Petitioners Brief — Carruthers v. United States

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IN THE

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1945.

No.

HUGH GREER CARRUTHERS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI.

Grounds of Jurisdiction.

The order of the Circuit Court of Appeals was entered

December 27, 1945. Jurisdiction of this Court is invoked

under Sec. 240 (a) of the Judicial Code, as amended by

the Act of February 13, 1925, 28 U. S. C. 347 (a). Stay

of mandate pending this petition was entered January

2, 1946.

Concise Statement of the Case.

We respectfully refer the Court to pp. 6-9, supra,

for a concise statement of the facts.

—_—

PS Pe rat ee

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Specification of Errors to be Urged.

The Circuit Court of Appeals erred:

(a) In holding that the charge to the jury set forth,

supra, at page 2 did not violate the rights of petitioner

under the First Amendment to the Constitution providing

‘*Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof.’’

(b) In holding that under the circumstances of this

case, there was no abuse of discretion on the part of the

trial judge in denying petitioner’s motion to withdraw

a juror and continue the case, on the ground that peti-

tioner failed to show prejudice resulting to him from

the publication of the admittedly inflammatory and preju-

dicial newspaper article, quoted at page 3, supra, and

by the reading thereof by one of the jurors prior to ver-

dict.

(c) In holding that the charge to the jury as to the

presumption of innocence, quoted at page 4, supra, did

not warrant a reversal of the conviction.

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The Court committed reversible error in its charge to the

- jury in violating the right of petitioner to the free exer-

cise of religion which was guaranteed to petitioner by

the First Amendment to the Constitution.

Recognizing that the activities of petitioner charged in

the indictment and pictured in the evidence concerned

matters relating to his religious beliefs and involved the

free exercise of his religion which had been guaranteed

by the Constitution, the Court instructed the jury in the

manner quoted at page 2, supra.

Before the jury were instructed and at the conclusion

of all the evidence, petitioner had made a motion for a

directed verdict of not guilty, based upon the ground that

the indictment itself violated the petitioner’s right to the

free exercise of his religion guaranteed by the Constitu-

tion. (Rec. 480-481) Such motion was denied. (Ree. 482)

Immediately after the conclusion of the giving of the

charge and in the presence of the jury, the following

colloquy occurred between the court and petitioner’s coun-

sel: (Rec. 465-466)

‘‘Mr. Bachrach: ‘My first request is that you give

in substance the following: That the representations

of the defendants or any of them concerning or relat-

ing to the subjects of breathing, silence and positions

of persons during sleep are all matters within the field

of religion as taught by the defendant Carruthers,

and the truth or falsity of such representations, if

any, may not be questioned in any way by the jury

in arriving at its verdict in this case.’

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The Court: ‘I will pass on that right now. I gave

that with this modification. Where you say it is your

suggestion that breathing, silence and position of per-

sons during sleep are all matters within the field of

religion, I have added—‘‘if you believe that they are”’

—instead of the Court passing upon that question it

is up to the jury.’

Mr. Bachrach: ‘To which I except’.””

The religious nature of the Neological Foundation and

that the activities of petitioner in directing it involved the

teaching of religion were facts recognized throughout the

proceedings. Thus paragraph 6 of count 1 of the indict.

ment (which was incorporated in all succeeding counts)

alleged the delivery by petitioner of radio programs and

the sending by petitioner to members and prospective

members of the Neological Foundation of literature relat-

ing to the purposes, activities and functions of the Founda-

tion, giving

‘instruction in such subjects as Personal Develop-

ment, The Omnipresent Universal Mind, Imagination,

Will Power, * * * Creative Thinking, the Thibetan

Science of Correct Breathing, the Occult Sciences,

Telepathy, Clairvoyance, Hypnosis, Metempsychosis,

Auto-suggestion, the Oriental Culture of the Thibetan,

Himalayan, Chinese and Egyptian Secret Orders of

the Great wodge of Mystics. * * *’’ (Ree. 5)

Seventeen Government witnesses and forty-nine defense

witnesses, totalling sixty-six altogether, testified that the

Neological Foundation and the teachings of petitioner were

of a religious character. (Rec. 190, 194, 196, 201, 213, 216,

218, 224, 227, 229, 231, 235, 238, 251, 266, 273, 281, 291, 294,

298, 303, 304, 308, 311, 313, 316, 318, 319, 320, 323, 325, 329,

330, 331, 336, 338, 341, 343, 346, 350, 354, 357, 360, 362, 363,

367, 368, 371, 372, 374, 376, 377, 378, 380, 384, 387, 388, 389,

391, 393, 410, 411, 412, 414, 419, 422.) No witness testified

to the contrary.

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The issue between the petitioner and the courts below

is narrow. It involves the propriety of the action of the

trial judge in leaving to the jury as an issue for its deter-

mination whether petitioner’s representations relating to

breathing, silence and position of persons during sleep

were believed by the jurors to be matters within the field

of religion as taught by petitioner.

