VOL. LXXVII 

Cbt Wasblngton Caw Rtporttr I 

A Weekly Newspape·"r of Legal Information 

Established 1874 

WM. E. CAUT, JJC., Editor - N.Ational 6670 

JOHN .A. BRESNAHAN, Ass't Editor - NAtlonal 9199 

VOL. 77 (WEEKLY) NO. 6 

Published by 

The Law Reporler Printing Company 

DION s. BIRNEY. President 

WALTER M. BASTIAN, Vice-President 

RALPH P. BARNARD, Secretary-Treasurer 

EDWIN H. EVANS, Manager 

omce ot Publication 518-520 FIFTH STl'IEET N.W. 

Telephones: NAtlonal 0828 - 0829 I 

$5.00 a Year In Advance Single Coples, 15 Cents 

- Last year's copies 25 cents ~ach, and 10 cents added I 

for each year prior thereto. '. 

------

-, 

United States Court of Appeals 

District of Columbia Circuit 

EUGENE DENNIS, APPELLANT, 

v. 

UNITED ST ATES OF Al\:'IERICA, 

APPELLEE. 

97 

CRil!.ilNAL LAW; U. S. HOUSE OF REPRESENTATIVES' 

COMMITTEE ON UN-AMERICAN ACTIVITIES; SERVICE OF 

St;Bl'OENA; WILFUL DEFAULT; STATUTES; FEDERAL 

JURORS; MOTION FOR CHANGE OF VENUE; APPORTIONMENT ACT OF 1941 

L Once the rule has been established that the 

creation of a Congressional Committee was within the constitutional powers of the Congress, it ls neither the business nor the pre- rogative of a court to pass upon either the 

wisdom of Congress in setting up the Committee, the private or public character of mem- · bers of. the Committee or the propriety of the 

procedure of the Committee unless It transgress the authority committed to it by the 

Congress under the Constitution_ 

2. To urge that a person who voluntarily appears befo1·e a Congressional Committee and is not 

only in the Jurisdiction but the actual pres- ence of the Committee is exempt from subpoena by the Committee itself is preposterous_ The word "wllful," e\"en in criminal statutes, means no more than that the person charged with the duty knows what he is doing. It 

does not mean that, in addition, he must 

~!~~~· D. C. FEBRUARY 11, 1949

1 

3. 

CONTENTS 

UNITED STATES COtrRT OF APPEALS 

DISTRICT OF COLUMBIA CIRCUIT: 

Eugene Dennis, Appellant, v. United States 

of America, Appellee ____ ... _ ···-··· .. ---·-------- -·------ Maude Smith Slaughter, Appellant, v. John W. Slaughter, Appellec ..... -... ______ ... - __ .. ____ _ Wlll:am McAffee, Appellant, v. Donald Clemmer, Director, Department of Corrections 

for the. District of Columbia, Appellee ·------ Barron-Gray Packing Company, Appellant, v. Lawrence C. Kingsland, Commissioner 

suppose that he is breaking the law. 

4_ In const1·ui11g a statute, penal as well as others, the court must look to the object in view, and never adopt an interpretation that will defeat 

its own purpose, 1! it will admit of any other 

reasonable construction. 

5. The mere !act that appellant claimed in his 

letter to the Committee to have consulted 

counsel and that his failure to respond to the 

subpoena was the result of his own legal opinion based upon consultation with bis un- named counsel is no defense to the crime of 

wilful default in falling to answer a subpoena. 105 6. Jury service is not only a duty of citizenship, it is a right as we.J.l. Blanket disqualification for Jury service would operate as a bill of 

attainder on the many hundreds of thousands 

of federal employees throughout the Nation. 

of Patents, Appellee ··---·--·-----.. -·-·--··----·-· ··-------- 103 Reginald P. Wittek, Appellant, v. United 

States of America, Appellee ....... -.. --··---- --·- Bessie E. Franklin, Appellant, v. John W. 

Franklin. Appellee ····---- .. -·---···------··--·----··------- . . 107 Lena Mikeska, Appellant, v. United States 

of America and Joe Mikeska, Appellers ·-· 109 

MUNICIPAL COURT OF .APPEALS FOil THE 

DISTRICT OF COLUMBIA: 

Nathan Duvall, Appellant, v. Southern Municipal Corporation, a Corporation, Apprllee ·-- .. --··---------·----·-·---------···--------·--·---·--------------- 109 

Legal Notices ·---·-------·-··-------·------·----·--------------------------------- 111 

7. To impute bias as n matter of law to the Jurors 

in question here (employees of the federal 

go,·eriunent) would be no more sensible than 

to impute bias to all store owners and householders in cases of larceny or burglary. 8. A motion for a chan~1e of venue is addrt>ssed 

to the sound discretion of the trial court and 

in the absence of an abuse of discretion, the 

denial of the application is not error. 

