MR. JUSTICE STEWART delivered the opinion of the Court.
In these six cases we review judgments of the Court of Appeals for the District of Columbia,
In each case the indictment returned by the grand jury failed to identify the subject under congressional subcommittee inquiry at the time the witness was interrogated. The indictments were practically identical in this respect, stating only that the questions to which answers were refused "were pertinent to the question then under inquiry" by the subcommittee.
Congress has expressly provided that no one can be prosecuted under 2 U. S. C. § 192 except upon indictment by a grand jury.
In enacting the criminal statute under which these petitioners were convicted Congress invoked the aid of the federal judicial system in protecting itself against contumacious conduct. Watkins v. United States, 354 U.S. 178, 207. The obvious consequence, as the Court has repeatedly emphasized, was to confer upon the federal courts the duty to accord a person prosecuted for this statutory offense every safeguard which the law accords in all other federal criminal cases. Sinclair v. United States, 279 U.S. 263, 296-297; Watkins v. United States, supra, at 208; Sacher v. United States, 356 U.S. 576, 577; Flaxer v. United States, 358 U.S. 147, 151; Deutch v. United States, 367 U.S. 456, 471.
Recognizing this elementary concept, the Sinclair case established several propositions which provide a relevant starting point here. First, there can be criminality under the statute only if the question which the witness refused to answer pertained to a subject then under investigation by the congressional body which summoned him. "[A] witness rightfully may refuse to answer where . . . the questions asked are not pertinent to the matter under inquiry." Sinclair v. United States, supra, at 292. Secondly, because the defendant is presumed to be innocent, it is "incumbent upon the United States to plead and show that the question [he refused to answer] pertained to some matter under investigation." Id., at 296-297. Finally, Sinclair held that the question of
In that case the Court had before it an indictment which set out in specific and lengthy detail the subject under investigation by the Senate Committee which had summoned Sinclair. The Court was thereby enabled to make an enlightened and precise determination that the question he had refused to answer was pertinent to that subject. Id., at 285-289, 296-298.
That the making of such a determination would be a vital function of the federal judiciary in a prosecution brought under 2 U. S. C. § 192 was clearly foreseen by the Congress which originally enacted the law in 1857.
These forecasts of the office which the federal courts would be called upon to perform under 2 U. S. C. § 192 have been amply borne out by the cases which have arisen under the statute. The crucial importance of determining the issue of pertinency is reflected in many cases which have come here since Sinclair, supra. Watkins v. United States, 354 U.S. 178, 208; Sacher v. United States, 356 U.S. 576, 577; Barenblatt v. United States, 360 U.S. 109, 123-125; Wilkinson v. United States, 365 U.S. 399, 407-409, 413; Braden v. United States, 365 U.S. 431, 435-436; Deutch v. United States, 367 U.S. 456, 467-471. Our decisions have pointed out that the obvious first step in determining whether the questions asked were pertinent
Where, as in the Sinclair case, the subject under inquiry has been identified in the indictment, this essential first step has presented no problem. Where, as in the more recent cases, the indictment has not identified the topic under inquiry, the Court has often found it difficult or impossible to ascertain what the subject was. The difficulty of such a determination in the absence of an allegation in the indictment is illustrated by Deutch v. United States, supra. In that case the members of this Court were in sharp disagreement as to what the subject under subcommittee inquiry had been. Moreover, all of us disagreed with the District Court's theory, and the Court of Appeals had not even ventured a view on the question. 367 U. S., at 467. In Watkins v. United States, supra, the Court found it not merely difficult, but actually impossible, to determine what the topic under subcommittee inquiry had been at the time the petitioner had refused to answer the questions addressed to him. "Having exhausted the several possible indicia of the `question under inquiry,' we remain unenlightened as to the subject to which the questions asked petitioner were pertinent." 354 U. S., at 214.
Any discussion of the purpose served by a grand jury indictment in the administration of federal criminal law must begin with the Fifth and Sixth Amendments to the Constitution. The Fifth Amendment provides that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; . . ." We need not pause
The constitutional provision that a trial may be held in a serious federal criminal case only if a grand jury has first intervened reflects centuries of antecedent development of common law, going back to the Assize of Clarendon in 1166.