The Court of Appeals finds the activities of petitioner

to have been ‘‘so broad and so diversified at times as to

reasonably raise the question whether his activities were

in fact of a religious nature.’’ (Rec. 511) Its opinion

contains fragmentary quotations from petitioner’s letters

for the purpose of showing that petitioner’s appeal was

not religious and concludes that a real issue of fact existed

as to whether petitioner was ‘‘claiming to advance a

religious doctrine.’’ (Ree. 511, 512)

The dictates of brevity herein confine us to a single

illustratio:. to demonstrate the error into which the Court

of Appeals fell in basing its conclusion on this vital matter

on fragmentary excerpts from petitioner’s communications

contained in the Government’s brief. Thus the Court of

Appeals quotes from petitioner’s letter of May 28, 1942

(Gov. Ex. 30; Ree. 126-472) a portion of a sentence, the

quoted portion reading: ‘‘* * * it is necessary to function

as a Fraternity as well as an educational activity * * *.”’

(Rec. 512) In the context of the balance of the letter the

wholly immaterial nature of this portion of a sentence con-

tained therein becomes manifest. We quote: (Rec. 128-129)

‘**T have learned, during recent conversations, that

some of our members, trying to explain Neology to

others, fall short of the actual truth regarding this

powerful philosophy. To say that it is the philosophy

of Jesus Christ is not the whole truth. That Neology

includes the interpretation of the Gospel taught by the

Master is a sensible statement, but Neology also in-

cludes the modern interpretation of the Ancient Mys-

a

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teries, or Wisdom of the Ages, outlined by the Master

Thinkers, Scholars and Philosophers known to have

possessed this great Truth in all ages.

The simple basic principle underlying Neology lies

in man’s ability to safely declare his At-one-ment with

The Creative Principle, or God, or Jehovah, or The

Almighty, or Allah, or The Universal Law of Cause

and Effect, spiritually, because of the spiritual omni-

presence of Omnipotence. The individual will desig-

nate his Deity according to his own interpretation of

the Supreme Principle, but by whatever name, The

Creator remains and continues unchanged, simply be-

eause He, or It, is The Unchangeable.

I am sure that many of our Fellows have very little

understanding of the tremendous value they are secur-

ing in the Second Series. I know of no other teaching

that has ever given the fundamentals underlying actual

Lodge work, or the basic principles upon which every

religion has been developed. It is absolutely necessary

to have an understanding of the developments and

teachings of the ancient Mysteries and Lodges before

one can formulate a hypothesis for Personal Develop-

ment for Self Mastery. How can one declare, ‘‘ ‘I’ and

The Father (Omnipotence) are One (because) ‘I’ am

in Him, or It, and (for that very reason) He, or It, is

In me’’ (because of the universal omnipresence of The

Creator in spiritual form, or essence), until one under-

stands the actual reason, or basis, for his conclusion

and statement? But the fact that through understand-

ing one can safely realize that a definite part of the

universal spiritual omnipresence of Omnipotence Is,

inherently and innately within him, makes that one

reasonably certain that The Part within Must be the

same in kind and quality as The Whole. * * *

Formulate the idea that ‘I’ Am... that ‘I’ Am I;

that that ‘I’ is my inner Person, or Soul, or Spirit,

... and a definite part of the omnipresent spirituality

of Omnipotence omnipresent, and You have definitely

identified Your True Self. You are the temple of God!

Not because I have said so, but because you can prove

that truth within yourself and your every day life and

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_ affairs. The fact that you are consciously aware of an

inner prompting (never from without—always within)

' to avoid wrong, or evil, or error, whenever you are

/ about to act wrong... and always just before the act,

' would indicate that there is within you a Power and

Intelligence that Knows, Sees and Understands all that

is to be known, seen or understood,—and certainly

more than you can consciously know. Call that Inner

Intelligence by the name ‘Spirit,’ or ‘I,’ or ‘God,’

or ‘Omnipotence,’ or conscience, or Still Small Voice,

and you cannot change It one iota; the fact remains

that It is within.

Or see, Luke 17:20: for the admonition by Jesus,

The Christ, or read the declaration by Paul, in 1st

Corinthians, 6:19, and you have proof that Jesus, and

Paul, as well as many others, knew, understood, lived

and thought the Law of Cause and Fffect.’’

See also letter of December Ist, 1942, Government’s Ex-

hibit 19 (R. 86-93), from which the Circuit Court of Appeals

quotes in its opinion (Ree. 511).

Even if there were a real issue whether all of petitioner’s

activities in directing the affairs of the Neological Founda-

tion were in fact of a religious nature, as the Circuit Court

of Appeals finds, it does not follow that the representa-

tions as to breathing, silence and position of persons dur-

ing sleep were not matters within the field of religion as

taught by petitioner. In United States v. Ballard, 322 U.S.

78 at 83-84, this Court recognized that some representa-

tions could involve the free exercise of the defendant’s

religion even though others did not. The Court of Ap-

peals herein itself recognized that ‘‘the subjects of ‘breath-

ing’ and ‘silence’ find expression as religious practices in

the ancient Yoga Creed,’’ citing 29 Ency. Am. 638. (Ree.

511) The record is barren of any evidence showing that

they were not also matters of religion, as taught by peti-

tioner.

