Evidence sufficient to sustain anyone of several counts of an
indictment will sustain a verdict and judgment of guilty under all
if the sentence does not exceed that which might lawfully have been
imposed under any single count. P.
250 U. S.
619.
Evidence
held sufficient to sustain a conviction of
conspiracy to violate the Espionage Act by uttering, etc.,
circulars intended to provoke and encourage resistance to the
United States in the war with Germany, and by inciting and
advocating, through such circulars, resort to a general strike of
workers in ammunition factories for the purpose of curtailing
production of ordnance and munitions essential to the prosecution
of the war. Pp.
250 U. S. 619
et seq.
When prosecuted under the Espionage Act, persons who sought to
effectuate a plan of action which necessarily, before it could be
realized, involved the defeat of the plans of the United States for
the conduct of the war with Germany must be held to have intended
that result notwithstanding their ultimate purpose may have been to
prevent interference with the Russian Revolution. P.
250 U. S.
621.
Affirmed.
The case is stated in the opinion.
MR. JUSTICE CLARKE delivered the opinion of the court.
On a single indictment, containing four counts, the five
plaintiffs in error, hereinafter designated the defendants, were
convicted of conspiring to violate provisions of the
Page 250 U. S. 617
Espionage Act of Congress (§ 3, Title I, of Act approved
June 15, 1917, as amended May 16, 1918, 40 Stat. 553).
Each of the first three counts charged the defendants with
conspiring, when the United States was at war with the Imperial
Government of Germany, to unlawfully utter, print, write and
publish: in the first count, "disloyal, scurrilous and abusive
language about the form of Government of the United States;" in the
second count, language "intended to bring the form of Government of
the United States into contempt, scorn, contumely and disrepute;"
and in the third count, language "intended to incite, provoke and
encourage resistance to the United States in said war." The charge
in the fourth count was that the defendants conspired,
"when the United States was at war with the Imperial German
Government, unlawfully and willfully, by utterance, writing,
printing and publication, to urge, incite and advocate curtailment
of production of things and products, to-wit, ordnance and
ammunition, necessary and essential to the prosecution of the
war."
The offenses were charged in the language of the act of
Congress.
It was charged in each count of the indictment that it was a
part of the conspiracy that the defendants would attempt to
accomplish their unlawful purpose by printing, writing and
distributing in the City of New York many copies of a leaflet or
circular, printed in the English language, and of another printed
in the Yiddish language, copies of which, properly identified, were
attached to the indictment.
All of the five defendants were born in Russia. They were
intelligent, had considerable schooling, and, at the time they were
arrested, they had lived in the United States terms varying from
five to ten years, but none of them had applied for naturalization.
Four of them testified as witnesses in their own behalf, and, of
these, three frankly avowed that they were "rebels,"
"revolutionists,"
Page 250 U. S. 618
"anarchists," that they did not believe in government in any
form, and they declared that they had no interest whatever in the
Government of the United States. The fourth defendant testified
that he was a "socialist," and believed in "a proper kind of
government, not capitalistic," but, in his classification, the
Government of the United States was "capitalistic."
It was admitted on the trial that the defendants had united to
print and distribute the described circulars, and that five
thousand of them had been printed and distributed about the 22nd
day of August, 1918. The group had a meeting place in New York
City, in rooms rented by defendant Abrams under an assumed name,
and there the subject of printing the circulars was discussed about
two weeks before the defendants were arrested. The defendant
Abrams, although not a printer, on July 27, 1918, purchased the
printing outfit with which the circulars were printed, and
installed it in a basement room where the work was done at night.
The circulars were distributed, some by throwing them from a window
of a building where one of the defendants was employed and others
secretly, in New York City.
The defendants pleaded "not guilty," and the case of the
Government consisted in showing the facts we have stated, and in
introducing in evidence copies of the two printed circulars
attached to the indictment, a sheet entitled "Revolutionists Unite
for Action," written by the defendant Lipman, and found on him when
he was arrested, and another paper, found at the headquarters of
the group, and for which Abrams assumed responsibility.
