1. The evidence in this case was insufficient to sustain
conviction of the petitioners, members of the German-American Bund,
for conspiracy knowingly to counsel others to evade service in the
armed forces of the United States, in violation of § 11 of the
Selective Training and Service Act of 1940. Pp.
325 U. S. 488,
325 U. S.
494.
Opinion of ROBERTS, J., in which FRANKFURTER and MURPHY, JJ.,
concur:
2. Promulgation and communication of Bund Command No. 37 was
not, in itself, a counsel to evade; evidence of the general
disposition of the petitioners either towards the Government of the
United States or towards the Selective Service Act did not make the
Command a counsel to evade, and the evidence and oral statements of
the various petitioners at committee meetings and unit meetings of
the Bund did not supply the basis for a finding, beyond a
reasonable doubt, of counseling, or intending to counsel, or
conspiring to counsel, evasion of military service within the
meaning of § 11 of the Act. P.
325 U. S.
494.
BLACK and RUTLEDGE, JJ., concur in separate opinions, pp.
325 U. S. 495,
325 U.S. 498.
141 F.2d 248, reversed.
Certiorari, 322 U.S. 719, to review a judgment affirming
convictions of conspiracy in violation of § 11 of the Selective
Training and Service Act of 1940.
Page 325 U. S. 479
MR. JUSTICE ROBERTS announced the judgment of the Court and
delivered the following opinion, in which MR. JUSTICE FRANKFURTER
and MR. JUSTICE MURPHY, concur.
Two indictments, one returned July 7, 1942, the other returned
August 26, 1942, charged a conspiracy beginning January 1, 1940,
and ending at the dates the indictments were found. The evident
purpose of the second was to include several additional defendants
as alleged conspirators. We shall treat them as one.
The conspiracy charged was to counsel divers persons to evade,
resist, and refuse service in the land and naval forces of the
United States in violation of § 11 of the Selective Training and
Service Act of 1940, 50 U.S.C.Appendix, § 311.
The Act defines the crime as conspiracy "knowingly" to counsel
"another to evade registration or service in the land or naval
forces. . . ."
The proofs would not sustain, and the indictment does not
contain, any charge of conspiracy to counsel evasion of
registration.
In certain paragraphs of the indictment, it is charged
Page 325 U. S. 480
(1) That it was part of the conspiracy that each was and would
remain a member of the German-American Bund; that each was a
responsible leader of the Bund.
(2) That some prepared German articles called Bund Commands, and
others distributed and caused them to be distributed to units of
the Bund.
(3) That the commands were read at meetings.
(4) That Command 37 counseled, directed, and urged those to whom
its contents were communicated to evade, resist, and refuse service
in the land and naval forces.
(5) That articles in the newspaper "The Free American,"
published by the Bund, which were distributed, urged
German-American citizens and others to resist, refuse and evade
such service.
(6) That the defendants otherwise urged German-American citizens
and others to resist the provisions of the Act of 1940 and to evade
service.
The 25 defendants were tried together. One was acquitted. The
Government called 68 witnesses, and the trial lasted from September
17th to October 19th, 1942. The printed transcript of testimony
furnished this court covers just short of 800 pages, and the
exhibits offered in evidence run to over 350, some of them
containing over 50 pages. The defendants were represented at the
trial by appointed counsel, as they were not able to employ
counsel.
The Government correctly states that the evidence offered by the
prosecutor falls into two classes: (1) that touching the
German-American Bund and its purposes, which was offered to
indicate the motives and purposes for the defendants' statements
and actions, and (2) evidence touching specific actions, conduct,
and statements tending to show the existence of a conspiracy and
the steps taken pursuant to it. The evidence in the first category
is overwhelmingly greater in volume than that in the second.
Indeed, a question arises whether it was not an abuse
Page 325 U. S. 481
of discretion to permit the Government to go, at such inordinate
length, into evidence concerning the Bund and its predecessor, the
Friends of New Germany, during a period of seven years prior to the
inception of the alleged conspiracy, and concerning Bund uniforms
and paraphernalia, and pictures and literature in the possession of
various defendants.
What we shall characterize as the background evidence may be
summarized. The proofs disclose that there existed, from some time
in the early 1930's, a society known as the Friends of New Germany.
About 1935, the name was changed to the German-American Bund. After
Fritz Kuhn, the leader of the organization, had been arrested and
convicted of certain offenses irrelevant to the present case,
Kunze, one of the petitioners, became president. At the convention
of 1940, a new constitution was adopted, and at some time within
the dates specified as covering the conspiracy, a synopsis of the
structure of the Bund was promulgated. Minutes of the convention of
1940 also were in evidence.
From these documents, a conception of the nature and, to some
extent, the purposes of the association may be obtained. It was
organized on the fuehrer, or leadership, principle. The president
was the leader, and was amenable only to the association in
convention assembled. His orders were law unless and until modified
or abrogated by a convention. Members were expected to obey his
orders. Disobedience involved discipline or expulsion from the
organization. The entire hierarchy of constituent organizations and
of officials, national and local, was created by him, and all
officials, high and low, held office subject to his pleasure. The
constituent organizations consisted of local units, each of which
had its leader, and of collateral organizations within a unit, such
as an OD division, whose function was to drill in uniform, to
police
Page 325 U. S. 482
meetings of members, and perform other similar duties; a youth
organization, etc.
