this act,

or who, in any manner, shall fail or neglect fully to perform any duty required of him in the execution of this act," shall be guilty of a misdemeanor.

Plaintiffs in error were acquitted upon the first count and convicted on the second, and, sentence having been passed upon them, they took this writ.

Winter Russell, of New York City (Horace L. Cheyney, of New York City, of counsel), for plaintiff in error Cheyney.

Boudin & Liebman, of New York City (Louis B. Boudin, of New York City, of counsel), for plaintiff in error Fraina.

Francis G. Caffey, Ü. S. Átty., of New York City (Vincent H. Rothwell, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above). This record presents several most substantial defects in practice:

[1] 1. There is no bill of exceptions. Both parties have agreed to call what is probably a transcript of the stenographer's minutes by that name; but giving it the requisite name does not make it the lawful thing. The consent was worthless, and it is of grace only that we consider the points argued. On this matter we spoke plainly in Linn v. United States, 251 Fed. 476, — C. C. A. ·

[2, 3] 2. The record is also incumbered with what are called "Additional and Supplemental Assignments of Error." Certain errors were assigned, and presented with the application for writ and citation, as required by rule. Thereafter it seems certain, from the internal evidence of the transcript, that counsel combed through the minutes, specified anything they did not like, whether excepted to cotemporaneously or not, called the result of their labors "additional and supplemental assignments of error," and filed the document without any leave of court, so far as shown. It also is worthless, first, wholly, because no leave is shown; and second, in so far as the assignment rests on no exceptions, even if leave had been obtained.

We may, under the familiar rule of court, notice "a plain error not assigned"; but these additional assignments do not per se require us to notice them at all, except to disapprove their existence.

[4] 3. A number of the exceptions and following assignments rest on the refusal of the trial judge to repeat to the jury, when rephrased in a request, what he had already correctly stated in substance. When the law has once been fairly presented to the jury, "neither party has a right to complain because the trial judge preferred his own language to that of counsel." Green v. United States, 240 Fed. 949, 153 C. C. A. 635. To such assignments no further attention need be paid.

The facts shown at trial were few, and substantially uncontradicted. Outside a building was a poster announcing a meeting within: inside a large audience and a platform, on which sat defendant Cheyney who presided, defendant Fraina, and one Sonnenschein. Óf those present very many were obviously of the age rendering them. liable to conscription. Men moved through the audience, distributing gratis a printed speech by Fraina, obtaining the same from the platform on which defendants sat.

Cheyney opened the proceedings with a speech. Most of the sentences began with "I object," and his objections extended to the war with Germany and every step taken to make it effective, also to all war, because "you cannot achieve anything by force." He also denied "the right of any individual to compel me to do anything against my will," and exhorted his hearers "not [to] go across the seas in order to fight a foreign fight" but to fight autocracy "through industrial and economic means," and closed with the following peroration:

"Those are the grounds upon which I am a conscientious objector: On the ground that it is immoral to fight at all; on the ground that it is each individual is the master of his own mind, the captain of his own soul; that it is his to say as to whether he should do a thing or not do it. Those are the grounds on which I am a conscientious objector.

"Now, I won't take your time any longer, because there is a man to follow me, a man you all know, a man much more eloquent than I, who can point home in words more eloquent than I can the tyranny of big business in this country. I have the pleasure of introducing to you Mr. Louis Fraina, the New Internationalist."

Fraina then spoke at greater length, though not differing in universal objection from Cheyney. He said inter alia:

"We find they are going to conscript the conscientious objector. The conscientious objector refuses to be conscripted. It is against his principle, it is against his conscience, to serve in the army, and to perform military service, *** but we are told in a measure if we persist in our objection, in the measure we cling to our principles, we are hampering the process of war, that we are helping to kill our own boys at the front.

*

"In the first place, that is a dastardly lie. In the second place, it is immaterial to me what happens at the front; it is immaterial to me what happens in a war which is imposed upon me, because in this case one must exercise a sense of proportion. * The government in this conscription law recognizes only those conscientious objectors that are affiliated with some recognized religious association, cult, or creed, such as the Quakers, for instance. Now, the other conscientious objectors are not recognized by the conscription law. * But since when must a man necessarily belong to a church, belong to a creed, a recognized creed, before he can have a conscience? * The government, in making conscientious objection to war a part of religion or creed, is placing a premium upon religion. It is placing a premium upon the superstitions of religion, it is placing a premium upon the passive attitude of the religion of the Quakers.

