The petitioners in these six cases were convicted of violating 2
U.S.C. § 192, which makes it a misdemeanor for any person summoned
to testify before a committee of Congress to refuse to answer "any
question pertinent to the question under inquiry." In each case,
the indictment returned by the grand jury stated that the questions
to which answers were refused "were pertinent to the question then
under inquiry" by the subcommittee; but it failed to identify the
subject under subcommittee inquiry when the witness was
interrogated. In each case, a motion was filed to quash the
indictment before trial for failure to state the subject under
inquiry; but in each case, the motion was denied, and the issue
thus raised was preserved and properly presented in this Court.
Held: the grand jury indictment required by 2 U.S.C.
§194 as a prerequisite to a prosecution for a violation of § 192
must state the question which was under inquiry at the time of the
defendant's alleged default or refusal to answer, as found by the
grand jury, and the judgment affirming the conviction of each of
the petitioners is reversed. Pp.
369 U. S.
751-772.
(a) The Congress which originally enacted, in 1857, the law
which was a predecessor of 2 U.S.C. §192 was expressly aware that
pertinency to the subject under inquiry was the basic preliminary
question which the federal courts would have to decide in
determining whether a violation of the statute had been alleged or
proved. Pp.
369 U. S.
756-758.
Page 369 U. S. 750
(b) Many decisions of this Court arising under 2 U.S.C. § 192
have recognized the crucial importance of determining the issue of
pertinency, and the obvious first step in determining whether the
questions asked were pertinent to the subject under inquiry is to
ascertain what that subject was. Pp.
369 U. S.
758-760.
(c) While convictions are no longer reversed because of minor
and technical deficiencies which did not prejudice the accused, the
substantial safeguards to those charged with serious crimes cannot
be eradicated under the guise of technical departures from the
rules. Pp.
369 U. S.
760-763.
(d) Omission from the indictments here involved of statements of
the subject under inquiry deprived the defendants of one of the
significant protections which the guaranty of a grand jury
indictment was intended to confer --
i.e., they failed
adequately to apprise the defendants of what they must be prepared
to meet. Pp.
369 U. S.
763-768.
(e) These indictments were also insufficient to serve the
corollary purpose of enabling the courts to decide whether the
facts alleged were sufficient in law to support convictions. Pp.
369 U. S.
768-769.
(f) The deficiencies in these indictments could not have been
cured by bills of particulars, because under 2 U.S.C. § 194, only a
grand jury may determine whether a person should be held to answer
in a criminal trial for refusing to give testimony pertinent to a
question under congressional committee inquiry, and the grand jury
itself must necessarily determine what the question under inquiry
was. Pp.
369 U. S.
769-771.
108 U.S. App. D. C. 140, 280 F.2d 688; 108 U.S.App.D.C. 153, 280
F.2d 701; 108 U.S.App.D.C. 226, 281 F.2d 59; 108 U.S.App.D.C. 160,
280 F.2d 708; 108 U.S.App.D.C. 167, 280 F.2d 715; 108 U.S.App.D.C.
130, 280 F.2d 678, reversed.
Page 369 U. S. 751
MR. JUSTICE STEWART delivered the opinion of the Court.
In these six cases, we review judgments of the Court of Appeals
for the District of Columbia, [
Footnote 1] which affirmed convictions obtained in the
District Court under 2 U.S.C. § 192. [
Footnote 2]
Page 369 U. S. 752
Each of the petitioners was convicted for refusing to answer
certain questions when summoned before a congressional
subcommittee. [
Footnote 3] The
cases were separately briefed and argued here, and many issues were
presented. We decide each case upon a single ground common to all,
and we therefore reach no other questions.
In each case, the indictment returned by the grand jury failed
to identify the subject under congressional subcommittee inquiry at
the time the witness was interrogated. The indictments were
practically identical in this respect, stating only that the
questions to which answers were refused "were pertinent to the
question then under inquiry" by the subcommittee. [
Footnote 4] In each case, a motion
Page 369 U. S. 753
was filed to quash the indictment before trial upon the ground
that the indictment failed to state the subject under investigation
at the time of the subcommittee's interrogation of the defendant.
[
Footnote 5] In each case, the
motion was denied. In each case, the issue thus raised was
preserved on appeal, in the petition for writ of certiorari, and in
brief and argument here.
Congress has expressly provided that no one can be prosecuted
under 2 U.S.C. § 192 except upon indictment by a grand jury.
[
Footnote 6] This Court has
never decided whether
Page 369 U. S. 754
the indictment must identify the subject which was under inquiry
at the time of the defendant's alleged default or refusal to
answer. [
Footnote 7] For the
reasons that follow, we hold
Page 369 U. S. 755
that the indictment must contain such an averment, and we
accordingly reverse the judgments before us.
In enacting the criminal statute under which these petitioners
were convicted, Congress invoked the aid of the federal judicial
system in protecting itself against contumacious conduct.
Watkins v. United States, 354 U.
S. 178,
354 U. S. 207.
The obvious consequence, as the Court has repeatedly emphasized,
was to confer upon the federal courts the duty to accord a person
prosecuted for this statutory offense every safeguard which the law
accords in all other federal criminal cases.
Sinclair v. United
States, 279 U. S. 263,
279 U. S.
296-297;
Watkins v. United States, supra, at
354 U. S. 208;
Sacher v. United States, 356 U. S. 576,
356 U. S. 577;
Flaxer v. United States, 358 U. S. 147,
358 U. S. 151;
Deutch v. United States, 367 U. S. 456,
367 U. S.
471.
Recognizing this elementary concept, the
Sinclair case
established several propositions which provide a relevant starting
point here. First, there can be criminality under the statute only
if the question which the witness refused to answer pertained to a
subject then under investigation by the congressional body which
summoned him. "[A] witness rightfully may refuse to answer where .
. . the questions asked are not pertinent to the matter under
inquiry."
Sinclair v. United States, supra, at
279 U. S. 292.
Secondly, because the defendant is presumed to be innocent, it is
"incumbent upon the United States to plead and show that the
question [he refused to answer] pertained to some matter under
investigation."
Id. at
279 U. S.
296-297. Finally,
Sinclair held that the
question of pertinency
Page 369 U. S. 756
is one for determination by the court as a matter of law.
Id. at
279 U. S.
298.
In that case, the Court had before it an indictment which set
out in specific and lengthy detail the subject under investigation
by the Senate Committee which had summoned Sinclair. The Court was
thereby enabled to make an enlightened and precise determination
that the question he had refused to answer was pertinent to that
subject.
Id. at
279 U. S.
285-289,
279 U. S.
296-298.
That the making of such a determination would be a vital
function of the federal judiciary in a prosecution brought under 2
U.S.C. § 192 was clearly foreseen by the Congress which originally
enacted the law in 1857. [
Footnote
8] Congress not only provided that a person could be prosecuted
only upon an indictment by a grand jury, but, as the record of the
legislative debates shows, Congress was expressly aware that
pertinency to the subject under inquiry was the basic preliminary
question which the federal courts were going to have to decide in
determining
Page 369 U. S. 757
whether a criminal offense had been alleged or proved. The
principal spokesman for the bill, Senator Bayard, repeatedly made
this very point:
"The bill provides for punishing a witness who shall refuse to
answer any question 'pertinent' to the matter of inquiry under
consideration before the House or its committee. If he refuses to
answer an irrelevant question, he is not subject to the penalties
of the bill. The question must be pertinent to the subject matter,
and that will have to be decided by the courts of justice on the
indictment. That power is not given to Congress; it is given
appropriately to the judiciary."
Cong. Globe, 34th Cong., 3d Sess. 439 (1857).
"
* * * *"
"This law does not propose to give to this miscellaneous
political body the power of punishment, but one of its greatest
recommendations is that it transfers that power of punishment to a
court of justice after judicial inquiry. All that is to be done in
the case of a refusal to testify is to certify the fact to the
district attorney, who is to lay it before the grand jury, and if
the party is indicted, he is bound to answer according to the terms
of the law, as any other person would for an offense against the
laws of the land. . . . I am aware that legislative bodies have
transcended their powers -- that, under the influence of passion
and political excitement, they have very often invaded the rights
of individuals, and may have invaded the rights of coordinate
branches of the Government; but if our institutions are to last,
there can be no greater safeguard than will result from
transferring that which now stands on an indefinite power (the
punishment as well as the offense resting
Page 369 U. S. 758
in the breast of either House) from Congress to the courts of
justice. When a case of this kind comes before a court, will not
the first inquiry be, have Congress jurisdiction of the subject
matter? -- has the House which undertakes to inquire, jurisdiction
of the subject? If they have not, the whole proceedings are
coram non judice, and void, and the party cannot be held
liable under indictment. The Court would quash the indictment if
this fact appeared on its face; and if it appeared on the trial,
they would direct the jury to acquit."
Cong. Globe, 34th Cong., 3d Sess. 440 (1857).
"
* * * *"
". . . The law prescribes that, in case of such refusal, the
House shall certify the fact to the district attorney, and he shall
bring the matter before the grand jury. When that comes up by
indictment before the court, must not the court decide whether the
question put was pertinent to the inquiry? Of course they must, and
they cannot hold the party guilty without doing it."
Cong. Globe, 34th Cong., 3d Sess. 444-445 (1857).
These forecasts of the office which the federal courts would be
called upon to perform under 2 U.S.C. § 192 have been amply borne
out by the cases which have arisen under the statute. The crucial
importance of determining the issue of pertinency is reflected in
many cases which have come here since
Sinclair, supra.
Watkins v. United States, 354 U.
S. 178,
354 U. S. 208;
Sacher v. United States, 356 U. S. 576,
356 U. S. 577;
Barenblatt v. United States, 360 U.
S. 109,
360 U. S.
123-125;
Wilkinson v. United States,
365 U. S. 399,
365 U. S.
407-409,
365 U. S. 413;
Braden v. United States, 365 U. S. 431,
365 U. S.
435-436;
Deutch v. United States, 367 U.
S. 456,
367 U. S.
467-471. Our decisions have pointed out that the obvious
first step in determining whether the questions asked were
pertinent
Page 369 U. S. 759
to the subject under inquiry is to ascertain what that subject
was.
