Sugarman v. United States/Opinion of the Court

The Espionage Act (Act June 15, 1917, c. 30, tit. 1, § 3, 40 Stat. 217, 219 [Comp. St. 1918, § 10212c]) provides that:

'Whoever, when the United States is at war, * *  * shall      wilfully cause or attempt to cause *  *  * insubordination,      disloyalty, mutiny, or refusal of duty, in the military or      naval forces of the United States *  *  * shall be punished.'

Sugarman was charged with having violated this section on July 24, 1917, by words spoken in an address made at a Socialist meeting which was attended by many registrants under the Selective Service Act (Act May 18, 1917, c. 15, 40 Stat. 76 [Comp. St. 1918, §§ 2019a, 2019b, 2044a-2044k]), sustained in Selective Draft Law Cases, 245 U.S. 366, 38 Sup. Ct. 159, 62 L. Ed. 349, L. R. A. 1918C, 361, Ann. Cas. 1918B, 856. He was tried in the District Court of the United States for the District of Minnesota, found guilty by the jury, and sentenced. See 245 Fed. 604. Thirty-one exceptions were taken to rulings of the trial judge. Instead of seeking review by the Circuit Court of Appeals under section 128 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1133 [Comp. St. § 1120]), the case is brought here under section 238 (Comp. St. § 1215).

Review by this court on direct writ of error is invoked on the ground that the construction or application of the federal Constitution was drawn in question. Thirty of the rulings excepted to below are assigned as errors here. If any one of them involves a constitutional question which is substantial, or was such when the defendant sued out his writ of error, we have jurisdiction to review all the questions raised and it is our duty to determine them, so far as necessary to afford redress, even if we should conclude that the constitutional question was correctly decided below. Williamson v. United States, 207 U.S. 425, 432, 434, 28 Sup. Ct. 163, 52 L. Ed. 278; Goldman v. United States, 245 U.S. 474, 476, 38 Sup. Ct. 166, 62 L. Ed. 410. But mere reference to a provision of the federal Constitution, or the mere assertion of a claim under it, does not authorize this court to review a criminal proceeding; and it is our duty to decline jurisdiction unless the writ of error presents a constitutional question substantial in character and properly raised below. Equitable Life Assurance Society v. Brown, 187 U.S. 308, 311, 23 Sup. Ct. 123, 47 L. Ed. 190; Goodrich v. Ferris, 214 U.S. 71, 79, 29 Sup. Ct. 580, 53 L. Ed. 914; Hendricks v. United States, 223 U.S. 178, 184, 32 Sup. Ct. 313, 56 L. Ed. 394; Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123, 34 Sup. Ct. 874, 58 L. Ed. 1245; Brolan v. United States, 236 U.S. 216, 218, 35 Sup. Ct. 285, 59 L. Ed. 544; United Surety Co. v. American Fruit Co., 238 U.S. 140, 142, 35 Sup. Ct. 828, 59 L. Ed. 1238.

Of the 31 exceptions taken below only two refer in any way to the federal Constitution. These two are for refusal to give the following instructions:

(a) 'The Constitution of the United States provides that     Congress shall make no law abridging the freedom of speech,      or of the press, or the right of the people peaceably to      assemble and to petition for a redress of grievances. This     right has been deemed so essential and necessary to free      institutions and a free people that it has been incorporated      in substance in the Constitutions of all the states of the      Union. These constitutional provisions referred to are not     abrogated, they are not less in force now because of war, and      they are as vital during war as during times of peace, and as      binding upon you now as though we were at peace.'

(b) 'This provision of our Constitution will not justify or     warrant advocating a violation of law. A man may freely speak     and write and petition, but he is responsible for the      consequences of what he may say, write or publish; and if      what he says and publishes has a natural tendency to produce      a violation of law, that is to impel the persons addressed to violate the law, and the person using the      language intends that it should produce a violation of law,      then the person using such language is subject to punishment      and this is not inconsistent with the right and protection      guaranteed by the Constitution of the United States and of      this state.'

While the trial judge refused to give these specific instructions, his charge to the jury included the following passage:

'Now, considerable has also been said in this case about     freedom of speech. The Constitution of the United States     provides that Congress shall make no law abridging the      freedom of speech. This provision of the Constitution is of     course in force in times of war as well as in times of peace. But 'freedom of speech' does not mean that a man may say     whatever he pleases without the possibility of being called      to account for it. A man has a right to honestly discuss a     measure or a law, and to honestly criticize it. But no man     may advise another to disobey the law, or to obstruct its      execution, without making himself liable to be called to      account therefor.'

This passage in the charge clearly embodied the substance of the two requests made by the defendant. The judge was not obliged to adopt the exact language of the instructions requested; Holt v. United States, 218 U.S. 245, 253, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138; nor was he obliged to repeat the instructions already given in substance. Compare Bennett v. United States, 227 U.S. 333, 339, 33 Sup. Ct. 288, 57 L. Ed. 531. As no substantial constitutional question was presented by the defendant, this court is without jurisdiction to review the other errors assigned.

Dismissed for want of jurisdiction.