United States v. Nearing

LEARNED HAND, District Judge

(after stating the facts as above). [1] The two first counts of both indictments allege a conspiracy to cause insubordination in the army and to obstruct the enlistment service by the publication of the pamphlet above described. We are to suppose that the conspiracy contemplated and intended that the pamphlet should be circulated among present or future members of the army, and persons subject to the draft and to voluntary enlistment, and that the pamphlet was chosen as a means apt to cause the first to become insubordinate and the second to evade the draft or refuse enlistment. If the conspiracy had been successful, these results would have followed. Hence the question is necessarily presented whether the accomplishment o f that result in that way would have made the author criminally responsible for the results against which the statute is directed. It must be remembered that, in so far as the statute forbids causing insubordination, it forbids incitement to the commission of crime, since all insubordination is a crime committed by the independent will of others. It must therefore be taken as forbidding those acts which would make the authors accessories before the fact to insubordination, disloyalty, refusal of duty, and the like. Indeed, it is doubtful whether that clause adds to the criminal responsibility at common law of those who should cause or attempt to cause others to commit such crimes.

[2] The same thing is true of the second count, for obstructing the enlistment service. Construing this as including only voluntary en-lisímotit, I shall show later that the statute meant to cover at least active and gratuitous' advice, counsel, or command not to enlist; and by analogy 1 should say that the measure of liability should be the same as though the refusal to volunteer were a crime, and as though the question were whether the defendants were accessories. The result —i. e., refusal to volunteer' — the statute does not positively forbid, but it deprecates it. At least we may safely say that the measure of liability ought not to be larger when the result is not a crime than when it is. For the present I shall leave it so, and assume that in both clauses the. question is: What words make their utterer responsible, for crimes which in the course of nature, including the wills of others, may be expected to follow from them?

[3-5] 'Chat the author of words may in fact be the cause of the commission of crime by others is a trite enough observation. Any discussion of existing laws, designed to show that they are mistaken in means, or unjust in policy, may have that result. Every one knows that the obligation of law in the minds of many men depends altogether upon their approval of its purposes, and that to arouse their disapproval is to terminate their obedience. Indeed, there a,re few whose allegiance to any given law is not modified by their opinion of its justice, and the measure of whose obedience does not turn in some degree upon that factor.

At common law the utterer of written or spoken words is not criminally liable merely because he knows they will reach those who will find in them the excuse ior criminal acts. On the contrary, the rule has always been that, to establish criminal responsibility, the words uttered must amount to counsel or advice or command to commit the forbidden acts, and this is the classic form of, expression. 4 Blackstone, 36, 37. Of course, the counsel or advice need not be explicit, since the meaning of words comprises what their hearers understand them to convey. Yet the terms, “counsel” or “advice” have a content which can be determined objectively, and do not depend upon the subjective intent of their author. I tried unsuccessfully in Masses Pub. Co. v. Patten (D. C.) 244 Fed. 535, to suggest an analysis of what is included in those terms, and shall not attempt it again. It is enough here merely to suggest that they must have limits determined by the character of the words themselves. That there may be language, as, *for instance, Mark Antony’s funeral Oration, which can in fact counsel violence while it even expressly discountenances it, is true enough; but that raises only the situation, familiar enough everywhere in the law, and already mentioned, of the actual meaning of words to their hearers.

Now, there is nothing in the pamphlet in question which can, as I read it, be understood to constitute any counsel or advice or command to obstruct the draft or to become insubordinate. At least, if it be th'e pleader’s purpose to allege that they reached persons who so understood them, and that the defendants knew of this likelihood, that must be especially alleged. Taken with any interpretation which they can fairly bear, they remain entirely within the range of discussion, and at common law would not, I think, subject their author to criminal responsibility for the results, no matter what his intent.

Whatever may be the rule at common law, I understand Masses Pub. Co. v. Patten, 246 Fed. 24, 158 C. C. A. 250, Ann. Cas. 1918B, 999, to lay down an added measure of criminal liability under this statute to the utterance of words which may cause insubordination, or may obstruct the enlistment service. In that case, it is true, there is language which, taken broadly, can be made to mean that the author is liable if he merely knows that his words will so result. This I can hardly think can have been the significance of the decision, since, as I haA^e already shown, the inevitable consequence would be to imperil any discussion of public matters. It certainly was not the purpose of that case to do so, or indeed to insist that the style or manner of the discussion must measure with any standard of taste or temperance. Such a result would be foreign to the whole history of the subject. The test as laid down in that case was, I think, this: That though in the form of public discussion words, which might not themselves amount to advice or counsel to violate the law, would nevertheless make their author criminally responsible if they were in fact the cause of the results forbidden, and if they were uttered with the specific intent of producing those results. In short, the test was made, not objective only, but in part subjective, as is indeed often the case in the definition of crime. At least this is as I understand that case, and it is in this sense that the rule was applied in the trial of the first indictment against the Masses Publishing Company, which was the direct result of the decision of the Circuit Court of Appeals.