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Even if a real issue existed as to the religious characte

of representations on the specific subjects set forth in th

instruction in question, we submit that it was the duty o

the Court itself to determine that issue and to instruct th

jury as to its determination as a matter of law. Only. i

that way could the guarantee of free exercise of his religion

by petitioner set forth in the Constitution be performed by

the Government and petitioner’s reliance upon such guar

antee not prove retroactively to have been a snare and a

delusion, reliance by him upon which cost him his personal

liberty.

This Court recognized in United States y. Ballard, 322

U. S. 78, the utter futility of expecting the ordinary juror

to be able to pass with objectivity upon beliefs and other

faiths which to him appear to constitute rank heresy. In

fact, the history of religious persecution throughout re-

corded time explains the surrounding of the free exercise

of religion by the protection of a Constitutional guarantee.

The decision of this Court in United States vy. Ballard, 322

U. S. 78, was based upon considerations of this character.

In that case this Court said: (pp. 86-87)

“The Fathers of the Constitution were not un-

aware of the varied and extreme views of religious

sects, of the violence of disagreement among them, and

of the lack of any one religious creed on which all men

would agree. They fashioned a charter of government

which envisaged the widest possible toleration of con-

flicting views. Man’s relation to his God was made

no concern of the state. He was granted the right to

worship as he pleased and to answer to no man for the

verity of his religious views. The religious views

espoused by respondents might seem incredible, if not

preposterous, to most people. But if those doctrines

are subject to trial before a jury charged with finding

their truth or falsity, then the same can be done with

the religious beliefs of any sect. When the triers of

fact undertake that task, they enter a forbidden do-

main. The First Amendment does not select any one

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group or any one type of religion for preferred treat-

ment. It puts them all in that position. Murdock v.

Pennsylvania, 319 U. S. 105, 87 L. Ed. 1292, 63 S. Ct.

870, 891, 146 A. L. R. 81. As stated in Davis v. Beason,

133 U. S. 333, 342, 33 L. Ed. 637, 639, 10 S. Ct. 299,

‘With man’s relations to his Maker and the obligations

he may think they impose, and the manner in which an

expression shall be made by him of his belief on those

subjects, no interference can be permitted, provided

always the laws of society, designed to secure its peace

and prosperity, and the morals of its people, are not

interfered with.’’’ (Emphasis supplied.)

The mere fact that one preaching a religion engages in

commercial activities to obtain money to finance his organ-

ization does not destroy or lessen his Constitutional pro-

tection. In Murdock v. Pennsylvania, 319 U. 8S. 105, this

Court said: (p. 111)

‘** * * But the mere fact that the religious literature

is ‘sold’ by itinerant preachers rather than ‘donated’

does not transform evangelism into a commercial en-

terprise. If it did, then the passing of the collection

plate in church would make the church service a com-

mercial project. The Constitutional rights of those

spreading their religious beliefs through the spoken

and printed words are not to be gauged by standards

governing retailers or wholesalers of books. The right

to use the press for expressing one’s views is not to be

measured by the protection afforded commercial hand-

bills. It should be remembered that the pamphlets

of Thomas Paine were not distributed free of charge.

It is plain that a religious organization needs to re-

main a going concern. But an itinerant evangelist

however misguided or intolerant he may be, does not

become a mere book agent by selling the Bible or

religious tracts to help defray or to sustain him. Free-

dom of speech, freedom of the press, freedom of reli-

gion are available to all, not merely to those who

can pay their own way.’’ (Emphasis ours)

In conditioning the duty of the jury to accept as true peti-

tioner’s representations concerning the subjects of breath-

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ing, silence and position of persons during sleep upon their

preliminary finding that such representations involved mat-

ters within the field of religion as taught by petitioner the

Court exposed petitioner to all the dangers against which

the Constitutional guarantee and the decision in United

States v. Ballard, 322 U. S. 78, were obviously intended to

protect him.

The Prosecutor quickly discerned the opportunity pre-

sented to convert the proceedings into a heresy trial. Know-

ing that the Court was leaving to the jury as an issue of

fact the determination of whether these representations

constituted matters of religion, he deliberately referred to

the ‘‘Neological nonsense that was spawned in the last

few years.’’ Objection to this argument was overruled

by the Court who stated that the point was ‘‘saved.’’ (Rec.

443) Such argument fitted perfectly into the examination

by the Prosecutor of a Government witness (Rec. 251) and

his cross examination of petitioner’s witnesses who tes-

tified to the giving of instruction by petitioner upon the

subjects of breathing, silence and position of persons dur-

ing sleep. Therein the Prosecutor did his best to ridicule

the teachings, the teacher, the witnesses and all other mem-

bers of the Neological Foundation who believed in them

and testified to the benefits which in their opinions were

derived by them from such instruction. (Ree. 291, 292, 298,

300, 303, 309, 312, 314, 320, 329, 330, 333, 337, 344, 346, 356,

364, 366, 369, 379, 381, 383, 385, 391, 413, 416, 420.)