S "fi p f N t d S 9. The validity of the Appo1·tionment Act of 1941 pec1 c er ormance; a ure an cope i cannot be attacked in a collateral proceeding. Scarcity Held Insufficient Basis for Specific It presents a question political in its nature 

Performance of Contract for Sale of New which must be determined by the legislature 

Automobile.-Plaintiff signed an agreement. in bran:::h of the government and is not Justi- ciable. 

January, 1946, with defendant automobile No. 9597. Decided October 12, 1948. 

dealer for the sale of a "new Chevrolet Sedan, Before CLARK, PRETTYMAN, and PaoCTOn, Associate 

Color Black ••• Delivery 30-45 days or money Justices. 

i·efunded, Price prevailing at time of deliv- APPEAI. from the District Court of the 

cry." At the same time he received a trade- United States for the iDstrict of Columbia 

in credit for his 1941 car, which defendant (now United States District Court for the DisIater sold. Plaintiff's repeated demands for trict of Columbia). Affirmed. 

prompt delivery were answered with promises, LOUIS F. McCABE, of the bar of the Combut no delivery was made. He filed a bill in monwealth of Pennsylvania, and EARL B. 

equity to enforce the agreement. Defendant's DICKERSON, of the bar of the State of Illi- answer admitted possession of cars of the nois, pro hac vice, by special leave of court, 

described type since date of order but denied with whom DAVID REIN was on the brief, 

any agreement. The trial judge ordered spe- for the appellant. 

cific performance. Held, on appC'al, that con- JOHN D. LA:'.llE, Assistant United States 

siderablc delay in delivery is not sufficient Attorney, with whom MESSRS. GEORGE MORRIS 

basis for specific performance of a contract FAY, United States Attorney, and JOHN W. 

for the sale of an ordinary automobile. Dam- FIHELLY, Assistant United States Attorney, 

ag~s at law are adequate. Bill dismissed.- were on the brief, for appellee. SIDNEY S. 

Poltorak v. Jackson Chevrolet Co., 79 N.E. (2d) SACHS, Assistant United St:!tes Attorney, also 

285 (Mass. 1948). entered an a earance fo1· a ellee. 

roved for Release b NSA on 12-23-2013 ursuantto E .0. 1352 ;-·t 
98 VOL. LXXVII 

' . -... ~ ':· . . . ·, FRANK n. RJ-:1-:n:g fill'd n hrief 011 b'ehnl.(.'o Wl'lll'J'fl, p:un\~hh•ll'l'I'~, nncl l'\'l'll by SOllll' ge>nertlw CommitLl'l' tu Ent'orl'l' lhl' Fourtl•1l11t1'. al 't-:C.Jll'l'l'l:<inn1-1 frnm ::;om<:' of the Futh<:'rs of the 

A nwndnwnt ns er 111 ic·11n c·11 ricr<', urging l'l'Yl'rsnl. lh•p11blil' whil'h did nut st'c•m lo be in point. BEJ,I•'OIUl Y. L.\Wt:lON, .Jn., lill'cl a hril•f on be- :'l:l•vertlwh•fl:-:, he faikd to convince any memh:ilr of lhl' Natillltal Lnwyc•rs Guild as amic•11R bc·r of tlw c·ourl thut th<:' lnw as establi1:1hcll 

c·11riCtc, urging n•vc•rflal. J,,. tlw thrl'l' casc•fl mt'ntioncd su1n·a should be 

C'I.,\Rl(, .J.: Appl•ll:rnl wns imlil'tl•d, tried o\·,•rruh•1l. 

and c•onviC'll•d u111h•r llw fllYll' (to use the Ian- \\\• tlwn•for<:' fc.•1•1 it unn<:'c<:'ssnry to discuss 

g-unge of till' incliduwnl) of "Eugc•no Dennis, t hil'I <Jtlt'stiun furtlll'r cxl't'pl to l'mphuflize this 

al::111 known t\R Franl'is \Yal1lro11." point. Once.• tlw 1·ul<:' hai:1 bl•cn established thnt 