For many years the federal courts were guided in their judgments concerning the construction and sufficiency of grand jury indictments by the common law alone. Not until 1872 did Congress enact general legislation touching
There was apparently no other legislation dealing with the subject of indictments generally until the promulgation of Rule 7 (c), Fed. Rules Crim. Proc., in 1946. The Rule provides:
As we have elsewhere noted, "This Court has, in recent years, upheld many convictions in the face of questions concerning the sufficiency of the charging papers. Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. [Citing cases.] This has been a salutary development in the criminal law." Smith v. United States, 360 U.S. 1, 9. "But," as the Smith opinion went on to point out, "the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules." Ibid. Resolution of the issue presented in the cases before us thus ultimately depends upon the nature of "the substantial safeguards" to a criminal defendant which an indictment is designed to provide. Stated concretely, does the omission from an indictment under 2 U. S. C. § 192 of the subject under congressional committee inquiry amount to no more than a technical deficiency of no prejudice to the defendant? Or does such an omission deprive the defendant of one of the significant protections which the guaranty of a grand jury indictment was intended to confer?
In a number of cases the Court has emphasized two of the protections which an indictment is intended to guarantee, reflected by two of the criteria by which the sufficiency of an indictment is to be measured. These criteria are, first, whether the indictment "contains the elements of the offense intended to be charged, `and sufficiently apprises the defendant of what he must be prepared to meet,' "
Without doubt the second of these preliminary criteria was sufficiently met by the indictments in these cases. Since the indictments set out not only the times and places of the hearings at which the petitioners refused to testify, but also specified the precise questions which they then and there refused to answer, it can hardly be doubted that the petitioners would be fully protected from again being put in jeopardy for the same offense, particularly when it is remembered that they could rely upon other parts of the present record in the event that future proceedings should be taken against them. See McClintock, Indictment by a Grand Jury, 26 Minn. L. Rev. 153, 160; Bartell v. United States, 227 U.S. 427, 433. The vice of these indictments, rather, is that they failed to satisfy the first essential criterion by which the sufficiency of an indictment is to be tested, i. e., that they failed to sufficiently apprise the defendant "of what he must be prepared to meet."
As has been pointed out, the very core of criminality under 2 U. S. C. § 192 is pertinency to the subject under inquiry of the questions which the defendant refused to answer. What the subject actually was, therefore, is central to every prosecution under the statute. Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute.
The vice which inheres in the failure of an indictment under 2 U. S. C. § 192 to identify the subject under inquiry is thus the violation of the basic principle "that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, . . ." United States v. Simmons, supra, at 362. A cryptic form of indictment in cases of this kind requires the defendant to go to trial with the chief issue undefined. It enables his conviction to rest on one point and the affirmance of the conviction to rest on another. It gives the prosecution free hand on appeal to fill in the gaps of proof by surmise or conjecture. The Court has had occasion before now to condemn just such a practice in a quite different factual setting. Cole v. Arkansas, 333 U.S. 196, 201-202. And the unfairness and uncertainty which have characteristically infected criminal proceedings under this statute which were based upon indictments which failed to specify the subject under inquiry are illustrated by the cases in this Court we have already discussed. The same uncertainty and unfairness are underscored by the records of the cases now before us. A single example will suffice to illustrate the point.
In No. 12, Price v. United States, the petitioner refused to answer a number of questions put to him by the Internal
It is difficult to imagine a case in which an indictment's insufficiency resulted so clearly in the indictment's failure to fulfill its primary office—to inform the defendant of the nature of the accusation against him. Price refused to answer some questions of a Senate subcommittee. He
It has long been recognized that there is an important corollary purpose to be served by the requirement that an indictment set out "the specific offence, coming under the general description," with which the defendant is charged. This purpose, as defined in United States v. Cruikshank, 92 U.S. 542, 558, is "to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had."
It is argued that any deficiency in the indictments in these cases could have been cured by bills of particulars.
This underlying principle is reflected by the settled rule in the federal courts that an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form. Ex parte Bain, 121 U.S. 1; United States v. Norris, 281 U.S. 619; Stirone v. United States, 361 U.S. 212. "If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to
For these reasons we conclude that an indictment under 2 U. S. C. § 192 must state the question under congressional committee inquiry as found by the grand jury.
MR. JUSTICE FRANKFURTER took no part in the decision of these cases.
MR. JUSTICE BRENNAN took no part in the consideration or decision of No. 10. Whitman v. United States.
MR. JUSTICE WHITE took no part in the consideration or decision of these cases.
