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The Militant, 23 August 1941

18 Convicted Under Smith Act –
But Which Section?

From The Militant, Vol. V No. 50, 13 December 1941, p. 5.
Transcribed & marked up by Einde O’Callaghan for ETOL.


MINNEAPOLIS, Dec. 6. – Chief defense counsel Albert Goldman, in a brief oral argument this morning in Federal court for a new trial for the 18 convicted “sedition” trial defendants, presented Judge Matthew M. Joyce with an unanswerable question:

On which of the five charges made in Count 2 of the indictment were the defendants found guilty?

Goldman didn’t know and neither did the judge or anybody else; except maybe the jury, and the technicalities of the legal procedure had made it impossible for the jury to report on just what it found the defendants guilty and what not guilty in Count 2.

Here is how this judicial puzzle came about.

The indictment consisted of two counts. On Count 1, based on the 1861 “seditious conspiracy” statute, the jury found all the defendants not guilty.

On Count 2, the jury found 18 of the 23 defendants guilty, and “recommends leniency.”

That, however, does not answer the question on which sections of Count 2 the jury found the defendants guilty.

For Count 2 consists of five numbered sections, as follows:

The defendants allegedly conspired to:

  1. “Advise, counsel urge” and “distribute written and printed matter which advised, counseled and urged insubordination” in the armed forces.
  2. “Advocate, abet, advise and teach the duty, necessity, desirability and propriety of overthrowing the government by force and violence.”
  3. “Print, publish, edit, issue, circulate, sell, distribute and publicly display written and printed matter advocating” forcible overthrow of the government.
  4. “Organize societies, groups and assemblies of persons to teach” the same.
  5. Become members of such groups.

Now, on which of these five sections of Count 2 were the defendants convicted?

The recommendation of leniency by the jury tends to indicate that the jury did not consider the defendants guilty on all five sections. But the jury had no way of indicating that fact. It was limited by the court to a blanket verdict of guilty or not guilty on Count 2.

Attorney Goldman pointed out to the judge this morning that Point No. 1 under Count 2 – the charge of advising insubordination in the armed forces – should never have been submitted to the jury at all. The judge should have dismissed that part of Count 2, on the ground that no substantial evidence relevant to that part had been presented by the prosecution.


The only “evidence” on this point was some oral testimony by two or three government witnesses to the effect that one or two defendants had told them that soldiers should “complain” about food and living conditions in the army.

The judge answered Goldman that, since “some” evidence had been offered on this point, the judge had been bound to submit the question to the jury. It is within the discretion of a federal judge to dismiss all or any part of any count in an indictment when he believes that no substantial evidence has been introduced warranting the submission of that point to the jury.

Most of the newspapermen present wrote dispatches in which they referred to the jury’s verdict as if it were limited to Point 2 of Count 2 – “advocating ... desirability ... of overthrowing the government by force and violence.” The newspapermen undoubtedly did so guided by the fact that the main contention between prosecution and defense was whether the defendants advocated violence or whether they predicted the use of violence against the workers by the reactionary minority.

Other Complications

Add to this muddle the fact that the jury’s verdict was undoubtedly a “compromise,” as indicated by the recommendation of leniency. Observers at the trial generally agreed that there probably was a group of jurors who believed the defendants not guilty but that these jurors under pressure went along with a guilty verdict in return for a not guilty verdict for five defendants and the recommendation of leniency

The five points under Count 2 are merely a paraphrase of the various sections of the Smith Act. which became law on June 29, 1940. The Smith Act was branded by civil Tights and labor groups as the “Omnibus Gag Law,” a compendium of anti-free-speech legislation.

That is just what Count 2 is – an omnibus, from which it is impossible to extract just which sections of the Smith Act the defendants are supposed to have violated.

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