Sinl'l' tlw iclc.•nlity of the uppellant is well thl' cr1•ntion of the Commith•e wns within the 

e>::1lahli1:1he1l for tlw inn·posc•s of this action c•on:oit ut innnl powc•rfl of the Congress (as has 

nncl flim•e his rc.•nl muue is inunatc•rinl if the hcl'll we>ll c•i::tabli1:1hcd by the three cases noted 

c•onviction is propc•r, w<:' sha1I for the sake of ~11 /JI'((). it is n<.'ith1.•1· the business nor the prebn•\'ity rl'for to him lwreinuflc.'r as "Dennis", rngativc of thi:::-: court or any other court to 

whil.'11 is uppnn•ntly the na111<:' uncler whil'h he pn!'l1-1 UJlllll citlwr tlw wisdom of Co11grei:1s in 

dc::;in•s to truyc•l at the prl's<ml time wh1.•lhl'r ~l·ll i11Jr up tlw Com mil tee, the private or pubil h,• n n•nl nnm<:' or an alias. f!o fm· a1:1 the lie <'haractc.•r of memhc1·s of the Committee or 

nctual fads ns to the conh>m11t inYolved in the the.• proprict~· of the procedure of the Committee 

imlictnwnl and trial arc concerned tlu'rl' is lmlesi:1 it lrnni'gl'l':<ft the authority committed i:1ub~ta11tinlly no conflic·t. to it hy the Congrefls under the Constitution. 

Thi! eaRl' im·olvc•s proceeding:-; bl'fore the U.S. Dl•nnii:1 wns not ori1d11nll~· a witnc.•ss appearlfouse or Rl'}ll'l'RC'nlalin•s Commitll•e on Un- ing l>~· virllw of Jll'OC('SS bt>forc the Committee. 

Anwric·m1 Activities, opC'rating untle1• House He le>nr1w<l nh1rnt the investigntion through the 

Rl•sol utinn 5 of the lfousc of Reprcs<.>nlntives p11hlic~ }ll'C:'l::;. Thc.•rc•upon, in tl1l' language of 

of till' Vnitl•d Stall's, 80th CongT<•ss, b1.•aring tlw sworn nllidin-il of hi1:1 counsc•l (Joint App. 

dall• of January 3, Hl-17. To avoid repetition, p. fl.), h1.• mnde "formal clC'm:md'' upon the 

it 111:1~· h1.• s:tid that this Conunitt,.,. wns origi- Commilt<•e for th~· opportunity to appeai· on 

nall.r a i::p<•l'inl <'tmnuillee of thl' House com- helmlf of thu Comnnnrn~t Party. To this "de- mon}~· l':lllt'tl the "Dil•s Commilh•e" whil'h lms I man1l" the Commilh•e courtl'ously responded 

since.• hy rc.•pnssag-e of the House:' RN1olution to that it would be glad to have Dennis appear. 

the Ilouflc rull•s b1•en contimwd first as a j To this Denni~ respon1lccl with a somewhat 

S1wl'inl Commit tel', latc.•r by the House rules• arrog:mt dl•mnnd that hl' be grantl'd at least 

as a i::tunding committc.•l' and finally by i::tatuh• j two h1Hll'l'I for hi~ tC'i:itimony. To this "demand" 

in thl.' :-:ame cnt1•g1n·y. It. is now commonly the Commill1•e ngnin replied courteously that 

known a::; thl' "Tlwma:-1 Committc1•'' following I it would bl• p:l11d tl) grant him two hours. 

tlw !?C'ncrnl praC't ire of reference to Congres- j Wlwn Dt'nnis actually appeared before the 

i::ionnl Committees tmdcr the name of their C'cmunilll'e, on l\1arl'11 2G, 1047, he proved a 

chairmen. 1 recaki!rnnl wit1wss. 

Sinc·l' one of th<:' chief points i·aised by ap- B<:'ing n1-1lwd by the Committc<:' for thl' 

pt•ll:rnt ii'! a g<'nl'ral at!:wk on the constitu-/ u::;ual idcmlific.·ation, he rcfusecl to nnswer some th)nalit~· of the l.'l'l'ation of llw Commitlc•e aml of tlw qn\'.'!'tion::; clircl't<•1l m<:'r<:'ly lo the question 

of tlw rci>olulions, rul<•s and statull' authoriz-1 of slwwing his idcntily. H<:' rcfuscd to answer 

ing itt: acti\"ilies, it nrny bl' said al the outset' (}tll'i::!i11ni:1 as ill the muue under which he was 

that it is thl• f:l'lf-::;amc Commit le(', op<.>rnting I born or as lo whl'n and wlwt'l' he wns born. 