See, e.g., Deutch v. United States, supra, at
367 U. S. 469.
Identification of the subject under inquiry is also an essential
preliminary to the determination of a host of other issues which
typically arise in prosecutions under the statute. In
Wilkinson
v. United States, supra, for example, the Court pointed out
that, in order properly to consider any of the many issues there
presented, "the starting point must be to determine the subject
matter of the subcommittee's inquiry." 365 U.S. at
365 U. S.
407.
Where, as in the
Sinclair case, the subject under
inquiry has been identified in the indictment, this essential first
step has presented no problem. Where, as in the more recent cases,
the indictment has not identified the topic under inquiry, the
Court has often found it difficult or impossible to ascertain what
the subject was. The difficulty of such a determination in the
absence of an allegation in the indictment is illustrated by
Deutch v. United States, supra. In that case, the members
of this Court were in sharp disagreement as to what the subject
under subcommittee inquiry had been. Moreover, all of us disagreed
with the District Court's theory, and the Court of Appeals had not
even ventured a view on the question. 367 U.S. at
367 U. S. 467.
In
Watkins v. United States, supra, the Court found it not
merely difficult, but actually impossible, to determine what the
topic under subcommittee inquiry had been at the time the
petitioner had refused to answer the questions addressed to
him.
"Having exhausted the several possible indicia of the 'question
under inquiry,' we remain unenlightened as to the subject to which
the questions asked petitioner were pertinent."
354 U.S. at
354 U. S. 214.
[
Footnote 9]
Page 369 U. S. 760
To be sure, the fact that difficulties and doubts have beset the
federal courts in trying to ascertain the subject under inquiry in
cases arising under 2 U.S.C. § 192 could hardly justify, in the
abstract, a requirement that indictments under the statute contain
averments which would simplify the courts' task. Difficult and
doubtful questions are inherent in the judicial process,
particularly under a system of criminal law which places heavy
emphasis upon the protection of the rights and liberties of the
individual. Courts sit to resolve just such questions, and rules of
law are not to be made merely to suit judicial convenience. But a
proliferation of doubtful issues which not only burden the
judiciary, but, because of uncertainties inherent in their
resolution, work a hardship upon both the prosecution and the
defense in criminal cases is hardly a
desideratum. And the
repeated appearance in prosecutions under a particular criminal
statute of the same critical and difficult question, which could be
obviated by a simple averment in the indictment, invites inquiry
into the purposes and functions which a grand jury indictment is
intended to serve. The cases we have discussed, therefore, furnish
an appropriate background for the inquiry to which we now turn.
Any discussion of the purpose served by a grand jury indictment
in the administration of federal criminal law must begin with the
Fifth and Sixth Amendments to the Constitution. The Fifth Amendment
provides that
"No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or public
danger; . . ."
We need not pause
Page 369 U. S. 761
to consider whether an offense under 2 U.S.C. § 192 is an
"infamous crime,"
Duke v. United States, 301 U.
S. 492, since Congress has, from the beginning,
explicitly conferred upon those prosecuted under the statute the
protection which the Fifth Amendment confers by providing that no
one can be prosecuted for this offense except upon an indictment by
a grand jury. This specific guaranty, as well as the Fifth
Amendment's Due Process, Clause, are therefore both brought to bear
here. Of like relevance is the guaranty of the Sixth Amendment
that, "[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be informed of the nature and cause of the
accusation; . . . "
The constitutional provision that a trial may be held in a
serious federal criminal case only if a grand jury has first
intervened reflects centuries of antecedent development of common
law, going back to the Assize of Clarendon in 1166. [
Footnote 10]
"The grand jury is an English institution, brought to this
country by the early colonists and incorporated in the Constitution
by the Founders. There is every reason to believe that our
constitutional grand jury was intended to operate substantially
like its English progenitor. The basic purpose of the English grand
jury was to provide a fair method for instituting criminal
proceedings against persons believed to have committed crimes."
Costello v. United States, 350 U.
S. 359,
350 U. S. 362.
See McClintock, Indictment by a Grand Jury, 26 Minn.L.Rev.
153; Orfield, Criminal Procedure from Arrest to Appeal, 137-140,
144-146.
For many years, the federal courts were guided in their
judgments concerning the construction and sufficiency of grand jury
indictments by the common law alone. Not until 1872 did Congress
enact general legislation touching
Page 369 U. S. 762
upon the subject. In that year, a statute was enacted which
reflected the drift of the law away from the rules of technical and
formalized pleading which had characterized an earlier era. The
1872 statute provided that
"no indictment found and presented by a grand jury in any
district or circuit or other court of the United States shall be
deemed insufficient, nor shall the trial, judgment, or other
proceeding thereon be affected by reason of any defect or
imperfection in matter of form only, which shall not tend to the
prejudice of the defendant."
17 Stat. 198. This legislation has now been repealed, but its
substance is preserved in the more generalized provision of Rule
52(a) of the Federal Rules of Criminal Procedure, which states that
"Any error, defect, irregularity or variance which does not affect
substantial rights shall be disregarded." [
Footnote 11]
There was apparently no other legislation dealing with the
subject of indictments generally until the promulgation of Rule
7(c), Fed.Rules Crim.Proc., in 1946. The Rule provides:
"The indictment or the information shall be a plain, concise and
definite written statement of the essential facts constituting the
offense charged. It shall be signed by the attorney for the
government. It need not contain a formal commencement, a formal
conclusion, or any other matter not necessary to such statement.
Allegations made in one count may be incorporated by reference in
another count. It may be alleged in a single count that the means
by which the defendant committed the offense are unknown, or that
he committed it by one or more specified means. The indictment or
information
Page 369 U. S. 763
shall state for each count the official or customary citation of
the statute, rule, regulation or other provision of law which the
defendant is alleged therein to have violated. Error in the
citation or its omission shall not be ground for dismissal of the
indictment or information or for reversal of a conviction if the
error or omission did not mislead the defendant to his
prejudice."
As we have elsewhere noted,
"This Court has, in recent years, upheld many convictions in the
face of questions concerning the sufficiency of the charging
papers. Convictions are no longer reversed because of minor and
technical deficiencies which did not prejudice the accused. [Citing
cases.] This has been a salutary development in the criminal
law."
Smith v. United States, 360 U. S.
1,
360 U. S. 9.
"But," as the
Smith opinion went on to point out,
"the substantial safeguards to those charged with serious crimes
cannot be eradicated under the guise of technical departures from
the rules."
Ibid. Resolution of the issue presented in the cases
before us thus ultimately depends upon the nature of "the
substantial safeguards" to a criminal defendant which an indictment
is designed to provide. Stated concretely, does the omission from
an indictment under 2 U.S.C. § 192 of the subject under
congressional committee inquiry amount to no more than a technical
deficiency of no prejudice to the defendant? Or does such an
omission deprive the defendant of one of the significant
protections which the guaranty of a grand jury indictment was
intended to confer?
In a number of cases, the Court has emphasized two of the
protections which an indictment is intended to guarantee, reflected
by two of the criteria by which the sufficiency of an indictment is
to be measured. These criteria are, first, whether the
indictment
"contains the elements of the offense intended to be charged,
'and sufficiently apprises the defendant of what he must be
prepared to meet,' "
Page 369 U. S. 764
and, secondly,
"in case any other proceedings are taken against him for a
similar offense whether the record shows with accuracy to what
extent he may plead a former acquittal or conviction."
"
Cochran and Sayre v. United States, 157 U. S.
286,
157 U. S. 290;
Rosen v.
United States, 161 U. S. 29,
161 U. S.
34."
Hagner v. United States, 285 U.
S. 427,
285 U. S. 431.
See Potter v. United States, 155 U.
S. 438,
155 U. S. 445;
Bartell v. United States, 227 U.
S. 427,
227 U. S. 431;
Berger v. United States, 295 U. S. 78,
295 U. S. 82;
United States v. Debrow, 346 U. S. 374,
346 U. S.
377-378.
Without doubt, the second of these preliminary criteria was
sufficiently met by the indictments in these cases. Since the
indictments set out not only the times and places of the hearings
at which the petitioners refused to testify, but also specified the
precise questions which they then and there refused to answer, it
can hardly be doubted that the petitioners would be fully protected
from again being put in jeopardy for the same offense, particularly
when it is remembered that they could rely upon other parts of the
present record in the event that future proceedings should be taken
against them.
See McClintock, Indictment by a Grand Jury,
26 Minn.L.Rev. 153, 160;
Bartell v. United States,
227 U. S. 427,
227 U. S. 433.
The vice of these indictments, rather, is that they failed to
satisfy the first essential criterion by which the sufficiency of
an indictment is to be tested,
i.e., that they failed to
sufficiently apprise the defendant "of what he must be prepared to
meet."
As has been pointed out, the very core of criminality under 2
U.S.C. § 192 is pertinency to the subject under inquiry of the
questions which the defendant refused to answer. What the subject
actually was, therefore, is central to every prosecution under the
statute. Where guilt depends so crucially upon such a specific
identification of fact, our cases have uniformly held that an
indictment must do more than simply repeat the language of the
criminal statute.
Page 369 U. S. 765
"It is an elementary principle of criminal pleading that, where
the definition of an offence, whether it be at common law or by
statute,"
"includes generic terms, it is not sufficient that the
indictment shall charge the offence in the same generic terms as in
the definition; but it must state the species, -- it must descend
to particulars."
United States v. Cruikshank, 92 U. S.
542,
92 U. S. 55. An
indictment not framed to apprise the defendant "with reasonable
certainty, of the nature of the accusation against him . . . is
defective, although it may follow the language of the statute."
United States v. Simmons, 96 U. S.
360,
96 U. S.
362.
"In an indictment upon a statute, it is not sufficient to set
forth the offence in the words of the statute unless those words of
themselves fully, directly, and expressly, without any uncertainty
or ambiguity, set forth all the elements necessary to constitute
the offence intended to be punished; . . ."
United States v. Carll, 105 U.
S. 611,
105 U. S.
612.
"Undoubtedly, the language of the statute may be used in the
general description of an offense, but it must be accompanied with
such a statement of the facts and circumstances as will inform the
accused of the specific offense, coming under the general
description, with which he is charged."
