in his charge to the jury in that portion thereof in which he said the jury might determine the guilt of the defendants from general information.

3. Whether or not the trial judge erred in not refreshing the jury's memory as to the evidence.

4. Whether or not the trial judge erred in overruling a motion to take the case away from the jury, and in refusing to charge the jury, 'under all the evidence your verdict should be 'not guilty."

Of these in their order:

1. It is provided in the Sixth Amendment to the Constitution of the United States that in all criminal prosecutions the accused shall enjoy the right to a trial by an impartial jury. That it was within the discretion of the court to order the defendants to be tried together there can be no question, and the practice is too well established to require further consideration. The contention raised under the Sixth Amendment comes to this: That because plaintiffs in error were not each allowed ten separate and independent peremptory challenges they were therefore denied a trial by an impartial jury. The statute (Act March 3, 1911, c. 231, § 287, 36 Stat. 1166 [Comp. St. § 1264]) regulating the matter of peremptory challenges is clear in its terms and provides:

'When the offense charged in treason or a capital offense, the defendant shall be entitled to twenty and the United States to six peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United States to six peremptory challenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section. All challenges, whether to the array or panel, or to individual jurors for cause or favor, shall be tried by the court without the aid of triers.'

The requirement to treat the parties defendant as a single party for the purpose of peremptory challenges has long been a part of the federal system of jurisprudence, it certainly dates back to 1865 and was adopted in the Revised Statutes, and has now become a part of the Judicial Code. 36 Stat. 1166, § 287. Schwartzberg v. United States, 241 Fed. 348, 154 C. C. A. 228. There is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges to defendants in criminal cases; trial by an impartial jury is all that is secured. The number of challenges is left to be regulated by the common law or the enactments of Congress. That body has seen fit to treat several defendants, for this purpose, as one party. It the defendants would avail themselves of this privilege they must act accordingly. It may be, as is said to have been the fact in the trial of the present case, that all defendants may not wish to exercise the...