under the :-:amc.• sc•t of rei:1olution1:1, rules and/ At this point n Committ1.•c suhpoe>na was dii::tatutc• as has bcc.•n recently pasi:1ccl on by at, l'l•ded lo be i::cn·cd on Dennis. Thereupon, aple>nst t Wll Courts of Appe>nl::::, and in two of I pare>ntly flllcltl<:'nl~· f;mit with the delusion that 

the cai::l'R hy the Su1n·eme Court of the United 1 hy 110111<:' maryelous trun:::ilion he had been apStatc.•::; in clen~·ing pl•titions for cerliornri. Sec pninlL•il to be the spokl'flman of all of the 

J,it>l'phson v. U.S., 165 F. (~d) 82 (C.C.A. American people>, Dennis arose and shouted: (~tl), lfl.J.7), ce>rl. clenil•d, !l!l3 U.S. 8!l8 (lfl·18), "In the name of the American peopl<:', I hold 

rehl•aring 1lc•nic•cl, :ma U.S. 858 (Hl-18); Barsky this Commille1.• in contempt." But then and 

''· U.S., Hi7 F. (~d) 2.J.1 (App. D.C., 19·18) thc.•1·c Dennii:1 was sened with a subpoena 

71) Wash. Law Rl•p. 558, cl'rl. cll•nil•1l, 16 U. S. c•ommnncling his appenrance before the ComLnw Wel'I.-: 3370 (June l.J, lfl.J.8); and Eisler miltc.>e on April fl, Hl.J.7. 

Y. U. S., - F. (~cl) - (App. n. C., .Jmll' 1.J., Thc.•sc Ial'ts un' recited only as the back1048), 7(i W ai.-;h. Law Rep. 10-15. g1·otmcl of the i::cr\•ice of the subpoena. Ap- . 

Tlwl'le ca!'e>i:: W<'l"l' to the unanimous effect }ll'll:mt was not indictecl or convicted for his 

that the c•cm~tilulionality of llll' authority of <'•)nduc·t in this nppenrnnce, nlthough he well 

llll' Commillc.•e shoulcl bl• uphl'ld, thut the might hun• be1.'n upon prop<:'r citation. He 

crl•athlll of the Co111111ittl'e and the matters was indil'h•1l und l'On\'icted for wilful dcfault 

confhlc•d lo it fill' inve:::-:ligntion were constitu- in answering a lawful subpoenn. It is S<:'t out 

thmal an1l lnwful. This would Sl'c•m t1) scttlC' hl•rau:-oc one or the chief contentions of appelthi1:1 quci::ti1)n hut io;illl.'l' the appt'}h\nt had lnnl i~~ that th.l' subpo<'nn was not l::twfully 

dc•volt•d a l:irgc• pnrl of his brief to this sub- st•rvl'd t}p.111 hnn bl•c·;~usc he hnd app<:'ared 

h•c•t, hii:: counsl•l on oral argument wai:; at th«.> V1lluntar1lr and tlwrefore enjoy<:>d some sort 

s1wcinl in:-;l:llll'l' of Juslk<> Prc.·lt~·man \~·ho had of Innl'iC'd immunity from service. 

writll'!l llw majoritr opinion in ll.w Bars!cy This conlc.•ntion of nppe>Ilnnt that the subcn:-:.l', mcl~1l~l'<~ hl urgtl<' tho qul.'i::t10n. agmn. poenn wafl illegally l:'lt'rved is without the slight- Tlu~ he d11I with eloqm•ncc and pe1·suas1veness, e:<t. foundation in renson. It is based upon a 

fort1fic.•d by copious quotations from magnzine misinh•rp1·l•tation of an old case decidt'd in th<:> 
Vm,. LXXVII 99 

fluJH't•nw Court of tlll! Di:.;trict of Columhia, cm·po1·alccl in Defemhmt's Opening Statement. 

now ll niktl Sla lt•:.; })i:.;lri<·l ('onrl for llH• Dis- Ont> of appellant's chief contentions is 

trid llf Columhia, in 187-J, in \\'ildt>r \'. W(•l:;;h, that lw Rhould lmv«.> bl'cn pt>rmittcd to have his 

I l\lm:Arthur 51ili. Thi::; c·ai::e ii:; cih•d by ap- :-:uh~lituh• (Lapidus) read into the i·ecord of 

1wllnnl a!' c·~:tahli:-:hing tlw Jlrin<"iplc:> thut u ll1l' lwnring of the Committ«.>e as a legal objecwitrw:-:i:; wm; immtlll<.• from Uw scrviee of a I i11u to the vnliclily of tho Committee process 

