1. An attack upon a statute upon the ground that it is in
violation "of the Constitution of the United States," without
further specification, does not raise a federal question. P.
295 U. S.
2. A ruling of a state trial court sustaining an indictment
against preliminary attack, which the Supreme Court of the state
declined to consider because the ruling was not preserved in a bill
of exceptions or assigned as error, as required by the settled
state practice, cannot be considered here, upon review of the
latter court's judgment, as a basis for raising a federal question.
P. 295 U. S.
3. An attempt to raise a federal question before a state supreme
court upon a petition for rehearing after judgment is too late
unless the court actually entertains the question and decides it.
P. 295 U. S.
4. But a federal question first presented to the state court by
petition for rehearing is in time if it could not have been raised
earlier because the ruling of that court to which it is directed
could not have been anticipated. P. 295 U. S.
5. A ruling is not to be regarded as unanticipated by the party
where it is one that follows an earlier decision of the same court
in a similar case. P. 295 U. S.
Appeal from 178 Ga. 832, 174 S.E. 597; 179 Ga. 597, 176 S.E.
Appeal from the affirmance of a conviction under an indictment
charging Herndon with an attempt to incite insurrection by
endeavoring to induce others to join in combined resistance to the
authority of the state in violation of § 56 of the Penal Code of
Page 295 U. S. 442
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
Appellant was sentenced to a term of imprisonment upon
conviction by a jury in a Georgia court of first instance of an
attempt to incite insurrection by endeavoring to induce others to
join in combined resistance to the authority of the state to be
accomplished by acts of violence, in violation of § 56 of the Penal
Code of Georgia. [Footnote 1
The supreme court of the state affirmed the judgment. 178 Ga. 832,
174 S.E. 597, rehearing denied,
179 Ga. 597, 176 S.E. 620,
622. On this appeal, the statute is assailed as contravening the
due process clause of the Fourteenth Amendment in certain
designated particulars. We find it unnecessary to review the points
made, since this Court is without jurisdiction for the reason that
no federal question was seasonably raised in the court below or
passed upon by that court.
It is true that there was a preliminary attack upon the
indictment in the trial court on the ground, among others, that the
statute was in violation "of the Constitution of
Page 295 U. S. 443
the United States," and that this contention was overruled. But,
in addition to the insufficiency of the specification, [Footnote 2
] the adverse action of the
trial court was not preserved by exceptions pendente lite
or assigned as error in due time in the bill of exceptions, as the
settled rules of the state practice require. In that situation, the
state supreme court declined to review any of the rulings of the
trial court in respect of that and other preliminary issues, and
this determination of the state court is conclusive here. John
v. Paullin, 231 U. S. 583
231 U. S. 585
Atlantic Coast Line R. Co. v. Mims, 242 U.
, 242 U. S. 535
Nevada-California-Oregon Ry. v. Burrus, 244 U.
, 244 U. S. 105
Brooks v. Missouri, 124 U. S. 394
124 U. S. 400
Central Union Co. v. Edwardsville, 269 U.
, 269 U. S.
-195; Erie R. Co. v. Purdy, 185 U.
, 185 U. S. 154
Mutual Life Ins. Co. v. McGrew, 188 U.
, 188 U. S.
The federal question was never properly presented to the state
supreme court unless upon motion for rehearing, and that court then
refused to consider it. The long established general rule is that
the attempt to raise a federal question after judgment upon a
petition for rehearing comes too late unless the court actually
entertains the question and decides it. Texas & Pacific Ry.
Co. v. Southern Pacific Co., 137 U. S. 48
137 U. S. 54
Loeber v. Schroeder, 149 U. S. 580
149 U. S. 585
Godchaux Co. v. Estopinal, 251 U.
, 251 U. S. 181
Rooker v. Fidelity Trust Co., 261 U.
, 261 U. S. 117
Tidal Oil Co. v. Flanagan, 263 U.
, 263 U. S.
-455, and cases cited.