Thus, the conspiracy and the doing of the overt acts charged
were largely admitted, and were fully established.
On the record thus described, it is argued, somewhat faintly,
that the acts charged against the defendants were not unlawful
because within the protection of that freedom
Page 250 U. S. 619
of speech and of the press which is guaranteed by the First
Amendment to the Constitution of the United States, and that the
entire Espionage Act is unconstitutional because in conflict with
that Amendment.
This contention is sufficiently discussed and is definitely
negatived in
Schenck v. United States and
Baer v.
United States, 249 U. S. 47, and
in
Frohwerk v. United States, 249 U.
S. 204.
The claim chiefly elaborated upon by the defendants in the oral
argument and in their brief is that there is no substantial
evidence in this record to support the judgment upon the verdict of
guilty, and that the motion of the defendants for an instructed
verdict in their favor was erroneously denied. A question of law is
thus presented, which calls for an examination of the record not
for the purpose of weighing conflicting testimony, but only to
determine whether there was some evidence, competent and
substantial, before the jury, fairly tending to sustain the
verdict.
Troxell v. Delaware, Lackawanna & Western R.R.
Co., 227 U. S. 434,
227 U. S. 442;
Lancaster v. Collins, 115 U. S. 222,
115 U. S. 225;
Chicago & Northwestern Ry. Co. v. Ohle, 117 U.
S. 123,
117 U. S. 129. We
shall not need to consider the sufficiency, under the rule just
stated, of the evidence introduced as to all of the counts of the
indictment, for, since the sentence imposed did not exceed that
which might lawfully have been imposed under any single count, the
judgment upon the verdict of the jury must be affirmed if the
evidence is sufficient to sustain anyone of the counts.
Evans
v. United States, 153 U. S. 608;
Claassen v. United States, 142 U.
S. 140;
Debs v. United States, 249 U.
S. 211,
249 U. S.
216.
The first of the two articles attached to the indictment is
conspicuously headed, "The Hypocrisy of the United States and her
Allies." After denouncing President Wilson as a hypocrite and a
coward because troops were sent into Russia, it proceeds to assail
our Government in general, saying:
Page 250 U. S. 620
"His [the President's] shameful, cowardly silence about the
intervention in Russia reveals the hypocrisy of the plutocratic
gang in Washington and vicinity."
It continues:
"He [the President] is too much of a coward to come out openly
and say: 'We capitalistic nations cannot afford to have a
proletarian republic in Russia.'"
Among the capitalistic nations, Abrams testified, the United
States was included.
Growing more inflammatory as it proceeds, the circular
culminates in:
"The Russian Revolution cries: Workers of the World! Awake!
Rise! Put down your enemy and mine!"
"Yes! friends, there is only one enemy of the workers of the
world and that is CAPITALISM."
This is clearly an appeal to the "workers" of this country to
arise and put down by force the Government of the United States
which they characterize as their "hypocritical," "cowardly" and
"capitalistic" enemy.
It concludes:
"Awake! Awake! you Workers of the World!"
"REVOLUTIONISTS"
The second of the articles was printed in the Yiddish language
and, in the translation, is headed, "Workers -- Wake up." After
referring to "his Majesty, Mr. Wilson, and the rest of the gang;
dogs of all colors," it continues:
"Workers, Russian emigrants, you who had the least belief in the
honesty of
our Government," which defendants admitted
referred to the United States Government,
"must now throw away all confidence, must spit in the face the
false, hypocritic, military propaganda which has fooled you so
relentlessly, calling forth your sympathy, your help, to the
prosecution of the war."
The purpose of this obviously was to persuade the persons to
whom it was addressed to turn a deaf ear to patriotic
Page 250 U. S. 621
appeals in behalf of the Government of the United States, and to
cease to render it assistance in the prosecution of the war.