While I join the opinion of the Court, I think it is desirable to point out that in a majority of the six cases that we dispose of today no indictment, however drawn, could in my view be sustained under the requirements of the First Amendment.
The investigation was concededly an investigation of the press. This was clearly brought out by the record in Shelton, wherein the following colloquy was alleged to have taken place at the commencement of the Subcommittee hearings:
The New York Times was a prime target of the investigation, 30 of the 38 witnesses called at the 1955 executive session and 15 of the 18 called at the 1956 public hearings being present or past employees of that paper.
The power to investigate is limited to a valid legislative function. Inquiry is precluded where the matter investigated
Under our system of government, I do not see how it is possible for Congress to pass a law saying whom a newspaper or news agency or magazine shall or shall not employ. If this power exists, it can reach the rightist as well as the leftist press, as United States v. Rumely, 345 U.S. 41, shows. Whether it is used against the one or the other will depend on the mood of the day. Whenever it is used to ferret out the ideology of those collecting news or writing articles or editorials for the press, it is used unconstitutionally. The theory of our Free Society is that government must be neutral when it comes to the press—whether it be rightist or leftist, orthodox or unorthodox. The theory is that in a community where men's minds are free, all shades of opinion must be immune from governmental inquiry lest we end with regimentation. Congress has no more authority in the field of the press than it does where the pulpit is involved. Since the editorials written and the news printed and the policies advocated by the press are none of the Government's
It is said that Congress has the power to determine the extent of Communist infiltration so that it can know how much tighter the "security" laws should be made. This proves too much. It would give Congress a roving power to inquire into fields in which it could not legislate. If Congress can investigate the press to find out if Communists have infiltrated it, it could also investigate the churches for the same reason. Are the pulpits being used to promote the Communist cause? Were any of the clergy ever members of the Communist Party? How about the governing board? How about those who assist the pastor and perhaps help prepare his sermons or do the research? Who comes to the confession and discloses that he or she once was a Communist?
There is a dictum in United States v. Rumely, 345 U.S. 41, 43, that the reach of the investigative power of Congress is measured by the "informing function of Congress," a phrase taken from Woodrow Wilson's Congressional Government (1885), p. 303. But the quotation from Wilson was mutilated, because the sentences which followed his statement that "The informing function of Congress should be preferred even to its legislative function" were omitted from the Rumely opinion. Those omitted sentences make abundantly clear that Wilson was speaking,
The power to inform is, in my view, no broader than the power to legislate.
Congress has no power to legislate either on "religion" or on the "press." If an editor or a minister violates the law, he can be prosecuted. But the investigative power, as I read our Constitution, is barred from certain areas by the First Amendment. If we took the step urged by the prosecution, we would allow Congress to enter the forbidden domain.
The strength of the "press" and the "church" is in their freedom. If they pervert or misuse their power, informed opinion will in time render the verdict against them. A paper or pulpit might conceivably become a mouthpiece for Communist ideology. That is typical of the risks a Free Society runs. The alternative is governmental oversight, governmental investigation, governmental questioning, governmental harassment, governmental exposure for
Some think a certain leeway is necessary or desirable, leaving it to the judiciary to curb what judges may from time to time think are excessive practices. Thus, a judge with a professorial background may put the classroom in a preferred position. One with a background of a prosecutor dealing with "subversives" may be less tolerant. When a subjective standard is introduced, the line between constitutional and unconstitutional conduct becomes vague, uncertain, and unpredictable. The rationalization, of course, reduces itself ultimately to the idea that "the judges know best." My idea is and has been that those who put the words of the First Amendment in the form of a command knew best. That is the political theory of government we must sustain until a constitutional amendment is adopted that puts the Congress astride the "press."
MR. JUSTICE CLARK, dissenting.
Although I have joined Brother HARLAN in dissenting on the grounds ably expressed in his opinion, the Court today so abruptly breaks with the past that I must visually add my voice in protest. The statute under which these cases were prosecuted, 2 U. S. C. § 192, was originally passed 105 years ago. Case after case has come here during that period. Still the Court is unable to point to one case—not one—in which there is the remotest suggestion that indictments thereunder must include any of the underlying facts necessary to evaluate the propriety of the unanswered questions. Following the universal art and practice, indictments under this statute have commonly phrased the element of pertinency in the statutory language, i. e., the unanswered question was "pertinent to the question under inquiry." This Court in Sacher v.
