*1 early charge by payment of his account appellant’s
in full. In this the same as essentially
transactions are practice merchan- selling common date, paid but
dise to be a named payment.
with a discount for earlier up pays
If the here all of his customer appellant
installments in three months the charge
cancels the finance and collects
only price”. what it calls the “listed If F.Supp. purchaser advantage See also fails to take 48. opportunity for the discount he is com-
pelled pay the larger sum which he
agreed pay, per and which is ten cent
greater bought cash. than if he had paid only
But in tax either actually amount which is collected. way, may
Stated another be said appellant prices had two articles sold purchaser paid
on credit. If full (which end of three months meant
many anticipating his installment cases
payments) appellant only collected price. termed the “listed” If custom- beyond extended his credit
er three months compelled pay
he was which was sum per greater.
ten But either cent event collected amount at
article to him. was sold judgment of the District Court
affirmed.
Affirmed.
FRANKFELD et al. v. UNITED STATES.
No. 6437. Appeals Court of States Fourth Circuit. July
Argued 1, 1952. July 31,
Decided 1952.
Rehearing Sept. 8,1952. Denied
6S0 Forer, C,, Washington, D. Har-
Joseph
Baltimore, Md.,
Buchman,
Royal
old
France,
City,
appellants.
York
New
W-
Boudin,
City,
York
New
Leonard
M!d.,
Baltimore,
Nicholas,
F.
Dallas
n brief
Liberties Com-
Emergency Civil
curiae.
amicus
mittee
both,
ineligible
Dubow,
years, or
and shall
A.
I. Duke Avnet
Mitchell
employment by
the United States
Md.,
certain
brief
Baltimore,
thereof,
department
agency
curiae.
the bar
amicus
members of
*3
following
years
five
next
Atty., Balti-
Flynn,
S.
Bernard
U.
J.
conviction.”
Fred-
more,
and
(James
Murphy
B.
Md.
charges
in
case
Green,
Attys., Bal-
The indictment
Jr.,
S.
Asst. U.
erick J.
conspiracy
violate this
appellee.
Md.,
timore,
brief),
fendants
willfully,
“by
unlawfully,
and
(1)
statute
PARKER,
Judge, and
Chief
SO-
Before
du-
teaching the
knowingly advocating and
DOBIE,
Judges.
PER and
Circuit
ty
overthrowing the Gov-
and
of
necessity
by force and
of
United States
ernment
the'
PARKER,
Judge.
Chief
violence,
causing
with the
of
intent
in
criminal
in
appeal
is an
This
aforesaid overthrow and destruction
hereafter called defend-
appellants,
by
force
Government of
United States
conspiracy
ants,
of
vio-
were convicted
speedily
and violence
as circumstances
as
of
provisions
of section
late
permit;
by (2) unlawfully, will-
would
and
of
54 Stat.
Act
Smith
June
fully,
knowingly organizing,
help-
and
and
section,
2385. That
as
18 U.S.C.A. §
ing
organize,
as the Communist
Code,
brought
in the United States
forward
society,
America
of
United
States of
as follows:
persons
group,
assembly of
teach
and
who
knowingly willfully
or
“Whoever
ad-
and
the overthrow and destruc-
advocate
abets, advises,
vocates,
or
teaches
tion of the Government of
United
duty, necessity, desirability,
proprie-
or
violence,
by
States
force and
with the in-
ty
overthrowing
destroying
of
or
causing
tent of
overthrow
aforesaid
government
or the
of the United States
and destruction of the Government
of
State,
any
Territory,
government of
by force
violence as
States
and
thereof,
or Possession
or the
District
permit.”