!'Uiipol•na. A1-1 a malll'l' of fud, tlw caf;e hold:;; which would purgt> him of contl'mpt for his 

dirl•t•tly to till~ contrary. Thal wm: a case in n•fu~al to upJll':n· before the very same Comwhh-h a motion was m:ufo lo sl•t asiclc the mitll•e u1mn whil'11 he had only a few days bei:c•1·vicl' of a !'lllllmoni-: upon the ground that fo1·c! bet•n pressing his "formal dt>mands" for 

tlw 1l<.•fl'nd:1nt in a ::;uit, whl'n Uw til'l'Vicc• was llw riglll lo appN1r. "Defendant's Exhibit 5", 

m:ule upon him, wa:i a wit1wi:;s from one of tho hcing the i;latl'llll'llt whieh Lapidus sought to 

Rt:ill'l"I iu 111fn1d11111·c 11po11 11 f'fl1lf/r1·1111iu11nl ('11111- r<.•:ul into the rec·ord upon behalf of Denp.is, 

111il/cc 1111clc1" a 1ml1poc1m and wnf-l, thl'refore is nol a stall'mont of lt>gal objections to his 

l'Xl'lll)ll f1'11m JH'O<'l'!'K while in atil'111lancc:>, and a}l}Waranee bl'fo1·e the Committee, and bears 

in <.·oming :mt! r(•turning from tho city. The non<' of llw drnra<'lc•ristics of i:;uch a document. 

t•om·t lwld tlwl tlw privil<>g<.> of n witness b1.:- It iis a long, t<.•llious, irresponRiblt> harangue, 

forl' CongreR:s or any of il~ <.•ommilll'<'R, stundis for nearly all of its length scurrilous and 

on till' l'"l:mw footing a~ the privilt>gc of thl' :-:<.·nnclalous, and for the most part completely mt•mhl·r~ of that hmly, and that this clocs not irrl'll•vant. It 1locs not content itself with a 

c.dl'lld /11 fl'<'f'llnm {1"11111 the sc1·11if'f' of a simple\ 10~1g and moi-:~ im.mlting _on~l~ught on the Com- s1111111101111 but 1111111 to fl'ccclom j'rom cff>"rst. 'fhe m1lt1:<.' c;olkel1vc•l:y: _and m<l1v1dually and a det•ourt o\·erruh•tl tlw motiun on tlw g1·ouncl Uwt I nunl·mtwn of thl'll' ehnrncter both public and 

no privikg<' h:ul b<.•t>n viohilt•tl. j privall', but included many others in no way 

To m·~,. that a prrscm. who voluntnrily ap- comw<'l<.•d. with the. Commiltt>e who had hapJll'a rs lwforl' a Congr<.•Ri::1onal C'ommiltl'u and 1wm•cl lo mcur the d1i:1pl<>asm·e of the appellant. 

if; not only in the jurii-:<liction but the n<'lual :n1us. in this "~tat<>ment", whieh is relied upon 

fll'l'H'll<'l' of thl' C'timmitlt'l' is t'Xl'lllpt from m ll~1s <.'ourt to show that appellant was only 

suhp<>c:>n:1 by tho CunnnHll>l' iti;el[ is preposl<•r- sc:>t•kmg lo m~1kt> a strictly legal objection to his 

ciui-:. nppt>m·:rnc•c> m response to process, the appelOn April fl, 1047, a111wllant faill•d to appear lanl a:.; part of his "legal objections" to not 

hl'fo1'l' llll' Commit ll•l' in rc•sponl"e lo the sub- app(•nring was not cont<.•nt with denoun<.'ing 

pot•n:1. I111c1l«.>acl one Lapidus ap}lt>arrd and tlw Iatl' Th<.•odorc Bilbo ancl the late Eugen~ 

:::lnh•1l tlmt he (I.:111iclus) was a secrt>tury of Talm:ulge hut went on to denounce the former. 