It goes on:
"With the money which you have loaned, or are going to loan
them, they will make bullets not only for the Germans, but also for
the Workers Soviets of Russia.
Workers in the ammunition
factories, you are producing bullets, bayonets, cannon, to murder
not only the Germans, but also your dearest, best, who are in
Russia and are fighting for freedom."
It will not do to say, as is now argued, that the only intent of
these defendants was to prevent injury to the Russian cause. Men
must be held to have intended, and to be accountable for, the
effects which their acts were likely to produce. Even if their
primary purpose and intent was to aid the cause of the Russian
Revolution, the plan of action which they adopted necessarily
involved, before it could be realized, defeat of the war program of
the United States, for the obvious effect of this appeal, if it
should become effective, as they hoped it might, would be to
persuade persons of character such as those whom they regarded
themselves as addressing, not to aid government loans, and not to
work in ammunition factories where their work would produce
"bullets, bayonets, cannon" and other munitions of war the use of
which would cause the "murder" of Germans and Russians.
Again, the spirit becomes more bitter as it proceed to declare
that --
"America and her Allies have betrayed (the Workers). Their
robberish aims are clear to all men. The destruction of the Russian
Revolution, that is the politics of the march to Russia."
"
Workers, our reply to the barbaric intervention has to be a
general strike! An open challenge only will let the Government
know that not only the Russian Worker fights for
Page 250 U. S. 622
freedom, but also here in America lives the spirit of
Revolution."
This is not an attempt to bring about a change of administration
by candid discussion, for, no matter what may have incited the
outbreak on the part of the defendant anarchists, the manifest
purpose of such a publication was to create an attempt to defeat
the war plans of the Government of the United States by bringing
upon the country the paralysis of a general strike, thereby
arresting the production of all munitions and other things
essential to the conduct of the war.
This purpose is emphasized in the next paragraph, which
reads:
"Do not let the Government scare you with their wild punishment
in prisons, hanging and shooting. We must not and will not betray
the splendid fighters of Russia.
Workers, up to
fight."
After more of the same kind, the circular concludes:
"Woe unto those who will be in the way of progress. Let
solidarity live!"
It is signed, "The Rebels."
That the interpretation we have put upon these articles,
circulated in the greatest port of our land, from which great
numbers of soldiers were at the time taking ship daily, and in
which great quantities of war supplies of every kind were at the
time being manufactured for transportation overseas, is not only
the fair interpretation of them, but that it is the meaning which
their authors consciously intended should be conveyed by them to
others is further shown by the additional writings found in the
meeting place of the defendant group and on the person of one of
them. One of these circulars is headed: "Revolutionists! Unite for
Action!"
After denouncing the President as "Our Kaiser" and the hypocrisy
of the United States and her Allies, this article concludes:
Page 250 U. S. 623
"Socialists, Anarchists, Industrial Workers of the World,
Socialists, Labor party men and other revolutionary organizations,
Unite for action, and let us save the Workers' Republic of
Russia,"
"
Know you lovers of freedom that, in order to save the
Russian revolution, we must keep the armies of the allied countries
busy at home."
Thus was again avowed the purpose to throw the country into a
state of revolution if possible, and to thereby frustrate the
military program of the Government.
The remaining article, after denouncing the resident for what is
characterized as hostility to the Russian revolution,
continues:
"We, the toilers of America, who believe in real liberty, shall
pledge ourselves, in case the United States will
participate in that bloody conspiracy against Russia,
to create
so great a disturbance that the autocrats of America shall be
compelled to keep their armies at home, and not be able to spare
any for Russia."
It concludes with this definite threat of armed rebellion:
"If they will use arms against the Russian people to enforce
their standard of order,
so will we use arms, and they
shall never see the ruin of the Russian Revolution."