United States v. Hess, 124 U.
S. 483,
124 U. S. 487.
See also Pettibone v. United States, 148 U.
S. 197,
148 U. S.
202-204;
Blitz v. United States, 153 U.
S. 308,
153 U. S. 315;
Keck v. United States, 172 U. S. 434,
172 U. S. 437;
Morissette v. United States, 342 U.
S. 246,
342 U. S. 270,
n. 30.
Cf. United States v. Petrillo, 332 U. S.
1,
332 U. S. 10-11.
[
Footnote 12] That these
basic principles of fundamental
Page 369 U. S. 766
fairness retain their full vitality under modern concepts of
pleading, and specifically under Rule 7(c) of the Federal Rules of
Criminal Procedure, is illustrated by many recent federal
decisions. [
Footnote 13]
The vice which inheres in the failure of an indictment under 2
U.S.C. § 192 to identify the subject under inquiry is thus the
violation of the basic principle "that the accused must be apprised
by the indictment, with reasonable certainty, of the nature of the
accusation against him,. . . ."
United States v. Simmons,
supra, 96 U. S. 362. A
cryptic form of indictment in cases of this kind requires the
defendant to go to trial with the chief issue undefined. It enables
his conviction to rest on one point, and the affirmance of the
conviction to rest on another. It gives the prosecution free hand
on appeal to fill in the gaps of proof by surmise or conjecture.
The Court has had occasion before now to condemn just such a
practice in a quite different factual setting.
Cole v.
Arkansas, 333 U. S. 196,
333 U. S.
201-202. And the unfairness and uncertainty which have
characteristically infected criminal proceedings under this statute
which were based upon indictments which failed to specify the
subject under inquiry are illustrated by the cases in this Court we
have already discussed. The same uncertainty and unfairness are
underscored by the records of the cases now before us. A single
example will suffice to illustrate the point.
In No. 12,
Price v. United States, the petitioner
refused to answer a number of questions put to him by the
Internal
Page 369 U. S. 767
Security Subcommittee of the Senate Judiciary Committee. At the
beginning of the hearing in question, the Chairman and other
subcommittee members made widely meandering statements purporting
to identify the subject under inquiry. It was said that the
hearings were "not . . . an attack upon the free press," that the
investigation was of "such attempt as may be disclosed on the part
of the Communist Party . . . to influence or to subvert the
American press." It was also said that "[w]e are simply
investigating communism wherever we find it." In dealing with a
witness who testified shortly before Price, counsel for the
subcommittee emphatically denied that it was the subcommittee's
purpose "to investigate Communist infiltration of the press and
other forms of communication." But, when Price was called to
testify before the subcommittee, no one offered even to attempt to
inform him of what subject the subcommittee did have under inquiry.
At the trial, the Government took the position that the subject
under inquiry had been Communist activities generally. The district
judge before whom the case was tried found that "the questions put
were pertinent to the matter under inquiry," without indicating
what he thought the subject under inquiry was. The Court of
Appeals, in affirming the conviction, likewise omitted to state
what it thought the subject under inquiry had been. In this Court,
the Government contends that the subject under inquiry at the time
the petitioner was called to testify was "Communist activity in
news media." [
Footnote
14]
It is difficult to imagine a case in which an indictment's
insufficiency resulted so clearly in the indictment's failure to
fulfill its primary office -- to inform the defendant of the nature
of the accusation against him. Price refused to answer some
questions of a Senate subcommittee. He
Page 369 U. S. 768
was not told at the time what subject the subcommittee was
investigating. The prior record of the subcommittee hearings, with
which Price may or may not have been familiar, gave a completely
confused and inconsistent account of what, if anything, that
subject was. Price was put to trial and convicted upon an
indictment which did not even purport to inform him in any way of
the identity of the topic under subcommittee inquiry. At every
stage in the ensuing criminal proceeding, Price was met with a
different theory, or by no theory at all, as to what the topic had
been. Far from informing Price of the nature of the accusation
against him, the indictment instead left the prosecution free to
roam at large -- to shift its theory of criminality so as to take
advantage of each passing vicissitude of the trial and appeal. Yet
Price could be guilty of no criminal offense unless the questions
he refused to answer were in fact pertinent to a specific topic
under subcommittee inquiry at the time he was interrogated.
Sinclair v. United States, 279 U.
S. 263 at
279 U. S.
292.
It has long been recognized that there is an important corollary
purpose to be served by the requirement that an indictment set out
"the specific offence, coming under the general description," with
which the defendant is charged. This purpose, as defined in
United States v. Cruikshank, 92 U. S.
542,
92 U. S. 558,
is
"to inform the court of the facts alleged, so that it may decide
whether they are sufficient in law to support a conviction, if one
should be had. [
Footnote
15]"
This criterion is of the greatest relevance
Page 369 U. S. 769
here, in the light of the difficulties and uncertainties with
which the federal trial and reviewing courts have had to deal in
cases arising under 2 U.S.C. § 192, to which reference has already
been made.
See, e.g., Watkins v. United States,
354 U. S. 178;
Deutch v. United States, 367 U. S. 456.
Viewed in this context, the rule is designed not alone for the
protection of the defendant, but for the benefit of the
prosecution, as well, by making it possible for courts called upon
to pass on the validity of convictions under the statute to bring
an enlightened judgment to that task.
Cf. Watkins v. United
States, supra.
It is argued that any deficiency in the indictments in these
cases could have been cured by bills of particulars. [
Footnote 16]
Page 369 U. S. 770
But it is a settled rule that a bill of particulars cannot save
an invalid indictment.
See United States v. Norris,
281 U. S. 619,
281 U. S. 622;
United States v. Lattimore, 94 U.S.App.D.C. 268, 215 F.2d
847;
Babb v. United States, 218 F.2d 538;
Steiner v.
United States, 229 F.2d 745;
United States v.
Dierker, 164 F.
Supp. 304; 4 Anderson, Wharton's Criminal Law and Procedure, §
1870. When Congress provided that no one could be prosecuted under
2 U.S.C. § 192 except upon an indictment, Congress made the basic
decision that only a grand jury could determine whether a person
should be held to answer in a criminal trial for refusing to give
testimony pertinent to a question under congressional committee
inquiry. A grand jury, in order to make that ultimate
determination, must necessarily determine what the question under
inquiry was. To allow the prosecutor, or the court, to make a
subsequent guess as to what was in the minds of the grand jury at
the time they returned the indictment would deprive the defendant
of a basic protection which the guaranty of the intervention of a
grand jury was designed to secure. For a defendant could then be
convicted on the basis of facts not found by, and perhaps not even
presented to, the grand jury which indicted him.
See
Orfield, Criminal Procedure from Arrest to Appeal 243.
This underlying principle is reflected by the settled rule in
the federal courts that an indictment may not be amended except by
resubmission to the grand jury unless the change is merely a matter
of form.
Ex parte Bain, 121 U. S. 1;
United States v. Norris, 281 U. S. 619;
Stirone v. United States, 361 U.
S. 212.
"If it lies within the province of a court to change the
charging part of an indictment to suit its own notions of what it
ought to have been or what the grand jury would probably have made
it if their attention had been called to suggested changes, the
great importance which the common law attaches to
Page 369 U. S. 771
an indictment be a grand jury, as a prerequisite to a prisoner's
trial for a crime, and without which the Constitution says 'no
person shall be held to answer,' may be frittered away until its
value is almost destroyed. . . . Any other doctrine would place the
rights of the citizen, which were intended to be protected by the
constitutional provision, at the mercy or control of the court or
prosecuting attorney; for, if it be once held that changes can be
made by the consent or the order of the court in the body of the
indictment as presented by the grand jury, and the prisoner can be
called upon to answer to the indictment as thus changed, the
restriction which the Constitution places upon the power of the
court in regard to the prerequisite of an indictment in reality no
longer exists."
Ex parte Bain, supra, at
121 U. S. 10,
121 U. S. 13. We
reaffirmed this rule only recently, pointing out that
"The very purpose of the requirement that a man be indicted by
grand jury is to limit his jeopardy to offenses charged by a group
of his fellow citizens acting independently of either prosecuting
attorney or judge."
Stirone v. United States, supra, at
361 U. S. 218.
[
Footnote 17]
For these reasons, we conclude that an indictment under 2 U.S.C.
§ 192 must state the question under congressional committee inquiry
as found by the grand jury [
Footnote 18]
Page 369 U. S. 772
Only then can the federal courts responsibly carry out the duty
which Congress imposed upon them more than a century ago:
"The question must be pertinent to the subject matter, and that
will have to be decided by the courts of justice on the indictment.
[
Footnote 19]"
Reversed.
MR. JUSTICE FRANKFURTER took no part in the decision of these
cases.
MR. JUSTICE BRENNAN took no part in the consideration or
decision of No. 10,
Whitman v. United States.
MR. JUSTICE WHITE took no part in the consideration or decision
of these cases.
Page 369 U. S. 773
* Together with No. 9,
Shelton v. United States, argued
December 6-7,1961; No. 10,
Whitman v. United States,
argued December 7,11, 1961; No. 11,
Liveright v. United
States, argued December 11, 1961; No. 12,
Price v. United
States, argued December 11, 1961; and No. 128,
Gojack v.
United States, argued December 11-12, 1961, also on certiorari
to the same Court.
[
Footnote 1]
108 U.S.App.D.C. 140, 280 F.2d 688; 108 U.S.App.D.C. 153, 280
F.2d 701; 108 U.S.App.D.C. 226, 281 F.2d 59; 108 U.S.App.D.C. 160,
280 F.2d 708; 108 U.S.App.D.C. 167, 280 F.2d 715; 108 U.S.App.D.C.
130, 280 F.2d 678.
[
Footnote 2]
"Every person who, having been summoned as a witness by the
authority of either House of Congress to give testimony or to
produce papers upon any matter under inquiry before either House,
or any joint committee established by a joint or concurrent
resolution of the two Houses of Congress, or any committee of
either House of Congress, willfully makes default, or who, having
appeared, refuses to answer any question pertinent to the question
under inquiry, shall be deemed guilty of a misdemeanor, punishable
by a fine of not more than $1,000 nor less than $100 and
imprisonment in a common jail for not less than one month nor more
than twelve months."