The professed purpose of the Bund was to keep alive the German
spirit among persons of German blood in the United States. Speeches
and literature justify the inference that the Bund endorsed the
Nazi movement in German,y and, if it did not actually advocate some
such form of government in this country, at least essayed to create
public opinion favorable to the Hitler regime and to the German
National Socialist State. The Bund was also anti-British, and
opposed our entering the war on the side of the British; its aim
was to keep us neutral and friendly to the new Germany. There is
much in literature put out or approved by the Bund concerning
"discrimination" against American citizens of German blood and the
fight which must be waged against it. There is also much to the
effect that the Bund is pursuing lawful aims within the
constitutional rights of its members, and that its activities need
not be hidden from governmental agencies. There is basis for
suspicion of subversive conduct; there is matter offensive to one's
sense of loyalty to our Government's policies. There may well be
doubt of the organization's hearty support of those policies, but
if the Bund and its membership were, prior or subsequent to January
1, 1940, engaged in illegal activities other than those claimed to
prove the charge laid in the indictment, the record is bare of
evidence of any such.
The Draft Act was introduced in Congress in June, 1940, was
amended September 7 by adding § 8(i), and, as so amended, became
law September 16, 1940. Prior to September 7, there seems to have
been no suggestion by the Bund or its officers that, if passed, the
law would not be binding on all, and ought not to be obeyed. The
oral evidence respecting this period is almost entirely that of
Luedtke, former secretary of the Bund, who was a defendant and
turned state's evidence.
Page 325 U. S. 483
He states that the Bund and its members always favored a
compulsory selective service act. But, he said, they were opposed
to the principle of using a draft army to fight against Germany.
The Bund feared that the President might use a conscript army by
sending it abroad to fight with England against Germany. The Bund
desired this country to maintain neutrality by not having our
soldiers go to foreign shores. These views were then shared by many
loyal citizens, and some of them were enacted into law by Congress.
(
See § 3(e) of the Selective Training and Service
Act.)
There is no documentary evidence to contradict this testimony.
Nothing appears in the minutes of the national convention held
August 31-September 2, 1940, or in the testimony as to its
proceedings, with reference to selective service. It is true,
Luedtke says there was some talk about it, and the stenographer was
instructed to omit this from the record, but he does not say that
such talk was in any way inconsistent with what he had testified as
to the Bund's attitude.
On September 7, while the bill was pending in the House, an
amendment was offered, was adopted as offered, and remained in the
bill when signed by the President. It is:
"8(i) It is the expressed policy of the Congress that, whenever
a vacancy is caused in the employment rolls of any business or
industry by reason of induction into the service of the United
States of an employee pursuant to the provisions of this Act, such
vacancy shall not be filled by any person who is a member of the
Communist Party or the German-American Bund."
50 U.S.C. App. § 308(i).
Admittedly Kunze, probably with the approval of other
defendants, protested by letter and telegram to members of Congress
against the passage of the bill thus amended, and to the President
against signing it. The Act became
Page 325 U. S. 484
law September 16th. Shortly thereafter, Kunze called a meeting
of unit leaders at which many of the defendants were present,
including Keegan, the counsel of the Bund. Keegan addressed the
meeting and said that there was a constitutional question involved,
that members of the Bund had been discriminated against (it is
plain this statement applies to § 8(i)), and they had a right to go
to court to establish their rights. Kunze recited his efforts to
prevent passage of the bill, said an article was to appear in "Free
American" entitled "No rights, no duties," and that the Bund was
going to fight the discrimination. He explained that the article
would make clear that, if American citizens were deprived of their
right to work, they should not be saddled with the burden of
military service. He said the Bund intended to fight this
discrimination by a test in court. Neither Keegan nor Kunze
suggested that Bund members should resist military service
irrespective of what happened in the test case. Luedtke, who is the
principal witness as to what occurred at this meeting, said he
never heard Keegan, Kunze, or any national leader advise anyone to
resist military service, irrespective of the outcome of the test
case; that it was the policy of the Bund to get this provision (§
8(i)) out of the Act.
The sequel to this meeting was the issue of Bund Command No. 37
on October 1, 1940. (Some 49 such commands were offered in
evidence, though none but No. 37 is relied on as containing any
statement relevant to the charge.) In this command, one of several
subjects dealt with was that of military service. The whole of this
section is, according to the translation submitted by the
Government:
"4.
Military Service: On October 16 of this year, all
citizens and noncitizens (male) who are of age, but who have not
passed their 36th year, must register with the military
authorities. This order must be complied with unhesitatingly. "
Page 325 U. S. 485
"We represent the standpoint, however, that AN INDUCTION into
the MILITARY SERVICE is NOT justified, in as far it concerns Bund
members and American Germans,
for, in the Selective Service
Law, the citizenship rights of Bund members and the defenders of
Germandom are unconstitutionally severed!"
"EVERY MAN, if he can, will REFUSE
to do military duty until
this law and all other laws of the country or the states which
confine the citizenship rights of Bund members ARE
REVOKED!"
"
We will fight to establish a precedent in this servile
matter!"
(Emphasis as in original.)
Warner, the translator, a government witness, testified that the
German word "
praezedenfall," here translated "precedent"
means "a test case in the legal sense," "a case which they refer to
as a precedent." He further testified that the German words
translated above simply as the English "if he can" may be fairly
taken to mean "if he can properly do so," or "if he can possibly do
so." And he further agreed that the word "
Jeder," which he
translated as "every," might properly be translated as "each."
Thus, altered the phrase would read: "Each man, if he properly
can . . . ,will refuse to do military service . . . until this law,
etc."
As will be seen from what follows, the Government's case is
really pitched on this command, which it construes as a counsel to
evade military service. The proof went to great lengths to show
that it reached various unit leaders, and that they read it or made
it available to the members of their units. The evidence is that
each of the defendants who was a unit leader either read it to some
members of his unit or made it available to them, except only
Schneller.