t1ll' C1mrnrnni1-1t Part~· and ntto1·nt>y for Dl•nnis, Attorney .Gen<.•ral of the United States, the lhu~ ll<.•nni$ \niuld not a)>}ll'ar but h~ul 15ent a lat<.• A. lhtdll'll Palm«.>r, and al::;o the present 

long f;tal<.•nwnl whkh hl' (Lapidus) proposed to :mcl l't>Rpl.'ct<.•d head of the F. B. I. of the United 

reacl inlo lhl' l't'<'Ol'1I. Sine<' Lnpilh1R Juul 110t Stat<.•s, J. ~dgar Hoover, and oq1ers. He conht•l·n suhpo<.•nm•d by llll' Cmnmith•e and was not C'ludl•cl th1i.:: with most su11gumary thJ.'l'eats 

dl•sirl•cl us a wilnl·~:-; b~· th<.• Commilt<.><.• he was as to the political i·t>venge and punishment 

not P<'l'mittecl to ~uhi-:titull' for Dl'nnis nor to whic-h ho ::md bis as::;ociatt>R proposed to wreak 

l'NHI tlw purporll•cl statl•nwnt of Denni~ but on the personnel of the Committee and any 

wei-: 1wrmitl<.•cl t,1 leave:> till' stall•ment with the othl'r who sympathized with or supportt>d them 

Commit k<• whh•h lall•r read tlw comm1111il·ation in tlw forthcoming elections. 

hut did not inelude it in it:.; rc.•port lo the Houst>. I Of courf'c:>, this was not a legal objection 

U p1111 1n·o11<.•r citation by the Ifoust> Dc>nriis und was properly reject<.•d by the Committee 

w:rn ilulid<•cl, t ric.>cl am] C'onviC'l<•d fot• ti1e crinw and hy lhl' trial court. · of wilful d1•f:llllt in failing l11 alll'l\"\"l'r Uw sub- 'flll' firl:'t s<.•nlence was as follows: "This is 

)l1wna. In vi<.•w of the dt>fonso whiC'h appel- ~o mform you lha~ I shall not _attend the meetlant lms nltl•mph•d to ~ct up in this ease, it is mg of your committee on April 9, 1947.'' This 

l11 bl• r<.>mc>mbl'l"l'd that the caf;l' now bl'fol'e this was complrlc• and adequate proof that the failt•om·t ha::: nothing to do with the foct that un• of appellant, Dennis, to respond to the 

lll•nn!s ii-: a C'omm.uni~t noy clol'S il inv11ln• any !mbpocna was his dt•libc•rutt> and consid<.>red act. 

11.m•!<lton o[ Pl'lln!R. refu~mg lo an~wer qut>s- Appellant ~trenuously insists (p. 38 et seq. 

hons ai-: lo lus poht!l'al vwws or anything clRt>. Ap1wllnnt'i.:: Brief) that to make out a case of 

It hu.::1 t11 tlo ~<~lcly with the quc:>i:;tion of wh<.•ther wilfulness undt>r the statute it was necessary l 

he w1lfully fu1I<.:1l to n•spond tu lhe sublltll'na of that the Govt>rnment be required to allege and i 

a lawful Cnn11111lt,•<.• of Congr<.>ss. I lll'tl\"e that tlw net of refusal sl1all have been • 

Thl! so-ealh•il "i;tatl•ment" of Dennis was !lone from a harl purpose or t>Vil moti\'t>. Such f' :H•tu:1ll~· Rl'nt to c•nC'l1 memhl•r of the House! IR not tlw law. As far back as Ameriean Sure- 1 ot' Hl'Jlr<'s<.•nlaliw:i by zt>alous fril•nds of the It~· Co .• of N.Y. v. Sullivan, 7 F. (2d) 605, it · nppt>llanl. How man~· membl•rs of the House! was i;aid by Jmlp:t> Lt>arned Hand at page 606: l 

:ll'l ually l'l•ail the dol'Ulll<'lll Wl' h:n·t• no nll'ans i "The word 'wilful,' even in criminal statut<'R, I 

of knowing, and it is immnt<.•rial. 'Ye say only i mr:ms no more than that the person charged r 

! hat \\:e hayc rend it. While:> il was 1·ejectl'd for ! with Uu• duty kn~ws w~~t he is doing. It does ! nwlu~wn m tlw r<'IlOl"t of thl' Commitll'l' to 1 not m<>a_!l that, .m adcht1on, he mu::;t suppose : 

tlw Ilm1::;e and wai:; al::-:o r(•jl•cted by the lrinl ! that h<.' is l>reakmg the law. (Grand Trunk R. 