Now, in the first two counts of each indictment, the defendants are alleged to have intended by the words used to cause insubordination and to obstruct the enlistment service: It is certainly true, and can hardly be denied, that the pamphlet might be an efficient argument, and so a cause in the minds of men, to secure that result. Such utterances and such a manner would produce a state of mind prone to insubordination and to evasion. Thus both conditions are fulfilled which are required, not, to be. sure, under the common-law rules in such matters, but in the decision mentioned.

[6, 7] Similarly of the third and fourth counts of the second indictment. The third is for attempting to cause insubordination by publishing the pamphlet with the requisite intent. A conspiracy is indeed hardly less than a joint attempt, at least if the overt acts are considered as a part of the crime. The fourth count is somewhat different, since it alleges the substantive crime of obstructing enlistment. If for that crime success was necessary, or indeed any results upon enlistment, the indictment would be insufficient; but I think it is not. The statute obviously forbids the effort, not the result. One obstructs when one hinders or impedes, and it is no answer that the obstruction is successfully passed over. If words are enough, and they surely are, under this clause nobody would hesitate to say, 1 think, that a man who went about persuading others not to enlist, or to evade the draft, was not obstructing the draft, though he did not succeed in a single case. In any event this was specifically held by the Circuit Court of Appeals in Masses Pub. Co. v. Patten, supra.

It follows, however, from the foregoing discussion, that the, third and fourth counts of the first indictment are bad, for omission to allege the requisite specific intent.

[8] The defendants make several other objections. They say that the conspiracy is formally not well laid. The pleader has in each case first proceeded to lay the count hi the words of the statute, which might not have been sufficient, though often it is; but he has not stopped there. In the first count of the first indictment he has charged that the conspiracy contemplated the publication of the pamphlet. Since the expression of opinion is not absolutely privileged, but is conditional only upon intent, under the doctrine mentioned, the defendants, if they succeeded in their purpose, would be guilty of the substantive crime. The same is true of the second count of that indictment. Nothing is lacking to make the pleading specific and to' avoid the allegation of conclusions of law.

[9 | The first count of the second indictment is broader. It lays a conspiracy by which the defendants were do urge and persuade persons subject to military discipline to disobey their superiors, to be unfaithful to the government, to rebel against the authorities, and to refuse their duties. The conspiracy might have been as general as this language. An agreement to violate the law need not go into specific acts; it may not have gone so far, and yet be certain enough to comprise in its general terms unlawful conduct. Thus a conspiracy to stir up insubordination and mutiny would be complete, though the parties had not determined on all the means. In this count, as a part of the means,- the publication of the pamphlet is set forth. If the conspiracy included only this, the count would be ample, just a.s the counts in the first indictment. It is not necessarily true that any other means had been settled upon; but, if there be such, they may be reached only by bill of particulars. ‘ The same is true of tbe second count.

The third and fourth counts are also sufficient in this regard. They set forth the pamphlet as the means by which the results were to be accomplished and no other means could be proved. As the pamphlet may be a sufficient means, under the rule mentioned, the counts do not lack specification, nor are they faulty as involving any legal conclusions.

[10] Again, the .defendants allege that the pleadings are faulty in failing to allege that the pamphlet was to be circulated among those who could be debáuched in their duty. I think not. In the first indictment the pleader says that the pamphlet was to be circulated among'those subject to, military discipline and to the draft, and to those eligible to enlistment. The description is of persons described as so subject and so eligible, but unknown individually. .This is good pleading under any rule. In the first and third counts of the second indictment these allegations are a little more specific. They include persons already in the service and those subject to the draft when inducted. The names are not necessary. The second and fourth counts follow the form of the earlier indictment.