2 U.S.C. § 192.
[
Footnote 3]
No. 8 and No. 128 grew out of hearings before subcommittees of
the House Committee on Un-American Activities. The other four cases
grew out of hearings before the Internal Security Subcommittee of
the Senate Judiciary Committee.
[
Footnote 4]
The indictment in No. 8 is typical:
"The Grand Jury charges:"
"
I
NTRODUCTION"
"On November 17, 1954, in the District of Columbia, a
subcommittee of the Committee on Un-American Activities of the
House of Representatives was conducting hearings, pursuant to
Public Law 601, Section 121, 79th Congress, 2d Session, (60 Stat.
828), and to H.Res. 5, 83d Congress."
"Defendant, Norton Anthony Russell, appeared as a witness before
that subcommittee at the place and on the date above stated, and
was asked questions which were pertinent to the question then under
inquiry. Then and there, the defendant unlawfully refused to answer
those pertinent questions. The allegations of this introduction are
adopted and incorporated into the counts of this indictment which
follow, each of which counts will in addition merely describe the
question which was asked of the defendant and which he refused to
answer."
(The questions which Russell allegedly refused to answer were
then quoted verbatim under separately numbered counts.)
[
Footnote 5]
The motion in No. 9 is typical:
"The defendant moves that the indictment be dismissed on the
following grounds:"
"1. The indictment fails to plead the following essential and
material elements of the offense:"
"
* * * *"
"c. the nature of the 'question then under inquiry' to which the
questions addressed to defendant are alleged to be relevant."
[
Footnote 6]
2 U.S.C. § 194 provides:
"Whenever a witness summoned as mentioned in section 192 of this
title fails to appear to testify or fails to produce any books,
papers, records, or documents, as required, or whenever any witness
so summoned refuses to answer any question pertinent to the subject
under inquiry before either House, or any joint committee
established by a joint or concurrent resolution of the two Houses
of Congress, or any committee or subcommittee of either House of
Congress, and the fact of such failure or failures is reported to
either House while Congress is in session, or when Congress is not
in session, a statement of fact constituting such failure is
reported to and filed with the President of the Senate or the
Speaker of the House, it shall be the duty of the said President of
the Senate or Speaker of the House, as the the case may be, to
certify, and he shall so certify, the statement of facts aforesaid
under the seal of the Senate or House, as the case may be, to the
appropriate United States attorney, whose duty it shall be to bring
the matter before the grand jury for its action."
[
Footnote 7]
The question was presented but not reached in
Sacher v.
United States, 356 U. S. 576,
where the conviction was reversed on other grounds. The question
was also raised in the petition for certiorari in
Braden v.
United States, 365 U. S. 431, but
was abandoned when the case was briefed and argued on the merits.
Although the question was decided by the lower court in
Barenblatt v. United States, 100 U.S.App.D.C. 13, 240 F.2d
875, it was not raised in this Court,
360 U. S. 360 U.S.
109.
The Court of Appeals for the District of Columbia Circuit has
passed on the question, holding that the indictment need not set
forth the subject under committee inquiry.
See Barenblatt v.
United States, 100 U.S.App.D.C. 13, 240 F.2d 875;
Sacher
v. United States, 102 U.S.App.D.C. 264, 252 F.2d 828.
Indictments returned in that circuit, of course, reflect this rule.
See cases cited in MR. JUSTICE HARLAN's dissenting
opinion,
post, p.
369 U. S. 782, n. 2. The Court of Appeals for the Second
Circuit sustained an indictment under 2 U.S.C. § 192 which did not
set forth the subject under inquiry in
United States v.
Josephson, 165 F.2d 82. However,
Josephson appears to
have been substantially limited by the same court in
United
States v. Lamont, 236 F.2d 312, and indictments under 2 U.S.C.
§ 192 currently being returned in the Second Circuit do, in fact,
set forth the subject under inquiry.
See the unreported
indictments in
United States v. Yarus (D.C.S.D.N.Y.) No. C
152-239 (the opinion acquitting defendant Yarus is reported at 198
F.Supp. 425);
United States v. Turoff (D.C.W.D.N.Y.) No.
7539-C (the opinion of the Court of Appeals reversing defendant
Turoff's conviction is reported at 291 F.2d 864).
No other Court of Appeals has passed squarely on the point. In
Braden v. United States, 272 F.2d 653, the Court of
Appeals for the Fifth Circuit ruled that the indictment need not
explain how and why the questions were pertinent to the subject
under inquiry, but did not discuss whether the subject itself had
to be specified. In a number of other recent cases arising under 2
U.S.C. § 192, the indictments have stated the subject under
inquiry.
See, in addition to the examples cited above, the
indictment set forth in
United States v. Yellin, 287 F.2d
292, 293, n. 2 (C.A.7th Cir.); the indictment described in
Davis v. United States, 269 F.2d 357, 359 (C.A.6th Cir.);
and the unreported indictment in
United States v. Lorch
(D.C.S.D.Ohio) Cr. No. 3185 (an indictment arising out of the same
series of hearings in which Russell, the petitioner in No. 8, was
initially summoned to testify).
[
Footnote 8]
11 Stat. 155-156. The statute, now 2 U.S.C. §§ 192-194, was
enacted to supplement the established contempt power of Congress
itself.
Jurney v. MacCracken, 294 U.
S. 125,
294 U. S. 151.
The specific background of the statute's adoption is sketched in
Watkins v. United States, 354 U.S. at
354 U. S. 207,
n. 45.
See Cong.Globe, 34th Cong., 3d Sess. 405.
See
also id. at 403-413, 426-433, 434-445. Except for a basic
change in the immunity provisions in 1862, 12 Stat. 333, the
legislation has continued substantially unchanged to the present
time, with only a slight modification in language in R.S. §§ 102
and 104. The only other amendment in the substantive provisions was
made in 1938, 52 Stat. 942, so as to make the statute applicable to
joint committees. The provision requiring grand jury indictment has
been amended twice since 1857. The original legislation provided
for certification only to the United States Attorney for the
District of Columbia. In 1936, an amendment was made to permit
certification to any United States Attorney, 49 Stat. 2041. In
1938, the provision was amended to bring it into accord with the
joint committee amendment of the substantive provisions of the
law.
[
Footnote 9]
In the
Watkins case, the Court's primary concern was
not whether pertinency had had been proved at the criminal trial,
but whether the petitioner had been apprised of the pertinency of
the questions at the time he had been called upon to answer them.
These two issues are, of course, quite different.
See Deutch v.
United States, 367 U.S. at
367 U. S.
467-468. But identification of the subject under inquiry
is essential to the determination of either issue.
See
Barenblatt v. United States, 360 U.S. at
360 U. S.
123-125.
[
Footnote 10]
See I Holdsworth, History of English Law (7th ed.
1956), 321-323; I Pollock and Maitland, History of English Law (2d
ed. 1909), 137-155, and Vol. II, pp. 647-653.
[
Footnote 11]
The 1872 statute became Rev.Stat. § 1025, and ultimately 18
U.S.C. (1940 ed.) § 556. The statute was repealed in the 1948
legislative reorganization of Title 18, 62 Stat. 862, because its
substance was contained in Fed.Rules Crim.Proc. 52(a).
[
Footnote 12]
Rosen v. United States, 161 U. S.
29, heavily relied upon in the dissenting opinion, is
inapposite. In that case, the Court held that an indictment
charging the mailing of obscene material did not need to specify
the particular portions of the publication which were allegedly
obscene. As pointed out in
Bartell v. United States,
227 U. S. 427,
227 U. S. 431,
the rule established in
Rosen was always regarded as a
"well recognized exception" to usual indictment rules, applicable
only to "the pleading of printed or written matter which is alleged
to be too obscene or indecent to be spread upon the records of the
court." Under
Roth v. United States, 354 U.
S. 476,
354 U. S.
488-489, the issue dealt with in
Rosen would
presumably no longer arise.
[
Footnote 13]
United States v. Lamont, 236 F.2d 312;
Meer v.
United States, 235 F.2d 65;
Babb v. United States,
218 F.2d 538;
United States v. Simplot, 192 F.
Supp. 734;
United States v. Devine's Milk Laboratories,
Inc., 179 F.
Supp. 799;
United States v. Apex Distributing
Co., 148 F.
Supp. 365.
[
Footnote 14]
Brief for the United States, p. 26.
[
Footnote 15]
This principle enunciated in
Cruikshank retains
undiminished vitality, as several recent cases attest.
"Another reason [for the requirement that every ingredient of
the offense charged must be clearly and accurately alleged in the
indictment], and one sometimes overlooked, is to enable the court
to decide whether the facts alleged are sufficient in law to
withstand a motion to dismiss the indictment or to support a
conviction in the event that one should be had."
United States v. Lamont, 18 F.R.D. 27, 31.
"In addition to informing the defendant, another purpose served
by the indictment is to inform the trial judge what the case
involves, so that, as he presides and is called upon to make
rulings of all sorts, he may be able to do so intelligently."
Puttkammer, Administration of Criminal Law, 125-126.
See
Flying Eagle Publications, Inc. v. United States, 273 F.2d
799;
United States v. Goldberg, 225 F.2d 180;
United
States v. Silverman, 129 F.
Supp. 496;
United States v. Richman, 190 F. Supp. 889;
United States v. Callanan, 113 F.
Supp. 766.
See 4 Anderson, Wharton's Criminal Law and
Procedure, 506; Orfield, Indictment and Information in Federal
Criminal Procedure, 13 Syracuse L.Rev. 389, 392.
See also
Orfield, Criminal Procedure from Arrest to Appeal, 226-230.
[
Footnote 16]
In No. 128,
Gojack v. United States, the petitioner
filed a timely motion for a bill of particulars, requesting that he
be informed of the question under subcommittee inquiry. The motion
was denied.
In No. 9,
Shelton v. United States, the petitioner
filed a similar motion. The motion was granted, and the Government
responded orally as follows:
"As to the second asking, the Government contends, and the
indictment states, that the inquiry being conducted was pursuant to
this resolution. We do not feel, and it is not the case, that there
was any smaller, more limited inquiry being conducted."