*

"Now, the nonreligious conscientious objector is a distinctly different type. The nonreligious conscientious objector is one of the people, a social being, and as such has an objection to war. I do not object to war because my father was a Quaker and I inherited his religion. I object to war because I have acquired my conscientious convictions, I have acquired the objection by experience, by thinking, action, and I have felt it flow into my conscience and my life.

"The government is perfectly content in placing a premium upon religious conscientious objection, and penalizing the nonreligious ones, because the system of things that this government represents, the infamous system of capitalism, has nothing to fear from the religious conscientious objector; * but it has everything to fear from the nonreligious, from the social, conscientious objector, because the nonreligious conscientious objector is not interested in his conscience alone, but interested in his social principle that his conscience represents, and is trying to overthrow a system of things that produces war and produces other evils.

*

"We are not going to be trampled on; we are not going to take fear. We are not going to be exempted. We are going to be penalized; we are going to be compelled, if they can compel us. I say right now that they cannot con

script a conscientious objector. They cannot do it, because we have made up our minds we are not going to be conscripted."

The Frania pamphlet, distributed as above shown, declares:

The conscientious objector refuses any participation in this war, and his refusal is based, not alone upon the objections of his individual conscience, but upon the general social necessity of striking at war and at the reactionary purposes that war promotes. Alternative service is as necessary a factor in war as actual military service at the front. They are inseparable. They are equally objectionable.

The Red Cross is as necessary a factor in war as munitions and soldiers. It heals men and then sends them to the front to continue the horrible business. The Red Cross, fundamentally and essentially, is neither sentimental nor humanitarian-its purposes are strictly military. Under these circumstances the conscientious objector will have nothing to do with the Red Cross or similar organizations.

"The conscientious objector opposed the Conscription Law, and after it was passed agitated for its repeal. But conscription has been put through, and it now remains for the conscientious objector as an individual to emphasize his objections and his principles by individual action."

This closed for the prosecution. Defendants showed that Sonnenschein organized the meeting, was the "organizer" of what he called "the League of Conscientious Objectors," and on behalf of and in the name of the League had telegraphically demanded of the Secretary of War as follows:

"Representatives of 3,500 conscientious objectors in New York whose idealism compels them to decline all forms of military service, we ask: What of the conscientious objector?"

This was done to get, if possible, the Secretary's view, in order to advise the meeting at which, by arrangement with Sonnenschein, Cheyney and Fraina were to speak. They both knew about this telegram; and both testified, declaring that they had personally registered in obedience to the Service Act, and considered the meeting as one only to "determine the status of the conscientious objector, and to gain as good a status as possible from the government."

The issue thus raised was put to the jury by the trial judge as follows:

"Now these defendants say that this meeting was held for the purpose of establishing a better status for the conscientious objector; that this telegram was sent and these speeches were made at the meeting for that purpose. The government says that was not the purpose.

"Therefore you will look to the speeches as uttered and see what they said, and see from what they said whether those speeches were delivered in an effort to get a better status established, or whether they were delivered in a violent protest against the law, and in order to induce other people to refuse to be bound, or refuse to act or accept the law, and refuse to do their duty which is required by this law, and that is exclusively within your province."

The verdict plainly imports that defendants were not guilty of conspiring to evade their own military duties, probably for the simple reason that they had with commendable prudence performed them up to date, but were guilty of unitedly attempting to counsel, or procure by counsel, others to defy conscription for any form of war work, and to justify such defiance by proclaiming themselves "nonreligious conscientious objectors."

The contentions in this court justifying notice are: (1) The second count charges no crime; (2) the crime sought to be charged was not proved; (3) the trial court erred (a) in admitting evidence, (b) in practically permitting the jury to infer guilt from the character of defendant's speeches, and thereby (c) invading the right of free speech.

[5] (1) The contention that the count on which plaintiffs in error were convicted states no offense rests (in so far as it requires notice) on the interpretation and application of section 332, Criminal Code. The history of that section is sufficiently summarized in Rooney v. United States, 203 Fed. 932, 122 C. C. A. 230.

What the count under consideration seeks to charge is plain enough, viz. it is an offense against the United States to evade the requirements of the Selective Service Act, therefore it is another offense under section 37 to conspire so to evade; but every one who evades being a criminal, every one who counsels evasion is also a criminal, under section 332, and those who unite for the purposes of so counseling are conspirators, and as such liable to the pains and penalties of section 37, though the wrongdoing is only reached by combining sections 37 and 332 to define the nature of the crime and pointing to the Service Act to discover the offense, which is the object of the criminal conspiracy.