[11] Further, the defendants insist that’“obstructing the recruiting and enlistment service” does'not include the draft in any event, and as to voluntary enlistment that it includes only the officers charged with the duty of recruiting and enlisting. The question whether the word “enlistment” covers drafted men is certainly not free from doubt. The Oxford Dictionary defines “enlist” as “to enroll on the list of a military body; to engage as a soldier” — apparently including both voluntary and involuntary enrollment. In Babbitt v. U. S., 16 Ct. Cl. 202, 213, it was said to apply only to voluntary enlistment; but the ■contrary was-ruled in Sheffield v. Otis, 107 Mass. 282, and Bouvier’s Law Dictionary defines it inclusively of any form of listing. In Tyler v. Pomeroy, 90 Mass. (8 Allen) 480, there is a long historical discussion, not directly touching the question, but showing how the term was used in England, where there was no conscription. However it may be, I think that tire question is not raised here, because the pamphlet obstructs the voluntary enlistment service, always assuming the existence of the rule in Masses Publishing Co. v. Patten, supra. Even if I were to accept the limited construction of the defendants, that that “service” includes only tiróse officials concerned with voluntary enlistment, the. same result would follow. These officials stimulate voluntary enlistment by advertisement, publicity, and every imaginable device. To .persuade or advise or counsel eligible persons not to volunteer certainly obstructs the purposes of that service, whether the effort be successful or not. This is at least one of the evils at which the statute aims. It means to prevent the undoing of the work of the “service”; perhaps it means more.

It will perhaps be asked if this includes all bona fide advice to an eligible not to volunteer, as, for example, by a wife or a father, on the score of duty. Obviously not. If an eligible asks advice of any one, or if a gratuitous adviser has an interest or duty to give advice, the law does not forbid him. But tire statute does not recognize it as a duty imposed upon every citizen, no matter how strong his convictions may be, gratuitously to intervene in the decision of its citizens. The purpose is good in the view of the statute, and such tolerance as it allows to those who do not think it good does not extend to spontaneous persuasion of those who are eligible. So far the statute enforces its decision, regardless of differences of opinion among its citizens; they must not meddle because they do not agree.

The statute, therefore, would in any event extend to advice or counsel which had not the excuse of interest or a recognized duty; but under the rule in Masses Pub. Co. v. Patten, supra, it must be held to go further, and to include also the utterance o£ words which do not advise or counsel, but which are apt to dissuade eligibles and are uttered with that specific intent. Hence the counts for obstruction are good, no matter how “enlistment” be understood.

[12] Finally, the defendants urge that a corporation cannot be guilty of the crime of conspiracy, or of any crime involving specific intent. This question simply turns upon how far the law has gone in imputing to a corporation the acts of its agents. Specifically it turns upon how far a publishing company, authorized to publish a pamphlet, is responsible for the acts of its officers, when actuated by the requisite intent. It is a question upon which the law has always tended towards larger and larger liability. In toils the liability is now established in the kindred case of libel (Evening Journal v. McDermott, 44 N. J. Law, 430, 43 Am. Rep. 392), as in malicious prosecution (Cornford v. Carleton Bank, [1889] 1 Q. B. 392). Certainly corporations may be guilty of criminal frauds. Cohen v. U. S., 157 Fed. 651, 85 C. C. A. 113; Kaufman v. U. S., 212 Fed. 613, 129 C. C. A. 149, Ann. Cas. 1916C, 466. Now, there is no distinction in essence between the civil and the criminal liability of corporations, based upon the element of intent or wrongful purpose. Each is merely an imputation to the corporation of the mental condition of its agents. It was, it is true, for long supposed that the criminal liability of corporations could not extend beyond the neglect of those positive duties imposed by law; but that depended upon tlie theory that acts of malfeasance being illegal must be ultra vires. It did not survive a more generous view of the doctrine of ultra vires. Joplin Mercantile Co. v. U. S., 213 Fed. 926, 935, 131 C. C. A. 160, Ann. Cas. 1916C, 470, a case affirmed without consideration of this question in Joplin Mercantile Co. v. U. S., 236 U. S. 531, 35 Sup. Ct. 291, 59 L. Ed. 705. That the criminal liability of a corporation is to be determined by the kinship of the act to the powers of the officials, who commit it is true enough, but neither the doctrine of ultra yires, nor the difficulty of imputing intent or motive, should be regarded any longer to determine the result. Bishop, New Criminal Law, § 417(4).

I conclude, therefore, that the demurrers to the first and second counts of the first indictment must be overruled, and to the third and fourth sustained. The demurrers to the second indictment must be overruled.

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Case Details

Case Name: United States v. Nearing

Court Name: District Court, S.D. New York

Date Published: Aug 1, 1918

Citation: 252 F. 223

Court Abbreviation: S.D.N.Y.