Evening star. [volume] (Washington, D.C.) 1854-1972, 1954-07-08
Key Count Dismissal
In baltimore Case
Upheld on Appeal
Continued From First Page.)

The opinion, written by Judge
E. Barrett Prettyman, was a split,
one. Eight of the full bench Of
nine judges agreed that the
Communist sympathizer count
was properly dismissed but. Chief
Judge Harold M. Stephens dis
agreed, holding it should be
placed back in the indictment.
Regarding the count concern
ing the trip to China, eight
judges agreed it should be in
valid while Judge John Danaher
held that it was valid.
The judges upheld by a 5 to 4
vote the validity of the other two
counts which related to the al
legged Communist writer's.
In attaching the vagueness of
the Communist Sympathizer
count. the majority opinion de-
clared: There is no definition
OF the term 'sympathizer' or any
concrete specification of its con-
tent either in the Indictment or
in the statute. Without such
definition or specification the
terms has no certain mean
Ing >.
The opinion then quoted the
Oxford Dictionary a number of
varying definitions of the word
"sympathize."
Don't Rule on promoter"
The opinion referred to the
Governments contention that
since the word promoter" is
term of certainty the count is
valid, even though "sympathizer"
may be vague, declared that "the
presence of the uncertain word
is sufficient to destroy the
count :" The court stressed
that it was not ruling one way
or another on the defniteness
of the word promoter"
The. opinion brushed aside a
defense contention that the
count was violative of the free
speech and belief safeguards of
the first amendment. Of this
the majority declared: Sc. :.
clearly the freedom of speech
to which the people protected
their right by this clause in the
Constitution does not include
freedom to lie under oath. Even
if baltimore, as the editor of
a publication, had right not
to speak, he did not have a
right to speak falsely. When he
chose to speak under oath he
was obliged to speak truly and
was subject to the penalties Of
perjury if he lied on a material
matter. -"
Test Called Subjective.
In his dissent as to the vague
ness of the Communist SYM
pathizer count, Judge Stephens
said that the true test should be
subjective, based on the mean
ing of the term to Mr.. Latti-
more, rather than on the objec-
tive meaning.
CLEARLY. in my view." Judge
Stephens wrote, what the
defendant is charged with is
falsely testifying that he had
never been a sympathizer or any
other kind of promoter of COM
munism or Communist interests
in the sense in which he was
using those words.
Since, as I think, the words
of the statute and of the count |
set up a subjective rather than
an objective test of the mean
ing of the assertedly perjurious
words they are not definite, be-
cause assuming that the de-
PENDANT did utter the words,
he must have known what he
meant by them and must there
fore now know, in reading the
charge what he is charged
with. ;" The chief judge
pointed out that at trial the
Government would be obliged to
prove that Mr.. baltimore did
not believe the words were true
in the sense in which he used
them. But, the question of
whether such proof could be
sustained was not before the
appellate court. Evidence is
imaginable which would support |
such a charge" at trial, the jurist |
wrote. He agreed, in referring
to the free speech amendment,
that the safeguard is mot a
warrant for the commission of
perjury"
Three of the nine judges said
they thought all four of the
counts had been rightfully dis
missed by Judge Youngdahl.