<'Olll't, it is includ<.•d in the l't'ClWd a::; part of 1 Co. v. U.S., 229 Fed. 116. 143 C.C.A. 392) ••• " t 

nppt>llnnl'i:: cas<' ni:: D<.•fendant's Exhibit No. 5 1 and l'iting other eases. ,i_ 

(.Joint App. p. R!l5). This should bl' rt>ad in 1 In the Wl'll-known cnse of TownRend v United ' l'on_nec~ion with Dl'fcndant's Exhihit No. 3, 1 Slall•s, 05 F. (2d) 352, at page 358 decided ~ wlud1 is n so-callt>d proffl'r of proof lo be in-! by thi1c1 court in 1038, this court said: '"On the 

j ····-" 
100 VoL. LXXVII 

otlwr lmn1l, tlw gl'lll'l'ttl ru]l! in rriminnl rasc:>s I of :my other l'l'ltsonnhle construrtion.' m 

if't that a mi~lt1kl• of law upon Uw part of tlw j This court accordingly affirml'd the judgtll'CUSl'd dol'l:I not l'on:-;tilull• ju::;lilit•ation. for, nlC'nt of the District Court. 

hi::; act; llwl, if hl' dl•lilwrntl•ly and inll•ntional- J Ap1wllant in his brief stall's (Br. p. 38) 

ly commit::; tlw prohihitl•d act, it is criminal, I that thl' Fil'ldR case was contrnry to the vi<'WS 

1·c1111rdlc1111 uf /ri11 111 lil'f tll11f lli11 al'f 11•ns ln11•-' of the Supr<'me Court. Apymrently the Su-

{11/; except in cai;:t•::; wht'l'l' ignorance:' of tlll' 1 Jll"c:>me Court <li<l not think so for it <lenied 

law may dbprov<' llw l'xisll'lll't' of n l"('(}Uired ! t'l'l"liorari in thl' Fields <•ase on January 12, ~pl•cific intl'nt ... Thi:< is tru<' even though ! Hl-18 ( !18 Sup. Ct. 355). 

llll' moliw of lhc ac<'U:<l'd mny bt• of llw high- So far as the question of wilfulnl'ss is con-· 

l':<l, a:- in tlw l"a:<l! of one who bc•lil'\"C'S Uml his cenwd, the Fields case cannot bl' tliRtinguiRlll'tl nl'I ii:: part of hi::; }H'Orl'l:ll'll'll rl'ligion." from the instant casl'. That ap}>C'llnnl's action 

In the sanw caf'te nt pngci~ :m7-8, this court wm: inll•ntionnl and d<'libl•rute was again ~ind<' 

said: "Ap1wllant contl•n1ls that under th<.! Jll•rfcctly d<.>nr after Denms had been <;onv1c~<.·d 

~tut ull• lwrl~ involn•cl tlw fir~t nwnning men- an.ti bl•foi·l' lw w_as scnten~cd. Justice Pme 

timll'd hy tltl' l'ourt, n:mwly, 'clone with a bad! ~aul: "Mi:. Den?is, the prnnary purpos.e of 

11m·pof'tC',' is <·ontrolling. Thl' cases cill•d by till'! mll•1·r~gatm~ w1lm•s.ses before C~ngress1onal court gupport that nwaning and similar llllld- I ~onnmt~l't'l! .

1s to as~1st Con~ress m !ormulntings m·t• found in o~lwr <.':IH'I', hut, l'Vl'll though I mg _ll'g1slation. Tlus Comnntt~·l• des1r<'d your 

rt :111plied that Ul(.':tning to th<.> 1wculiur fuct:s 1 lt•sl1111ony. Thal has bl'<.>n demed. to them by 

of tlml l':IRl', it is cll'ar that tlw court did not your refu~al to appear and testify. Do _you 

intt•ml to limit the ap)llication of the word I have u des1r<.> to appear before that Committee 

'wilful' in nll ca~;es to 'nets done with a bad j now und 1rnrg.<' yourgl'lf o~ that. conll•mpt? 

purpmw.' Tlw meaning of thl' word de1wnd:-i If. you d<_> I 1mght take action which I. tlunk 

in Jai·g<• men:<lll"l' u1>on the nature of the crimi-1 will be JUSt and prope1· under the c1rcumnul nrt and the fact::; of till' pnrticulnr case. It I stancef't." . . . is only in Vl'ry kw criminal case's that 'wil- . Aftt>r consulting his c~uns.el,. Den!JIS a~­ ful' nwani:: 'done with a bud purpose.' General- ! t~·mp~l·d n long stat<>mt;nt Jushfym~ his posily, it nwans 'no more than that tlw person I hon !n an apparen\ n11sunde1·stan~mg of the chan~<·d with the duty knows what h<.> is doing.' c•ourl s que::ill?n· \\ ]u.in the qul'st1on was rcH dtws Jllll meun that, in addition, hl' must 1 P1:nh•d, Denms decli.ned and stated .that he 

suppoi-;t! that he is brt•:iking till' J:iw.'" (Quot-I wishl•d to ~tand on his statement. (Jomt App. 