It is said that this goes beyond the law, and charges the accused with "conspiring to do something which is not made a crime by" the sixth section of the Service Act. Upon reason, we perceive no ground for the assertion that the offense which is the ultimate object of the conspiracy must be found in a single enactment; all conspiracies, whether to effect directly or by a procuration the most devious the commission of an offense against the nation, are essentially alike, and the very object of section 332 was to make a principal offender out of (inter alios) one who contrived to have another commit a crime which the contriver was not intending himself to run the danger of. If the contrivance takes the form of that mental combination for a common purpose which is conspiracy at common law, and is accompanied by the necessary overt act, it makes (under sections 37 and 332) no difference whether the object is to be attained directly or through others; and to say that the object is not, e. g., to evade the Service Act, but to procure or counsel others so to evade, is no more than juggling with words.

As for authority it is sufficient to say that the indictment in Goldman v. United States, 245 U. S. 474, 38 Sup. Ct. 166, 62 L. Ed. 410, was the legal equivalent of the one here complained of, and was duly sustained over similar objection.

[6, 7] (2) It is asserted that, assuming all the evidence to be competent and relevant, there was not proof, measured by the standard of criminal causes, of a conspiracy. This proposition seems to separate into two parts-one, that the proper course of trial in conspiracy cases was not pursued; the other, that no reasonable jury could have found such a verdict. Wherefore another trial should be granted.

255 F.-3

The essence of a conspiracy is the combination, and the act of combining should ordinarily be first made to appear, before proving the acts and declarations of the coconspirators, including oftentimes those of persons not indicted-usually the "persons to the grand jury unknown." Yet even this is but order of proof, and within the discretion of the trial judge; it is only reviewable when abuse of discretion injurious to the accused is shown upon the review. The law (as distinguished from discretionary trial practice) of conspiracy has been too lately summarized to need more than mention. United States v. Rabinowich, 238 U. S. 86, 35 Sup. Ct. 682, 59 L. Ed. 1211. This case is one of the simplest instances of proper proof in limine of combination ever brought to a court's attention. If, as per advertisement, an audience is gathered before a platform containing intending speakers, and is called to order by a chairman, who announces the object of the gathering, again, as per advertisement, it is impossible not to infer a combination in thought among the platform occupiers and their helpers. Sonnenschein and the pamphlet distributors were plainly proved, and with unusual simplicity and accuracy, as conspiring-i. e. combining-about something with the plaintiffs in error, who certainly have no cause of complaint on this head.

Considering the language by which the object of the combiners in calling the meeting was illuminated, the suggestion that an American jury of intelligence could not reasonably come to the conclusion announced would require nothing but summary dissent, did not the contention and the earnestness of the contenders excellently illustrate an erroneous view of criminal appeals, and explain the modern inclination to disguise a stenographer's transcript as a bill of exceptions.

[8] Plaintiffs in error are really objecting to the weight of the evidence, and appealing to this court to override the jury's verdict, and therefore they print every word of the trial. We are not permitted to be concerned with that matter. Appellate courts, unless given power by statute, do not sit to correct the possible errors of the jury, but those of the court. While it is the jury's duty to take the law from the court, and to apply that law to the facts as they find them (Sparf v. United States, 156 U. S. 51, 15 Sup. Ct. 273, 39 L. Ed. 343), and it is the court's duty to see that there is some evidence tending to prove every element of the crime alleged (Clyatt v. United States, 197 U. S. 207, 25 Sup. Ct. 429, 49 L. Ed. 726), the jury's supremacy as to facts, including the inferences of fact drawn from proven phenomena, is unquestioned. Indeed, even as to matters of law, Story, J., who is credited with establishing our present doctrine, instead of the theory that in criminal causes the jury judges both the law and the facts, admits the jury's "physical power," though not the "moral right," to disregard the court's law. United States v. Battiste, Fed. Cas. No. 14,545, 2 Sumn. 240. If a verdict of acquittal in the teeth

1 This is well summarized in Bishop's New Criminal Procedure, vol. 2, § 227 et seq. The court's discretion should ordinarily be exercised in repression of the prosecutor's tendency to prove what he subsequently calls "overt acts," and then ask the jury to infer the conspiracy from the acts. But no hard and fast rule can be laid down beforehand.