United States v. American Socialist Soc.

• Decision Date: 18 March 1919
• Citation: 260 F. 885
• Parties: UNITED STATES v. AMERICAN SOCIALIST SOC. et al.
• Court: U.S. District Court — Southern District of New York

260 F. 885

UNITED STATES v. AMERICAN SOCIALIST SOC. et al.

United States District Court, S.D. New York.

March 18, 1919

Seymour Stedman, of Chicago, Ill., and Walter Nelles, I. M. Sackin and S. John Block, all of New York City, for the motion.

Francis G. Caffey, U.S. Atty., and Earl B. Barnes, Asst. U.S. Atty both of New York City.

MAYER District Judge.

American Socialist Society and one Nearing were tried on an indictment containing four counts, two for alleged conspiracies and two for alleged violations of section 3, title 1 of the Espionage Act (Act June 15, 1917, c. 30, 40 Stat. 219 (Comp. St. 1918 Sec. 10212c)). The court dismissed the conspiracy counts and sent the remaining counts to the jury, which returned a verdict of not guilty in favor of Nearing and of guilty on both counts against defendant society.

On the coming in of the verdict, the court set aside the verdict on the third count and reserved decision on the motion in respect of the fourth count. The third count charged defendant with willfully attempting to cause insubordination disloyalty, mutiny, and refusal to duty in the military or naval forces of the United States; but, in view of the court's construction of the language of the statute and of the character of the acts necessary in that connection to prove, inter alia, intent to accomplish the serious results safeguarded against it was and is thought that the evidence did not justify the verdict as to this count. No further mention, therefore, need be made either of the third count or of that part of the statute the violation of which it charged.

The fourth count charged acts by both defendants alleged to have violated the following provision of section 3, title 1 of the Espionage Act, viz.:

'Whoever, when the United States is at war * * * shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.'

It was proved at the trial that Nearing wrote and the society published and distributed a pamphlet entitled 'The Great Madness,' but, as will appear infra, the part played by each was not the same. In order to convict, it was necessary to satisfy the jury beyond a reasonable doubt (1) that the effect of the pamphlet was to obstruct the recruiting and enlistment service and (2) that it was willfully intended so to do.

Various arguments were presented and requests to charge submitted on the propositions: (a) That obstruction meant physical obstruction, and not impeding, hindering, retarding, or putting an obstacle in the way of recruiting or enlisting, as defined in Masses Pub. Co. v. Patten, 246 F. 24, 158 C.C.A. 250, L.R.A. 1918C, 79, Ann. Cas. 1918B, 999; (b) that recruiting and enlistment service did not include those male persons between 18 and 40 who could volunteer (under the relevant statute) for service in the army and navy, but referred only to the military and naval recruiting officers and men; (c) that what defendants did was within their constitutional rights of free speech as secured by the First Amendment; and (d) generally, that the acts complained of represented a state of mind and an expression of opinion, rather than offenses denounced by the statute.

Since the trial, all these questions have been set at rest by the recent decisions of the United States Supreme Court in Schenck v. United States, 249 U.S. 47, 39 Sup.Ct. 247, 63 L.Ed. 470, Debs v. United States, 249 U.S. 211, 39 Sup.Ct. 252, 63 L.Ed. 566, and Frohwerk v. United States, 249 U.S. 204, 39 Sup.Ct. 249, 63 L.Ed. 561. At the time of the trial there was a diversity of opinion in the courts as to whether the recruiting and enlistment service included those subject to the Selective Service Law (Act May 18, 1917, c. 15, 40 Stat. 76 (Comp. St. 1918, Secs. 2044a-2044k)), as well as volunteers, and, as the court, giving the defendants the benefit of the doubt as to the law, charged the jury to confine its consideration to the effect of the pamphlet on those contemplating volunteering and to exclude those subject to the draft, the charge was more favorable to defendants in that regard than the recent decisions supra seem to require.

Thus, the instructions as to the law were well within the authoritative holdings of the United States Supreme Court, and the pamphlet was such that the jury was well justified in deciding, as matter of fact, that its effect was to obstruct the recruiting and enlistment service of the United States within the meaning of the statute.