The Bund held a convention in 1941, but there is no evidence
that selective service was there discussed. It disbanded in
December, 1941. There is evidence that the
Page 325 U. S. 486
leaders advised the members to keep together, to meet for
singing and social purposes, but no evidence that anything was said
about selective service or military service.
If the promulgation or imparting of the contents of Command No.
37, and concurrence in its purpose, is evidence of an intent to
counsel
evasion of military service, the conviction of all
the defendants, save Schneller, was justified. But the Government
evidently felt that a counsel to register for the draft, thus
making one's liability to service, his address, etc., matters of
public record, and then, if possible, to
refuse service if
a supposed discrimination remained effective, could hardly be
claimed to be a counsel to
evade.
This becomes the clearer if we analyze the provisions of § 11 of
the Act (50 U.S.C.App. § 311).
It subjects to punishment any person:
"(1) who shall knowingly made or be a party to making any
false registration;"
"(2) who shall knowingly make or be a party to making and
false statement as to his or another's fitness or
liability for service;"
"(3) who knowingly
counsels, aids, or abets another to
evade registration or service;"
"(4) who in any manner shall knowingly
fail or neglect to
perform any duty required of him by the Act;"
"(5) who shall knowingly
hinder or interfere by force or
violence with the administration of the Act;"
"(6) who shall conspire so to do."
It will be noted that resistance or refusal are nowhere
mentioned, except as such refusal would constitute a neglect to
perform a duty enjoined by the Act (4), or were accompanied by
force or violence (5). On the other hand, there appear in
collocation descriptions of two sorts of evasion, false entries (1)
and false statements (2) immediately
Page 325 U. S. 487
followed by the denunciation of counseling "evasion" (3).
Plainly enough, the Act distinguishes evasion, a species of
fraudulent conduct, from mere neglect of duty and from forcible and
violent interference or resistance.
The classification so made corresponds with what "evade" means
to the common understanding, and the effort of the draughtsman of
the indictment to make evasion the equivalent of refusal or
resistance does violence to such usage, as well as to the
statute.
"Evade' is defined as, 'To escape; to slip away; To take refuge
in evasion; to use artifice in avoidance."
"Resist' is defined as, 'To withstand; To oppose by physical,
mental, or moral power."
"Refuse' is defined as, 'To decline to accept; to reject; To
decline to submit to or undergo."
Now, the surest way of rendering oneself incapable of evading
military service, of slipping away or escaping it, is to register.
And the Bund command which is at the core of the Government's case
enjoins registration in the strongest terms. That accomplished, a
refusal to serve may follow when the registrant is to be inducted.
But to counsel merely refusal is not made criminal by the Act.
The provisions of § 8(i) of the Act hardly need animadversion.
They speak for themselves. Can it be that criticism, that an effort
to eliminate them from the Act, or forthright advice to those
discriminated against by those provisions, to register but not, if
it can be avoided, to serve, unless those provisions have been
sustained by the courts as legal, amount to counseling evasion of
service? The belief that validity of the other provisions of the
Act depends on the validity of that section may seem foolish to us,
but can we say that the other defendants did not believe what the
Bund's lawyer told them about that?
Thus, the Government, recognizing that the issue and
communication of Command No. 37 did not, in itself,
Page 325 U. S. 488
constitute a counseling to evade military service, sought to
prove a sinister and undisclosed intent in connection with it to
counsel evasion. For this purpose, it relied first on the so-called
un-American sentiments and statements of the Bund; on articles
which appeared in the "Free American," and on proceedings had and
speeches made at the 1940 convention. But these evinced nothing
bearing on the charge laid in the indictment. At most, they were
evidence that the defendants, or some of them, were the kind of men
who might be inclined to counsel evasion of military service.
In addition, the Government introduced evidence as to statements
made by one or other of the defendants at unit meetings or other
gatherings of Bund members. It must, in final analysis, sustain the
judgment by this evidence.
We think the evidence insufficient to overcome the innocent
purport of Command No. 37 and to fasten on those who imparted that
command a covert purpose knowingly to counsel evasion of military
service. The testimony has been carefully examined. It cannot be
quoted
in extenso. A summary must suffice.
Most, though not all, the testimony as to oral statements by the
defendants refers to occasions between September 16, 1940, the date
of the Draft Act, and July 9, 1941. There is nothing of
significance after the latter date except what is hereinafter
noted. During the period mentioned, Command No. 37 was read or made
available to members by unit leaders, was to some extent discussed,
and, during that period, Kunze, accompanied by some of the national
leaders, visited various units and discussed the Act before groups.
The testimony, in the main, is directed to what Kunze, Keegan, and
unit leaders said on these occasions.
Most of it amounts to this: it was stated that the Act was
unfair and discriminatory; that Bund members ought not at the same
time be deprived of civil rights and asked
Page 325 U. S. 489
to serve in the armed forces; that they should not be called
into the army until the discrimination was abolished; that the Bund
would fight the discrimination; that the Bund would take steps to
correct the unfairness of the Act; that a lawyer would take care of
it; that the Bund would bring a test case if means could be devised
to that end; that those who could afford it should refuse military
service until the discrimination was removed; that the Bund would
try to get this provision out of the Act; that § 8(i) was
unconstitutional; that the members had to register, but that it was
not thought right to ask them to do so while the discrimination
continued, but that they should enlist more or less under protest,
and wait until their rights were restored to them. One witness
testified that Kunze once stated that, if the members were not
treated right, they did not have to bear arms, and that the Bund
was going to make a test case of this.
