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It is not the province of the Supreme Court to weigh testimony.

7. CRIMINAL LAW 1159(2) REVIEW OF

SUFFICIENCY OF EVIDENCE ON APPEAL.

It is enough to support on appeal the judgment in a criminal case, if there was substantial evidence inculpating defendants, which, if believed by the jury, would justify the submission of the issues to it.

8. ARMY AND NAVY 40 EVIDENCE SUSTAINING CONVICTION OF CONSPIRACY TO VIOLATE ESPIONAGE ACT.

Evidence, on prosecution for conspiracy to violate Espionage Act, § 3 (Comp. St. 1918,

10212c), of persons connected with a newspaper published in the Lithuanian language, held sufficient to justify submission of the question of guilt.

*585

*The overt acts charged to have been committed in pursuance of the conspiracy consisted of the publication and distribution of a certain newspaper called "Kova" and circulars published in the Lithuanian language. The cases come directly to this Court because of constitutional questions raised and decided in the court below. Since the proceedings in that court some of the constitutional questions have been determined, and need not be considered. Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. 247, 63 L. Ed. 470; Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. 249, 63 L. Ed. 561; Debs v. United States, 249 U. S. 211, 39 Sup. Ct. 252, 63 L. Ed. 566.

Counsel for plaintiffs in error in view of

Mr. Justice Holmes and Mr. Justice Bran- these decisions only press for consideration deis dissenting. certain assignments of error comprised in the following summary.

In error to the District Court of the United States for the Eastern District of Pennsylvania.

Joseph Stilson and Joseph Sukys were convicted of violation of the Espionage Act, their motions in arrest of judgment and for new trial were denied (254 Fed. 120), and they bring error. Affirmed.

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Mr. Robert P. Stewart, Asst. Atty. Gen., for idence. the United States.

4. Whether or not the trial judge erred in overruling a motion to take the case away from

Mr. Justice DAY delivered the opinion of the jury, and in refusing to charge the jury, the Court.

The plaintiffs in error were indicted with two others, not apprehended, and were convicted under the conspiracy section (4) of the Espionage Act (Act of June 15, 1917, c. 30, tit. 1, 40 Stat. 217, 219 [Comp. St. 1918, 10212d]). The section which the plaintiffs in error were charged with a criminal conspiracy to violate (3) provides:

Whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, shall be punished by a fine of not more than $10,000, or imprisonment for not more than twenty years, or both.. " Comp. St. 1918, § 10212c.

A second count in the indictment charged a conspiracy to violate certain provisions of

"under all the evidence your verdict should be 'not guilty."

Of these in their order:

[1, 2] 1. It is provided in the Sixth Amendment to the Constitution of the United States that in all criminal prosecutions the accused shall enjoy the right to a trial by an impartial jury. That it was within the discretion of the court to order the defendants to be tried together there can be no question, and

*586

the practice is too well established *to require further consideration. The contention raised under the Sixth Amendment comes to this: That because plaintiffs in error were not each allowed ten separate and independent peremptory challenges they were therefore denied a trial by an impartial jury. The statute (Act March 3, 1911, c. 231, § 287, 36 Stat. 1166 [Comp. St. § 1264]) regulating the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

matter of peremptory challenges is clear in whether or not we are at war, because unless its terms and provides:

"When the offense charged is treason or a capital offense, the defendant shall be entitled to twenty and the United States to six peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United States to six peremptory challenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section. All challenges, whether to the array or panel, or to individual jurors for cause or favor, shall be tried by the court without the aid of triers."

The requirement to treat the parties defendant as a single party for the purpose of peremptory challenges has long been a part of the federal system of jurisprudence, it certainly dates back to 1865 and was adopted in the Revised Statutes, and has now become a part of the Judicial Code. 36 Stat. 1166, § 287. Schwartzberg v. United States, 241 Fed. 348, 154 C. C. A. 228. There is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges to defendants in criminal cases; trial by an impartial jury is all that is secured. The number of challenges is left to be regulated by the common law or the enactments of Congress. That body has seen fit to treat several defendants, for this purpose, as one party. If the defendants would avail themselves of this privilege they must act accordingly. It may be, as is said to have been the fact in the trial of the present case, that all defendants may not wish

*587

to exercise the right of peremptory challenge as to the same person or persons, and that some may wish to challenge those who are unobjectionable to others. But this situation arises from the exercise of a privilege granted by the legislative authority and does not invalidate the law. The privilege must be taken with the limitations placed upon the manner of its exercise.