No judicial innovation is required to protect the Consti-

tutional guarantee by requiring issues of this kind to be

decided by the Court and by requiring the jury to be in-

structed upon the basis of the Court’s decision. It is a

matter of Hornbook law that the construction of written

instruments, such as statutes, ordinances, constitutional

provisions, private contracts and wills, present questions

for determination by the Court as distinguished from the

jury and that it is the duty of the Court to tell the jury

‘Ai EER SE RR RS

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the status of such matters as a part of its charge. The

enforcement of this principle of general application be-

comes vitally important when it is necessary to enable the

Government realistically to perform the guarantee of

the free exercise of religion found in the Constitution. The

greater the pressure in the light of other facts and cireum-

stances to depart from the protection which the Consti-

tution accords to the religious beliefs of all persons and

to their free exercise thereof, the more vital becomes the

duty of the judge to give practical sanction to the Consti-

tutional mandate.

Supervision by this Court of the administration of crim-

inal justice in the Federal courts for the purpose of estab-

lishing and maintaining civilized standards of procedure

and evidence is a function which it has recognized and exer-

cised from the very beginning of its history. The princi-

ples laid down by it have not been restricted to those

derived solely from the Constitution. Nevertheless, con-

verting the dictates of the Constitution into realistic safe-

guards represents the exercise of this duty upon the high-

est plane. In McNabb v. United States, 318 U. 8. 332

this Court expressed its views on this subject as follows:

(pp. 340-341)

‘** * * the scope of our reviewing power over con-

victions brought here from the Federal courts is not

confined to ascertainment of Constitutional validity.

Judicial supervision of the administration of criminal

justice in the Federal courts implies the duty of estab-

lishing and maintaining civilized standards of proced-

ure and evidence. Such standards are not satisfied

merely by observance of those minimal historic safe-

guards for securing trial by reason which are sum-

marized as ‘due process of law’ and below which we

reach what is really trial by force. Moreover, review

by this Court of state action expressing its notion of

what will best further its own security in the admin-

istration of criminal justice demands appropriate re-

spect for the deliberative judgment of a state in so

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basic an exercise of its jurisdiction. Considerations

of large policy in making the necessary accommoda-

tions in our Federal system are wholly irrelevant to

the formulation and application of proper standards

for the enforcement of the Federal criminal law in

the Federal courts.

‘“‘The principles governing the admissibility of evi-

dence in Federal criminal trials have not been re-

stricted, therefore, to those derived solely from the

Constitution. In the exercise of its supervisory au-

thority over the administration of criminal justice in

the federal courts, see Nardone v. United States, 308

U. S. 338, 341, 342, 84 L. ed. 307, 311, 312, 60 S. Ct. 266,

this Court has, from the very beginning of its his-

tory, formulated rules of evidence to be applied in

Federal criminal prosecutions. ’’

In a footnote at this point it adds: (p. 341, f.n. 6)

‘The function of formulating rules of evidence in

areas not governed by statute has always been one

of the chief concerns of courts: ‘The rules of evidence

on which we practice today have mostly grown up at

the hands of the judges; and, except as they may be

really something more than rules of evidence, they may,

in the main, properly enough be left to them to be

modified and reshaped.’ J. B. Thayer, A Preliminary

Treatise on Evidence at the Common Law (1898) pp.

530, 531.’

This Court exercised this essential function in U. S. v.

Ballard, 322 U. S. 78, in order to carry out the guaranty

of the free exercise of religion set forth in the Constitu-

tion. The decision under review, viewed realistically, re-

sults in the substantial destruction of this safeguard by

restoring to the jury, under the influence of argument

by Government counsel, the opportunity to indulge reli-

gious intolerance and prejudice at the expense of persons

accused of serious violations of the criminal law. We

are confident that this Court will ‘‘hold the line.”

In the Court of Appeals the Government argued that

the giving of this instruction was harmless error because

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of the ‘‘overwhelming evidence’’ of petitioner’s guilt. No

effort was made to demonstrate the truth of this ipse diait.

We deny it. This Court very recently, in Weiler v. U. S.,

323 U. S. 606, 89 L. Ed. 443, in reversing a conviction for

perjury because of the refusal to give a proper instruction

tendered by the defendant, answered such a contention as

follows: (p. 611) /

‘*It is argued that this error did not prejudice the

defendant.. We cannot say that it did not. The jury

convicted without being instructed that more than the

testimony of a single witness was required to justify

their verdict. This was no mere ‘technical’ error re-

lating to the ‘formalities and minutiae’ of the trial.

Bruno v. United States, supra (308 U. S. 293, 294, 84

L. Ed. 260, 261, 60 S. Ct. 198). We are not authorized

to look at the printed record, resolve conflicting evi-

dence, and reach the conclusion that the error was

harmless because we think the defendant was guilty.

That would be to substitute our judgment for that

of the jury and, under our system of justice, juries

alone have been entrusted with that responsibility.’’

We respectfully submit that the giving of the ‘instruc-

tion complained of deprived petitioner of the freedom of

religion guaranteed to him by the Constitution.

II.

The Court committed reversible error in denying the motion

made by petitioner to withdraw a juror and continue the

case.

The taking of evidence at the trial ended at 2:30 P. M.

Friday, February 16, 1945. (Rec. 437) The jury were then

permitted to separate and go to their respective homes.