Petitioner, however, contends that the present case falls within
an exception to the rule -- namely, that the question respecting
the validity of the statute as applied by the lower court first
arose from its unanticipated act
Page 295 U. S. 444
in giving to the statute a new construction which threatened
rights under the Constitution. There is no doubt that the federal
claim was timely if the ruling of the state court could not have
been anticipated and a petition for rehearing presented the first
opportunity for raising it. Saunders v. Shaw, 244 U.
, 244 U. S. 320
Ohio v. Akron Park District, 281 U. S.
, 281 U. S. 79
Missouri v. Gehner, 281 U. S. 313
281 U. S. 320
Brinkerhoff-Faris Co. v. Hill, 281 U.
, 281 U. S.
-678; American Surety Co. v. Baldwin,
287 U. S. 156
287 U. S. 164
Great Northern R. Co. v. Sunburst Co., 287 U.
, 287 U. S. 367
whole point, therefore, is whether the ruling here assailed should
have been anticipated.
The trial court instructed the jury that the evidence would not
be sufficient to convict the defendant if it did not indicate that
his advocacy would be acted upon immediately, and that:
"In order to convict the defendant, . . . it must appear clearly
by the evidence that immediate serious violence against the State
of Georgia was to be expected or was advocated."
Petitioner urges that the question presented to the state
supreme court was whether the evidence made out a violation of the
statute as thus construed by the trial court, while the supreme
court construed the statute (178 Ga., p. 855) as not requiring that
an insurrection should follow instantly or at any given time, but
that "it would be sufficient that he [the defendant] intended it to
happen at any time, as a result of his influence, by those whom he
sought to incite," and, upon that construction, determined the
sufficiency of the evidence against the defendant. If that were
all, the petitioner's contention that the federal question was
raised at the earliest opportunity well might be sustained; but it
is not all.
The verdict of the jury was returned on January 18, 1933, and
judgment immediately followed. On July 5, 1933, the trial court
overruled a motion for new trial. The original opinion was handed
down, and the judgment of
Page 295 U. S. 445
the state supreme court entered May 24, 1934, the case having
been in that court since the preceding July.
On March 18, 1933, several months prior to the action of the
trial court on the motion for new trial, the state supreme court
had decided Carr v. State,
176 Ga. 747, 169, S.E. 201. In
that case, § 56 of the Penal Code, under which it arose, was
challenged as contravening the Fourteenth Amendment. The court in
substance construed the statute as it did in the present case. In
the course of the opinion, it said (p. 750):
"It [the state] cannot reasonably be required to defer the
adoption of measures for its own peace and safety until the
revolutionary utterances lead to actual disturbances of the public
peace or imminent and immediate danger of its own destruction; but
it may, in the exercise of its judgment, suppress the threatened
danger in its incipiency. . . ."
"Manifestly, the legislature has authority to forbid the
advocacy of a doctrine designed and intended to overthrow the
government, without waiting until there is a present and imminent
danger of the success of the plan advocated. If the state were
compelled to wait until the apprehended danger became certain, then
its right to protect itself would come into being simultaneously
with the overthrow of the government, when there would be neither
prosecuting officers nor courts for the enforcement of the
The language contained in the subquotation is taken from
People v. Lloyd,
304 Ill. 23, 35, 136 N.E. 505, and is
quoted with approval by this Court in Gitlow v. New York,
268 U. S. 652
268 U. S.
In the present case, following the language quoted at an earlier
point in this opinion to the effect that it was sufficient if the
defendant intended an insurrection to follow at any time,
etc., the court below, in its original opinion (178 Ga. 855),
"It was the intention of this law to arrest at its incipiency
any effort to overthrow the state
Page 295 U. S. 446
government where it takes the form of an actual attempt to
incite others to insurrection."
The phrase "at any time" is not found in the foregoing excerpt
from the Carr
case, but it is there in effect, when the
phrase is given the meaning disclosed by the context, as that
meaning is pointed out by the court below in its opinion denying
the motion for a rehearing (179 Ga.600), when it said that the
phrase was necessarily intended to mean within a reasonable time
"that is, within such time as one's persuasion or other adopted
means might reasonably be expected to be directly operative in
causing an insurrection."