Reference should be made to certain specific portions of the
testimony. A mail carrier testified that, shortly after the Act
went into effect, he spoke to the defendant Belohlavek at the
latter's office in Cleveland. Over objection that the evidence did
not go to prove any conspiracy, the court admitted it. The witness
stated that he said to Belohlavek:
"'Joe, you are in the draft aren't you?' He said: 'Yes.' I said:
'What are you going to do if they send you to the other side?' So
he said: 'Well,' -- it was a vulgar word -- 'I will run to the
other side and fight against them.'"
A witness testified that, at a meeting of a German Hiking Club
in Buffalo early in 1942, Keegan referred to the fact that two of
his sons were in the Army, said he felt sorry about them, and,
referring to those present, said: "You boys are lucky in a way --
you might evade military service because you are foreign-born."
When someone asked how and why, Keegan explained: "By claiming
being a conscientious objector." The witness went to Keegan
Page 325 U. S. 490
afterwards, spoke to him privately, and said:
"'Supposing what would happen to me as a naturalized American
citizen if I tried to evade military service by claiming being a
conscientious objector?' Well, then, he said, 'You would lose your
citizenship.' Well then, I said, 'of course, to hell with
that.'"
The witness was inducted into the United States Army.
Throughout the entire testimony, this is the only evidence that
any defendant, in speaking of the draft or military service, ever,
by the use of the word "evade" or otherwise, gave any indication of
a counseling to anyone to escape military service. Under
cross-examination, the witness testified that, in answering
questions, Keegan had said that the only way anyone could avoid
serving was by claiming and proving that he was a conscientious
objector.
There is evidence that, at a meeting held before the Act was
passed, Klaprott said he would not fight against Germany, and also
that "the Draft Act would build up an army that would be used
against Germany," and that he "would do everything" to prevent the
passage of such an Act.
As respects the defendant Knupfer, a witness testified:
"Well, Mr. Knupfer explained that a lot of German people lose
their jobs, and, in a case like that, we should refuse to
fight."
But, on cross-examination, the witness qualified his testimony
to the following effect:
"Q. And I believe you said something about that, if they were
not allowed to have jobs then they should not be called upon to
fight, is that right?"
"A. That is right."
"Q. And that is really the substance of what he said to you at
that meeting, is it not?"
"A. Yes."
"
* * * *"
"Q. Did you ever hear Mr. Knupfer suggest to you, or to anyone
else in that meeting in your membership group,
Page 325 U. S. 491
that you should not register, or that you should evade the
Selective Service Act in any way?"
"A. He did not say exactly that we should not, but he came out
with the point that, on account of the people losing jobs, if we
not able to work in this country, we should not fight in this
country."
The following testimony concerns statements attributed to
Kunze:
"Q. Well, now, with particular reference to the subject of
Selective Service, did he have anything further to say?"
"A. Well, he said one can always be a conscientious
objector."
"
* * * *"
"Q. And he told all of you that he was going to be a
conscientious objector?"
"A. I did not say that he was going to be, but he said that it
would be wise to be. He said 'You always can become a conscientious
objector.' That was his wording."
"Q. Then do I understand now that Mr. Kunze never said that he
was going to be a conscientious objector, is that so?"
"A. I cannot recall the exact words that he said, but he used
that phraseology of conscientious objector."
Again, with respect to a statement of Kunze, it was
testified:
"He said that we were discriminated against, the
German-Americans, and therefore we should not sign up for the
selective service draft, and he also meant he wanted to make a test
case, but he did not say what kind of a test case. . . . I asked
him what would happen if I would not sign up for a draft. . . . He
said he did not know, but he is going to make a test case in the
East, you see. So I asked him what I should do. He said it was up
to the individual if he wants to sign up for the draft."
With respect to the defendants Streuer, a witness testified that
he "mentioned" that, if "anybody has chances to stay away from it
[military service], which naturally
Page 325 U. S. 492
sometimes happens to some people, it is all right for them. . .
." The same witness testified that Streuer never told anybody to
resist the draft or not to register.
Except for the so-called background evidence pertaining to the
general attitude and state of mind of the defendants, this is all
the significant testimony with respect to any counseling to evade
military service. It should be added that practically every witness
who testified to statements made at meetings, and to conversations
of the various defendants, when asked whether he heard the
defendant as to whom he was testifying, advocate resistance to
military service or evasion of military service, answered that he
had never heard any such advice given by the defendant in
question.
When it is borne in mind that most of the defendants were
so-called unit leaders of small groups scattered from the Atlantic
to the Pacific coast whose contacts with the Bund and national
officers consisted in attending annual conventions, reading Bund
commands to members of the unit, and attending meetings to which
Kunze or other national officers came, it becomes plain how little
evidence there is in the record to convict them of a nationwide
conspiracy to counsel evasion of the draft. In essence, the case
made by the Government amounts to this: that these men were
partisans of Germany; were against our going to war with Germany,
and might be disposed, therefore, to counsel evasion of military
service, and were all familiar with Bund Command No. 37.
That the Government, in the last analysis, relied, to make its
case, upon the promulgation of Bund Command No. 37, and that the
trial judge so understood, seems plain from his charge to the jury,
to which exception was taken and which was assigned as error. In
that, he said:
"There have been numerous references in the evidence and in the
arguments of counsel to a test case said to have been proposed by
the defendants or some of them to determine
Page 325 U. S. 493
the validity of Section 308(i) of the Selective Service and
Training Act, which states, amongst other things, that it is the
policy of Congress that Bund members be not employed to fill
vacancies created by men in employment being drafted into the armed
services. I charge you that, if you should believe from the
evidence that the defendants,
or any of them, proposed to
test this law by conspiring to counsel someone to
violate
the law, then the fact that their purpose was to make a test case
is no defense to the charge here presented against them. I repeat
that the offense with which these defendants are charged is a
conspiracy to counsel others to evade service in the armed forces
of the United States, and such an offense would be complete if, as
a fact, the defendants did unlawfully and knowingly conspire,
combine, or confederate together to counsel others to evade such
service, and this is true even if defendants had a
bona
fide honest intent to make a test case. For if there was a
conspiracy amongst these defendants, or any of them, having as
its object the violation of the Selective Service Law,
knowingly, the reason for such violation is immaterial to you in
your consideration of the question of their guilt or
innocence."