These excerpts sufficiently show that, while the immediate
occasion for this particular outbreak of lawlessness on the part of
the defendant alien anarchists may have been resentment caused by
our Government's sending troops into Russia as a strategic
operation against the Germans on the eastern battle front, yet the
plain purpose of their propaganda was to excite, at the supreme
crisis of the war, disaffection, sedition, riots, and, as they
hoped, revolution, in this country for the purpose of embarrassing,
and, if possible, defeating the military plans of the Government in
Europe. A technical distinction may perhaps be taken between
disloyal and abusive language applied to the
form of our
government or language intended to bring the
form
Page 250 U. S. 624
of our government into contempt and disrepute, and language of
like character and intended to produce like results directed
against the President and Congress, the agencies through which that
form of government must function in time of war. But it is not
necessary to a decision of this case to consider whether such
distinction is vital or merely formal, for the language of these
circulars was obviously intended to provoke and to encourage
resistance to the United States in the war, as the third count
runs, and the defendants, in terms, plainly urged and advocated a
resort to a general strike of workers in ammunition factories for
the purpose of curtailing the production of ordnance and munitions
necessary and essential to the prosecution of the war as is charged
in the fourth count. Thus, it is clear not only that some evidence,
but that much persuasive evidence, was before the jury tending to
prove that the defendants were guilty as charged in both the third
and fourth counts of the indictment, and, under the long
established rule of law hereinbefore stated, the judgment of the
District Court must be
Affirmed.
MR. JUSTICE HOLMES dissenting.
This indictment is founded wholly upon the publication of two
leaflets which I shall describe in a moment. The first count
charges a conspiracy pending the war with Germany to publish
abusive language about the form of government of the United States,
laying the preparation and publishing of the first leaflet as overt
acts. The second count charges a conspiracy pending the war to
publish language intended to bring the form of government into
contempt, laying the preparation and publishing of the two leaflets
as overt acts. The third count alleges a conspiracy to encourage
resistance to the United States in the same war, and to attempt to
effectuate the purpose by publishing the same leaflets. The fourth
count lays a conspiracy
Page 250 U. S. 625
to incite curtailment of production of things necessary to the
prosecution of the war and to attempt to accomplish it by
publishing the second leaflet, to which I have referred.
The first of these leaflets says that the President's cowardly
silence about the intervention in Russia reveals the hypocrisy of
the plutocratic gang in Washington. It intimates that "German
militarism combined with allied capitalism to crush the Russian
evolution " -- goes on that the tyrants of the world fight each
other until they see a common enemy -- working class enlightenment,
when they combine to crush it, and that now militarism and
capitalism combined, though not openly, to crush the Russian
revolution. It says that there is only one enemy of the workers of
the world, and that is capitalism; that it is a crime for workers
of America, &c., to fight the workers' republic of Russia, and
ends "Awake! Awake, you Workers of the World, Revolutionists!" A
note adds
"It is absurd to call us pro-German. We hate and despise German
militarism more than do you hypocritical tyrants. We have more
reasons for denouncing German militarism than has the coward of the
White House."
The other leaflet, headed "Workers -- Wake Up," with abusive
language says that America together with the Allies will march for
Russia to help the Czecko-Slovaks in their struggle against the
Bolsheviki, and that this time the hypocrites shall not fool the
Russian emigrants and friends of Russia in America. It tells the
Russian emigrants that they now must spit in the face of the false
military propaganda by which their sympathy and help to the
prosecution of the war have been called forth, and says that, with
the money they have lent or are going to lend, "they will make
bullets not only for the Germans, but also for the Workers Soviets
of Russia," and further,
"Workers in the ammunition factories, you are producing bullets,
bayonets, cannon, to murder not only the Germans,
Page 250 U. S. 626
but also your dearest, best, who are in Russia and are fighting
for freedom."
It then appeals to the same Russian emigrants at some length not
to consent to the "inquisitionary expedition to Russia," and says
that the destruction of the Russian revolution is "the politics of
the march to Russia." The leaflet winds up by saying "Workers, our
reply to this barbaric intervention has to be a general strike!"
and, after a few words on the spirit of revolution, exhortations
not to be afraid, and some usual tall talk ends, "Woe unto those
who will be in the way of progress. Let solidarity live! The
Rebels."