Appellant, of course, cannot plead ignorance of the ruling in
case, and was therefore bound to anticipate the
probability of a similar ruling in his own case, and preserve his
right to a review here by appropriate action upon the original
hearing in the court below. It follows that his contention that he
raised the federal question at the first opportunity is without
substance, and the appeal must be dismissed for want of
It is so ordered.
"§ 56. Any attempt, by persuasion or otherwise, to induce others
to join in any combined resistance to the lawful authority of the
state shall constitute an attempt to incite insurrection."
"Insurrection" is defined by the preceding section.
"§ 55. Insurrection shall consist in any combined resistance to
the lawful authority of the state, with intent to the denial
thereof, when the same is manifested, or intended to be manifested,
by acts of violence."
18 How. 511, 59 U. S. 516
10 Wall. 507, 77 U. S. 509
Capital City Dairy Co. v. Ohio, 183 U.
, 183 U. S. 248
Harding v. Illinois, 196 U. S. 78
196 U. S. 85
196 U. S.
MR. JUSTICE CARDOZO, dissenting*
The appellant has been convicted of an attempt to incite
insurrection in violation of § 56 of the Penal Code of Georgia. He
has been convicted after a charge by the trial court that, to incur
a verdict of guilty, he must have advocated violence with the
intent that his advocacy should be acted on immediately, and with
reasonable grounds for the expectation that the intent would be
fulfilled. The appellant did not contend then, nor does he contend
now, that a statute so restricted would involve an unconstitutional
impairment of freedom of speech. However, upon appeal from the
judgment of conviction, the Supreme Court of Georgia repudiated the
construction adopted at the trial and substituted another. Promptly
thereafter, the appellant moved for a rehearing upon the ground
that the substituted meaning made the
Page 295 U. S. 447
statute unconstitutional, and, in connection with that motion,
invoked the protection of the Fourteenth Amendment. A rehearing was
denied with an opinion which again construed the statute and again
rejected the construction accepted in the court below. Now, in this
Court, the appellant renews his complaint that the substituted
meaning makes the statute void. By the judgment just announced, the
Court declines to hear him. It finds that he was tardy in asserting
his privileges and immunities under the Constitution of the United
States, and, disclaiming jurisdiction, dismisses his appeal.
I hold the view that the protection of the Constitution was
seasonably invoked, and that the court should proceed to an
adjudication of the merits. Where the merits lie, I do not now
consider, for, in the view of the majority, the merits are
irrelevant. My protest is confined to the disclaimer of
jurisdiction. The settled doctrine is that, when a constitutional
privilege or immunity has been denied for the first time by a
ruling made upon appeal, a litigant thus surprised may challenge
the unexpected ruling by a motion for rehearing, and the challenge
will be timely. Missouri v. Gehner, 281 U.
, 281 U. S. 320
Brinkerhoff-Faris Trust & Savings Co. v. Hill,
281 U. S. 673
281 U. S. 678
American Surety Co. v. Baldwin, 287 U.
, 287 U. S. 164
Great Northern R. Co. v. Sunburst Oil & Refining Co.,
287 U. S. 358
287 U. S. 367
Saunders v. Shaw, 244 U. S. 317
244 U. S. 320
Within that settled doctrine, the cause is rightly here.
Though the merits are now irrelevant, the controversy must be so
far explained as to show how a federal question has come into the
record. The appellant insists that words do not amount to an
incitement to revolution, or to an attempt at such incitement,
unless they are of such a nature and are used in such circumstances
as to create "a clear and present danger" (Schenck v. United
States, 249 U. S. 47
249 U. S. 52
bringing the prohibited result to pass. He insists that, without
this limitation, a statute so lacking
Page 295 U. S. 448
in precision as the one applied against him here is an
unconstitutional restraint upon historic liberties of speech. For
present purposes, it is unimportant whether his argument be sound
or shallow. At least it has color of support in words uttered from
this bench, and uttered with intense conviction. Schenck v.
United States, supra; cf. Whitney v. California, 274 U.
, 274 U. S.
-375; Fiske v. Kansas, 274 U.
; Gitlow v. New York, 268 U.