speedily
circumstances
as
would
any
political
subdivision
language quoted
by
was followed
al-
therein, by
violence,
force or
or
legations
conspiracy
describing the
more
any
officer of
any
assassination
such
setting
and
detail
forth that it was a
government; or
conspiracy (1)
and
“Whoever, with intent to cause the
persons
named would become mem-
any
or destruction
such
overthrow
bers, officers and functionaries of “said
edits,
publishes,
government, prints,
Party,
purposes
knowing
Communist
circulates,
issues,
sells, distributes, or
Party”
said Communist
and would assume
any
printed
publicly displays
written or
leadership
responsibility
for carrying
advocating, advising,
matter
or teach-
(2)
purposes,
they
out
would cause
duty, necessity, desirability,
or
ing
organized groups, clubs,
to be
sections and
propriety
overthrowing
destroy-
or
Party”
“said
units of
Communist
any government
the United
Maryland,
State
District of Co-
violence,
attempts
force or
States
or
lumbia, in the
of New
State
York and else-
so;
to do
or
where and would recruit and encourage re-
organizes
helps
or
or at-
“Whoever
cruiting
“concen-
tempts
organize
society, group,
any
trating
recruiting persons
employed in
teach,
assembly
persons
ad-
or
who
key
plants”,
basic industries and
(3) that
vocate,
encourage the
or
or
they
publish
and circulate and cause
destruction
such
published
to be
“books,
circulated
ar-
violence;
force or
or becomes or is a
ticles, magazines and newspapers teaching
of,
with, any
member
affiliates
advocating the duty
and necessity of
society,
assembly
persons,
group, or
overthrowing and destroying
govern-
purposes thereof—
knowing the
the United
ment of
States
force and
$10,-
fined not more than
violence as soon
“Shall
circumstances would
imprisoned
permit”,
(4)
more
than ten
they
would write and
being
tect
from
overthrown
force
to be
directives
itself
cause
written
articles
Party,
violence,
necessarily
publications
follows that
necessity
may
conspiracies
that end
having
forbid
“teaching
advocating the
may
conspiracies
destroying
punish
in view and
Govern-
ment of
In
absence
the United
force and
criminal.
States
speedily
present
rule
danger”
violence
as circumstances would the “clear and
permit”,
(5)
they
satisfactory
furnish
criterion of criminal-
would conduct
ity
ordinary speeches
case of
advo-
schools
in which recruits
classes
violence;
cating
would be instructed
doc-
but such rule
in its
practical application
advocacy
purposes;
(6)
would has
trines
*4
agree upon
in
conspira-
and
with
carry into effect detailed
violence
connection
plans
“going underground”
government,
for
or
to overthrow
the
main- cies
the
for
efficiency
conspiracies
the
taining
working
danger
of such
is ever “clear
They
present”.
pregnant
secret in case
emergency,
(7)
in
and
and
are
with
potential evil, which,
would use false names
do
and
while hidden from
times,
things
likely
other
conceal
and
in
is
it-
to
their identities
view normal
to assert
operations
party. These
some na-
an irresistable
when
members
self
presents
allegations
allegations
opportunity
an
a
followed
tional crisis
for
separately
coup
etat.
was
putsch
overt acts
fifteen
numbered
or a
d’
well said
in
As
Vinson
the
of Den-
paragraphs.
Chief Justice
supra
United
v.
U.S.
nis
[341
presented
questions
are
Three
the
of the which can be estab- with Article V only by violent is as valid lished as though originally had been incorporated government, if that be existing it; exception only being bourgeoi- capitalistic. No entrenched equal state be denied shall ‘its sie, having Suffrage noth- everything to lose and capital- unnecessary Senate.’ It is. gain abolition of power. political After many passages in in the seizure of quote in detail the he was books, training his return from school pamphlets published Mary- defendants, party made labor for secretary of the disseminated and was land and the District of Columbia flatly contradict their declarations party Maryland ‘force later chairman of the mean to confine the use of po- protection of the District. or violence’ to the power, lawfully litical once obtained. Philip Defendant Frankfeld was prosecution proved part The of its Young group member of the Communist quite independently the testi- party sent to school Russia attend witnesses, mony though jury its party and remained active in the in 1931 might upon that, have relied had many years up time his sufficiency alone. of the evi- stood The He national indictment. had attended its wheth- dence therefore comes down conventions, had been chairman er it is a crime to form a party Maryland District of Co and the duty to advocate teach the and ne- lumbia, party taught had for the classes cessity govern- plans sending and had worked on com violence, organize munists into armed of the United forces group so There is that he had States. evidence teach and to advocate.” professional boasted that he revolu was a Regina tionist. Wood and Defendants here, just The defendants