(Italics supplied)
Here, the honesty and the
bona fides of the defendants
is said to be immaterial; the fact that they desired to test the
constitutionality of the law is said to be immaterial. Nowhere is
it stated that Bund Command No. 37, without more, does not amount
to counseling to evade military service. Mingled with instructions
that innocent motives were no excuse, and the intention to test the
constitutionality of the law was no excuse, are statements that
these are not excuses where there is a conspiracy knowingly to
counsel evasion of military service. The statements are
mutually contradictory. One with innocent motives, who honestly
believes a law is unconstitutional and therefore not obligatory,
may well counsel
Page 325 U. S. 494
that the law shall not be obeyed, that its command shall be
resisted until a court shall have held it valid, but this is not
knowingly counseling, stealthily and by guile, to evade its
command. Thus, having charged that innocent motives and a desire to
test the validity of the law were not a defense, the court
added:
"In regard to the matter of a test case, I call your attention
to the fact that no test case was ever made, nor is there any
evidence that any legal action was ever prepared, and the further
fact that Bund Order No. 37, by its very language, opposes military
service until this and all other laws, State and national, which
the Bund considered discriminatory, were repealed."
"Of course, if you believe beyond a reasonable doubt that the
defendants, or any of them, knowingly and unlawfully conspired to
counsel evasion of the Selective Service Law, and the matter of a
test case was merely a subterfuge to divert attention from their
real purpose, you should find such defendants guilty as
charged."
This final statements seems to mean nothing short of this, when
taken in connection with what just preceded it: if defendants had
innocent motives, they are nonetheless guilty; if they had guilty
motives they, of course, are guilty. It is somewhat difficult to
see how the jury could reach any other than a verdict of
guilty.
From what has been said above, it will be seen that we are of
opinion, first, that the promulgation and communication of Bund
Command No. 37 was not, in itself, a counsel to evade; second, that
the evidence of the general disposition of the petitioners either
towards the Government of the United States or towards the
Selective Service Act did not make the Command such; third, that
the evidence and oral statements of the various petitioners at
committee meetings and unit meetings of the Bund did not supply the
basis for a finding, beyond a reasonable doubt of counseling, or
intending to counsel, or conspiring
Page 325 U. S. 495
to counsel, evasion of military service within the meaning of §
11 of the statute. We are of the view, therefore that, on the case
made by the Government, the defendants were entitled to the
direction of acquittal for which they moved.
Other errors in the admission of evidence and in the charge of
the court are assigned by the petitioners. The views we have
expressed make it unnecessary to pass upon these alleged
errors.
The judgment is reversed, and the cause is remanded to the
District Court for further proceedings in conformity with this
opinion.
* Together with No. 44,
Kunze et al. v. United States,
also on certiorari to the Circuit Court of Appeals for the Second
Circuit.
MR. JUSTICE BLACK, concurring.
I wish to add a few words emphasizing certain reasons, among
others, which prompt me to concur in the Court's reversal of these
judgments on the ground that the evidence was insufficient to
support conviction of the defendants.
The prosecution tried to prove that the defendants counseled the
members of the Bund to evade the Selective Service Act. Its case
necessarily rested upon the assumption that members of the Bund
were subject to the draft under that Act. It follows that, if Bund
members were not lawfully subject to draft under the Act, no person
could be convicted for advising Bund members to this effect. Bund
Command No. 37, an indispensable element in the government's case,
took the position that Bund members were not subject to draft
because "in the Selective Service Law, the citizenship rights of
the Bund members . . . are unconstitutionally severed." This same
crucial question was seasonably raised and urged in the courts
below, and is argued here. Since I think the evidence inadequate to
support the judgments, I am not compelled to pass on this grave
constitutional challenge.
Page 325 U. S. 496
Nevertheless, these defendants' conduct cannot fairly be
appraised without an understanding of the statutory provisions
against which they vehemently protested. For testimony as to these
protests was a vital part of the evidence against them -- without
that part of the evidence, they could not possibly have been
convicted. It is necessary to distinguish between honest objections
directed at legitimate wrongs and sham protests which only obscure
the real purpose. Language and actions of these defendants which is
crucial to their convictions must be judged in the light of the
fact that it followed passage of the Selective Service Act, which
contained the following provisions.
Section 8(a)(b) of the Selective Service Act, 54 Stat. 885, 890,
provides that persons who have been drafted into and honorably
discharged from military and naval service shall be accorded high
preferential rights in regard to their reemployment by public or by
private employers. Congress declared in this section (c) that such
an ex-serviceman must be restored to his former position as though
he had "been on furlough or leave of absence during his period of
training and service in the land or naval forces," and that he
should be so restored to his former job without loss of seniority
or other privileges accorded regular employees. Section 308(i) of
the Act, however, declared that:
"It is the expressed policy of the Congress that, whenever a
vacancy is caused in the employment rolls of any business or
industry by reason of induction into the service of the United
States of an employee pursuant to the provisions of this Act, such
vacancy shall not be filled by any person who is a member of the
Communist Party or the German-American Bund."