[3, 4] 2. It is insisted that there was prejudicial error in so much of the charge as is contained in the following language:

we are, this indictment goes for nothing. You may determine that from your general information this is something of which, in the phrase of the law, the law takes judicial notice. So also when you come to determine the question of whether or not there was an attempt to cause insubordination, you take, of course, all the evidence into the case, and you have a right to direct your minds, as naturally you would, to the character of these publications themselves, these pamphlets and these articles, and determine from them, assisted by all the other evidence in the case, whether or not they do reach the dignity of the charge of attempting to cause insubordination; or amount to an obstruction of enlistment."

*588

*Certainly no prejudice could arise from an instruction that the jury might be supposed to know the fact that the country was at war. As to the other part of the charge, the jury were told to look at all the evidence, including the character of the publications, and determine from them whether there was an attempt to cause insubordination and a willful obstruction of enlistment; in other wordswhether they amounted to a substantial violation of the statute. We find no well-founded objection to this part of the charge. It is true this language was used in connection with the observations concerning judicial notice as to the country being in a state of war, but we are of opinion, taking the charge together, that the question was fairly left to the jury upon the evidence in the part of the instruction which we have quoted, which left to it to determine whether the facts made a case coming within the denunciation of the statute.

[5] 3. It is contended that the court did not analyze and discuss the details of the fact to the determination of the jury in a evidence. The trial judge left matters of charge commendable for its fairness. Certainly the lack of discussion in detail does in the absence of any specific request for comnot amount to a valid objection; particularly ment upon any special phase of the testi

mony.

[6-8] 4. As to the contention that there was no evidence to warrant the convictions

of the accused-it must be borne in mind that it is not the province of this Court to weigh testimony. It is sufficient to support the "The next question for you to determine is judgment of the District Court, if there was the presence of essential elements. One of substantial evidence inculpating the defendthem is, for instance, that the United States is ants which, if believed by the jury, would at war. Secondly, that what was done was an justify the submission of the issues to it. attempt to cause insubordination, or what was done did amount to obstructing enlistment, and the contents of the newspaper articles and It would serve no good purpose to set forth the question may arise in your mind how are you to determine that. Whenever you are ask- the circulars, the publication and distribued as a jury to pass upon anything which is tion of which were alleged to be the overt a matter within common knowledge, common acts in furtherance of the alleged conspiracy. information, things which people ordinarily That they contain appeals tending to cause know, which are generally and practically universally known, when you are passing upon forces of the United States, and to obstruct disloyalty and refusal of duty in *the military such questions, you have the right to call upon your general knowledge and information. You the recruiting and enlistment service of the must determine, for instance, the question government is sufficiently apparent on the

*589

(40 Sup. Ct.)

face of the publications. That those who by concerted action prepared and circulated such writings could be found guilty of a conspiracy is equally clear. The connection of the plaintiffs in error with the Lithuanian Socialist Federation, whose membership was shown to be actively opposed to the prosecution of the war, is apparent from a perusal of the record. Stilson was the translatorsecretary of the Federation. There is evidence tending to show that one of the circulars entitled, "Let Us Not Go to the Army," was mimeographed from the typewriter controlled and operated by him. Language of the same character as that set forth in the incriminating circulars is found in articles in evidence which were admittedly written by him.

Sukys had been a correspondent of "Kova," and was afterwards manager of the Kova printing plant and was appointed by the executive committee of the Federation, and incriminating acts of his are clearly shown in

the record.

We agree with the trial court that there was ample testimony justifying the submission of the question of the guilt of the accused to the jury, who found both of the plaintiffs in error guilty of concerted action amounting to a conspiracy to violate the provisions of the act. We find no error in this record, and the judgments are

Affirmed.

Mr. Justice HOLMES and Mr. Justice BRANDEIS dissenting on the ground that as the sentence was upon a general verdict of guilty on both counts, one of which is not sustained, the judgment should be reversed.

(250 U. S. 590)

MULLEN et al. v. PICKENS et al.

SAME v. GARDNER et al. (Submitted Oct. 13, 1919. Decided Nov. 10, 1919.)

Nos. 25 and 26.

actual allotment effect as covenants to convey allotments thereafter to be selected, either on the ground of estoppel, or because of a state statute having like force, and this even though the allotments should be set aside, other lands the conveyances contained a clause that, if should be selected instead, which should pass to the grantees; the grantors executing further conveyances.