(Rec. 439) On that evening there appeared in the Chicago

Daily News the article entitled, ‘‘Lama Dodges Question-

ing On Robbery’’ set forth at p. 3, supra. When Court

reconvened the following Monday morning petitioner’s

—_ : appearence

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counsel presented said motion to withdraw a juror and

continue the case supported by affidavit of his counsel.

The affidavit in part set forth the fact that the Chicago

Daily News had a circulation in Chicago and its environs

of upwards of 400,000 and was circulated for sale to the

public in all of the communities in which the jurors lived

and had probably been read by some or all of the jurors,

(Rec. 437-439)

At the request of petitioner’s counsel the Court there-

upon asked the jurors collectively whether any of them

had read an article concerning the case which appeared

in the Chicago Daily News on Friday afternoon. (Ree. 439-

444) Juror Vincent stated that he ‘‘might have’? read it.

(Rec. 440) The Court then stated to the jurors collec-

tively:

‘“‘If you have, I told you when you were being se-

lected that the only evidence that you would consider

would take place in this court room and which was

admissible and was ruled on by the Court. If any

of you have read anything, or of any of the defendants,

that you did not hear in the court room by sworn

testimony or documents you are te entirely disregard

it, or anything that might have appeared before you

get this case for your deliberation. Now I take it that

you all understand it?’’ (Rec. 440)

Thereupon, at the request of petitioner’s counsel each

juror was polled separately. (Rec. 441-442) Juror Vincent,

upon being polled, stated, ‘‘I remember it. I would like to

see it again to be sure. I read the News. I probably read

it.”’ (Ree. 441) The following colloquy thereupon oc-

eurred between the Court and Juror Vincent:

‘“‘The Court: Do you recall now if there was any-

thing in the article, if you did read it, that was not in

evidence in this case, in this courtroom?

Juror Vincent: I read in the paper something. The

rest I didn’t hear. It was discussed after the case

was dismissed Friday afternoon,

>

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The Court: It was discussed by whom?

Juror Vincent: A motion was made by the defend-

ants.

The Court: Yes.

Juror Vincent: That is what I read.

The Court: That is purely a legal question.

Juror Vincent: That is what I figured.

The Court: Anything else except the denial of that

motion.

Juror Vincent: That is what I recall.

The Court: For your information, that is done in

every case.

Juror Vincent: That is all I recall of the article.

The Court: That means whether it is a question of

law for the Court or jury to pass upon. That is what

you have reference to?

Juror Vincent: That is my understanding.’’ (Rec.

441)

The Court thereupon denied the motion. (Ree. 442)

Juror Vincent, who acknowledged reading the Daily

News article, was a member of the regular panel. In

denying the motion the Court took under consideration

substituting an alternate juror for him, but did not do so.

(Ree. 453)

The Judge, the prosecutor, Mr. McGreal, and petitioner’s

counsel, Mr. Bachrach, all recognized that Juror Vincent

had read the article. This clearly appears from the follow-

ing colloquy :

‘‘Mr. Bachrach: I would like to have the record

show if your Honor please, in your polling of the

jury, the juror who answered that he had read the

Daily News item on Friday afternoon was a man of the

regular panel and was not an alternate. May the rec-

ord so show?

The Court: Yes.

30

Mr. McGreal: He stated his name.

Mr. Bachrach: I just wanted to make it clear.

The Court: Well, I take it from the fourteen I ex-

amined, only one read an article in the Daily News.

Mr. Bachrach: Yes.

The Court: One juror did read it, he said it was

what took place after the closing of the case on Friday,

and that is why I denied the motion. (Emphasis ours)

(Ree. 453)

The Court of Appeals recognized the ‘‘inflammatory and

prejudicial’? character of the article and that its publica-

tion prior to verdict was both ‘‘improper and unethical.’’

Nevertheless, it held that the denial of the motion was not

an abuse of discretion, since in its opinion petitioner

‘‘failed to show prejudice resulting to him from the pub-

lication of the article,’’ because the only juror who acknowl-

edged reading the article stated that all he recalled of

its contents was the reference to ‘‘the denial of a motion.”

(Rec. 514) According to the Court of Appeals, it could

‘‘only assume that the jury answered the trial court’s

inquiries truthfully’’ and upon that assumption it appeared

that ‘‘Vincent’s mind was in no way affected by what he

had seen or read.’’ (Ree. 515)

Examination of the article (p. 2, supra) discloses that

its prejudicial character lies both in its reference to the

fact that petitioner had served a prison term in New York

State for highway robbery, which fact was not in evidence

and reached the jury only through this article, and in its

reference to the failure of petitioner to testify as a witness

in his defense. Both the nature of the article and its tim-

ing were such as to insure petitioner’s conviction by the

jury.

Petitioner was not a witness at the trial and under 28

U.S. C., See. 632, he was not required to testify in his own

SS

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behalf and his failure to do so could not furnish the basis

of any presumption against him.