After the passage of this Act, these defendants found themselves
in this position. It was announced that Bund members were subject
to draft to serve on the battlefront,
Page 325 U. S. 497
where they might be seriously injured or lose their lives. They
found that the law under which they were said to be subject to
draft commanded employers to reemploy other citizens who had been
honorably discharged from the service, but the same law provided
that, when a Bund member came back after an honorable service, with
an honorable discharge, no person anywhere could give him
reemployment without violating the express policy of Congress.
It has been argued that these defendants had no legitimate
reason to protest against these provisions, because they were
obviously unconstitutional and amounted to no more than an
admonition; but they were an admonition sounded by the highest
legislative body of the nation. It has also been suggested that
these defendants should have known both that the protested
proscriptive provision of the Act was unconstitutional, and that
Courts would sever it from other parts of the Act leaving Bund
members constitutionally subject to draft. But this Court has said
that:
"The Legislature could not thus impose upon laymen, at the peril
of criminal prosecution, the duty of severing the statutory
provision and of thus resolving important constitutional questions
with respect to the scope of the field of regulation as to which
even courts are not yet in accord."
Smith v. Cahoon, 283 U. S. 553,
283 U. S.
564.
When we view the conduct of these defendants in all of this
setting, their vigorous language appears to have been little, if
any, more condemnatory of the discriminatory section of the
Selective Service Act than language previously used by this Court
with reference to legislation of a similar pattern. The whole tone
of their protest was sounded graphically by their expression:
"No Civil Rights -- No Military Duty, Draft Exempts Bund
Members,"
cf. 28 U. S. Trustees of
Sailor's
Page 325 U. S. 498
Snug Harbour, 3 Pet. 99,
28 U. S. 125,
28 U. S.
168-169. As to legislation having a similar setting,
this Court has said:
". . . In the pursuit of happiness, all avocations, all honors,
all positions, are alike open to every one, and . . . , in the
protection of these rights all are equal before the law. Any
deprivation or suspension of any of these rights for past conduct
is punishable, and can be in no otherwise defined. . . . A bill of
attainder is a legislative act which inflicts punishment without a
judicial trial. . . . These bills are generally directed against
individuals by name, but they may be directed against the whole
class."
Cummings v.
Missouri, 4 Wall. 277,
71 U. S.
321-323.
See also Ex Parte
Garland, 4 Wall. 333.
I cannot agree that the convictions of these defendants can be
sustained on the basis of the evidence presented by the
prosecution, weighed along with that section of the Selective
Service Act which would stigmatize honorably discharged soldiers as
unworthy to hold a job and earn a living.
MR. JUSTICE RUTLEDGE.
I concur in the Court's judgment and in the opinion to the
effect that the evidence is insufficient to sustain the conviction.
I think that is true whether "evade," as used in Section 11 of the
Selective Training and Service Act of 1940, means a species of
fraudulent conduct or willful refusal or resistance of induction.
Without Command No. 37, the case collapses. But one sentence in it
bears any possibility of construction as counseling evasion,
whether in the sense of refusal or of artifice or fraud. That
sentence is conditional, not absolute. The whole command, in my
judgment, is no more than vehement protest against Section 8(i),
sheer political discussion. More than this is necessary.
MR. CHIEF JUSTICE STONE, dissenting.
MR. JUSTICE REED, MR. JUSTICE DOUGLAS, MR. JUSTICE JACKSON, and
I think the judgment should be affirmed as
Page 325 U. S. 499
to all the petitioners other than Schneller, who is not shown to
have participated in the conspiracy.
Petitioners were national and local leaders of the German
American Bund, whose membership was made up of persons of German
nationality or descent. They have been convicted of a conspiracy to
violate § 11 of the Selective Service Act of 1940, 54 Stat. 885,
which imposes a criminal penalty on any person "who knowingly
counsels, aids, or abets another to evade registration or service
in the land or naval forces."
The indictments charge that petitioners and others conspired to
distribute among the members of the Bund throughout the country a
document known as Bund Order No. 37
"which would counsel, direct and urge those to whom the contents
were made known that they should evade, resist, and refuse service
in the land or naval forces of the United States."
Order No. 37 was ostensibly published as a protest of the Bund
against the adoption by Congress of § 8(i) as an amendment to the
Selective Service Act, which declared:
"It is the expressed policy of the Congress that, whenever a
vacancy is caused in the employment rolls of any business or
industry by reason of induction into the service of the United
States of an employee pursuant to the provisions of this Act, such
vacancy shall not be filled by any person who is a member of the
Communist Party or the German-American Bund."
Order No. 37 was printed in the German language, and an English
translation of it was submitted to the jury. After calling
attention to the fact that all citizens who have not passed their
thirty-sixth year were required by the Selective Service Act to
register, it continued, "This order must be complied with
unhesitatingly" and added:
"An induction into the military service is not justified, in as
far as it concerns Bund members and American Germans
Page 325 U. S. 500
for in the Selective Service Law the citizenship rights of Bund
members and the defenders of Germandom are unconstitutionally
severed!"
It concluded:
"Every man, if he can, will refuse to do military duty until
this law and all other laws of the country or of the States which
confine the citizenship rights of Bund members are revoked!"
"We will fight to establish a precedent in this servile
matter!"
The only substantial questions for our decision are whether the
jury could rightly find from the evidence that Bund Order No. 37
did in fact counsel "another to evade registration or service in
the land or naval forces," and whether petitioners' conspiracy to
give such advice was in the circumstances unlawful. The contentions
are that the conviction cannot be sustained because the advice in
Bund Order No. 37, that "every man if he can will refuse to do
military duty" until the law offensive to the Bund was repealed,
cannot be taken to counsel the evasion of service in the military
forces, and, because the alleged conspiracy, was not unlawful,
since the Bund Order only counseled refusal to do military duty as
a means of initiating a case to test the validity of § 8(i) of the
Selective Service Act, which is a lawful purpose.