In Error to the Supreme Court of the State of Oklahoma.

Actions by Malinda Pickens and others and by Anderson Gardner and another against J. S. Mullen and others. To review judgments for plaintiffs, defendants brought error to the Supreme Court of Oklahoma, which affirmed (56 Okl. 65, 155 Pac. 871; 57 Okl. 186, 156 Pac. 1150), and defendants bring error. Judgments affirmed.

Messrs. Fred R. Ellis, of Lawton, Okl., and H. A. Ledbetter, of Ardmore, Okl., for plaintiffs in error.

Mr. C. S. Arnold, of Enid, Okl., for defendants in error Pickens and others.

Mr. Justice PITNEY delivered the opinion of the Court.

These cases were submitted together and involve but a single question, which turns upon the effect to be given to the provisions of the Supplemental Agreement with the Choctaw and Chickasaw Tribes of Indians (Act July 1, 1902, c. 1362, 32 Stat. 641) rélating to the allotment of the tribal lands. In each case an enrolled Indian died subsequent to the ratification of the Agreement and be

*591

fore selection of an allotment; in each case
the personal representative selected lands
for allotment in the name of the deceased In-
dian, which shortly afterwards were attempt-
ed to be conveyed by the heirs of such Indian
by warranty deeds through which plaintiffs
in error claim, each of which deeds contained
a clause to the effect that if for any reason
the selection of the lands described in the
deed should be set aside, other lands should
be selected instead, and these should pass to
the grantees, and the grantors would ex-
ecute further conveyances if necessary.
each case the selection for allotment thus

In

INDIANS 15(1) DEEDS OF HEIRS OF DE- made was set aside in contest proceedings, CEASED INDIAN PRIOR TO ALLOTMENT. In view of Act April 21, 1904, Act April 26, 1906, and Act May 27, 1908, under Supplemental Agreement with the Choctaw and Chickasaw Tribes of Indians embodied in Act of Congress of July 1, 1902, relating to the allotment of the tribal lands, not only does the

equity of the heir of a deceased member of a tribe take its inception at the selection of the allotment, but any previous attempt to sell his expectancy is contrary to the spirit and policy of the act, which cannot be evaded by giving to conveyances with warranty or its equivalent made by heirs of a deceased Indian prior to

and another selection thereafter made, follow-
ed by an allotment in the name of the deceas-
ed Indian. And the question is whether plain-
tiffs in error, by virtue of the deeds for the
prior selections and the special covenants con-
tained in them, are entitled in equity to the
Court of Oklahoma held not.
lands subsequently allotted. The Supreme
Mullen v.
Pickens, 56 Okl. 65, 155 Pac. 871; Mullen v.
Its
Gardner, 57 Okl. 186, 156 Pac. 1160.
judgments were entered before the taking
effect of Act Sept. 6, 1916, c. 448, 39 Stat.
726, amending section 237, Judicial Code

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(Comp. St. § 1214), and the present writs of error were applied for and allowed within the time permitted by section 7 of the amending act.

Pertinent provisions of the Supplemental Agreement are set forth in the margin.1

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593

interest in the tri*bal land nor any vendible interest in any particular tract, and because the attempted conveyance was in conflict with the provisions of sections 15 and 16 of the Supplemental Agreement to the effect that lands allotted should not be affected by any deed, debt, or obligation contracted prior to the time at which such land might be alienated under the act, and should not be alienable except after issuance of patent. It was contended that the prohibicon against sale, in its application to the particular case, had been removed by Act April 21, 1904, c. 1402, 33 Stat. 189, 204, providing that "all restrictions upon the alienation of lands of all allottees of either of the Five Civilized Tribes of Indians who are not of Indian

*In Franklin v. Lynch, 233 U. S. 269, 34 Sup. Ct. 505, 58 L. Ed. 954; a white woman, widow of a Choctaw Indian, having applied to be admitted as a member of the tribe by intermarriage, made a warranty deed in October, 1905, for lands exclusive of homestead which might be finally allotted to her, with an accompanying agreement to make conveyance when the land should be actually allotted. Thereafter she was enrolled as an intermarried citizen, made her selection, and received a patent for land, all of which, ex-blood" should be removed. But we held that cept the homestead, she sold for value to other parties. This court held (affirming the Supreme Court of Oklahoma) that the earlier deed and the agreement were void because until allotment the Indian had no undivided

111. There shall be allotted to each member of

the Choctaw and Chickasaw Tribes, as soon as

practicable after the approval by the Secretary of the Interior of his enrollment as herein provided, land equal in value to three hundred and twenty acres of the average allottable land of the Choctaw and Chickasaw Nations, and to each Choctaw and Chickasaw freedman, as soon as practicable after the approval by the Secretary of the Interior of his enrollment, land equal in value to forty acres of the average allottable land of the Choctaw and Chickasaw Nations. ...