"This committee was conducting the inquiry for the purposes
contained in the resolution and no lesser purpose so that, in that
sense, the asking No. 2 of counsel will be supplied by his reading
the resolution."
In the four other cases, no motions for bills of particulars
were filed.
[
Footnote 17]
See also Smith v. United States, 360 U. S.
1,
360 U. S. 13
(dissenting opinion); Comment, 35 Mich.L.Rev. 456.
[
Footnote 18]
The federal perjury statute, 18 U.S.C. § 1621 makes it a crime
for a person under oath willfully to state or subscribe to "any
material matter which he does not believe to be true." The
Government, pointing to the analogy between the perjury materiality
requirement and the pertinency requirement in 2 U.S.C. § 192
recognized in
Sinclair v. United States, 279 U.
S. 263,
279 U. S. 298,
contends that the present cases are controlled by
Markham v.
United States, 160 U. S. 319,
where the Court sustained a perjury indictment. But
Markham is inapposite. The analogy between the perjury
statute and 2 U.S.C. § 192, while persuasive for some purposes, is
not persuasive here, for the determination of the subject under
inquiry does not play the central role in a perjury prosecution
which it plays under 2 U.S.C. § 192. But even were the analogy
perfect,
Markham would still not control, for it holds
only that a perjury indictment need not set forth how and why the
statements were allegedly material. The Court carefully pointed out
that the indictment did, in fact, reveal the subject under inquiry
stating that,
"as [the fourth count of indictment] charged that such statement
was material to an inquiry pending before, and within the
jurisdiction of, the commissioner of pensions,
and as the
fair import of that count was that the inquiry before the
commissioner had reference to a claim made by the accused under the
pension laws on account of personal injuries received while he was
a soldier, and made it necessary to ascertain whether the accused
had, since the war, or after his discharge from the army, received
an injury to the forefinger of his right hand, we think that the
fourth count, although unskillfully drawn, sufficiently informed
the accused of the matter for which he was indicted, and therefore
met the requirement that it should set forth the substance of the
charge against him."
160 U.S. at
160 U. S.
325-326. (Emphasis added.) This has been equally true of
other perjury indictments sustained by the Court.
See Hendricks
v. United States, 223 U. S. 178;
United States v. Debrow, 346 U. S. 374 (the
indictment in
Debrow is set forth in the opinion of the
Court of Appeals, 203 F.2d 699, 702, n. 1).
[
Footnote 19]
See p.
369 U. S. 757,
supra.
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the Court, I think it is desirable
to point out that, in a majority of the six cases that we dispose
of today, no indictment, however drawn, could, in my view, be
sustained under the requirements of the First Amendment.
The investigation was concededly an investigation of the press.
This was clearly brought out by the record in
Shelton,
wherein the following colloquy was alleged to have taken place at
the commencement of the Subcommittee hearings:
"Senator Hennings. On the same subject matter. I do believe it
is very important at the outset for us to make it abundantly clear,
if that is the purpose of counsel, and if it is the purpose of this
committee, that this is not in any sense an attack upon the free
press of the United States."
"The Chairman. Why, certainly, that is true."
"Senator Hennings. And I think, too, that it should be clear
that the best evidence of any subversion or infiltration into any
news-dispensing agency or opinion-forming journal is certainly the
product itself."
"The Chairman. That is correct."
"Senator Hennings. Of course, the committee is interested in the
extent and nature of so-called Communist infiltration, if such
exists, into any news-dispensing agency."
"The Chairman. Correct."
"Senator Hennings. But I would like to have the position of the
committee, if it be the position of the majority of this committee,
since the committee has not met to determine whether one policy or
another is to be pursued in the course of these hearings -- that it
be generally known and understood that this is not
Page 369 U. S. 774
an attack upon any one newspaper, upon any group of newspapers
as such, but an effort on the part of this committee to show such
participation and such attempt as may be disclosed on the part of
the Communist Party in the United States or elsewhere, indeed, to
influence or to subvert the American press."
"And I do think that, at some later time, perhaps, it might be
appropriate for executives of some of the newspapers under inquiry,
whose employees are under inquiry, to be called and to testify, and
for them to show, if they can show, that the end product, the
newspaper itself, has not been influenced by these efforts."
"The Chairman. The Chair thinks that is a very fine and very
accurate statement, one with which the Chair certainly agrees in
its entirety."
"We are not singling out any newspaper and not investigating any
newspaper or any group of newspapers. We are simply investigating
communism wherever we find it,* and I think that, when this
series
Page 369 U. S. 775
of hearings is over, that no one can say that any newspaper or
any employees of any one newspaper has been singled out."
"Senator Hennings. Thank you, Mr. Chairman."
"Senator Watkins. I would like to say I agree with Senator
Hennings' statement, Mr. Chairman."
R. 72-73.
The New York Times was a prime target of the investigation, 30
of the 38 witnesses called at the 1955 executive session and 15 of
the 18 called at the 1956 public hearings being present or past
employees of that paper.
The power to investigate is limited to a valid legislative
function. Inquiry is precluded where the matter investigated
Page 369 U. S. 776
is one on which "no valid legislation" can be enacted.
Kilbourn v. Thompson, 103 U. S. 168,
103 U. S. 195.
Since the First Amendment provides that "Congress shall make no law
. . . abridging the freedom . . . of the press," this present
investigation was plainly unconstitutional. As we said in
Watkins v. United States, 354 U.
S. 178,
354 U. S.
197:
"Clearly, an investigation is subject to the command that the
Congress shall make no law abridging freedom of speech or press or
assembly. While it is true that there is no statute to be reviewed,
and that an investigation is not a law, nevertheless an
investigation is part of lawmaking. It is justified solely as an
adjunct to the legislative process. The First Amendment may be
invoked against infringement of the protected freedoms by law or by
lawmaking."
Under our system of government, I do not see how it is possible
for Congress to pass a law saying whom a newspaper or news agency
or magazine shall or shall not employ. If this power exists, it can
reach the rightist, as well as the leftist, press, as
United
States v. Rumely, 345 U. S. 41,
shows. Whether it is used against the one or the other will depend
on the mood of the day. Whenever it is used to ferret out the
ideology of those collecting news or writing articles or editorials
for the press, it is used unconstitutionally. The theory of our
Free Society is that government must be neutral when it comes to
the press -- whether it be rightist or leftist, orthodox or
unorthodox. The theory is that, in a community where men's minds
are free, all shades of opinion must be immune from governmental
inquiry, lest we end with regimentation. Congress has no more
authority in the field of the press than it does where the pulpit
is involved. Since the editorials written and the news printed and
the policies advocated by the press are none of the
Government's
Page 369 U. S. 777
business, I see no justification for the Government
investigating the capacities, leanings, ideology, qualifications,
prejudices or politics of whose who collect or write the news. It
was conceded on oral argument that Congress would have no power to
establish standards of fitness for those who work for the press. It
was also conceded that Congress would have no power to prescribe
loyalty tests for people who work for the press. Since this
investigation can have no legislative basis as far as the press is
concerned, what then is its constitutional foundation?
It is said that Congress has the power to determine the extent
of Communist infiltration so that it can know how much tighter the
"security" laws should be made. This proves too much. It would give
Congress a roving power to inquire into fields in which it could
not legislate. If Congress can investigate the press to find out if
Communists have infiltrated it, it could also investigate the
churches for the same reason. Are the pulpits being used to promote
the Communist cause? Were any of the clergy ever members of the
Communist Party? How about the governing board? How about those who
assist the pastor and perhaps help prepare his sermons or do the
research? Who comes to the confession and discloses that he or she
once was a Communist?
There is a dictum in
United States v. Rumely,
345 U. S. 41,
345 U. S. 43,
that the reach of the investigative power of Congress is measured
by the "informing function of Congress," a phrase taken from
Woodrow Wilson's Congressional Government (1885), p. 303. But the
quotation from Wilson was mutilated, because the sentences which
followed his statement that "[t]he informing function of Congress
should be preferred even to its legislative function" were omitted
from the
Rumely opinion. Those omitted sentences make
abundantly clear that Wilson was speaking
Page 369 U. S. 778
not of a congressional inquiry roaming at large, but of one that
inquired into and discussed the functions and operations of
government. Wilson said:
"The informing function of Congress should be preferred even to
its legislative function. The argument is not only that discussed
and interrogated administration is the only pure and efficient
administration, but, more than that, that the only really
self-governing people is that people which discusses and
interrogates its administration. The talk on the part of Congress
which we sometimes justly condemn is the profitless squabble of
words over frivolous bills or selfish party issues. It would be
hard to conceive of there being too much talk about the practical
concerns and processes of government. Such talk it is which, when
earnestly and purposefully conducted, clears the public mind and
shapes the demands of public opinion."
Id. at 303-304.
The power to inform is, in my view, no broader than the power to
legislate.
Congress has no power to legislate either on "religion" or on
the "press." If an editor or a minister violates the law, he can be
prosecuted. But the investigative power, as I read our
Constitution, is barred from certain areas by the First Amendment.
If we took the step urged by the prosecution, we would allow
Congress to enter the forbidden domain.
The strength of the "press" and the "church" is in their
freedom. If they pervert or misuse their power, informed opinion
will in time render the verdict against them. A paper or pulpit
might conceivably become a mouthpiece for Communist ideology. That
is typical of the risks a Free Society runs. The alternative is
governmental oversight, governmental investigation, governmental
questioning, governmental harassment, governmental exposure for
Page 369 U. S. 779
exposure's sake. Once we crossed that line, we would sacrifice
the values of a Free Society for one that has a totalitarian
cast.
Some think a certain leeway is necessary or desirable, leaving
it to the judiciary to curb what judges may from time to time think
are excessive practices. Thus, a judge with a professorial
background may put the classroom in a preferred position. One with
a background of a prosecutor dealing with "subversives" may be less
tolerant. When a subjective standard is introduced, the line
between constitutional and unconstitutional conduct becomes vague,
uncertain, and unpredictable. The rationalization, of course,
reduces itself ultimately to the idea that "the judges know best."
My idea is and has been that those who put the words of the First
Amendment in the form of a command knew best. That is the political
theory of government we must sustain until a constitutional
amendment is adopted that puts the Congress astride the
"press."