By fastening upon indictment forms under § 192 its superficial luminosity requirement the Court creates additional hazards to the successful prosecution of congressional contempt cases, which impair the informing procedures of the Congress by encouraging contumacy before its committees. It was only five years ago in my dissenting opinion in Watkins that I indicated the rule in that case might "well lead to trial of all contempt cases before the bar . . ." of the House of Congress affected. Watkins v. United States, supra, at p. 225. In that short period the Court has now upset 10 convictions
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins, dissenting.
The ground rules for testing the sufficiency of an indictment are twofold: (1) does the indictment adequately inform the defendant of the nature of the charge he will have to meet; (2) if the defendant is convicted, and later prosecuted again, will a court, under what has been charged, be able to determine the extent to which the defense of double jeopardy is available? United States v. Debrow, 346 U.S. 374.
Rule 7 (c) of the Federal Rules of Criminal Procedure, effective in 1946, was of course not intended to abrogate or weaken either of these yardsticks. Its purpose simply was to do away with the subtleties and uncertainties that had characterized criminal pleading at common law. The rule provides in pertinent part:
An essential element of the offense established by 2 U. S. C. § 192
The Court's holding is contrary to the uniform course of decisions in the lower federal courts. The Court of Appeals for the District of Columbia Circuit, sitting first as a panel and later en banc, has upheld "pertinency" allegations which, like the present indictment, did not identify the particular subject being investigated. Barenblatt v. United States, 100 U. S. App. D. C. 13, 240 F.2d 875 (panel); Sacher v. United States, 102 U. S. App. D. C. 264, 252 F.2d 828 (en banc).
The reasons given by the Court for its sudden holding, which unless confined to contempt of Congress cases bids fair to throw the federal courts back to an era of criminal pleading from which it was thought they had finally emerged, are novel and unconvincing.
It is first argued that an allegation of "pertinency" in the statutory terms will not do, because that element is at "the very core of criminality" under § 192. This is said to follow from what "our cases have uniformly held." Ante, p. 764. I do not so understand the cases on which the Court relies. It will suffice to examine the three cases from which quotations have been culled. Ante, pp. 765-766.
United States v. Cruikshank, 92 U.S. 542, involved an indictment under the Enforcement Act of 1870 (16 Stat. 140) making it a felony to conspire to prevent any person from exercising and enjoying "any right or privilege granted or secured to him by the Constitution or laws of the United States." Most of the counts were dismissed on the ground that they stated no federal offense whatever. The remainder were held inadequate from the standpoint of "apprisal," in that they simply alleged a conspiracy to prevent certain citizens from enjoying rights "granted and secured to them by the constitution and laws of the United States," such rights not being otherwise described or identified. Small wonder that these opaque allegations drew from the Court the comment
United States v. Simmons, 96 U.S. 360, was concerned with an indictment involving illegal distilling. Revised Statutes § 3266 made it an offense to distill spirits on premises where vinegar "is" manufactured. One count of the indictment charged the defendant with causing equipment on premises where vinegar "was" manufactured to be used for distilling. This count was dismissed for its failure (1) to identify the person who had so used the equipment or to allege that his identity was unknown to the grand jurors; and (2) to allege that the distilling and manufacture of vinegar were coincidental, as required by the statute.
To me it seems quite clear that even under these cases, decided long before Rule 7 (c) came into being, the "pertinency" allegations of the present indictments would have been deemed sufficient. Other early cases indicate the same thing. See, e. g., United States v. Mills, 7 Pet. 138, 142; Evans v. United States, 153 U.S. 584, 587;
In United States v. Debrow, supra, the Court in reversing the dismissal of perjury indictments which had gone on the ground that they had not alleged the name or authority of the persons administering the oath, said (346 U. S., at 376-378):
It is likewise "inconceivable" to me how the indictments in the present cases can be deemed insufficient to advise these petitioners of the nature of the charge they would have to meet. The indictments gave them the name of the committee before which they had appeared; the place and the dates of their appearances; the references to the enabling legislation under which the committee acted; and the questions which the petitioners refused to answer. The subject matter of the investigations had been stated to the petitioners at the time of their appearances before the committees. And the committee transcripts of the hearings were presumably in their possession and, if not, were of course available to them.