The title of the article and paragraphs 1 and 3 con-

tained the highly inflammatory and prejudicial matter ren-

dering its publication and reading by Juror Vincent destruc-

tive of petitioner’s right to a fair trial. Only paragraphs

2 and 4, which were inserted among these viciously im-

proper matters, related to the motion for a directed

verdict and its denial, which Juror Vincent acknowledged

recalling from his reading of the article. That Juror

Vincent could have read only the second and fourth para-

graphs of the article and failed to read the heading and

first and third paragraphs is so unlikely and improbable

as to be disregarded. The set-up of the article confirms

the recognized fact that he read it all.

Courts charged with the duty of seeing that persons

aceused of crime are given the fair trial to which they are

entitled by law may not be so naive as to accept as final and

uncontrovertible the statements of a juror under the cir-

cumstances confronting Juror Vincent. He obviously knew

that the reading of the article at all was improper and in

violation of the admonishment of the Court with respect

to his duties as a juror. (Rec. 170) He had every interest

in answering the Court’s questions in a manner to save

face for himself. The very genuine concern of the trial

judge over the effect of the incident upon the jury appears

from his consideration of replacing Juror Vincent with an

alternate juror. His failure to do so was due only to the

fact that his power under the statutory provision providing

for alternate jurors did not extend to substitution upon any

such ground.

If the prosecutor had argued to the jury the prejudicial

and inflammatory matters appearing in the newspaper arti-

cle, a mistrial would have resulted. Wilson v. U. S., 149

U. 8. 60. If prior to deliberation upon their verdict one

of the jurors had been approached by a third person and

been told the matters contained in said newspaper article,

a mistrial would also have resulted.

Actually, one of the jurors had been informed through

this newspaper article of these admittedly prejudicial mat-

ters and at the same time petitioner’s counsel had no

opportunity to deal specifically with the contents of the

article before the jury. Obviously he would not request

an instruction that the jury should not consider the news-

paper statement that petitioner had been convicted of high-

way robbery. Telling the jury, as the Judge did, that they

should consider only evidence introduced in the courtroom

by way of testimony and exhibits was not by any means

equivalent to a specific direction to disregard the highly

prejudicial and inflammable matters contained in said

article.

Moreover, no instruction could have wiped from the mind

of Juror Vincent the contamination produced by reading

such article. Once inoculated with the germ of prejudice

it was impossible to render the virus innocuous.

The article was of such character as to arouse prejudice

in anyone reading it. That its contents and the prejudice

resulting from it were not communicated by Juror Vincent

to the other jurors is at best a remote possibility. He was

not asked whether he had communicated this ‘‘contraband”’

information to any of his fellow jurors between reading

it on Friday afternoon and the polling of the jury the

following Monday morning.

The case had been on trial for over three weeks. Peti-

tioner had not taken the stand to testify in his own

behalf although his two co-defendants had. (Rec. 394, 422)

The jurors would naturally be curious why he did not

testify. The newspaper article in question supplied the

answer, namely, he did not testify because he did not want

i

33

to be cross-examined regarding a conviction of highway

robbery. Supplying this information to the jury in this

fashion was even more harmful than if the prosecutor had

stated to the jury in his argument that the petitioner had

been convicted of highway robbery, since under those cir-

cumstances the Court would have been able to admonish

the jury specifically to disregard the statement and an

opportunity would have been available to petitioner’s coun-

sel to suggest methods of overcoming the obvious preju-

dice resulting from such argument.

In no case which we have seen in which the Court has

failed to declare a mistrial due to the prejudice resulting

to the defendant in a serious criminal case from the pub-

lication during the trial of newspaper articles were the

facts even remotely similar to those in the case at bar.

All such cases are distinguishable because in them either

(1) no juror had read the article complained of ; or (2) the

defendant himself had previously testified to the harmful

matter appearing in the article; or (3) the material ap-

pearing in the article was not of the order of prejudice

characterizing the newspaper article herein, which referred

both to the failure of petitioner to testify in his own behalf

and drew viciously prejudicial inferences therefrom and

also made the statement that petitioner had served a peni-

tentiary sentence for highway robbery, of which there was

no evidence whatever before the jury.

On the other hand, several cases support petitioner’s con-

tention that the circumstances presented by this incident

entitle him to a new trial.

In United States v. Ogden, 105 Fed. 371 (D. C., E. D. Pa.)

a newspaper article containing many ~ .ejudicial state-

ments, was published in a newspaper before the case was

submitted to the jury, commenting upon the failure of

the defendant to testify in his own behalf. In its opinion

the court stated that the publishing of such comments not

34

only was a flagrant impropriety, but if those words had

been communicated to the juror or had been contained in a

letter addressed to him, there would have been declared

an immediate mistrial.

Commenting on the article referring to the failure of the

defendant to testify the court made these pertinent re-

marks (p. 374):

« * * * in defiance of the constitutional provision

that no man shall be obliged to testify against him-

self, attention was called to that fact, and it was as-

serted that the defendant did not venture to testify in

his own behalf,—an assertion which neither judge nor

counsel would have been permitted to make during the

course of the trial. It is unnecessary to say that such

comments upon a pending case violate the elementary

rules that demand justice and fair play to a man ac-

cused of crime. Under our system of jurisprudence,

at least, cases are tried upon evidence that is care-

fully scrutinized, and not upon insinuation and hear- -

say; and it is an attack upon the prisoner’s constitu-

tional rights to influence the jurors by presenting to

their minds charges against him of which no evidence

has been offered, or by urging upon the jurors, or

suggesting to them, that the defendant is guilty, and

ought to be convicted.’’