* The Subcommittee, in its Report to the Senate Judiciary
Committee, S.Rep. No. 131, 85th Cong., 1st Sess., p. 95,
stated:
"The Communists in the United States have their own daily
newspaper, the Daily Worker, and control various weekly and monthly
periodicals, including Political Affairs and Masses and Mainstream.
But those publications are so brazenly slanted that their
propaganda value, except for certain elements of the foreign
language press in this country, is sharply limited (pts. 28 and
29)."
"In order to overcome this disadvantage, and for other reasons,
Communists have made vigorous and sustained efforts to infiltrate
the American press and radio and to entrench their members in all
other forms of mass communications, where, by emphasis or omission
of the written or spoken word, it may be turned to the advantage of
the conspiracy."
The Report referred to the ruling of an arbiter in a case where
a paper had discharged a "rewrite man" because he invoked the Fifth
Amendment. It said that the following quotations from his opinion
were "of more than passing interest:"
"A metropolitan newspaper in America today is more than a mirror
to the happenings of the day. It is a moulder of public opinion;
capable of leading crusades; capable of introducing new ideas;
capable of propagating truth or propaganda as it wills. By its very
nature, whether it would abdicate of not, a newspaper maintains a
position of leadership and responsibility in this cold war that is
vital to our national security. Other industries (atomic energy,
defense,
et cetera) may be more vital, but this fact does
not impair the vital role of our press."
"Each worker performs his task in life with tools, and these
tools run the gamut from an ax to a zither. The rewrite man has his
tools, too. They are words. Words but express ideas, and so it
follows that the rewrite man works all day with ideas. This is a
war of ideas. Can his position then be deemed nonsensitive? A
rewrite man can select the facts he considers important as relayed
to him by the reporter in the field. His is the choice of the topic
sentence and the lead paragraph. His selection of words sets the
tone of the article and influences, too, the choice of headline.
The conclusion is irresistible that a rewrite man occupies a
sensitive position on a newspaper."
Id. at 97.
The Committee concluded, "Communists have infiltrated mass
communications media in the United States, and efforts to increase
such infiltration continue."
Id. at 117.
MR. JUSTICE CLARK, dissenting.
Although I have joined Brother HARLAN in dissenting on the
grounds ably expressed in his opinion, the Court today so abruptly
breaks with the past that I must visually add my voice in protest.
The statute under which these cases were prosecuted, 2 U.S.C. §
192, was originally passed 105 years ago. Case after case has come
here during that period. Still the Court is unable to point to one
case -- not one -- in which there is the remotest suggestion that
indictments thereunder must include any of the underlying facts
necessary to evaluate the propriety of the unanswered questions.
Following the universal art and practice, indictments under this
statute have commonly phrased the element of pertinency in the
statutory language,
i.e., the unanswered question was
"pertinent to the question under inquiry." This Court, in
Sacher v.
Page 369 U. S. 780
United States, 356 U. S. 576
(1958), had an opportunity to put a stop to this widespread
practice, but instead reversed on other, rather unsubstantial
grounds without even acknowledging that numerous defendants were
being denied "one of the significant protections which the guaranty
of a grand jury indictment was intended to confer." In requiring
these indictments to "identify the subject which was under inquiry
at the time of the defendant's alleged default or refusal to
answer," the Court has concocted a new and novel doctrine to upset
congressional contempt convictions. A rule has been sown which, as
pointed out by Brother HARLAN, has no seeds in general indictment
law and which will reap no real benefits in congressional contempt
cases. If knowing the subject matter under investigation is
actually important to these recalcitrant witnesses, they can
utilize the right recognized in
Watkins v. United States,
354 U. S. 178
(1957), of demanding enlightenment from the questioning body or the
time-honored practice of requesting a bill of particulars from the
prosecutor. Let us hope that the reasoning of the Court today does
not apply to indictments under other criminal statutes, for, if it
does, an uncountable number of indictments will be invalidated. If,
however, the rule is only cast at congressional contempt cases, it
is manifestly unjust.
By fastening upon indictment forms under § 192 its superficial
luminosity requirement, the Court creates additional hazards to the
successful prosecution of congressional contempt cases, which
impair the informing procedures of the Congress by encouraging
contumacy before its committees. It was only five years ago, in my
dissenting opinion in
Watkins, that I indicated the rule
in that case might "well lead to trial of all contempt cases before
the bar . . . " of the House of Congress affected.
Watkins v.
United States, supra, at p.
354 U. S. 225.
In that short period, the Court has now upset 10 convictions
Page 369 U. S. 781
under § 192. This continued frustration of the Congress in the
use of the judicial process to punish those who are contemptuous of
its committees indicates to me that the time may have come for
Congress to revert to "its original practice of utilizing the
coercive sanction of contempt proceedings at the bar of the House
[affected]."
Id. at
354 U. S. 206.
Perhaps some simplified method may be found to handle such matters
without consuming too much of the time of the full House involved.
True, a recalcitrant witness would have to be released at the date
of adjournment, but at least contumacious conduct would then
receive some punishment. The dignity of the legislative process
deserves at least that much sanction.
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins,
dissenting.
The ground rules for testing the sufficiency of an indictment
are twofold: (1) does the indictment adequately inform the
defendant of the nature of the charge he will have to meet; (2) if
the defendant is convicted, and later prosecuted again, will a
court, under what has been charged, be able to determine the extent
to which the defense of double jeopardy is available?
United
States v. Debrow, 346 U. S. 374.
Rule 7(c) of the Federal Rules of Criminal Procedure, effective
in 1946, was of course not intended to abrogate or weaken either of
these yardsticks. Its purpose simply was to do away with the
subleties and uncertainties that had characterized criminal
pleading at common law. The rule provides in pertinent part:
"The indictment . . . shall be a plain, concise and definite
written statement of the essential facts constituting the offense
charged. . . . It need not contain . . . any other matter not
necessary to such statement. "
Page 369 U. S. 782
The rule was "designed to eliminate technicalities," and is "to
be construed to secure simplicity in procedure."
Debrow at
346 U. S.
376.
An essential element of the offense established by 2 U.S.C. §
192, [
Footnote 2/1] is that the
questions which the defendant refused to answer were "pertinent to
the question under inquiry" before the inquiring congressional
committee. Each of the indictments in these cases charged this
element of the offense in the language of the statute, following
the practice consistently employed since 1950 in the District of
Columbia, where most of the § 192 cases have been brought.
[
Footnote 2/2] The Court now holds,
however, that,
Page 369 U. S. 783
without a statement of the actual subject under inquiry, this
allegation was inadequate to satisfy the "apprisal" requisite of a
valid indictment. At the same time, the allegation is found
sufficient to satisfy the "jeopardy" requisite.
The Court's holding is contrary to the uniform course of
decisions in the lower federal courts. The Court of Appeals for the
District of Columbia Circuit, sitting first as a panel and later en
banc, has upheld "pertinency" allegations which, like the present
indictment, did not identify the particular subject being
investigated.
Barenblatt v. United States, 100
U.S.App.D.C. 13, 240 F.2d 875 (panel);
Sacher v. United
States, 102 U.S.App.D.C. 264, 252 F.2d 828 (en banc).
[
Footnote 2/3] The Court of Appeals
for the Second Circuit is of the same view.
United
States
Page 369 U. S. 784
v. Josephson, 165 F.2d 82; [
Footnote 2/4]
United States v. Lamont, 236 F.2d
312. [
Footnote 2/5] And so, quite
evidently, is the Court of Appeals for the Fifth Circuit.
Braden v. United States, 272 F.2d 653. [
Footnote 2/6] No Court of Appeals has held
otherwise.
Page 369 U. S. 785
And nothing in this Court's more recent cases could possibly be
taken as foreshadowing the decision made today. [
Footnote 2/7]
The reasons given by the Court for its sudden holding, which,
unless confined to contempt of Congress cases, bids fair to throw
the federal courts back to an era of criminal pleading from which
it was thought they had finally emerged, are novel and
unconvincing.
I
It is first argued that an allegation of "pertinency" in the
statutory terms will not do, because that element is at "the very
core of criminality" under § 192. This is said to follow from what
"our cases have uniformly held."
Ante, p.
369 U. S. 764.
I do not so understand the cases on which the Court relies. It will
suffice to examine the three cases from which quotations have been
culled.
Ante, pp.
369 U. S. 765-766.
United States v. Cruikshank, 92 U. S.
542, involved an indictment under the Enforcement Act of
1870 (16 Stat. 140) making it a felony to conspire to prevent any
person from exercising and enjoying "any right or privilege granted
or secured to him by the Constitution or laws of the United
States." Most of the counts were dismissed on the ground that they
stated no federal offense whatever. The remainder were held
inadequate from the standpoint of "apprisal," in that they simply
alleged a conspiracy to prevent certain citizens from enjoying
rights "granted and secured to them by the constitution and laws of
the United States," such rights not being otherwise described or
identified. Small wonder that these opaque allegations drew from
the Court the comment
Page 369 U. S. 786
that the indictment "must descend to particulars."
Id.
at
369 U. S. 558.
Indeed, the Court observed:
"According to the view we take of these counts, the question is
not whether it is enough, in general, to describe a statutory
offence in the language of the statute,
but whether the offence
has here been described at all."
Id. at
369 U. S. 557.
(Emphasis supplied.)
United States v. Simmons, 96 U. S.
360, was concerned with an indictment involving illegal
distilling. Revised Statutes § 3266 made it an offense to distill
spirits on premises where vinegar "is" manufactured. One count of
the indictment charged the defendant with causing equipment on
premises where vinegar "was" manufactured to be used for
distilling. This count was dismissed for its failure (1) to
identify the person who had so used the equipment or to allege that
his identity was unknown to the grand jurors; and (2) to allege
that the distilling and manufacture of vinegar were coincidental,
as required by the statute. [
Footnote
2/8] What is more significant from the standpoint of the
present cases is that, in sustaining another count of the
indictment charging the defendant with engaging in the business of
distilling "with the intent to defraud the United States of the
tax" on the spirits (R.S. § 3281), the Court held that it was not
necessary to allege "the particular means by which the United
States was to be defrauded of the tax."
Id. at
96 U. S.
364.