Granting all that the Court says about the crucial character of pertinency as an element of this offense, it is surely not more so than the element of premeditation in the crime of first degree murder. If from the standpoint of "apprisal" it is necessary to particularize "pertinency" in a § 192 indictment, it should follow, a fortiori, that, contrary to what is prescribed in Forms 1 and 2 of the Federal Rules of Criminal Procedure, a first degree murder indictment should particularize "premeditation."
The Court says that its holding is needed to prevent the Government from switching on appeal, to the prejudice of the defendants, to a different theory of pertinency from that on which the conviction may have rested. Ante, pp. 766-768. There are several good answers to this.
To the extent that this fear relates to the subject under investigation, the Government cannot of course travel outside the confines of the trial record, of which the defendant has full knowledge. If what is meant is that the Government may not modify on appeal its "trial" view of the "connective reasoning" (supra, p. 784, note 6) relied on to establish the germaneness of the questions asked to the subject matter of the inquiry, surely it would be free to do so, this aspect of pertinency being simply a matter of law, Sinclair v. United States, 279 U.S. 263, 299. Moreover the Court does not find these indictments deficient because they failed to allege the "connective reasoning."
Beyond these considerations, a defendant has ample means for protecting himself in this regard. By objecting at the committee hearing to the pertinency of any question asked him he may "freeze" this issue, since the Government's case on this score must then stand or fall on the pertinency explanation given by the committee in response to such an objection. Deutch v. United States, 367 U.S. 456, 472-473 (dissenting opinion); cf. Watkins v. United States, supra, at 214-215; Barenblatt v. United States, 360 U.S. 109, 123-125. If he has failed to make a pertinency objection at the committee hearing, thereby leaving the issue "at large" for the trial (Deutch, ibid.), he may still seek a particularization through a bill of particulars. Cf. United States v. Kamin, 136 F.Supp. 791, 795 n. 4.
Referring to certain language in the Cruikshank case, supra, the Court suggests that the present holding is supported by a further "important corollary purpose" which an indictment is intended to serve: to make "it possible for courts called upon to pass on the validity of convictions under the statute to bring an enlightened judgment to that task." Ante, pp. 768, 769.
But whether or not the Government has established its case on "pertinency" is something that must be determined on the record made at the trial, not upon the allegations of the indictment. There is no such thing as a motion for summary judgment in a criminal case. While appellate courts might be spared some of the tedium of going through these § 192 records were the allegations of indictments to spell out the "pertinency" facts, the Court elsewhere in its opinion recognizes that the issue at hand can hardly be judged in terms of whether fuller indictments "would simplify the courts' task." Ante, p. 760.
The broad language in Cruikshank on which the Court relies cannot properly be taken as meaning more than that an indictment must set forth enough to enable a court to determine whether a criminal offense over which
The final point made by the Court is perhaps the most novel of all. It is said that a statement of the subject under inquiry is necessary in the indictment in order to fend against the possibility that a defendant may be convicted on a theory of pertinency based upon a subject under investigation different from that which may have been found by the grand jury. An argument similar to this was rejected by this Court many years ago in Rosen v. United States, 161 U.S. 29, 34, where an indictment charging the defendant with mailing obscene matter, only generally described, was upheld over strong dissent (id., at 45-51) asserting that the accused was entitled to know the particular parts of the material which the grand jury had deemed obscene.
This proposition is also certainly unsound on principle. In the last analysis it would mean that a prosecutor could not safely introduce or advocate at a trial evidence or theories, however relevant to the crime charged in the indictment, which he had not presented to the grand jury. Such cases as Ex parte Bain, 121 U.S. 1, United States v.
If the Court's reasoning in this part of its opinion is sound, I can see no escape from the conclusion that a defendant convicted on a lesser included offense, not alleged by the grand jury in an indictment for the greater offense, would have a good plea in arrest of judgment. (Fed. Rules Crim. Proc., 34.)
In conclusion, I realize that one in dissent is sometimes prone to overdraw the impact of a decision with which he does not agree. Yet I am unable to rid myself of the view that the reversal of these convictions on such insubstantial grounds will serve to encourage recalcitrance to legitimate congressional inquiry, stemming from the belief that a refusal to answer may somehow be requited in this Court. And it is not apparent how the seeds which this decision plants in other fields of criminal pleading can well be prevented from sprouting. What is done today calls
No more so does the Bill of Rights of the United States Constitution "fasten" on this country these primitive notions of the common law.