In the case of Griffin v. United States 295 Fed. (3 C.C.A.)

437, the defendant was on trial for conspiracy to defraud

the United States. During the course of the trial the

defense called the attention of the court to the fact that

members of the jury had been seen reading some news-

papers, particularly the Philadelphia Evening Ledger, of

that date, which contained a front page article with a

caption headline as follows: ‘‘Prosecutor Asserts Five

Defendants Wanted to Turn State’s Evidence—Refused.”’

Counsel thereupon moved for a withdrawal of the juror

which was refused and an exception was noted. It ap-

peared that similar statements were published in other

35

newspapers in Philadelphia on other days during the

progress of the trial. In reversing and remanding for

new trial because of this error, Cireuit Court Judge Davis,

in the Griffin case, stated (at pages 439, 440):

“Tt is the right of a defendant accused of crime to

have nothing reach the mind of the jury concerning

the case except strictly legal evidence admitted accord-

ing to law, and if facts prejudicial to him reach the

jury otherwise, it is the duty of the trial judge to

withdraw a juror and grant a new trial. * * *

It is urged that there is no direct evidence that the

jury read the newspaper reports. In the first place,

it is admitted that the articles appeared on the front

page of the newspapers, and there is no denial of the

statement, made by counsel in his motion for the with-

drawal of a juror, that ‘members of the jury have

been seen reading them.’ Our opinion on this ques-

tion was well expressed by Judge Acheson in the case

of Meyer, et al. v. Cadwalader, 49 Fed. 32. * * *

The defendants stoutly denied their guilt. It is not

our duty or province to pass upon the merits of their

defense, but it is our duty to see that it was presented

to the jury free from bias or prejudice. Having

reached the conclusion that it was not so presented, the

judgment of the District Court is reversed, and a new

trial granted.’’ (Emphasis supplied.)

What occurred in the case at bar is comparable to the

situation in the case of United States v. Montgomery, 42

F. (2d) 254, D.C. S.D.N.Y., decided by Judge Woolsey,

where an article was published in a newspaper during the

course of the trial, describing the defendant as a swindler,

jail bird, disbarred lawyer, and ex-convict. At page 255,

the Court said:

‘Will the orderly course of justice in this trial run

the risk of being affected by any contraband informa-

tion which may have reached the jury through the

articles of which the defendants here complain?’’

36

The jury in that case was polled and it appeared that four

jurors had read the articles and of the four jurors upon

being further interrogated three claimed that they could

still deal with the case on the evidence, and the fourth, as

the court said, ‘‘seemed to me to answer rather uncer-

tainly and inconclusively.’’ The court further said:

‘‘In addition to this impression as to this juryman,

the fact, above mentioned, that one juror had asked

another whether he had read the articles gave me an

uneasy feeling that the objectionable statements would

not be long unknown to the jurors who had not read

them, and consequently that those statements might

very well find a place alongside the evidence in the

deliberations of the jury.’’

The court further said (p. 256):

‘‘In any event, however honest minded the jurors

may be, such statements as were made in the objection-

able articles would, I think, lurk in the background of

their consciousness during their deliberations, and

might, for example, cause them unconsciously to dis-

regard the underlying requirement of a criminal case

and to resolve any doubts they felt on the evidence

against the defendants.

Accurately to prophesy the influence and effect on

the minds of jurors of what I have called the contra-

band information contained in these objectionable

articles is, in my opinion, as impossible as it would

be to foretell with any certainty the course of an in-

fectious disease among them. .

Therefore I conclude that the defendants no longer

have insured to them a fair trial solely on the evidence

admitted therein to which, whether guilty or innocent,

they are entitled.’’

Judge Woolsey then granted the motion for a mistrial.

See also Harrison v. U. S., 200 Fed. 662 (6 C.C.A.)

We submit that the circumstances surrounding this in-

cident occurring during the trial of petitioner made manda-

37

tory the declaration of a mistrial pursuant to his motion

made at the first opportunity and that its denial was an

abuse of discretion. Permitting to stand convictions of

serious felonies under the circumstances herein presented

are not consistent with the standards of justice prevailing

in our United States courts.

Il.

The charge to the jury regarding the presumption of

innocence constituted prejudicial error.