No argument seems to me necessary to show that these
pronunciamentos in no way attack the form of government of the
United States, or that they do not support either of the first two
counts. What little I have to say about the third count may be
postponed until I have considered the fourth. With regard to that,
it seems too plain to be denied that the suggestion to workers in
the ammunition factories that they are producing bullets to murder
their dearest, and the further advocacy of a general strike, both
in the second leaflet, do urge curtailment of production of things
necessary to the prosecution of the war within the meaning of the
Act of May 16, 1918, c. 75, 40 Stat. 553, amending § 3 of the
earlier Act of 1917. But to make the conduct criminal, that statute
requires that it should be "with intent by such curtailment to
cripple or hinder the United States in the prosecution of the war."
It seems to me that no such intent is proved.
I am aware, of course, that the word intent as vaguely used in
ordinary legal discussion means no more than knowledge at the time
of the act that the consequences said to be intended will ensue.
Even less than that will satisfy the general principle of civil and
criminal liability. A man may have to pay damages, may be sent to
prison, at common law might be hanged, if, at the time of his
act,
Page 250 U. S. 627
he knew facts from which common experience showed that the
consequences would follow, whether he individually could foresee
them or not. But, when words are used exactly, a deed is not done
with intent to produce a consequence unless that consequence is the
aim of the deed. It may be obvious, and obvious to the actor, that
the consequence will follow, and he may be liable for it even if he
regrets it, but he does not do the act with intent to produce it
unless the aim to produce it is the proximate motive of the
specific act, although there may be some deeper motive behind.
It seems to me that this statute must be taken to use its words
in a strict and accurate sense. They would be absurd in any other.
A patriot might think that we were wasting money on aeroplanes, or
making more cannon of a certain kind than we needed, and might
advocate curtailment with success, yet, even if it turned out that
the curtailment hindered and was thought by other minds to have
been obviously likely to hinder the United States in the
prosecution of the war, no one would hold such conduct a crime. I
admit that my illustration does not answer all that might be said,
but it is enough to show what I think, and to let me pass to a more
important aspect of the case. I refer to the First Amendment to the
Constitution, that Congress shall make no law abridging the freedom
of speech.
I never have seen any reason to doubt that the questions of law
that alone were before this Court in the cases of
Schenck,
Frohwerk and
Debs, 249 U. S. 249 U.S.
47,
249 U. S. 204,
249 U. S. 211,
were rightly decided. I do not doubt for a moment that, by the same
reasoning that would justify punishing persuasion to murder, the
United States constitutionally may punish speech that produces or
is intended to produce a clear and imminent danger that it will
bring about forthwith certain substantive evils that the United
States constitutionally may seek to prevent. The power undoubtedly
is
Page 250 U. S. 628
greater in time of war than in time of peace, because war opens
dangers that do not exist at other times.
But, as against dangers peculiar to war, as against others, the
principle of the right to free speech is always the same. It is
only the present danger of immediate evil or an intent to bring it
about that warrants Congress in setting a limit to the expression
of opinion where private rights are not concerned. Congress
certainly cannot forbid all effort to change the mind of the
country. Now nobody can suppose that the surreptitious publishing
of a silly leaflet by an unknown man, without more, would present
any immediate danger that its opinions would hinder the success of
the government arms or have any appreciable tendency to do so.
Publishing those opinions for the very purpose of obstructing,
however, might indicate a greater danger, and, at any rate, would
have the quality of an attempt. So I assume that the second
leaflet, if published for the purposes alleged in the fourth count,
might be punishable. But it seems pretty clear to me that nothing
less than that would bring these papers within the scope of this
law. An actual intent in the sense that I have explained is
necessary to constitute an attempt, where a further act of the same
individual is required to complete the substantive crime, for
reasons given in
Swift & Co. v. United States,
196 U. S. 375,
196 U. S. 396.
It is necessary where the success of the attempt depends upon
others because, if that intent is not present, the actor's aim may
be accomplished without bringing about the evils sought to be
checked. An intent to prevent interference with the revolution in
Russia might have been satisfied without any hindrance to carrying
on the war in which we were engaged.
