[250 U.S. 583, 584] Messrs. Henry John Nelson and Henry J. Gibbons, both of Philadelphia, Pa., for plaintiffs in error.
Mr. Robert P. Stewart, Asst. Atty. Gen., for the United States.
Mr. Justice DAY delivered the opinion of the Court.
The plaintiffs in error were indicted with two others, not apprehended, and were convicted under the conspiracy section (4) of the Espionage Act (Act of June 15, 1917, c. 30, tit. 1, 40 Stat. 217, 219 [ Comp. St. 1918, 10212d]). The section which the plaintiffs in error were charged with a criminal conspiracy to violate (3) provides:
A second count in the indictment charged a conspiracy to violate certain provisions of the Selective Service Act (Act May 18, 1917, c. 15, 40 Stat. 76 (Comp. St. 1918, 2044a-2044k). The sentences imposed, within the act upon either count of the indictment, were three years' imprisonment for Stilson and three months for Sukys. The government does not press the conviction upon the second count. [250 U.S. 583, 585] The overt acts charged to have been committed in pursuance of the conspiracy consisted of the publication and distribution of a certain newspaper called 'Kova' and circulars published in the Lithuanian language. The cases come directly to this Court because of constitutional questions raised and decided in the court below. Since the proceedings in that court some of the constitutional questions have been determined, and need not be considered. Schenck v. United States, 249 U.S. 47 , 39 Sup. Ct. 247; Frohwerk v. United States, 249 U.S. 204 , 39 Sup. Ct. 249; Debs v. United States, 249 U.S. 211 , 39 Sup. Ct. 252.
Counsel for plaintiffs in error in view of these decisions only press for consideration certain assignments of error comprised in the following summary.
1. Whether or not, in ruling that there could be no severance of defendants and that a peremptory challenge by one defendant should count as a challenge by all defendants, the trial judge was in error under Article VI of the Amendments of the United States Constitution.
2. Whether or not the trial judge erred in his charge to the jury in that portion thereof in which he said the jury might determine the guilt of the defendants from general information.
3. Whether or not the trial judge erred in not refreshing the jury's memory as to the evidence.
4. Whether or not the trial judge erred in overruling a motion to take the case away from the jury, and in refusing to charge the jury, 'under all the evidence your verdict should be 'not guilty."
Of these in their order:
1. It is provided in the Sixth Amendment to the Constitution of the United States that in all criminal prosecutions the accused shall enjoy the right to a trial by an impartial jury. That it was within the discretion of the court to order the defendants to be tried together there can be no question, and the practice is too well established [250 U.S. 583, 586] to require further consideration. The contention raised under the Sixth Amendment comes to this: That because plaintiffs in error were not each allowed ten separate and independent peremptory challenges they were therefore denied a trial by an impartial jury. The statute (Act March 3, 1911, c. 231, 287, 36 Stat. 1166 [Comp. St. 1264]) regulating the matter of peremptory challenges is clear in its terms and provides:
The requirement to treat the parties defendant as a single party for the purpose of peremptory challenges has long been a part of the federal system of jurisprudence, it certainly dates back to 1865 and was adopted in the Revised Statutes, and has now become a part of the Judicial Code. 36 Stat. 1166, 287. Schwartzberg v. United States, 241 Fed. 348, 154 C. C. A. 228. There is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges to defendants in criminal cases; trial by an impartial jury is all that is secured. The number of challenges is left to be regulated by the common law or the enactments of Congress. That body has seen fit to treat several defendants, for this purpose, as one party. It the defendants would avail themselves of this privilege they must act accordingly. It may be, as is said to have been the fact in the trial of the present case, that all defendants may not wish to exercise the right of peremptory [250 U.S. 583, 587] challenge as to the same person or persons, and that some may wish to challenge those who are unobjectionable to others. But this situation arises from the exercise of a privilege granted by the legislative authority and does not invalidate the law. The privilege must be taken with the limitations placed upon the manner of its exercise.
2. It is insisted that there was prejudicial error in so much of the charge as is contained in the following language:
3. It is contended that the court did not analyze and discuss the details of the evidence. The trial judge left matters of fact to the determination of the jury in a charge commendable for its fairness. Certainly the lack of discussion in detail does not amount to a valid objection; particularly in the absence of any specific request for comment upon any special phase of the testimony.
4. As to the contention that there was no evidence to warrant the convictions of the accused-it must be borne in mind that it is not the province of this Court to weigh testimony. It is sufficient to support the judgment of the District Court, if there was substantial evidence inculpating the defendants which, if believed by the jury, would justify the submission of the issues to it. It would serve no good purpose to set forth the contents of the newspaper articles and the circulars, the publication and destribution of which were alleged to be the overt acts in furtherance of the alleged conspiracy. That they contain appeals tending to cause disloyalty and refusal of duty in [250 U.S. 583, 589] the military forces of the United States, and to obstruct the recruiting and enlistment service of the government is sufficiently apparent on the face of the publications. That those who by concerted action prepared and circulated such writings could be found guilty of a conspiracy is equally clear. The connection of the plaintiffs in error with the Lithuanian Socialist Federation, whose membership was shown to be actively opposed to the prosecution of the war, is apparent from a perusal of the record. Stilson was the translator-secretary of the Federation. There is evidence tending to show that one of the circulars entitled, 'Let Us Not Go to the Army,' was mimeographed from the typewriter controlled and operated by him. Language of the same character as that set forth in the incriminating circulars is found in articles in evidence which were admittedly written by him.
Sukys had been a correspondent of 'Kova,' and was afterwards manager of the Kovaprinting plant and was appointed by the executive committee of the Federation, and incriminating acts of his are clearly shown in the record.
We agree with the trial court that there was ample testimony justifying the submission of the question of the guilt of the accused to the jury, who found both of the plaintiffs in error guilty of concerted action amounting to a conspiracy to violate the provisions of the act. We find no error in this record, and the judgments are
Mr. Justice HOLMES and Mr. Justice BRANDEIS dissenting on the ground that as the sentence was upon a general verdict of guilty on both counts, one of which is not sustained, the judgment should be reversed.