This charge is set forth at p. 4, supra. In effect the

jury was told that the presumption of innocence applies

only in favor of defendants innocent of the crime for which

they are on trial. The great values to defendants of the

presumption of innocence was stated by this Court in

Coffin v. U. S., 156 U. S. 432, in which the judgment of

conviction was reversed because the Court had refused

| to charge relative to the presumption of innocence. This

Court said: (pp. 3, 459)

‘‘The principle that there is a presumption of inno-

cence in favor of the accused is the undoubted law,

axiomatic and elementary, and its enforcement lies at

the foundation of the administration of our criminal

law. ** *

|

'

p. 459 * * * this presumption is an instrument of

proof created by the law in favor of one accused where-

\ by his innocence is established until sufficient evidence

| is introduced to overcome the proof which the law has

| greated. This presumption on the one hand, supple-

mented by any other evidence he may adduce, and the

| evidence against him on the other, constitute the ele-

' ments from which the legal conclusion of his guilt or

‘innocence is to be drawn.’’ * * *

** To say that the one is the equivalent of the other

\ is therefore to say that legal evidence can be excluded

\ from the jury, and that such exclusion may be cured by

,

‘

‘

38

instructing them correctly in regard to the method by

which they are required to reach their conclusion upon

the proof actually before them. In other words, that

the exclusion of an important element of proof can

be justified by correctly instructing as to the proof

admitted. The evolution of the principle of the pre-

sumption of innocence and its resultant, the doctrine

of reasonable doubt, makes more apparent the correct-

ness of these views, and indicates the necessity of

enforcing the one, in order that the other may con-

tinue to exist. Whilst Rome and the Mediaevalists

taught that wherever doubt existed in a criminal case,

acquittal must follow, the expounders of the common

law, in their devotion to human liberty and individual

rights, traced this doctrine of doubt to its true origin,

the presumption of innocence, and rested it upon this

enduring basis. The inevitable tendency to obscure

the results of a truth, when the truth itself is forgotten

or ignored, admonishes that the protection of so vital

and fundamental a principle as the presumption of

innocence be not denied, when requested, to any one

accused of crime.’’ (Emphasis ours.)

No argument is needed to demonstrate that the refusal

to instruct regarding the presumption of innocence must

necessarily be less prejudicial than an instruction which

tells the jury that the presumption of innocence is enjoyed

only by an accused who is not guilty of the criminal charge

upon which he is being tried.

In Gomila v. U. S., 146 F. 2d 372, the Cireuit Court of

Appeals for the Fifth Circuit held that such an instruction

was error because the fact of guilt does not enter into the

question as to whether the defendant was entitled to the

presumption of innocence. It said: (p. 373)

‘“The statement that the presumption of innocence

‘was not intended, nor has it ever been intended, as

extending an aid to one, who in fact is guilty, so that

he may escape just punishment,’ is not a correct state-

ment of the law. The presumption of innocence ap-

plies alike to the guilty and to the innocent, and the

_ <a

39

burden rests upon the Government throughout the

trial to establish, by proof beyond a reasonable doubt,

the guilt of the accused. Until guilt is established

by such proof, the defendant is shielded by the pre-

sumption of innocence. The fact of guilt does not

enter into the application of the rule, the intent and

purpose of which ts to protect all persons coming be-

fore the courts charged with crime until the presump-

tion of innocence is overthrown by evidence establish-

ing guilt beyond a reasonable doubt; and, where the

evidence is purely circumstantial, to the exclusion of

every reasonable hypothesis of innocence.”’ (Emphasis

supplied.)

The conviction in that case was reversed, the Court hold-

ing that all three errors assigned, one of which was based

upon the improper form of an instruction similar to the

one here complained of, were cumulatively sufficient to

require reversal. (See 146 F. 2d at 376) The Court did

not hold that the giving of the inst ruction in question would

not have required a reversal, if the other errors had not

also been present. No such question was presented. We

submit it to be obvious that the giving of such instruction

in itself deprives the defendant of a fair trial and entitles

him to a new trial. The fact that the Court in that case

regarded the giving of such instruction as highly prejudi-

cial is made obvious by the consideration that it noticed such

error and based its reversal thereon, even though no

exception had been taken to the instruction at the time it

was given.

In the instant case also no exception was taken to the

giving of this particular instruction at the conclusion of

the charge, but it was assigned as error in the Court of

Appeals. (Rec. 495) The opinion of the Court of Appeals

herein, however, did not deal with this alleged error be-

yond stating that it did not ‘‘warrant a reversal.’’ (Rec.

515)

40

In view of the serious injury which undoubtedly resulted

from the giving of such instruction, the failure to save an

exception thereto should not deprive petitioner of the

right to a fair trial which was denied him by such charge,

Gomila v. U. S., 146 F. 2d 372. Lamento v. United States,

8 Cir., 4 F. 2d 901, 904. Benson v. United States, 5 Cir., 112

F. 2d 422, 423. Brasfield v. United States, 272 U.S. 448, 450, |

47 S. Ct. 135, 71 L. Ed. 345. United States v. Atkinson, |

297 U. S. 157, 160, 56 S. Ct. 391, 80 L. Ed. 555. |

CONCLUSION.

We respectfully submit that the questions raised in the

¥ Petition make manifest that petitioner has been convicted

| in a manner and under circumstances which are violative

both of his Constitutional guarantee of the ‘‘free exercise

of his religion’’ and of his right to a fair trial in accord- |

ance with the standards of justice and civilized procedure

applicable in the trial of criminal cases in the Federal

courts; that the petition for writ of certiorari should be

granted, and, upon the granting thereof, that the judgment

affirming the conviction should be reversed and the cause

remanded to the District Court for a new trial. |

Respectfully submitted, »

Watrer Bacuracg,

Water H. Mo&ts,

Morris So.omon,

H. G. SHErrner,

Attorneys for Petitioner.