contend Frankfeld, Frankfeld, Philip had wife of at case, as did the Dennis the defendants in position occupied different of or times is no that the use violence secretary party ganizational for the pre program District, Regina Frankfeld had effect; sented but the evidence to training New school for sent to the York question presented thus was one for had Blumberg instruction. Defendant jury decide its in accordance finding taught for the and served as classes with the contention of secretary and in the District. its treasurer testimony supported of wit amply by the Defendant Braverm-an had served as documentary evi nesses as well member of the District Committee of dence adduced. party, chairman had 'been a candidate for the defendants connection of meetings, at one of had served as its the Commu conspiracy in which with the attorney, “white was a member col amply sup also engaged was nist lar had conducted classes for it club” and testimony. The case as to ported by the positions By home. reason of *8 membership in mere not one them was by persons in the and the held these upon “guilt asso party depending work, part the them in its the active taken be officers They to were shown concluding ciation”. jury amply justified that party occupying teachers of the such they knowledge purposes. had of its It is respect positions to activities that with persons join well settled that who a con they conclude that nec jury the could well spiracy knowledge pur with of its unlawful pur essarily -knowledgeof the criminal poses parties had make themselves thereto Only engaged. it was one equally guilty in which with poses orig are those who Meyers, them, the States, the defendant took Cir., it. inated Short v. 4 91 United jury deny knowledge 614; and the States, Comeriato v. stand F.2d United 4 Cir., 557; justified believing in not his F.2d Luteran certainly 58 v. was 395,399; effect, Cir., 8 93 F.2d in view of the fact Burkhardt v. Unit that testimony to States, Cir., 13 F.2d admittedly 'by been sent ed As the he had 841. that party to York taught witness attend according to the the use had attended training of force and violence testimony classes in which school in New of an 382, 433, munications Association v. “* * [*] Mr. Justice Jackson personal guilt S.Ct. in American Douds, -be 94 L.Ed. incurred 339 U.S. Com The sec- wise the Smith Act. joining conspiracy. That act of associa- violate important question in the acts ond responsible for the main makes one is, gov- jury as- the pursuance of the case if that the finds others committed first, the did ernment has established sociation.” respec- this case the defendants in six Trial. The Fairness wilfully join conspiracy tively in said sub- that the court Defendants contend purposes knowledge and with way permit the mitted the case with intent herein thereof and jury conspiracy on to convict them of scribed, within therein continue membership the Commu- of mere basis finding years prior three on their party, knowledge nist without indictment ?”. purpose in any criminal that the Com- made it clear judge The any engaged. There is no basis doc- the abstract munist could teach contrary jury such contention. On overthrowing trine no one of expressly instructed advocate action not force so as it did long unless be convicted the defendants could effect, saying: to that knowledge and jury guilty find should “And in this connection I further judge, in the part. Thus on his intent you instruct Act is the Smith not charge, defining after beginning against teaching aimed of the mere in the in- crime of doctrine abstract dictment, jury explicitly: told teaching .of or the mere “* * * you affirma- unless do find of Marxism or historical doctrine beyond doubt with tively a reasonable Leninism. sep- respect to each do this so its members are entitled to arately respectively considered go long as their does not conspire among did either advocating the extent of action or with others named themselves accomplishment of a violent revolution defendants, indictment who are reasonably ordinarily language prohibited commit one or more persons to such ac- calculated to incite acts, of not you find a verdict should tion.” did not guilty defendant who for such in the case conspire. And so respect With question the second main charge you defendants I one of the defined, as theretofore the con- you find defendant should nection of the defendants with the con- you so con- find that in guilty unless spiracy if one had proven, he charged that he or others with another spiring jury as follows: and with wilfully, knowingly did so “In passing on ques- this second main mentioned.” the intent tion, you must consider the evidence charge, defining Later in his the is- with to the several defendants jury deal, had to sues separately. The Government is not said: judge entitled obtain against conviction indicated, any one “As I have heretofore six defendants unless it *9 beyond fact this case