12. Each member of said tribe shall, at the time

a

of the selection of his allotment, designate as homestead out of said allotment land equal in value to one hundred and sixty acres of the average alas nearly as may be, which shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment, and separate certificate and patent shall issue for said homestead.

lottable land of the Choctaw and Chickasaw Nations,

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15. Lands allotted to members and freedmen shall not be affected or encumbered by any deed, debt, or obligation of any character contracted prior to the time at which said land may be alienated under this act, nor shall said lands be sold except as herein provided.

16. All lands allotted to the members of said tribes, except such land as is set aside to each for a homestead as herein provided, shall be alienable after issuance of patent as follows: One-fourth in acreage in one year, one-fourth in acreage in three years, and the balance in five years; in each case from date of patent: Provided, that such land shall not be alienable by the allottee or his heirs at any time before the expiration of the Choctaw and Chickasaw tribal governments for less than its appraised value.

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22. If any person whose name appears upon the rolls, prepared as herein provided, shall have died subsequent to the ratification of this agreement and before receiving his allotment of land the lands to which such person would have been entitled if living shall be allotted in his name, and shall, together with his proportionate share of other tribal property, descend to his heirs according to the laws of descent and distribution as provided in Chapter forty-nine of Mansfield's Digest of the Statutes of

Arkansas: Provided, that the allotment thus to be made shall be selected by a duly appointed admin

istrator or executor.

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while this removed the restriction to the extent of permitting members who were not of Indian blood to sell land after it had been actually allotted in severalty, it did not permit even a non-Indian to sell a mere float or

expectancy.

It is insisted that a different rule must be applied with respect to lands allotted pursu ant to section 22 in the name of a deceased member for the benefit of his heirs, as to which there is no express restriction upon alienation like those found in sections 15 and 16, and, in the absence of such restriction, no obstacle in the way of the owner convey. ing his equitable interest after allotment, as was held by this court in Mullen v. United States, 224 U. S. 448, 457, 32 Sup. Ct. 494, 56 L. Ed. 834 (and see like rulings, as to the corresponding provisions of the Creek Agreement, in Skelton v. Dill, 235 U. S. 206, 210, 35 Sup. Ct. 60, 59 L. Ed. 198, and Woodward v. De Graffenried, 238 U. S. 284, 319, 35 Sup. Ct. 764, 59 L. Ed. 1310). But the decision in Franklin v. Lynch, supra, was based not alone upon the express restrictions, but upon the absence of individual interest in the tribal land prior to allotment and the general policy of the Agreement not to permit the improvident sales that would result if a prospective allottee were enabled to sell his expectancy.

We have not overlooked the fact that in *594

construing a *treaty made October 27, 1832 (7 Stat. 399), between the United States and the Pottawatomie Indians, ceding their possessory interest in certain lands to the United States, with a reservation of a considerable number of sections to particular named Indians to be granted to them when selected, it was held by this court in two cases that the treaty itself converted the reserved sections into individual property and created an equitable interest that was the subject of sale and conveyance, and that warranty deeds made prior to selection operated to vest the title in the grantee as soon as the lands were selected and patented. Doe v. Wilson (1859) 23 How. 457, 16 L. Ed. 584; Crews v. Burcham (1861) 1 Black, 352, 17 L. Ed. 91. Nor

(40 Sup.Ct.)

that a similar result was reached in Jones v. Meehan, 175 U. S. 1, 21, 23, 32, 20 Sup. Ct. 1, 44 L. Ed. 49, under the provisions of a treaty with certain bands of Chippewa Indians made October 2, 1863, by which a particular reservation was set apart for one of their principal chiefs.

tive declaration of the true intent and meaning of the Agreements respecting allotment of the lands of these tribes.

