No infraction of constitutional or statutory right is predicable
of the fact that the indictment and conviction of a socialist are
returned by grand and petit juries composed exclusively of members
of other political parties and property owners.
Upon a criminal trial of defendants who are socialists, it is
not error for the district court to refuse them permission to ask
the jurors whether they distinguish between socialists and
The Sixth Amendment, both by its plain text and as construed
contemporaneously by the Judiciary Act of 1789 and continuously by
legislative and judicial practice (Rev.Stats., § 802; Jud.Code, §
277), permits the drawing of a jury from a part of the district in
criminal cases -- in this case, from a division.
A sworn charge previously made is not essential to the validity
of an indictment.
By § 5 of the Selective Draft Law, all male persons between the
ages of 21 and 30, both inclusive (with certain exceptions) must
register. In an indictment under it for failure to register and for
aiding, abetting, etc., such failure, it is sufficient therefore to
allege that the delinquent was a male person between those ages,
and not necessary to allege that he was a citizen of the United
States, or a person, not an alien enemy, who had declared his
intention to become such citizen, since these latter matters go
only to the liability to military duty under the act, and not to
the duty to register.
An indictment charging one person with the direct commission of
the criminal act and others with aiding, abetting, counseling,
commanding, and inducing it charges but one offense against all,
since, by § 332 of the Criminal Code, all are principals.
By § 332 of the Criminal Code, charging a defendant as an aider
and abettor of the direct criminal act states the offense against
him as principal, though the offense be a misdemeanor, and though
at common law there could be no accessory to a misdemeanor.
Page 245 U. S. 481
The case is stated in the opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
Schue was indicted for having failed to register as required by
the Act of Congress of May 18, 1917, c. 15, 40 Stat. 76, known as
the Selective Draft Law, and in the same indictment it was charged
that Ruthenberg, Wagenknecht, and Baker, the plaintiffs in error
"did aid, abet, counsel, command and induce" Schue in failing to
register "and procure him to commit the offense involved in his so
doing." Schue pleaded guilty, and the other three defendants were
tried, found guilty, and sentenced. Because of objections raised to
the constitutionality of the act, this direct writ of error was
As every contention made in this case concerning the
unconstitutionality of the Selective Draft Law was urged in
Arver v. United States, ante, 245 U. S. 366
held to be without merit, that subject may be put out of view. The
remaining assignments of error are, to say the least, highly
technical, and require only the briefest notice.
The want of merit in the proposition that constitutional
Page 245 U. S. 482
or statutory rights were denied the plaintiffs in error, who
were socialists, because the grand and trial juries were composed
exclusively of members of other political parties and of property
owners, is demonstrated by previous adverse rulings upon similar
contentions urged by negro defendants indicted and tried by juries
composed of white men. Martin v. Texas, 200 U.
, 200 U. S.
-321; Thomas v. Texas, 212 U.
, 212 U. S.
A further objection that plaintiffs in error were prejudiced by
the refusal of the court below to permit them, in examining the
jurors, to inquire whether they distinguished between socialists
and anarchists is likewise disposed of by previous decisions.
Spies v. Illinois, 123 U. S. 131
Thiede v. Utah Territory, 159 U.
; Holt v. United States, 218 U.
, 218 U. S.
It is contended that plaintiffs in error were not tried by a
jury of the state and district in which the crime was committed, in
violation of the Sixth Amendment, because the jurors were drawn not
from the entire district, but only from one division thereof. The
proposition disregards the plain text of the Sixth Amendment, the
contemporary construction placed upon it by the Judiciary Act of
1789 (c. 20, 1 Stat. 73, 88, § 29) expressly authorizing the
drawing of a jury from a part of the district, and the continuous
legislative and judicial practice from the beginning. Section 802,
Revised Statutes; § 277, Judicial Code; Agnew v. United
States, 165 U. S. 36
United States v. Wan Lee,
44 F. 707; United States v.
46 F. 651; United States v. Peuschel,
642, 646; Clement v. United States,
149 F. 305;
Spencer v. United States,
169 F. 562, 565-566; United
States v. Merchants' etc., Co.,
187 F. 355, 359, 362.
It is argued that the court below erred in refusing to quash the
indictment on the ground that it had been found "without a sworn
charge previously made." It is settled
Page 245 U. S. 483
that such a charge is unnecessary. Frisbie v. United
States, 157 U. S. 160
157 U. S. 163
Hale v. Henkel, 201 U. S. 43
201 U. S.
Further, it is said, the indictment was insufficient because it
did not allege that Schue, who it was charged refused to register,
was a citizen of the United States or was a person not an alien
enemy who had declared his intention to become such citizen. But
this overlooks the fact that, although only the persons described
were subject to military duty under the terms of the act, by § 5,
"all male persons between the ages of 21 and 30 both inclusive"
(with certain exceptions not here material) were required to
register. It was sufficient to charge, therefore, as the indictment
did, that Schue was a male person between the designated ages.
The contention that more than one offense was charged in the
same indictment is without merit. Section 332 of the Criminal Code
"Whoever directly commits any act constituting an offense
defined in any law of the United States, or aids, abets, counsels,
commands, induces or procures its commission, is a principal."
The indictment therefore charged but one offense -- the refusal
of Schue to register -- plaintiffs in error being charged as
principals in procuring such refusal. And this also disposes of a
further contention based upon the same misconception that, as at
common law there could be no accessory to a misdemeanor, no offense
was charged in the indictment.
Other errors are assigned, but we do not expressly notice them,
some because they are not urged in argument, others because they
are so unsubstantial as not to require even statement, and we
content ourselves with saying that, after a careful examination of
the whole record, we find no error, and the judgment is