deter- establishes doubt, to be a issues of reasonable first, naturally by jury divide that such defendant joined mined questions. by conspiracy into main becoming two themselves an active jury beyond finds member Party whether the One is know- ing objectives that its the reconstitu- aims doubt as a reasonable contended by Government, Party personally the Communist tion in- conspiracy tending a in accordance with objec- effect to said constituted advocate the overthrow of tives and teach active member or of- of the government United States ficer or official of to know- ingly wilfully and violence when the time by advance or advocate opportune, principles or to other- teaching duty became therefor or spiracy crimes de- to commit all of the overthrowing necessity of the Govern- Act, de- whereas the nounced the Smith speedily ment as as circumstances say fendants indictment does permit, intent to that would or with such charge conspiracy “litera- literature violate the circulate and distribute to ture”, “membership” pro- teaches, organize “organization” or or or to so help argument visions of to assemblies the act. Defendants’ organize groups or persons provisions that violation was not who so teach or advocate of these object conspiracy in destruc- as an encourage or or of the overthrow paragraph We You should one of the indictment. government. tion of the whatever, merit, think un- there is defendants no not convict sort, specific even of a contention. you they had this technical less find that this paragraph in While indictment knowing one of the intent and wilful and were charges conspiracy Act violate the doing. The Govern- to Smith govern- connec- the overthrow of the prove in this ment must also purpose, by organizing the Com- knowledge, force and tion that such purpose, was munist the subse- intent defendant became and a quent charging paragraphs a down those a to- or continued to be member how the period three the overt acts set forth in detail conspiracy within the spe- conspiracy be carried finding of the indict- was to out and years before the part cifically charge that it a ment.” vio- conspiracy things to which would do conten- government’s stating After “organization”, late “literature” defendant, he respect each tions with “membership” provisions of the statute. said: say To that was a indictment defendant, each “With things conspiracy which con- to do the burden the Government has provisions a violation of these stituted joined in and proving that or she he conspiracy violate manifestly charges a conspiracy know- participated in such provisions. and that such wilfully ingly and argued It that since specific inten- fendant entertained substantive Act defines a offense Smith duty or advocate to teach or society organization group or destroy- or necessity force, destroy government con of the United predicated spiracy may organ not be and violence and by force States Party for that ization of the Communist advocate to teach or intended or she he organization of the jury to so consider the groups for organize or to such doctrine party. answer this that It is sufficient specific intent or purpose with the by section the substantive offense defined such over- bringing about purpose of per- “any Act was for 2(3) the Smith speedily as circumstances throw error purpose and that it was to allow must Government permit. The organize any organize help son” to reasonable beyond a establish society, group, conspiracy etc. and that doubt.” was forbidden sec the offense commit instructions, there of these light In the act, now consolidated with tion 3 of contention whatever ground statute 18 U.S.C. general made strenuously part of Cooperative action on the 371. § basis to convict on the allowed jury persons political number of forming membership guilt by associa- mere object having as tion. clearly violates the con *10 spiracy provision. Even if what defend contention is that convic Another guilty did rendered them of a violation permitted a crime not ants was 2(3), by crime defined section of this con of the this The basis indictment. in the preclude prosecuted being in would not their judge charge in his is that tention section; conspiracy charging under the con- terpreted the indictment it