The provisions of the Supplemental Agreement having permitted no conveyance of an interest in the tribal lands prior to allotment, it is obvious that this policy cannot be evaded by giving to a conveyance with warranty or its equivalent, made prior to actual allotment, effect as a covenant to convey an allotment thereafter to be selected, either upon the ground of estoppel or because of any state statute having like force. Starr v. Long Jim, 227 U. S. 613, 624, 33 Sup. Ct. 358, 57 L. Ed. 670; Monson v. Simonson, 231 U. S. 341, 347, 34 Sup. Ct. 71, 58 L. Ed. 260. Judgments affirmed.

But we deem it impossible in right reason to apply the doctrine of these decisions to the case in hand. Section 22 of the Supplemental Agreement provides, not for any special grant or reservation in favor of particular Indians upon any special meritorious consideration, but makes a substituted provision, in the allotment scheme, in favor of the heirs of any enrolled Indian who might happen to die after the ratification of the Agreement and before selection of his allotment. In the absence of anything to the contrary, the lands prior to allotment were to remain communal, without private interest that was capable of descent or alienation. Gritts v. Fisher, 224 U. S. 640, 642, 32 Sup. Ct. 580, 56 L. Ed. 928; Sizemore v. Brady, 235 U. S. 441, 449-451, 35 Sup. Ct. 135, 59 L. Ed. 308. And no reason is suggested, nor does any occur to us, for creating by implication from the provisions of section 22 a separate in- (Argued Oct. 14, 1919. Decided Nov. 10, 1919.) terest or equity in the heirs of a deceased member prior to allotment that by the general scheme of the act and the express provisions of sections 15 and 16 was withheld from a member entitled to receive an allot*595

ment in his own right. The implication is clearly to the contrary; and we hold that not only by the terms of section 22 does the equity of the heir of a deceased member take its inception at the selection of the allotment, but that any previous attempt to sell his expectancy is contrary to the spirit and policy of the act.

Mullen v. United States, 224 U. S. 448, 457, 32 Sup. Ct. 494, 56 L. Ed. 834, cited by plaintiff in error, is not in point, for the lands there in controversy had been duly allotted, and the only question was whether they might be alienated thereafter and before the issuance of patent, a question affirmatively answered by reference to the proviso of section 19 of the act of April 26, 1906 (34 Stat. 137, 144, c. 1876).

In confirmation of our view as to the meaning and effect of section 22 of the Supplemental Agreement, reference may be made to several acts of Congress respecting restrictions upon the lands of the Five Civilized Tribes, containing some provisions for their removal, and others for their maintenance except so far as removed, the language of which is inconsistent with the theory that there was any individual interest or equity in such lands prior to the selection of an allotment. Act April 21, 1904, c. 1402, 33 Stat. 189, 204; Act April 26, 1906, c. 1876, § 19, 34 Stat. 137, 144; Act May 27, 1908, c. 199, 35 Stat. 312. They amount to a legisla

(250 U. S. 549)

UNITED STATES ex rel. ALASKA SMOKE-
LESS COAL CO. v. LANE, Secretary
of Interior, et al.

No. 36.

1. MINES AND MINERALS 40-POWER OF GENERAL LAND OFFICE IN PASSING ON COAL CLAIMS NOT MINISTERIAL.

The power of the General Land Office to approve and pass to patent an application for certain coal claims necessarily is something more than ministerial, and yet is not arbitrary, without statutory direction or regulation by settled rules and principles; the Land Office is like any other tribunal, its institution and purpose defining and measuring its power, the determining elements being those of fact and law, on which judgment necessarily must be passed. 2. MANDAMUS 85-TO COMPEL PATENT OF

COAL CLAIMS AFTER ADVERSE FINDING BY
LAND OFFICE DENIED.

Where a local land office of the United States in Alaska, the Commissioner of the General Land Office, and the Secretary of the Interior in succession decided that Rev. St. §§ ed to Alaska by Act Cong. June 6, 1900, amend2347-2352 (Comp. St. §§ 4659-4664), as extended by Act April 28, 1904 (Comp. St. §§ 50715074), contemplated as a basis of a valid location of coal claims the opening and developing of a producing mine of coal, and that the work to be performed upon a claim for prospecting purposes only does not fulfill the requirement, also that such was the character of the work done on the claims involved, there is no right, in the company seeking to patent the claims, to Commissioner to prove and pass them to patent. mandamus to require the Secretary and the

3. MANDAMUS 72-No CONTROL OF DISCRE

TIONARY OFFICIAL ACTION.

Where there is discretion in official action, even though the conclusion of the authority be disputable, it is impregnable to mandamus.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
40 SUP.CT.-3

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