Page 369 U. S. 787
United States v. Carll, 105 U.
S. 611, held no more than that an indictment charging
forgery was insufficient for failure to allege
scienter,
which, though not expressly required by the statute, the Court
found to be a necessary element of the crime. Hence, a charge in
the statutory language would not suffice. Section 192, of course,
contains no such gap in its provisions. What the Court now requires
of these indictments under § 192 involves not the supplying of a
missing element of the crime, but the addition of the particulars
of an element already clearly alleged.
To me, it seems quite clear that, even under these cases,
decided long before Rule 7(c) came into being, the "pertinency"
allegations of the present indictments would have been deemed
sufficient. Other early cases indicate the same thing.
See,
e.g., 32 U. S.
Mills, 7 Pet. 138,
32 U. S. 142;
Evans v. United States, 153 U. S. 584,
153 U. S. 587;
[
Footnote 2/9]
Markham v.
United States, 160 U. S. 319,
160 U. S. 325;
[
Footnote 2/10]
Bartell
Page 369 U. S. 788
v. United States, 227 U. S. 427,
227 U. S.
433-434. [
Footnote
2/11] I think there can be no doubt about the matter after Rule
7(c).
In
United States v. Debrow, supra, the Court in
reversing the dismissal of perjury indictments which had gone on
the ground that they had not alleged the name or authority of the
persons administering the oath, said (346 U.S. at
346 U. S.
376-378):
"The Federal Rules of Criminal Procedure were designed to
eliminate technicalities in criminal pleading and are to be
construed to secure simplicity in procedure."
"
* * * *"
"The charges of the indictments followed substantially the
wording of the statute, which embodies all the elements of the
crime, and such charges clearly informed the defendants of that
with which they
Page 369 U. S. 789
were accused, so as to enable them to prepare their defense and
to plead the judgment in bar of any further prosecutions for the
same offense. It is inconceivable to us how the defendants could
possibly be misled as to the offense with which they stood charged.
The sufficiency of the indictment is not a question of whether
it could have been more definite and certain. If the
defendants wanted more definite information as to the name of the
person who administered the oath to them, they could have obtained
it by requesting a bill of particulars. Rule 7(f),
F.R.Crim.Proc."
(Emphasis supplied.)
It is likewise "inconceivable" to me how the indictments in the
present cases can be deemed insufficient to advise these
petitioners of the nature of the charge they would have to meet.
The indictments gave them the name of the committee before which
they had appeared; the place and the dates of their appearances;
the references to the enabling legislation under which the
committee acted; and the questions which the petitioners refused to
answer. The subject matter of the investigations had been stated to
the petitioners at the time of their appearances before the
committees. And the committee transcripts of the hearings were
presumably in their possession, and, if not, were of course
available to them.
Granting all that the Court says about the crucial character of
pertinency as an element of this offense, it is surely not more so
than the element of premeditation in the crime of first degree
murder. If, from the standpoint of "apprisal," it is necessary to
particularize "pertinency" in a § 192 indictment, it should follow
a fortiori that, contrary to what is prescribed in Forms 1
and 2 of the Federal Rules of Criminal Procedure, a first degree
murder indictment should particularize "premeditation."
Page 369 U. S. 790
II
The Court says that its holding is needed to prevent the
Government from switching on appeal, to the prejudice of the
defendants, to a different theory of pertinency from that on which
the conviction may have rested.
Ante, pp.
369 U. S.
766-768. There are several good answers to this.
To the extent that this fear relates to the subject under
investigation, the Government cannot, of course, travel outside the
confines of the trial record, of which the defendant has full
knowledge. If what is meant is that the Government may not modify
on appeal its "trial" view of the "connective reasoning"
(
supra, p.
369 U. S. 784,
note 6) relied on to establish the germaneness of the questions
asked to the subject matter of the inquiry, surely it would be free
to do so, this aspect of pertinency being simply a matter of law,
Sinclair v. United States, 279 U.
S. 263,
279 U. S. 299.
Moreover the Court does not find these indictments deficient
because they failed to allege the "connective reasoning."
Beyond these considerations, a defendant has ample means for
protecting himself in this regard. By objecting at the committee
hearing to the pertinency of any question asked him, he may
"freeze" this issue, since the Government's case on this score must
then stand or fall on the pertinency explanation given by the
committee in response to such an objection.
Deutch v. United
States, 367 U. S. 456,
367 U. S.
472-473 (dissenting opinion);
cf. Watkins v. United
States, supra, at
354 U. S.
214-215;
Barenblatt v. United States,
360 U. S. 109,
360 U. S.
123-125. If he has failed to make a pertinency objection
at the committee hearing, thereby leaving the issue "at large" for
the trial (
Deutch, ibid.), he may still seek a
particularization through a bill of particulars.
Cf. United
States v. Kamin, 136 F.
Supp. 791, 795 n. 4.
Page 369 U. S. 791
It should be noted that no pertinency objection was made by any
of these petitioners at the committee hearings. Further, no motions
for a bill of particulars were made in No. 12,
Price, to
which the Court especially addresses itself (
ante, pp.
369 U. S.
766-768), or in No. 8,
Russell, No. 10,
Whitman, and No. 11,
Liveright. In No. 9,
Shelton, and No. 128,
Gojack, such motions were
made. However, no appeal was taken from the denial of the motion in
Gojack, and in
Shelton, the sufficiency of the
particulars furnished by the Government was not questioned either
by a motion for a further bill or on appeal.
III
Referring to certain language in the
Cruikshank case,
supra, the Court suggests that the present holding is
supported by a further "important corollary purpose" which an
indictment is intended to serve: to make "it possible for courts
called upon to pass on the validity of convictions under the
statute to bring an enlightened judgment to that task."
Ante, pp.
369 U. S.
768-769.
But whether or not the Government has established its case on
"pertinency" is something that must be determined on the record
made at the trial, not upon the allegations of the indictment.
There is no such thing as a motion for summary judgment in a
criminal case. While appellate courts might be spared some of the
tedium of going through these § 192 records were the allegations of
indictments to spell out the "pertinency" facts, the Court
elsewhere in its opinion recognizes that the issue at hand can
hardly be judged in terms of whether fuller indictments "would
simplify the courts' task."
Ante, p.
369 U. S.
760.
The broad language in
Cruikshank on which the Court
relies cannot properly be taken as meaning more than that an
indictment must set forth enough to enable a court to determine
whether a criminal offense over which
Page 369 U. S. 792
the court has jurisdiction has been alleged.
Cf.
McClintock, Indictment by a Grand Jury, 26 Minn.L.Rev. 153, 159-160
(1942); Orfield, Criminal Procedure from Arrest to Appeal, 222-226,
227, n. 107. [
Footnote 2/12]
Certainly the allegations of these indictments meet such
requirements.
IV
The final point made by the Court is perhaps the most novel of
all. It is said that a statement of the subject under inquiry is
necessary in the indictment in order to fend against the
possibility that a defendant may be convicted on a theory of
pertinency based upon a subject under investigation different from
that which may have been found by the grand jury. An argument
similar to this was rejected by this Court many years ago in
Rosen v. United States, 161 U. S. 29,
161 U. S. 34,
where an indictment charging the defendant with mailing obscene
matter, only generally described, was upheld over strong dissent
(
id. at
161 U. S. 45-51)
asserting that the accused was entitled to know the particular
parts of the material which the grand jury had deemed obscene.
[
Footnote 2/13]
This proposition is also certainly unsound on principle. In the
last analysis, it would mean that a prosecutor could not safely
introduce or advocate at a trial evidence or theories, however
relevant to the crime charged in the indictment, which he had not
presented to the grand jury. Such cases as
Ex parte Bain,
121 U. S. 1;
United States
v.
Page 369 U. S. 793
Norris, 281 U. S. 619, and
Stirone v. United States, 361 U.
S. 212, lend no support to the Court's thesis. They held
only that, consistently with the Fifth Amendment, a trial judge
could not amend the indictment itself, either by striking or adding
material language, or, amounting to the latter, by permitting a
conviction on evidence or theories not fairly embraced in the
charges made in the indictment. To allow this would in effect
permit a defendant to be put to trial upon an indictment found not
by a grand jury, but by a judge. [
Footnote 2/14]
If the Court's reasoning in this part of its opinion is sound, I
can see no escape from the conclusion that a defendant convicted on
a lesser included offense, not alleged by the grand jury in an
indictment for the greater offense, would have a good plea in
arrest of judgment. (Fed.Rules Crim.Proc. 34.)
In conclusion, I realize that one in dissent is sometimes prone
to overdraw the impact of a decision with which he does not agree.
Yet I am unable to rid myself of the view that the reversal of
these convictions on such insubstantial grounds will serve to
encourage recalcitrance to legitimate congressional inquiry,
stemming from the belief that a refusal to answer may somehow be
requited in this Court. And it is not apparent how the seeds which
this decision plants in other fields of criminal pleading can well
be prevented from sprouting. What is done today calls
Page 369 U. S. 794
to mind the trenchant observation made by Mr Justice Holmes many
years ago in
Paraiso v. United States, 207 U.
S. 368,
207 U. S. 372:
"The Bill of Rights for the Philippines giving the accused the
right to demand the nature and cause of the accusation against him
does not fasten forever upon those islands the inability of the
seventeenth century common law to understand or accept a pleading
that did not exclude every misinterpretation capable of occurring
to intelligence fired with a desire to pervert."
No more so does the Bill of Rights of the United States
Constitution "fasten" on this country these primitive notions of
the common law.
On the merits, these convictions are, of course, squarely ruled
against the petitioners by principles discussed in our recent
decisions in the
Barenblatt, Wilkinson, and
Braden [
Footnote 2/15]
cases, as was all but acknowledged at the bar.
I would affirm.
[
Footnote 2/1]
"Every person who having been summoned as a witness by the
authority of either House of Congress, to give testimony or to
produce papers upon any matter under inquiry before either House,
or any joint committee established by a joint or concurrent
resolution of the two Houses of Congress, or any committee of
either House of Congress, willfully makes default, or who, having
appeared, refuses to answer
any question pertinent to the
question under inquiry, shall be deemed guilty of a
misdemeanor, punishable by a fine of not more than $1,000 nor less
than $100 and imprisonment in a common jail for not less than one
month nor more than twelve months."