689 proof part of any agreement on the be conviction of elementary that there defendants; conspiracies sort a crime but conspiracy to commit both of of, not as properly thought ob- are is the here involved which the substantive offense agreements, partnerships United criminal conspiracy. Banghart v. but ject purposes organizations furthering there cases or as States, Cir., 148 F.2d 4 521 purposes. when very similar to such is established A Guilt cited. contention pur- criminal organization case of Lisan- such with made here was made 846, poses States, F.2d defend- Cir., is shown to have existed and sky 4 31 v. United joined added to have it with 67, nothing need be ants are shown 67 A.L.R. purposes. con- knowledge in answer to the of such was there said Monastery v. Co. Old tention. And see Another contention de Cir., 905, 907. 4 147 F.2d fendants is that there was error on the crime defined argued If it be part of the wit judge permitting trial crime of con- in essence the 2(3) section nesses for the found who were spiracy, position of the expert respect to have with knowledge merely helped; result be for the purposes the teachings and of the Com is thus made rriminal conspiracy that such thereto, Party testify munist regard with the act. two sections of since the matter involved was one of the complain because Defendants ultimate issues for the decision of the they jury. see, however, evidence transactions with It is difficult to how admitted to way teachings pur were in connected was evidence better poses was party that the of a could be than establish Communist obtained conspiracy testimony the stat of the sort denounced from the of those who heard clearly proper. participated sponsored The case was teachings This ute. n theory, party. the defendants far tried not that In so on as the testimony conspirators original or founders were the related the fact of the teachings of the party, admissibility who formulated does not admit of argument. purpose govern In so far as it involved matter force, opinion, the con of but entered related to a matter involv specialized spiracy becoming afterwards knowledge, as to>which the opinion knowledge experts with the criminal is unquestionably ad purposes by missible, in which it was even engaged though it relates to a matter aiding and which is assisting carrying for the jury. forward decision of Transportation program. It not necessary Hope, Line v. 297, de 95 U.S. fendants be connected with relied 24 L.Ed. evidence “Where the matter under inquiry purpose establish the criminal is properly the subject expert party. testimony, necessary objection What was it is no opin that the them, sought ion showing upon was that there be evidence to be elicited is the issue to way their connection with be decided.” such Builders Steel R., Co. v. C. I. Cir., purpose 377, 380; knowledge by them of 179 F.2d 8 Francis v. South properly inferred; Cir., ern could and this Pacific Co. 10 813, 817; 162 F.2d carefully explained judge Frost, Life jury. Of Mutual Ins. v. Cir., Co. 1 164 542, 547; course, pro evidence F.2d Mutual been if had not Benefit Health & duced, Francis, enti Accident Ass’n Cir., v. defendants would 8 148 F.2d 590, 594; acquittal; Wigmore but pro to an once tled it was Evidence 2d ed. vol. duced, 675. There establishing evidence criminal sec. was no invasion what province ever of the jury. nature of was admissible They against though them were allowed to consider expert even mat related to testi prior mony documentary ters which occurred with the 'becoming along to their and fact Buckner, upon Cir., evidence members. United States ual v. was based and 930; C.J.S., Conspiracy, F.2d all other evidence in the case in arriving § at 92, pages Defendants stress lack verdict. See United 1141-1144. States v. Johnson *11 G90 al. v. SECURITIES CO. et JOHNSON & R. H. 1233, L.Ed. 87 63 S.Ct. U.S. et al. COMMISSION EXCHANGE & 1546. 22353. No. Docket in the made contentions Other Appeals States Court we need not arguments
briefs Second Circuit. obviously lacking because so deal with July 10, 1952. There warrant merit as not to discussion. 20, 1932. Oct. Denied Writ of Certiorari objections to the admis- were multitudinous 94. See S.Ct. testimony, none but rejection sion justify disturbing our which would fairly jury. The case was verdict of the op- fair tried, were afforded
portunity present their defense law correctly instructed as to the
jury was no premises. We find
applicable in the new
ground trial to awarding defendants.
Affirmed. Rehearing.
On Petition
PER CURIAM. rehearing has petition
A we question which presents but
filed fully Argu already considered. the “literature” made that again provisions of Smith “membership” again, unconstitutional; say and we Act are we original opinion, that in our we said Supreme reasoning of the that the think Dennis v. United case of in the Court 857, L.Ed. 494, 71 S.Ct. 341 U.S. validity as well of these sustains the act. Defend provisions
as the presence of a clear argue
ants necessary under the de present danger Supreme in the Dennis Court cision at act. As we under the conviction opinion, original point out in our
tempted to Mr. opinion of from quotation Vinson, present “clear if Chief Justice conviction, necessary it was danger” just conspiracy here as it in the present The same case. Dennis the con As to in both cases. involved is defective be indictment tention the existence allege it does cause danger, case is the Dennis present clear that. con Other answer a sufficient also than petition no more are tentions fully dealt with arguments rehashing of further not be opinion need them
considered. denied.
Petition