"Every person who having been summoned
as a witness by the authority of either House of
Congress to give testimony or to produce papers
upon any matter under inquiry before either
House or any joint committee established by a
joint or concurrent resolution of the two Ilouses
of Congress, or any committee of either House
of Congress, wilfully makes default, or who,
having appeared, refuses to answer any question
pertinent to the question under inquiry, shall be
deemed guilty of a misdeineanor, punishable by
a fine of not more than $1,000 nor less than $100
and imprisonment in a common jail for not less
than one month nor more than twelve months"
2 U.S. C. $192, 2 U.S. C. A. $192.

The statute under which the present defendant is charged

reads as follows:

"Whoever, being over eighteen years of age, refuses or wilfully neglects, when requested by the Secretary, or by any other authorized officer or employee of the Department of Commerce or bureau or agency thereof acting under the instructions of the Secretary or authorized officer, to answer, to the best of his knowledge, any of the questions on any schedule submitted to him in connection with any census or survey provided for by subchapters I, II, and IV of Chapter 5 of this title, applying to himself or to the family to which he belongs or is related, or to the farm or farms of which he or his family is the occupant, shall be fined not more than $100 or imprisoned not more than sixty days, or both. " 13 U.S. C. §221(a)

The Supreme Court, in Russell, reversed the decision of

the Court of Appeals which had denied the defendants' motion to quash the indictments. The court said the indictments were insufficient for

they failed to identify the subject which was under inquiry at the time of the defendants' alleged default or refusal to answer.

The Court went on to say:

"The vice which inheres is the failure of

an indictment under 2 U.S. C. $192, 2 U.S. C. A.
$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 accus-
ation against him, ...' United States v. Simmons,
supra, 96 U. S. at 362. A cryptic form of indict-
ment 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."

Due to the fact that the information fails to list the specific questions the defendant is alleged to have neglected or wilfully refused

to answer, and further due to the fact that the pertinence of those

questions has not been alleged therein, the defendant has been inadequately

informed as to the nature of the charge against him.

37-583 74 pt. 2 61

ARGUMENT III

THE STATUTE UPON WHICH THE CHARGE
IS BASED, I. E. TITLE 13 UNITED STATES
CODE, SECTION 221(a) IS UNCONSTITUTIONAL
IN THAT IT IS VAGUE AND INDEFINITE

In the instant case the statute upon which the charge is

based is Title 13, United States Code, Section 221(a). It reads as

follows:

"Whoever, being over eighteen years

of age, refuses or wilfully neglects, when
requested by the Secretary, or by any other
authorized officer or employee of the Depart-
ment of Commerce or bureau or agency
thereof acting under the instructions of the
Secretary or authorized officer, to answer,
to the best of his knowledge, any of the
questions on any schedule submitted to him
in connection with any census or survey
provided for by subchapters I, II, and IV of
Chapter 5 of this title, applying to himself
or to the family to which he belongs or is
related, or to the farm or farms of which he
or his family is the occupant shall be fined
not more than $100 or imprisonment not more
than sixty days, or both. '

In order for a person to know whether he has violated the

statute above, he would, of necessity, have to know the provisions of subchapters I, II, and IV of Chapter 5 of Title 13 U. S. C. A. as well as subchapter 225 of Chapter 7 of Title 13 U.S. C. A. The latter statute is

even more vague than Section 221(a). It states the applicability of penal provisions in certain cases.

The Supreme Court of the United States has often recognized

the basic principle that a criminal statute must give fair warning of the conduct that it makes a crime. In the case of United States v. Harriss,

347 U.S. 612, 617, 74 S. Ct. 808, 812, 98 L. Ed. 989, the court said!

"The constitutional requirement of
definiteness is violated by a criminal
statute that fails to give a person of
ordinary intelligence fair notice that
his contemplated conduct is forbidden
by the statute. The underlying principle
is that no man shall be held criminally
responsible for conduct which he could

not reasonably understand to be proscribed. "

In Connolly v. General Construction Co., 269 U.S. 385, 391

46 S. Ct. 126, 127, 70 L. Ed. 322, the court struck down a state criminal statute under the Due Process Clause where it was not "sufficiently explicit to inform those who were subject to it what conduct on their part would render them liable to its penalties." The court went on to say:

"A statute which either forbids or requires
the doing of an act in terms so vague that men
of common intelligence must necessarily guess
at its meaning and differ as to its application
violates the first essential of due process of law."

In the case of Lanzetta v. New Jersey, 306 U. S. 451, 453,

59 S. Ct. 618, 619, 83 L. Ed. 888, Justice Butler wrote:

"It is the statute, not the accusation under
it, that prescribes the rule to govern conduct
and warns against transgression. See Stromberg
v. California 283 U.S. 359, 368, 51 S. Ct. 532, 535,
75 L. Ed. 1117, 73 A. L. R. 1484; Levell v. Griffin,
303 U.S. 444, 58 S. Ct. 666, 32 L. Ed. 949. No one
may be required at peril of life, liberty or property
to speculate as to the message of penal statutes.
All are entitled to be informed as to what the
State commands or forbids."

Mr. Justice Oliver Wendell Holmes delivered the opinion

of the court in McBoyle v. U. S., 283 U.S. 25, 51 S. Ct. 34, wherein

it was said, inter alia:

"Although it is not likely that a criminal
will carefully consider the text of the law
before he murders or steals, it is reason-
able that a fair warning should be given to
the world in language that the common world
will understand, of what the law intends to do
if a certain line is passed. To make the
warning fair, so far as possible the line should
be clear...

The defendant in the present case contends that the statute

which charges him "lacks an ascertainable standard of guilt" and is not

"adequate to inform persons accused of violations thereof of the nature

and cause of the accusations against them." See United States v. L. Cohen Grocery Co. (1921) 255 U.S. 81.