, 268 U. S.
-673; Schaefer v. United States,
251 U. S. 466
251 U. S. 482
The Court might be unwilling, if it were to pass to a decision of
the merits, to fit the words so uttered within the framework of
this case. What the appellant is now asking of us is an opportunity
to be heard. That privilege is his unless he has thrown it away by
silence and acquiescence when there was need of speech and
We are told by the state that the securities of the Constitution
should have been invoked upon the trial. The presiding judge should
have been warned that a refusal to accept the test of clear and
present danger would be a rejection of the restraints of the
Fourteenth Amendment. But the trial judge had not refused to accept
the test proposed; on the contrary, he had accepted it and even
gone a step beyond. In substance, he had charged that even a
present "danger" would not suffice if there was not also an
expectation, and one grounded in reason, that the insurrection
would begin at once. It is novel doctrine that a defendant who has
had the benefit of all he asks, and indeed of a good deal more,
must place a statement on the record that, if some other court at
some other time shall read the statute differently, there will be a
denial of liberties that, at the moment of the protest, are
unchallenged and intact. Defendants charged with crime are as slow
as are men generally to borrow trouble of the future.
We are told, however, that protest, even if unnecessary at the
trial, should have been made by an assignment of
Page 295 U. S. 449
error or in some other appropriate way in connection with the
appeal, and this for the reason that, by that time, if not before,
the defendant was chargeable with knowledge as a result of two
decisions of the highest court of Georgia that the statute was
destined to be given another meaning. The decisions relied upon are
Carr v. State (No. 1),
176 Ga. 55, 166 S.E. 827, 167 S.E.
103, and Carr v. State (No. 2),
176 Ga. 747, 169 S.E. 201.
The first of these cases was decided in November, 1932, before the
trial of the appellant, which occurred in January, 1933. The second
was decided in March, 1933, after the appellant had been convicted,
but before the denial or submission of his motion for a new trial.
Neither is decisive of the question before us now.
Carr v. State, No. 1,
came up on demurrer to an
indictment. The prosecution was under § 58 of the Penal Code, which
makes it a crime to circulate revolutionary documents. *
All that was
held was that, upon the face of the indictment, there had been a
willful incitement to violence, sufficient, if proved, to
constitute a crime. The opinion contains an extract covering about
four pages from the opinion of this Court in Gitlow v. New
Imbedded in that long quotation are the words now
pointed to by the state as decisive of the case at hand. They are
the words of Sanford, J., writing for this Court. 268 U.S. at p.
268 U. S. 669
"The immediate danger is none the less real and substantial because
the effect of a given utterance
Page 295 U. S. 450
cannot be accurately foreseen." A state
"cannot reasonably be required to defer the adoption of measures
for its own peace and safety until the revolutionary utterances
lead to actual disturbances of the public peace or imminent and
immediate danger of its own destruction; but it may, in the
exercise of its judgment, suppress the threatened danger in its
To learn the meaning of these words in their application to the
Georgia statute, we must read them in their setting. Sanford, J.,
had pointed out that the statute then before him, the New York
criminal anarchy act, forbade the teaching and propagation by
spoken word or writing of a particular form of doctrine, carefully
defined and after such definition denounced on reasonable grounds
as fraught with peril to the state. There had been a determination
by the state through its legislative body that such utterances
"are so inimical to the general welfare and involve such danger
of substantive evil that they may be penalized in the exercise of
its police power."
268 U.S. at p. 268 U. S. 668
In such circumstances,
"the question whether any specific utterance coming within the
prohibited class is likely, in and of itself, to bring about the
substantive evil is not open to consideration. It is sufficient
that the statute itself be constitutional and that the use of the
language comes within its prohibition."
268 U.S. 268 U. S. 670
In effect, the words had been placed upon an expurgatory index. At
the same time, the distinction was sharply drawn between statutes
condemning utterances identified by a description of their meaning
and statutes condemning them by reference to the results that they
are likely to induce.
