Ruthenberg v. United States/Opinion of the Court

Schue was indicted for having failed to register as required by the Act of Congress of May 18, 1917 (Public Act No. 12, 65th Congress, c. 15, 40 Stat. 76), known as the Selective Draft Law, and in the same indictment it was charged that Ruthenberg, Wagenknecht and Baker, the plaintiffs in error 'did aid, abet, counsel, command and induce' Schue in failing to register 'and procure him to commit the offense involved in his so doing.' Schue pleaded guilty and the other three defendants were tried, found guilty and sentenced. Because of objections raised to the constitutionality of the act this direct writ of error was prosecuted.

As every contention made in this case concerning the unconstitutionality of the Selective Draft Law was urged in Arver v. United States, 245 U.S. 366, 38 Sup. Ct. 159, 62 L. Ed. --, and held to be without merit, that subject may be put out of view. The remaining assignments of error are to say the least highly technical and require only the briefest notice.

The want of merit in the proposition that constitutional or statutory rights were denied the plaintiffs in error, who were Socialists, because the grand and trial juries were composed exclusively of members of other political parties and of property owners, is demonstrated by previous adverse rulings upon similar contentions urged by negro defendants indicted and tried by juries composed of white men. Martin v. Texas, 200 U.S. 316, 320, 321, 26 Sup. Ct. 338, 50 L. Ed. 497; Thomas v. Texas, 212 U.S. 278, 282, 29 Sup. Ct. 393, 53 L. Ed. 512.

A further objection that plaintiffs in error were prejudiced by the refusal of the court below to permit them in examining the jurors to inquire whether they distinguished between socialists and anarchists is likewise disposed of by previous decisions. Spies v. Illinois, 123 U.S. 131, 8 Sup. Ct. 22, 31 L. Ed. 80; Thiede v. Utah Territory, 159 U.S. 510, 16 Sup. Ct. 62, 40 L. Ed. 237; Holt v. United States, 218 U.S. 245, 248, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138.

It is contended that plaintiffs in error were not tried by a jury of the state and district in which the crime was committed, in violation of the Sixth Amendment, because the jurors were drawn not from the entire district but only from one division thereof. The proposition disregards the plain text of the Sixth Amendment, the contemporary construction placed upon it by the Judiciary Act of 1789 (1 Stat. 73, 88, c. 20, § 29) expressly authorizing the drawing of a jury from a part of the district, and the continuous legislative and judicial practice from the beginning. Section 802, Revised Statutes; section 277, Judicial Code (Comp. St. 1916, § 1254); Agnew v. United States, 165 U.S. 36, 43, 17 Sup. Ct. 235, 41 L. Ed. 624; United States v. Wan Lee (D. C.) 44 Fed. 707; United States v. Ayres (D. C.) 46 Fed. 651; United States v. Peuschel (D. C.) 116 Fed. 642, 646; Clement v. United States, 149 Fed. 305, 79 C. C. A. 243; Spencer v. United States, 169 Fed. 562, 565, 566, 95 C. C. A. 60; United States v. Merchants', etc., Co. (C. C.) 187 Fed. 355, 359, 362.

It is argued that the court below erred in refusing to quash the indictment on the ground that it had been found 'without a sworn charge previously made.' It is settled that such a charge is unnecessary. Frisbie v. United States, 157 U.S. 160, 163, 15 Sup. Ct. 586, 39 L. Ed. 657; Hale v. Henkel, 201 U.S. 43, 59, 60, 26 Sup. Ct. 370, 50 L. Ed. 652.

Further, it is said, the indictment was insufficient because it did not allege that Schue, who it was charged refused to register, was a citizen of the United States or was a person not an alien enemy who had declared his intention to become such citizen. But this overlooks the fact that although only the persons described were subject to military duty under the terms of the act, by section 5 'all male persons between the ages of 21 and 30 both inclusive' (with certain exceptions not here material) were required to register. It was sufficient to charge, therefore, as the indictment did, that Schue was a male person between the designated ages.

The contention that more than one offense was charged in the same indictment is without merit. Section 332 of the Criminal Code provides that:

'Whoever directly commits any act constituting an offense     defined in any law of the United States, or aids, abets,      counsels, commands, induces or procures its commission, is a      principal.'

The indictment, therefore, charged but one offense-the refusal of Schue to register-plaintiffs in error being charged as principals in procuring such refusal. And this also disposes of a further contention based upon the same misconception that as at common law there could be no accessory to a misdemeanor, no offense was charged in the indictment.

Other errors are assigned but we do not expressly notice them, some because they are not urged in argument, others because they are so unsubstantial as not to require even statement, and we content ourselves with saying that after a careful examination of the whole record we find no error and the judgment is

Affirmed.