On the merits these convictions are of course squarely ruled against the petitioners by principles discussed in our recent decisions in the Barenblatt, Wilkinson, and Braden
I would affirm.
"The Grand Jury charges:
"On November 17, 1954, in the District of Columbia, a subcommittee of the Committee on Un-American Activities of the House of Representatives was conducting hearings, pursuant to Public Law 601, Section 121, 79th Congress, 2d Session, (60 Stat. 828), and to H. Res. 5, 83d Congress.
"Defendant, Norton Anthony Russell, appeared as a witness before that subcommittee, at the place and on the date above stated, and was asked questions which were pertinent to the question then under inquiry. Then and there the defendant unlawfully refused to answer those pertinent questions. The allegations of this introduction are adopted and incorporated into the counts of this indictment which follow, each of which counts will in addition merely describe the question which was asked of the defendant and which he refused to answer."
(The questions which Russell allegedly refused to answer were then quoted verbatim under separately numbered counts.)
"The defendant moves that the indictment be dismissed on the following grounds:
"1. The indictment fails to plead the following essential and material elements of the offense:
"c. the nature of the `question then under inquiry' to which the questions addressed to defendant are alleged to be relevant."
"Whenever a witness summoned as mentioned in section 192 of this title fails to appear to testify or fails to produce any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session, or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action."
The Court of Appeals for the District of Columbia Circuit has passed on the question, holding that the indictment need not set forth the subject under committee inquiry. See Barenblatt v. United States, 100 U. S. App. D. C. 13, 240 F.2d 875; Sacher v. United States, 102 U. S. App. D. C. 264, 252 F.2d 828. Indictments returned in that circuit of course reflect this rule. See cases cited in MR. JUSTICE HARLAN'S dissenting opinion, post, p. 782, n. 2. The Court of Appeals for the Second Circuit sustained an indictment under 2 U. S. C. § 192 which did not set forth the subject under inquiry in United States v. Josephson, 165 F.2d 82. However, Josephson appears to have been substantially limited by the same court in United States v. Lamont, 236 F.2d 312, and indictments under 2 U. S. C. § 192 currently being returned in the Second Circuit do in fact set forth the subject under inquiry. See the unreported indictments in United States v. Yarus (D. C. S. D. N. Y.) No. C 152-239 (the opinion acquitting defendant Yarus is reported at 198 F.Supp. 425); United States v. Turoff (D. C. W. D. N. Y.) No. 7539-C (the opinion of the Court of Appeals reversing defendant Turoff's conviction is reported at 291 F.2d 864).
No other Court of Appeals has passed squarely on the point. In Braden v. United States, 272 F.2d 653, the Court of Appeals for the Fifth Circuit ruled that the indictment need not explain how and why the questions were pertinent to the subject under inquiry, but did not discuss whether the subject itself had to be specified. In a number of other recent cases arising under 2 U. S. C. § 192 the indictments have stated the subject under inquiry. See, in addition to the examples cited above, the indictment set forth in United States v. Yellin, 287 F.2d 292, 293, n. 2 (C. A. 7th Cir.); the indictment described in Davis v. United States, 269 F.2d 357, 359 (C. A. 6th Cir.); and the unreported indictment in United States v. Lorch (D. C. S. D. Ohio) Cr. No. 3185 (an indictment arising out of the same series of hearings in which Russell, the petitioner in No. 8, was initially summoned to testify).
In No. 9, Shelton v. United States, the petitioner filed a similar motion. The motion was granted, and the Government responded orally as follows:
"As to the second asking, the Government contends, and the indictment states, that the inquiry being conducted was pursuant to this resolution. We do not feel, and it is not the case, that there was any smaller, more limited inquiry being conducted.
"This committee was conducting the inquiry for the purposes contained in the resolution and no lesser purpose so that, in that sense, the asking No. 2 of counsel will be supplied by his reading the resolution."
In the four other cases no motions for bills of particulars were filed.
"The Communists in the United States have their own daily newspaper, the Daily Worker, and control various weekly and monthly periodicals, including Political Affairs and Masses and Mainstream. But those publications are so brazenly slanted that their propaganda value, except for certain elements of the foreign language press in this country, is sharply limited (pts. 28 and 29).
