# Stromberg v. California

> Supreme Court of the United States · May 18, 1931 · 283 U.S. 359

URL: https://www.frixlaw.com/law-library/cases/9418714

## Case

- **Full name:** Stromberg v. California
- **Court:** Supreme Court of the United States
- **Decided:** May 18, 1931
- **Citations:** 283 U.S. 359; 73 A.L.R. 1484; 51 S. Ct. 532; 75 L. Ed. 1117; 1931 U.S. LEXIS 152
- **Precedential status:** Published
- **Opinion:** Dissent by McReynolds
- **Judges:** Butler, Hughes, McReynolds
- **Cited by:** 1,073 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Reported overruled by Griffin v. United States, 502 U.S. 46 (1991) — not on the Supreme Court's list.
- Negative treatments: 1
- Distinguished by: 4
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9418714

## How later opinions describe it (automated extraction)

- recognizing that when one of three alternatives upon which the jury could base its verdict was invalid and “the State’s attorney . . . emphatically urged upon the jury that they could convict the appellant under the [invalid] clause alone,” the likelihood the jury reached its …
- holding that, when there is a general verdict, “the necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld”
- holding that an error “was harmless where the jury convicted a defendant of two different offenses on which it might have predicated his § 924(c) conviction and [where] only one of those offenses remain[ed] a valid predicate after Davis”
- holding that a conviction must be set aside if it was rendered by general verdict and one theory supporting the conviction is invalidated
- holding state statute punishing the use of any symbol “ ‘of opposition to organized government’ ” to be impermissibly vague

## Opinion text

Me. Justice McReynolds,
dissenting.
This Court often has announced, and scores, perhaps hundreds, of times has applied the rule, that it may not pass upon any question in a cause coining from a state court which the record fails to show was there determined or duly presented for determination.
The only federal matter ruled upon by the court below (District Court of Appeals), and the only one there submitted, arose upon the general demurrer to the Information. Did this adequately set forth an offense for which the defendant could be punished without violating the Fourteenth Amendment?
Section 403a, Penal Code of California, provides—
“Any person who displays a red flag, banner or badge or any flag, badge, banner, or device of any color or form whatever in any public place or in any meeting place or public assembly, or from or on any house, building or window as a sign, symbol or emblem of opposition to organ *371 ized government or as an invitation or stimulus, to anarchistic action or as an aid to propaganda that is of a seditious character is guilty of a felony.”
And the Information charged that the plaintiff “did wilfully, unlawfully, and feloniously display a red flag and banner in a public place and a meeting place ás a sign, symbol, and an emblem of opposition to organized government and as an invitation and stimulus t.o anarchistic action and as an aid to propaganda that is and was of a seditious character.”
Below, counsel definitely “ stated that he was satisfied that the instructions [to the jury] were correct, and waived any claim of error on that account.” Accordingly, decision was not requested upon any question arising out of the charge; no such question was decided. The instructions were properly disregarded and are now unimportant.
The sole matter of a federal nature considered by the Court of Appeals was the claim that the provisions of § 403a of the Penal Code were in conflict with the Fourteenth Amendment. It held the statute divisible and that as petitioner stood charged with violating all of the inhibitions therein, some of which were certainly good, the conviction could not be upset even if one paragraph were invalid. The conclusion seems plainly right and, I think, the challenged judgment should be affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9418714. Public record. Not legal advice.