The remaining question is whether the evidence supported the conclusion of the jury that defendant society published and distributed 'The Great Madness' with the specific intent of violating the statute.

Preliminarily, it is contended that the word 'whoever' refers only to human beings and not to corporations. This point may be speedily disposed of (1) because the word has been construed by courts as including corporations (40 Cyc. 928, and cases cited); and (2) because the obvious intent of the Congress was to reach corporations as well as individuals who did the acts prohibited by the Espionage Law. It is difficult to imagine that, in enacting a statute deemed necessary and vital for the protection of the country when at war, and in realizing that dangerous violations could be accomplished by publications issued and distributed by persons operating in corporate form, the Congress intended to let such corporations escape the consequences of their acts, while it held individuals to strict responsibility for precisely similar acts.

It is contended, further, that a corporation cannot be guilty of a specific intent where such intent involves an evil purpose to do a wrongful act; but that contention successfully made in the earlier history of the law and, indeed, until comparatively recent times, has now been fully discarded, and it is sufficient to refer to three decisions, one by the Supreme Court of the United States, and the other two by courts of high authority, which effectually dispose of the argument that a corporation cannot form and manifest the intent to violate a statute such as that now under consideration. N.Y. Central R.R. Co. v. United States, 212 U.S. 481, 29 Sup.Ct. 304, 53 L.Ed. 613; People v. Rochester Ry. & L. Co., 195 N.Y. 102, 88 N.E. 22, 21 L.R.A. (N.S.) 998, 133 Am.St.Rep. 770, 16 Ann.Cas. 837; Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, 52 N.E. 445, 44 L.R.A. 159, 70 Am.St.Rep. 280.

The sole remaining question which calls for comment is that which is concerned with the suggested inconsistency of the verdict; i.e., the verdict of guilt against the publisher and distributer on the same counts on which the author was acquitted. As matter of law, such a verdict does not per se afford grounds for a new trial. As stated in 16 C.J. 1176:

'The fact that the verdict was rendered only after long consideration and was apparently the result of a compromise is not ground for a new trial, where there is no showing that it was obtained improperly.'

Counsel for defendants fairly and frankly agree with this proposition for in their brief they state:

'We do not urge as a matter of law that there is an obligation upon the court to see that an inconsistent verdict should not stand.'

Their position is that they 'advance the proposition as one of simple justice. ' It is desirable, therefore, that some of the essentials of the situation shall be outlined and made clear because in cases of this character it is almost as important that the result shall be believed to be just as that it shall be just.

In indictments for crime, where human beings are jointly tried with corporations, the human interest naturally centers around the living individual. During a trial the corporation is a sort of abstraction, and seems rather a secondary figure. The human being may lose his liberty if convicted, while the worst that can happen to the corporation is the imposition of a fine. When, therefore, the jury rendered its verdict, the first impression was one of inconsistency and compromise. Yet the events of the trial and the extended deliberation of the jury invited a careful analysis in order to ascertain, not only as matter of law, but also, as counsel have put it, as matter of simple justice, whether the verdict should stand. The jury had been out for nearly 30 hours and away from home overnight, and yet, during this long period, it had not once requested to be discharged, nor once-- as is not infrequently the case to the contrary-- informed the court that it was unable to agree. Certainly, no jury could have been more conscientious in seeking to arrive at a conclusion. Nearing had taken the stand and subjected himself to examination and cross-examination. He had insisted that, whether his views were right or wrong, he had not intended to obstruct recruiting and enlistment; that his personal history and career were such that he had never failed to do by direct appeal what, from his point of view, he thought he ought to do; that in writing the pamphlet he had wished to show that war was wrong, and that this war in particular was wrong, and that the propositions put forth in the pamphlet were consistent with his writings on economic subjects, both before and during the war.

From the evidence it appeared that he did not join defendant society until after his pamphlet was submitted and first published, and that he had no part either in the detail of publication or of distribution, nor in the plan of defendant society to publish and distribute publications hereinafter referred to, directed against the war and its prosecution by the United States. All this,...