I do not see how anyone can find the intent required by the
statute in any of the defendants' words. The second leaflet is the
only one that affords even a foundation for the charge, and there,
without invoking the hatred of German militarism expressed in the
former one, it is evident
Page 250 U. S. 629
from the beginning to the end that the only object of the paper
is to help Russia and stop American intervention there against the
popular government -- not to impede the United States in the war
that it was carrying on. To say that two phrases, taken literally,
might import a suggestion of conduct that would have interference
with the war as an indirect and probably undesired effect seems to
me by no means enough to show an attempt to produce that
effect.
I return for a moment to the third count. That charges an intent
to provoke resistance to the United States in its war with Germany.
Taking the clause in the statute that deals with that, in
connection with the other elaborate provisions of the act, I think
that resistance to the United States means some forcible act of
opposition to some proceeding of the United States in pursuance of
the war. I think the intent must be the specific intent that I have
described, and, for the reasons that I have given, I think that no
such intent was proved or existed in fact. I also think that there
is no hint at resistance to the United States as I construe the
phrase.
In this case, sentences of twenty years' imprisonment have been
imposed for the publishing of two leaflets that I believe the
defendants had as much right to publish as the Government has to
publish the Constitution of the United States now vainly invoked by
them. Even if I am technically wrong, and enough can be squeezed
from these poor and puny anonymities to turn the color of legal
litmus paper, I will add, even if what I think the necessary intent
were shown, the most nominal punishment seems to me all that
possibly could be inflicted, unless the defendants are to be made
to suffer not for what the indictment alleges, but for the creed
that they avow -- a creed that I believe to be the creed of
ignorance and immaturity when honestly held, as I see no reason to
doubt that it was held here, but which, although made the subject
of examination at the
Page 250 U. S. 630
trial, no one has a right even to consider in dealing with the
charges before the Court.
Persecution for the expression of opinions seems to me perfectly
logical. If you have no doubt of your premises or your power, and
want a certain result with all your heart, you naturally express
your wishes in law, and sweep away all opposition. To allow
opposition by speech seems to indicate that you think the speech
impotent, as when a man says that he has squared the circle, or
that you do not care wholeheartedly for the result, or that you
doubt either your power or your premises. But when men have
realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundations of their
own conduct that the ultimate good desired is better reached by
free trade in ideas -- that the best test of truth is the power of
the thought to get itself accepted in the competition of the
market, and that truth is the only ground upon which their wishes
safely can be carried out. That, at any rate, is the theory of our
Constitution. It is an experiment, as all life is an experiment.
Every year, if not every day, we have to wager our salvation upon
some prophecy based upon imperfect knowledge. While that experiment
is part of our system, I think that we should be eternally vigilant
against attempts to check the expression of opinions that we loathe
and believe to be fraught with death, unless they so imminently
threaten immediate interference with the lawful and pressing
purposes of the law that an immediate check is required to save the
country. I wholly disagree with the argument of the Government that
the First Amendment left the common law as to seditious libel in
force. History seems to me against the notion. I had conceived that
the United States, through many years, had shown its repentance for
the Sedition Act of 1798, by repaying fines that it imposed. Only
the emergency that makes it immediately dangerous to leave the
correction of evil counsels to time warrants
Page 250 U. S. 631
making any exception to the sweeping command, "Congress shall
make no law . . . abridging the freedom of speech." Of course, I am
speaking only of expressions of opinion and exhortations, which
were all that were uttered here, but I regret that I cannot put
into more impressive words my belief that, in their conviction upon
this indictment, the defendants were deprived of their rights under
the Constitution of the United States.
MR. JUSTICE BRANDEIS concurs with the foregoing opinion.