Herndon v. Georgia , 55 S. Ct. 794 ( 1935 )

Mr. Justice Sutherland

delivered the opinion of the Court.

Appellant was sentenced to a term of imprisonment upon conviction by a jury in a Georgia court of first instance of an attempt to incite insurrection by endeavoring to induce others to join in combined resistance to the authority of the state to be accomplished by acts of violence, in violation of § 56 of the Penal Code of Georgia.¹ The supreme court of the state affirmed the judgment. 178 Ga. 832; 174 S. E. 597, rehearing denied, 179 Ga. 597; 176 S. E. 620. On this appeal, the statute is assailed as contravening the due process clause of the Fourteenth Amendment in certain designated particulars. We find it unnecessary to review the points made, since this court is without jurisdiction for the reason that no federal question was seasonably raised in the court below or passed upon by that court.

It is true that there was a preliminary attack upon the indictment in the trial court on the ground, among others, that the statute was in violation “ of the Constitution of the United States," and that this contention was overruled. But, in addition to the insufficiency of the specification,² the adverse action of the trial court was not preserved by exceptions pendente lite or assigned as error in due time in the bill of exceptions, as the settled rules of the state practice require. In that situation, the state supreme court declined to review any of the rulings of the trial court in respect of that and other preliminary issues; and this determination of the state court is conclusive here. John v. Paullin, 231 U. S. 583, 585; Atlantic Coast Line R. Co. v. Mims, 242 U. S. 532, 535; Nevada-California-Oregon Ry. v. Burrus, 244 U. S. 103, 105; Brooks v. Missouri, 124 U. S. 394, 400; Central Union Telephone Co. v. Edwardsville, 269 U. S. 190, 194-195; Erie R. Co. v. Purdy, 185 U. S. 148, 154; Mutual Life Ins. Co. v. McGrew, 188 U. S. 291, 308.

The federal question was never properly presented to the state supreme court unless upon motion for rehearing; and that court then refused to consider it. The long-established general rule is that the attempt to raise a federal question after judgment, upon a petition for rehearing, comes too late, unless the court actually entertains the question and decides it. Texas & Pacific Ry. Co. v. Southern Pacific Co., 137 U. S. 48, 54; Loeber v. Schroeder, 149 U. S. 580, 585; Godchaux Co. v. Estopinal, 251 U. S. 179,181; Rooker v. Fidelity Trust Co., 261 U. S. 114, 117; Tidal Oil Co. v. Flanagan, 263 U. S. 444, 454-455, and cases cited.

Petitioner, however, contends that the present case falls within an exception to the rule — namely, that the question respecting the validity of the statute as applied by the lower court first .arose from its unanticipated act in. giving to the statute a new construction which threatened rights under the Constitution. There is no doubt that the federal claim was timely if the ruling of the state court could not have been anticipated and a petition for rehearing presented the first opportunity for raising it. Saunders v. Shaw, 244 U. S. 317, 320; Ohio v. Akron Park District, 281 U. S. 74, 79; Missouri v. Gehner, 281 U. S. 313, 320; Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 677-678; American Surety Co. v. Baldwin, 287 U. S. 156, 164; Great Northern Ry. v. Sunburst Oil Co., 287 U. S. 358, 367. The whole point, therefore, is whether the ruling here assailed should have been anticipated.

The trial court instructed the jury that the evidence would not be sufficient to convict the defendant if it did not indicate that his advocacy would be acted upon immediately; and that — “ In order to convict the defendant, ... it must appear clearly by the evidence that immediate serious violence against the State of Georgia was to be expected or was advocated.” Petitioner urges that the question presented to the state supreme court was whether the evidence made out a violation of the statute as thus construed by the trial court, while the supreme court construed the statute (178 Ga., p. 855) as not requiring that an insurrection should follow instantly or at any given time, but that “ it would be sufficient that he [the defendant] intended it to happen at any time, as a result of his influence, by those whom he sought to incite,” and upon that construction determined the sufficiency of the evidence against the defendant. If that were all, the petitioner’s contention that the federal question was raised at the earliest opportunity well might be sustained; but it is not all.

The verdict of the jury was returned on January 18, 1933, and judgment immediately followed. On July 5, 1933, the trial court overruled a motion for new trial. The original opinion was handed down and the judgment of the state supreme court entered May 24, 1934, the case having been in that court since the preceding July.

On March 18, 1933, several months prior to the action of the trial court on the motion for new trial, the state supreme court had decided Carr v. State, 176 Ga. 747; 169 S. E. 201. In that case § 66 of the Penal Code, under which it arose, was challenged as contravening the Fourteenth Amendment. The court in substance construed the statute as it did in the present case. In the course of the opinion it said (p. 760) :

“ It [the state] can not reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency. . . . ‘ Manifestly, the legislature has authority to forbid the advocacy of a doctrine designed and intended to overthrow the government, without waiting until there is a present and imminent danger of the success of the plan advocated. If the State were compelled to wait until the apprehended danger became certain, then its right to protect itself would come into being simultaneously with the overthrow of the government, when there would be neither prosecuting officers nor courts for the enforcement of the law.’ ”

The language contained in the subquotation is taken from People v. Lloyd, 304 Ill. 23, 35; 136 N. E. 505, and is quoted with approval by this court in Gitlow v. New York, 268 U. S. 652, 669.

In the present case, following the language quoted at an earlier point in this opinion to the effect that it was sufficient if the defendant intended an insurrection to follow at any time, etc., the court below, in its original opinion, (178 Ga. 855) added — “ It was the intention of this law to arrest at its incipiency any effort to overthrow the state government, where it takes the form of an actual attempt to incite others to insurrection.” The phrase “ at any time ” is not found in the foregoing excerpt from the Carr case, but it is there in effect, when the phrase is given the meaning disclosed by the context, as that meaning is pointed out by the court below in its opinion denying the motion for a rehearing (179 Ga. 600), when it said that the phrase was necessarily intended to mean within a reasonable time — “ that is, within such time as one’s persuasion or other adopted means might reasonably be expected to be directly operative in causing an insurrection.”

Appellant, of course, cannot plead ignorance of the ruling in the Carr case, and was therefore bound to anticipate the probability of a similar ruling in his own case, and preserve his right to a review here by appropriate action upon the original hearing in the court below. It follows that his contention that he raised the federal question at the first opportunity is without substance, and the appeal must be dismissed for want of jurisdiction.

Dismissed.

1 “ § 56. Any attempt, by persuasion or otherwise, to induce others to join in any combined resistance to the lawful authority of the State shall constitute an attempt to incite insurrection.”

“ Insurrection ” is defined by the preceding section. “ § 55. Insurrection shall consist in any combined resistance to the lawful authority of the State, with intent to the denial thereof, when the same is manifested, or intended to be manifested, by acts of violence,”

2 Maxwell v. Newbold, 18 How. 511, 516; Messenger v. Mason, 10 Wall. 507, 509; Capital City Dairy Co. v. Ohio, 183 U. S. 238, 248; Harding v. Illinois, 196 U, S. 78, 85, 86-88.