There is abundant evidence showing a consistent purpose of the
Bund and Bund members to promote in the United States the interests
of Nazi Germany. It is not denied, and could not be, that there is
ample evidence from which the jury could have found that the Bund
members, and petitioners in particular, were opposed to war with
Germany and hostile to the Selective Service legislation of 1940
because they wished to prevent the raising of an Army for a war
against Germany. It was the theory of the Government, in presenting
its case, that respondents seized upon the proposed legislation,
which
Page 325 U. S. 501
became § 8(i) of the Selective Service Act of 1940, as the ready
implement of propaganda and agitation among Bund members and their
friends, as a means of hindering and delaying the drafting of an
army to fight against Germany. The Government's position is that
Bund Order No. 37, which petitioners diligently circulated among
Bund members, was the product of the conspiracy, and the means by
which petitioners counseled members to evade service in the armed
forces.
It seems to be admitted, and indeed it cannot be denied, that
the evidence gives support to the Government's contention that
petitioners had the inclination and the purpose to persuade Bund
members to obstruct the operation of the Selective Service Act, and
that Bund Order No. 37 was their chosen means to accomplish that
end. But it is insisted that the advice to "refuse to do military
duty," given by the distribution of Bund Order No. 37 among Bund
members of draft age, was not an incitement to "evade" military
service which the statute proscribes. Appealing to the dictionary
as the ultimate arbiter of the statutory construction, it is said
that "evade" connotes conduct which is fraudulent or characterized
by artifice or craft, and suggests the idea of "escaping or
slipping away from", as opposed to resistance to or refusal to do
military duty, which the Bund order counseled.
If the meaning which the dictionary ascribes to a word standing
in isolation is to be deemed controlling in the construction of a
statute in which the word appears, it would seem to be of some
importance to refer to the Latin derivation of the word "evade" as
meaning to go or proceed away from, and to its modern usage, also
recognized by the dictionaries, as the synonym of "avoid," or
"escape" by effort or by force or by any other means, as well as by
artifice, craft or dexterity.* As the draftsmen
Page 325 U. S. 502
of statutes do not usually limit the application of the chosen
word to only some of its common meanings without indicating their
purpose to do so, the word, read in its context in the statute, is
far more revealing of the legislative purpose than the arbitrary
selection of one of its dictionary meanings to the exclusion of
others which are equally applicable.
Here, the statute shows on its face that the word "evade" is
used in § 11 as meaning avoidance of or escape from military
service either by the failure or the refusal to perform a duty
which would otherwise result in the performance of the service, or
by means of fraud, craft, or artifice, in meeting the requirements
of the Selective Service Act. Section 11 imposes criminal penalties
upon any person "charged . . . with the duty of carrying out any of
the provisions of this Act . . . who shall knowingly fail or
neglect to perform such duty." But it also imposes penalties upon
any such person
"who shall knowingly make, or be a party to the making, of any
false, improper, or incorrect registration, classification . . .
and any person who shall knowingly make, or be a party to the
making of, any false statement or certificate. . . ."
It then provides for a like application of the Act to any
person
"who
otherwise evades registration or service in the
land or naval forces or any of the requirements of this Act, or who
knowingly counsels, aids, or abets another to evade registration or
service in the land or naval
Page 325 U. S. 503
forces or any of the requirements of this Act."
(Italics supplied.)
The implication from the use of the phrase "otherwise evades" is
plain that the acts of omission or refusal to perform the
prescribed duty and acts of ostensible performance by false
statements and the like are equally recognized by the statute as
modes of evasion of military service or of other requirements of
the Act. It is thus clear that the phrase "otherwise evades" was
intended to include both types of evasion, whether effected by
breaches of duty or by false, fraudulent, and deceptive acts,
either of which, if successful, would result in avoidance of or
escape from military service. In addition to all these modes of
evasion, § 11 penalizes one who otherwise (by any other mode)
evades (avoids) service. Thus, on the face of the statute, there is
no basis for saying that respondents can elude its penalties
because they counseled Bund members to evade --
i.e.,
escape or avoid -- military service by refusing to perform military
duty, rather than by false statements, artifices, or stratagem.
There is no occasion for giving the word "evade," as used in the
statute, a more strained or a narrower meaning than is recognized
in its context in § 11, which is also identical with the dictionary
definitions.
Such legislative history as there is supports this conclusion.
Senator Burke, one of the authors of the bill which became the
Selective Service Act of 1940 at the hearings on the bill before
the Senate Committee on Military Affairs, stated that the provision
of § 11 prohibiting the counseling of evasion applied "where one
urged another not to seek repeal of the law, but to refuse to obey
it while it remained the law." Hearings, Senate Committee on
Military Affairs, 76th Cong., 3rd Sess., p. 156. Section 11 was
derived from § 6 of the Selective Draft Act of 1917, 40 Stat. 80,
which penalized any person who "evades or aids another to evade the
requirements of this Act." In
Page 325 U. S. 504
Fraina v. United States, 255 F. 28, 29, Fraina was
indicted under §§ 37 and 332 of the Criminal Code and of § 6 of the
Selective Service Act of 1917 for conspiracy with others to
"counsel . . . induce . . . divers persons . . . to evade . . . the
requirements of" the Selective Service Act. The Court affirmed a
conviction where the jury found that the accused made a speech in
order to counsel and induce certain "conscientious objectors" "to
refuse to be bound, or refuse to act or accept the law, and refuse
to do their duty which is required by this law." Thus, before the
adoption of the present Selective Service Act, it was judicially
determined that one who refuses to comply with the requirements of
the law "evades" the law, and that one who counsels another to
refuse to accept the law or to do his duty which is required by the
law can be found guilty of inducing him to evade it. We must take
it that Congress, in adopting the term "evade" from § 6 of the
earlier draft act and using it in like context in § 11 of the 1940
Act, adopted and confirmed the judicial construction of the term as
it appeared in the 1917 Act.