"It is clear that the question in such cases [i.e.,
where stated doctrines are denounced] is entirely different from
that involved in those cases where the statute merely prohibits
certain acts involving the danger of substantive evil, without any
Page 295 U. S. 451
language itself, and it is sought to apply its provisions to
language used by the defendant for the purpose of bringing about
the prohibited results."
Pp. 268 U. S.
-671. Cf. Whitney v. California, supra; Fiske v.
The effect of all this was to leave the question open whether,
in cases of the second class -- in cases, that is to say, where the
unlawful quality of words is to be determined not upon their face,
but in relation to their consequences, the opinion in Schenck
v. United States
supplies the operative rule. The conduct
charged to this appellant -- in substance, an attempt to enlarge
the membership of the Communist party in the City of Atlanta --
falls, it will be assumed, within the second of these groupings,
but plainly is outside the first. There is no reason to believe
that the Supreme Court of Georgia, when it quoted from the opinion
in Gitlow's case, rejected the restraints which the author of that
opinion had placed upon his words. For the decision of the case
before it, there was no need to go so far. Circulation of documents
with intent to incite to revolution had been charged in an
indictment. The state had the power to punish such an act as
criminal, or so the court had held. How close the nexus would have
to be between the attempt and its projected consequences was matter
for the trial.
Carr v. State, No. 2,
like the case under review, was a
prosecution under Penal Code, § 56 (not § 58), and, like Carr
v. State, No. 1,
came up on demurrer. All that the court held
was that, when attacked by demurrer the indictment would stand.
This appears from the headnote, drafted by the court itself. After
referring to this headnote, the court states that it may be "useful
and salutary" to repeat what it had written in Carr v. State,
Thereupon it quotes copiously from its opinion in that
case, including the bulk of the same extracts from Gitlow v.
The extracts show upon their face that
Page 295 U. S. 452
they have in view a statute denouncing a particular doctrine and
prohibiting attempts to teach it. They give no test of the bond of
union between an idea and an event.
What has been said as to the significance of the opinions in the
two cases against Carr has confirmation in what happened when
appellant was brought to trial. The judge who presided at that
trial had the first of those opinions before him when he charged
the jury, or so we may assume. He did not read it as taking from
the state the burden of establishing a clear and present danger
that insurrection would ensue as a result of the defendant's
conduct. This is obvious from the fact that, in his charge, he laid
that very burden on the state with emphasis and clarity. True, he
did not have before him the opinion in prosecution No. 2, for it
had not yet been handed down, but if he had seen it, he could not
have gathered from its quotation of the earlier case that it was
announcing novel doctrine.
From all this, it results that Herndon, this appellant, came
into the highest court of Georgia without notice that the statute
defining his offense was to be given a new meaning. There had been
no rejection -- certainly no unequivocal rejection -- of the
doctrine of Schenck v. United States,
which had been made
the law of the case by the judge presiding at his trial. For all
that the record tells us, the prosecuting officer acquiesced in the
charge, and did not ask the appellate court to apply a different
test. In such a situation, the appellant might plant himself as he
did on the position that, on the case given to the jury, his guilt
had not been proved. He was not under a duty to put before his
judges the possibility of a definition less favorable to himself,
and make an argument against it, when there had been no threat of
any change, still less any forecast of its form or measure. He
might wait until the law of the case had been rejected by the
reviewing court before insisting that the effect would be an
Page 295 U. S. 453
of his constitutional immunities. If invasion should occur, a
motion for rehearing diligently pressed thereafter would be
seasonable notice. This is the doctrine of Missouri v.
and Brinkerhoff-Faris Co. v. Hill.
It is the
doctrine that must prevail if the great securities of the
Constitution are not to be lost in a web of procedural
New strength is given to considerations such as these when one
passes to a closer view of just what the Georgia court did in its
definition of the statute. We have heard that the meaning had been
fixed by what had been held already in Carr v. State,
that thereby the imminence of the danger had been shown to be
unrelated to innocence or guilt. But, if that is the teaching of
those cases, it was discarded by the very judgment now subjected to
review. True, the Georgia court, by its first opinion in the case
at hand, did prescribe a test that, if accepted, would bar the
consideration of proximity in time.