(Emphasis added.)
[
Footnote 2/2]
[The following abbreviations have been used to indicate where
the indictment may be found: TR, the transcript of the record in
this Court; JA, the joint appendix in the Court of Appeals; Cr. No.
___, the docket number in the District Court.]
See Grumman v.
United States, 368 U.S. 925 (TR, p. 2);
Silber v. United
States, 368 U.S. 925 (TR, p. 2);
Hutcheson v. United
States, 369 U. S. 599 (TR,
p. 4);
Deutch v. United States, 367 U.
S. 456 (TR, p. 7);
Barenblatt v. United States,
360 U. S. 109 (TR,
p. 1);
Flaxer v. United States, 358 U.
S. 147 (TR, p. 2);
Sacher v. United States,
356 U. S. 576 (JA,
p. 2);
Watkins v. United States, 354 U.
S. 178 (TR, p. 2);
Bart v. United States,
349 U. S. 219 (TR,
p. 108);
Emspak v. United States, 349 U.
S. 190 (TR, p. 4);
Quinn v. United States,
349 U. S. 155 (TR,
p. 3);
United States v. Rumely, 345 U. S.
41 (TR, pp. 2-4);
Knowles v. United States, 108
U.S.App.D.C. 148, 280 F.2d 696 (Cr. No. 1211-56);
Watson v.
United States, 108 U.S.App.D.C. 141, 280 F.2d 689 (Cr. No.
1151-54);
Miller v. United States, 104 U.S.App.D.C. 30,
259 F.2d 187 (Cr. No. 164-57);
La Poma v. United States,
103 U.S.App.D.C. 151, 255 F.2d 903 (Cr. No. 290-57);
Brewster
v. United States, 103 U.S.App.D.C. 147, 255 F.2d 899 (Cr. No.
289-57);
Singer v. United States, 100 U.S.App.D.C. 260,
244 F.2d 349 (Cr. No. 1150-54);
O'Connor v. United States,
99 U.S.App.D.C. 373, 240 F.2d 404 (Cr. No. 1650-53);
Keeney v.
United States, 94 U.S.App.D.C. 366, 218 F.2d 843 (Cr. No.
870-52);
Bowers v. United States, 92 U.S.App.D.C. 79, 202
F.2d 447 (Cr. No. 1252-51);
Kamp v. United States, 84
U.S.App.D.C. 187, 176 F.2d 618 (Cr. No. 1788-50);
United States
v. Peck, 149 F. Supp. 238 (Cr. No. 1214-56);
United States
v. Hoag, 142 F.
Supp. 667 (Cr. No. 574-55);
United States v.
Fischetti, 103 F.
Supp. 796 (Cr. No. 1254-51);
United States v.
Nelson, 103 F.
Supp. 215 (Cr. No. 1796-50);
United States v.
Jaffe, 98 F. Supp.
191 (Cr. No. 1786-50);
United States v.
Raley, 96 F. Supp.
495 (Cr. No. 1748-50);
United States v.
Fitzpatrick, 96 F. Supp.
491 (Cr. No. 1743-50).
For a short period after Rule 7(c), Fed.Rules Crim.Proc., came
into effect in 1946, vestiges of common law pleading continued to
be found in some, but not all, § 192 indictments.
Compare
United States v. Fleischman, 339 U. S. 349 (TR,
pp. 2-3),
with United States v. Bryan, 339 U.
S. 323 (TR, p. 2A). By 1950, however, all such
indictments had come to be in statutory form.
[
Footnote 2/3]
Four judges dissented on other grounds.
[
Footnote 2/4]
The record on appeal shows that one of the grounds of attack was
the indictment's failure to allege "the nature of any matter under
inquiry before said Committee." Record on Appeal in the Court of
Appeals for the Second Circuit, No. 91, Doc. 20790, p. 7.
[
Footnote 2/5]
This case evinces no purpose to depart from
Josephson.
The District Court, although dismissing the indictment on other
grounds, quite evidently found the statutory "pertinency"
allegation sufficient. 18 F.R.D. 27 at 30, 37. And, in affirming,
the Court of Appeals, citing the
Josephson case, among
others, stated that "the result might well be different" had the
authority of the investigating committee appeared in the
indictment. 236 F.2d at 316 (note 6). (The committee in
Lamont was a Subcommittee of the Senate Committee on
Government Operations whose enabling legislation the court found
did not authorize investigation of "subversive activities.") As
regards the issue decided in the present cases, the following
observations by Chief Judge Clark, who speaks with special
authority in procedural matters, are significant (
id. at
317):
"Pleading, either civil or criminal, should be a practical
thing. Its purpose is to convey information succinctly and
concisely. In older days, the tendency was to defeat this purpose
by over-elaboration and formalism. Now we should avoid the opposite
trend, but of like consequence -- that of a formalism of
generality.
There seems to be some tendency to confuse general
pleadings with entire absence of statement of claim or charge.
[Footnote omitted.] But this is a mistake, for general pleadings,
far from omitting a claim or charge, do convey information to the
intelligent and sophisticated circle for which they are designed.
Thus, the charge that, at a certain time and place, 'John Doe with
premeditation shot and murdered John Roe,' F.R.Cr.P., Form 2, even
though of comparatively few words, has made clear the
offense
it is bringing before the court. [Footnote omitted.] The
present indictments, however, do not show the basis upon which
eventual conviction can be had; rather, read in the light of the
background of facts and Congressional action, they show that
conviction cannot be had."
(Emphasis supplied.)
[
Footnote 2/6]
That case was concerned with the "connective reasoning" aspect
of "pertinency,"
Watkins v. United States, 354 U.
S. 178,
354 U. S.
214-215, rather than the "subject under inquiry" aspect;
but it is not perceived how this can be thought to make a
difference in principle.
[
Footnote 2/7]
This is not the first opportunity the Court has had to consider
the matter.
Ante, p.
369 U. S. 754,
note. 7.
[
Footnote 2/8]
The Court stated (
id. at
96 U. S.
362):
"Where the offence is purely statutory . . . , it is,"
"as a general rule, sufficient in the indictment to charge the
defendant with acts coming fully within the statutory description,
in the substantial words of the statute, without any further
expansion of the matter."
1 Bishop, Crim.Proc., sect. 611, and authorities there cited.
But to this general rule there is the qualification, fundamental in
the law of criminal procedure, that the accused must be apprised by
the indictment, with
reasonable certainty, of the
nature of the accusation against him. . . . An indictment
not so framed is defective, although it may follow the language of
the statute.
(Emphasis supplied.)
[
Footnote 2/9]
The
Mills and
Evans cases suggest that a more
lenient rule of pleading applies in misdemeanor than in felony
cases. Although that distinction seems to have disappeared in the
later cases, it may be noted that § 192 in terms makes this offense
a misdemeanor.
369
U.S. 749fn2/1|>Note 1,
supra.
[
Footnote 2/10]
In that case, the Court spoke, doubtless by way of dictum,
concerning the method of pleading "materiality" in a perjury
indictment (an element akin to "pertinency" under § 192,
Sinclair v. United States, 279 U.
S. 263,
279 U. S.
298):
"It was not necessary that the indictment should set forth all
the details or facts involved in the issue as to materiality of
[the false] statement. . . . In 2 Chit.Cr.Law, 307, the author
says:"
"It is undoubtedly necessary that it should appear on the face
of the indictment that the false allegations were material to the
matter in issue. But it is not requisite to set forth all the
circumstances which render them material. The simple averment that
they were so will suffice."
"In
King v. Dowlin . . . , Lord Kenyon said that it had
always been adjudged to be sufficient in an indictment for perjury
to allege generally that the particular question became a material
question. . . ."
160 U.S. at
160 U. S.
325.
[
Footnote 2/11]
There, under an exception, prevailing in "obscenity" cases, to
the then general rule that, in "documentary" crimes the contents of
the document must be set forth in the indictment, the Court, in
sustaining an indictment charging the unlawful mailing of an
"indecent" letter, only generally described, said (
id. at
227 U. S.
433-434):
"The present indictment specifically charged that the accused
had knowingly violated the laws of the United States by depositing
on a day named, in the post office specifically named, a letter of
such indecent character as to render it unfit to be set forth in
detail, inclosed in an envelop bearing a definite address. In the
absence of a demand for a bill of particulars, we think this
description sufficiently advised the accused of the nature and
cause of the accusation against him. This fact is made more evident
when it is found that this record shows no surprise to the accused
in the production of the letter at the trial. . . ."
The Court suggests that
Bartell and
Rosen v. United
States (
infra, p.
369 U. S. 792)
are inapposite because of the special rule of pleading applicable
in "obscenity" cases.
Ante, p.
369 U. S. 765.
However, considering that the "apprisal" requisite of an indictment
arises from constitutional requirements, this factor far from
lessening the weight of these two cases adds to their
authority.
[
Footnote 2/12]
The other cases and commentaries referred to by the Court in
Note 15 ante, pp.
369 U. S.
768-769, indicate nothing different.
[
Footnote 2/13]
It seems clear that the Court proceeded on the premise that the
"isolated excerpt" rule of
Regina v. Hicklin, [1868] L.R.
3 Q.B. 360, recently rejected in
Roth v. United States,
354 U. S. 476,
354 U. S.
488-489, in favor of the "whole book" rule, obtained,
for the Court relied on
United States v. Bennett, 24
Fed.Cas. p. 1093, 16 Blatchford 338, where the "excerpt" test was
applied.
[
Footnote 2/14]
While the "connective reasoning" aspect of "pertinency" is again
evidently not involved in the Court's reasoning, it is appropriate
to note that it is scarcely realistic to consider that issue of law
as one on which the grand jury has exercised an independent
judgment in determining whether an indictment should be returned.
For that body may be expected, quite naturally and properly, to
follow the District Attorney's advice on this score, as with any
other matter of law. That the legal premises on which the grand
jury acted in this respect may turn out to have been wrong could
hardly vitiate the indictment itself.
[
Footnote 2/15]
360 U. S. 360 U.S.
109;
365 U. S. 365 U.S.
399;
365 U. S. 365 U.S.
431.