Sessions v. Romadka,
145 U. S. 29,
145 U. S. 41-42;
Manhattan Properties, Inc. v. Irving Trust Co.,
291 U. S. 320,
291 U. S. 336;
United States v. Elgin, J. & E. R. Co., 298 U.
S. 492,
298 U. S. 500;
Missouri v. Ross, 299 U. S. 72,
299 U. S. 75;
Electric Storage Battery Co. v. Shimadzu, 307 U. S.
5,
307 U. S. 14.
The conclusion seems inescapable that petitioners, by counseling
Bund members to refuse to do military duty, counseled evasion of
military service, and that the jury's verdict of violation of § 11
is therefore sustained by the evidence. This is not any the less so
because the Bund order counseled members of the Bund to refuse to
do military service until § 8(i) was repealed. Bund Order No. 37
was published and distributed by petitioners after the enactment of
§ 8(i) of the Act. Its counsel therefore was to violate the statute
by evading military service, notwithstanding the order's suggestion
that the refusal to do military duty might cease whenever repeal
occurred.
Page 325 U. S. 505
The trial judge instructed the jury, rightly, we think, that
"
bona fide honest intent to make a test case is no
defense," saying:
"If there was a conspiracy amongst these defendants or any of
them having as its object the violation of the Selective Service
Law, knowingly, the reason for such violation is immaterial to you
in your consideration of the question of their guilt or
innocence."
Plainly, one who would assail the validity of a statute in a
test case can do so only by violating its provisions -- here by
knowingly counseling another to evade registration or service in
the armed forces. One who thus evaded or counseled evasion of
military service could not defend on the ground that he violated
the Act in order to test its constitutionality. He nevertheless
does the act which the statute prohibits, and nonetheless intended
to do it even though his purpose was to establish that the
statutory prohibition is unconstitutional. There is no freedom to
conspire to violate a statute with impunity merely because its
constitutionality is doubted. The prohibition of the statute is
infringed by the intended act in any case, and the law imposes its
sanctions unless the doubt proves to be well founded.
Here, petitioners laid no foundation for assailing the validity
of § 11 by reason of their doubts of the constitutionality of §
8(i). No one can urge the unconstitutionality of a statute until he
shows that it is applicable to him and that he is injured by it.
Marye v. Parsons, 114 U. S. 325;
Tyler v. Judges of the Court of Registration, 179 U.
S. 405;
Collins v. Texas, 223 U.
S. 288;
Roberts & Schaefer Co. v. Emmerson,
271 U. S. 50,
271 U. S. 54-55;
Utah Power & Light Co. v. Pfost, 286 U.
S. 165;
Ashwander v. Tennessee Valley
Authority, 297 U. S. 288,
297 U. S. 324;
Voeller v. Neilston Warehouse Co., 311 U.
S. 531,
311 U. S. 537;
Alabama State Federation of Labor v. McAdory, 325 U.
S. 450. Petitioners introduced no evidence. It does not
appear that any of them ever gave up any employment because of
their induction into the service of the United States pursuant
Page 325 U. S. 506
to the Selective Service Act, or that they were ever refused or
threatened with refusal of any employment because of their
membership in the Bund or the Communist Party. And even though §
8(i) were to be deemed unconstitutional as applied to petitioners,
that would not affect the constitutionality of § 11 or relieve
petitioners from the consequences of their violation of § 11. For §
14(b) of the Act provides,
"If any provision of this Act, or the application thereof to any
person or circumstance is held invalid, the remainder of the Act,
and the application of such provision to other persons or
circumstances shall not be affected thereby."
The doctrine of
People v. Powell, 63 N.Y. 88, on which
petitioners rely, that a criminal conspiracy to do an act "innocent
in itself," not known by the conspirators to be prohibited, must be
actuated by some corrupt motive other than the intention to do the
act which is prohibited and which is the object of the conspiracy,
has never been accepted by this Court. To establish violation of §
11, nothing more need be proved than that respondents had in
contemplation all the elements of the offense which they conspired
to commit.
United States v. Mack, 112 F.2d 290, 292;
cf. Hamburg-American Steam Packet Co. v. United States,
250 F. 747, 759;
Chadwick v. United States, 141 F. 225,
243. There is no contention that petitioners did not know that the
Selective Service Act required those subject to it to do military
service. And
People v. Powell, supra, was careful to point
out that, where the conspiracy is to do an act which is not
"innocent in itself," the offense is "complete when the act is
intentionally done," irrespective of any actual intention to
violate the law. Here, the act prohibited was hardly "innocent in
itself." The facts found by the jury under instructions of the
court constitute plain violation of § 11, and the jury's verdict is
supported by the evidence.
* The following are dictionary definitions of the word "evade;"
Funk & Wagnalls: "To avoid by artifice; elude or get away from
by craft or force; save oneself, as an impending evil; as, to evade
an argument or a crisis." Webster: "To escape; to slip away . . .
to get away from by artifice; to avoid by dexterity, subterfuge or
ingenuity . . . to escape or avoid, often by the use of skill,
dexterity, or contrivance." Oxford: "To escape by contrivance or
artifice from . . . to avoid, save oneself from . . . to elude.
Nonce-use:
go out of. Opposed to invade.'" Century: "To avoid
by effort or contrivance; escape fro or elude in any way, as by
dexterity, artifice, stratagem or address; slip away from; get out
of the way of . . . to escape; slip away."