"It is immaterial whether the authority of the state was in
danger of being subverted or that an insurrection actually occurred
or was impending. . . . Force must have been contemplated, but . .
. the statute does not include either its occurrence or its
imminence as an ingredient of the particular offense charged."
It would not be
"necessary to guilt that the alleged offender should have
intended that an insurrection should follow instantly or at any
given time, but it would be sufficient that he intended it to
happen at any time, as a result of his influence, by those whom he
sought to incite."
On the motion for a rehearing, the Georgia court repelled with a
little heat the argument of counsel that these words were to be
taken literally, without "the usual reasonable implications."
"The phrase 'at any time,' as criticized in the motion for
rehearing, was not intended to mean at any time in the indefinite
future, or at any possible later time, however remote. . . . On the
contrary, the phrase 'at any time' was necessarily intended, and
Page 295 U. S. 454
have been understood, to mean within a reasonable time -- that
is, within such time as one's persuasion or other adopted means
might reasonably be expected to be directly operative in causing an
insurrection. . . . Under the statute as thus interpreted, we say,
as before, that the evidence was sufficient to authorize the
Here is an unequivocal rejection of the test of clear and
present danger, yet a denial also of responsibility without
boundaries in time. True, in this rejection, the court disclaimed a
willingness to pass upon the question as one of constitutional law,
assigning as a reason that no appeal to the Constitution had been
made upon the trial or then considered by the judge. Brown v.
114 Ga. 60, 29 S.E. 873; Loftin v. Southern
162 Ga. 730, 134 S.E. 760; Dunaway v.
164 Ga. 219, 230, 138 S.E. 213. Such a rule of state
practice may have the effect of attaching a corresponding
limitation to the jurisdiction of this Court where fault can fairly
be imputed to an appellant for the omission to present the question
sooner. Erie R. Co. v. Purdy, 185 U.
; Louisville & Nashville R. Co. v.
Woodford, 234 U. S. 46
234 U. S. 51
such consequence can follow where the ruling of the trial judge has
put the Constitution out of the case and made an appeal to its
provisions impertinent and futile. Cf. Missouri v. Gehner,
supra; Rogers v. Alabama, 192 U. S. 226
192 U. S. 230
In such circumstances, the power does not reside in a state by any
rule of local practice to restrict the jurisdiction of this Court
in the determination of a constitutional question brought into the
case thereafter. Davis v. Wechsler, 263 U. S.
, 263 U. S. 24
the rejection of the test of clear and present danger was a denial
of fundamental liberties, the path is clear for us to say so.
What was brought into the case upon the motion for rehearing was
a standard wholly novel, the expectancy of life to be ascribed to
the persuasive power of an idea. The defendant had no opportunity
in the state court to
Page 295 U. S. 455
prepare his argument accordingly. He had no opportunity to argue
from the record that guilt was not a reasonable inference, or one
permitted by the Constitution, on the basis of that test any more
than on the basis of others discarded as unfitting. Cf. Fiske
v. Kansas, supra.
The argument thus shut out is submitted to
us now. Will men "judging in calmness" (Brandeis, J., in
Schaefer v. United States, supra,
at p. 251 U. S. 483
say of the defendant's conduct as shown forth in the pages of this
record that it was an attempt to stir up revolution through the
power of his persuasion and within the time when that persuasion
might be expected to endure? If men so judging will say yes, will
the Constitution of the United States uphold a reading of the
statute that will lead to that response? Those are the questions
that the defendant lays before us after conviction of a crime
punishable by death in the discretion of the jury. I think he
should receive an answer.
MR. JUSTICE BRANDEIS and MR. JUSTICE STONE join in this
"§ 58. If any person shall bring, introduce, print, or
circulate, or cause to be introduced, circulated, or printed, or
aid or assist, or be in any manner instrumental in bringing,
introducing, circulating, or printing within this state any paper,
pamphlet, circular, or any writing, for the purpose of inciting
insurrection, riot, conspiracy, or resistance against the lawful
authority of the state, or against the lives of the inhabitants
thereof, or any part of them, he shall be punished by confinement
in the penitentiary for not less than five nor longer than twenty