ing from and with approval Aml•rican Sm·ety PP· 360-36~) · . . C·ti::e supr·t The mcre fact that app<'llnnt claimed m ·• • • • r: • his leltl•r· to till' Commitke to have consulted Furth~·r ut page 3.>8 m the same c~s<', the counsc•l and that his failure to i·espond t the 

court s:ud: "Tlw appt•llant c.l:~cs compln_m, how- ~ubpol'na was the r<.>sult of his own ~eg l cv~1" tl}at llw court Cl'l"<'d m e_xcludmg cer- opinion based upon consultation with his u~­ tam evufonce · : · sought to bl' m~rOll!-lced . on naml'd counsel is no defense. If it were many the.• tl!eory tlmt it tclllll•d lo. provt• JU~tifkation /corporations organizations and even individ - for hi::i n~·l :mil lwn~l' .to ih::i}IJ'on• willfuhwss. 1 als would 1;rnintain counsel permanentl f u ~one of it was ud!mss1blc on tha~ thl•ory and; the purpose of ad\•ising them against ~oiio~ it was lll"Opt:>rly reJech•tl by the _ti·ml court .. " J anything that thl'y do not wish to do. Certainli: 

In the vc.:ry rl'cl•nt ~asc of Fwlds v. United till' lc•Ucr of app<.'llant (Def. Ex. 5) was not 

Statl'l:I, decided by tlu::i court on October ~7, ! thl' stat('mcnt of any legal objection and could 

10:17, 16·1 F. (2d) 97_, we find tl.1e v~ry question,. not possibly have be<.>n considl•red as represent- rms<'d hy ap1l<'llant m rc:>gard to w1lfulness. ing any advice of counsel. Nor was the so-

.At pagt' O!l, thi::; court ~aid: "The principal caJIC'd "proffor of proof" (Def. Ex. 3) any offer 

is::iues rnis<'d on npp<'nl art:' wlwtl1l'l' or not the I of any legnl evidence whatever. Both were 

court bl•low crr<'d in failing to dii·cct a jt•dg- properly excludC'd by the trial court. 

ml•nl of acquittal aR to till' S<>cond count; whcth- / . Appl'llant strongly urged that the court erred 

er or not the word 'wilfully', as used in the m denying appellant's motion to transfer the 

slutute, implies an evil or bad purpose; and the! ram:ie from thc District of Columbia, and in 

rl'lntl'd qUC'fttion of whl'thcr or not good faith 1

1 

overruling his challenge of all talesmen who 

h:i.:1 any be:1ring on lhl! i~sue of willfuln<.>ss. we1·e employees of the United States GovernThl• Inst l wo issues nrif'te from the court's ment. There is no me1·it in eithl'l' contention. 

chargl' lo Uw jury thut. un evil or bad purpose. On voir dire, pro~pective jurors were care- i~ in11nnkrial, and till' court's refusal to charge ! fully _interrogated by the court and counsel. 

that ap1wllant '::; act::; assl'rtl•tlly constituting Two Jurors were excm;ed for cause as having 

good faith Juul a bl•aring on the issue of wil- formed opinions. As the jury was finally fulncss . • • conf-llituted only three had even as much as 

"All!wllant contcnds that the word 'wilful' hl'ard of the case by reading the newspapers 

hu::i a nw:ming which includcis an <'Vil or bad nnd ~wo ,?I them. had mer~ly "scanned the 

purpo::ic• wlll'n Ul:ll•1l in a criminal statute \Ve heat!lme_s. In view of this exha.ustive in1 · I· l , , . 1. . , · . · . , J Vl'St1gut1on and the repeated asse1·t1on of the 

t 1m \ tic lt: 1111. t.1s .1cqu11 ed no such fixed complete absence of prejudice th t, t" ml·~1nin_g .11<'cordmg to' till' type of statute in I as to the jury seems pointless. e con en ion 

wl~1ch it ~::: c•mp!o~·l·d. The. Suprcime Court has Jury i;en•ice is not only a duty of citizenship, 

f'tmd, long ago, In construmg a statute, pc:nal J it is a right as well. Blanket disqualification 

as ,~·l'II a::; othl'rs, Wl' muRt look to the object flll' jury service would operate as a bill of 

in vie\\', and 11evl'1' adopt. an intt•rpr<'lation that 1- , Tl-; E 11 , d Tl . will d<:>fl'ut its own purpoi:P, if it will admit I (U. ~- 18~) ~ nn ie C1uol11u'. 9 Wheat. 381, 388