Johnston v. United States/Dissent Douglas

Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.

Patteson, who lives in Oklahoma and defied his draft board there, is required to stand trial in Kansas. Johnston and Sokol, who live in the Western District of Pennsylvania and defied their draft board there, are forced by this decision to stand trial in the Eastern District. Yet each defied the law at home, not in the distant place. Unlike United States v. Anderson, 328 U.S. 699, 66 S.Ct. 1213, 90 L.Ed. 1529, no act of any kind was committed in the distant district. Unlike Rumely v. McCarthy, 250 U.S. 283, 39 S.Ct. 483, 63 L.Ed. 983, and United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897, Congress has not specifically selected the failure to perform an act in the distant district and made it a crime. The statutory crime is the failure of a conscientious objector, directed to perform civilian work, 'to obey any such order from his local board.' 62 Stat. 612, as amended, 65 Stat. 86, 50 U.S.C.Appendix, § 456(j), 50 U.S.C.A.Appendix, § 456(j). The argument in the case has been like a theological debate over the number of angels who can stand on the head of a pin. Of course, the duty to obey can be divied up into a whole series of duties. But, when the registrant is adamant in his refusal to budge from his home town and stays at home defying the local authorities, the crime he has committed has been committed at home.

Any doubts should be resolved in favor of the citizen. We should construe the statute against two historic constitutional provisions. Article III, § 2, cl. 3, provides that 'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.' And the Sixth Amendment guarantees an accused 'a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law * *  * .' While we have here a statutory problem, not a constitutional one, the history of the two constitutional guarantees throws light on the problem of venue. When the British Parliament proposed taking Americans abroad or to another colony for trial, the Virginia Resolves of May 16, 1969, voiced the unanimous view that 'thereby the inestimable Privilege of being tried by a Jury from the Vicinage, as well as the Liberty of summoning and producing Witnesses on such Trial, will be taken away from the Party accused.'

The boys in the present cases suffer comparably. For their defiance of their local boards they are sent to distant places for trial where they have no friends, where they are unknown, and to which all witnesses must be transported. Congress would have the power to fix the venue there. But it has not done so unambiguously. Cf. United States v. Midstate Horticultural Co., 306 U.S. 161, 166, 59 S.Ct. 412, 414, 83 L.Ed. 563; United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 250, 89 L.Ed. 236. I would read the statute with an eye to history and try the offenders at home where our forefathers thought that normally men would receive the fairest trial.