"In order to overcome this disadvantage, and for other reasons, Communists have made vigorous and sustained efforts to infiltrate the American press and radio and to entrench their members in all other forms of mass communications, where, by emphasis or omission of the written or spoken word, it may be turned to the advantage of the conspiracy."
The Report referred to the ruling of an arbiter in a case where a paper had discharged a "rewrite man" because he invoked the Fifth Amendment. It said that the following quotations from his opinion were "of more than passing interest:"
"A metropolitan newspaper in America today is more than a mirror to the happenings of the day. It is a moulder of public opinion; capable of leading crusades; capable of introducing new ideas; capable of propagating truth or propaganda as it wills. By its very nature, whether it would abdicate or not, a newspaper maintains a position of leadership and responsibility in this cold war that is vital to our national security. Other industries (atomic energy, defense, et cetera) may be more vital but this fact does not impair the vital role of our press.
"Each worker performs his task in life with tools, and these tools run the gamut from an ax to a zither. The rewrite man has his tools, too. They are words. Words but express ideas and so it follows that the rewrite man works all day with ideas. This is a war of ideas. Can his position then be deemed nonsensitive? A rewrite man can select the facts he considers important as relayed to him by the reporter in the field. His is the choice of the topic sentence and the lead paragraph. His selection of words sets the tone of the article and influences, too, the choice of headline. The conclusion is irresistible that a rewrite man occupies a sensitive position on a newspaper." Id., at 97.
The Committee concluded, "Communists have infiltrated mass communications media in the United States, and efforts to increase such infiltration continue." Id., at 117.
For a short period after Rule 7 (c), Fed. Rules Crim. Proc., came into effect in 1946, vestiges of common-law pleading continued to be found in some, but not all, § 192 indictments. Compare United States v. Fleischman, 339 U.S. 349 (TR, pp. 2-3), with United States v. Bryan, 339 U.S. 323 (TR, p. 2A). By 1950, however, all such indictments had come to be in statutory form.
"Pleading, either civil or criminal, should be a practical thing. Its purpose is to convey information succinctly and concisely. In older days the tendency was to defeat this purpose by overelaboration and formalism. Now we should avoid the opposite trend, but of like consequence, that of a formalism of generality. There seems to be some tendency to confuse general pleadings with entire absence of statement of claim or charge. [Footnote omitted.] But this is a mistake, for general pleadings, far from omitting a claim or charge, do convey information to the intelligent and sophisticated circle for which they are designed. Thus the charge that at a certain time and place `John Doe with premeditation shot and murdered John Roe,' F. R. Cr. P., Form 2, even though of comparatively few words, has made clear the offense it is bringing before the court. [Footnote omitted.] The present indictments, however, do not show the basis upon which eventual conviction can be had; rather, read in the light of the background of facts and Congressional action, they show that conviction cannot be had." (Emphasis supplied.)
"Where the offence is purely statutory . . . it is, `as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.' 1 Bishop, Crim. Proc., sect. 611, and authorities there cited. But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him . . . . An indictment not so framed is defective, although it may follow the language of the statute." (Emphasis supplied.)
"It was not necessary that the indictment should set forth all the details or facts involved in the issue as to materiality of [the false] statement . . . . In 2 Chittey's Criminal Law, 307, the author says: `It is undoubtedly necessary that it should appear on the face of the indictment that the false allegations were material to the matter in issue. But it is not requisite to set forth all the circumstances which render them material; the simple averment that they were so, will suffice.' In King v. Dowlin . . . Lord Kenyon said that it had always been adjudged to be sufficient in an indictment for perjury, to allege generally that the particular question became a material question. . . ." 160 U. S., at 325.
"The present indictment specifically charged that the accused had knowingly violated the laws of the United States by depositing on a day named, in the post-office specifically named, a letter of such indecent character as to render it unfit to be set forth in detail, enclosed in an envelope bearing a definite address. In the absence of a demand for a bill of particulars we think this description sufficiently advised the accused of the nature and cause of the accusation against him. This fact is made more evident when it is found that this record shows no surprise to the accused in the production of the letter at the trial . . . ."
The Court suggests that Bartell and Rosen v. United States (infra, p. 792) are inapposite because of the special rule of pleading applicable in "obscenity" cases. Ante, p. 765. However, considering that the "apprisal" requisite of an indictment arises from constitutional requirements, this factor far from lessening the weight of these two cases adds to their authority.