BLACK, J., dissenting. 339 U.S. the Court to say that the "power to produce" which Fleischman criminally failed to exercise was solely some imagined personal ability, unconnected with her official capacity, to attempt to cajole the chairman into calling a meeting or ordering production. Upon a showing merely that the board controlled the "policies and activities" of the association and that she was a board member, the Court imposes on Fleischman the burden of disproving the crucial allegation of "power to produce" by establishing that she had done "all she could" to bring about production. In effect it has set up a presumption that every board member automatically has such power, and has saddled Fleischman with the burden of proving her innocence by showing that the presumption should not apply to her." In the absence of some showing that she had authority to call or an opportunity to vote at an official board meeting, or at least had substantial influence over other board members, this is every bit as arbitrary as the presumption rejected in Tot v. Committee. As for the suggestion that Fleischman might have called a meeting in the anteroom of the Committee's chambers, it is strange doctrine to assert that the Committee's command that all members appear was enough to require automatically that each member call a meeting. If that was what the Committee wanted, it could have ordered a meeting itself. In any event, "opportunity" to call a meeting cannot be equated with official "power" to call a meeting. There is no evidence even intimating that she had such authority. 14 Thus theory sharply contrasts with the established principle that corporate and association officials, like other persons, can be held gulty only for their own crime, and not for the crimes of their associates in which there is no proof that they participated. Any contrary doctrine is a startling innovation in the laws of this country. See Brotherhood of Carpenters v. United States, 330 U. S. 395, 406-407. See also cases collected in Notes, 33 A. L. R. 787; 16 LRANS) 333; & Ann. Cas. 383. 349 FRANKFURTER, J., dissenting. United States, 319 U. S. 463.15 That case directly bars use of such a device to shift the burden of proof, however convenient it would be for the prosecutor. And without that device, the Government's case was clearly insufficient to support the verdict. The time-honored rule, that the Government is required to prove every essential ingredient of an offense it charges, provides a safeguard essential to preservation of individual liberty against governmental oppression. It should not be sacrificed in order to sustain the conviction of a single defendant whose guilt the Government has plainly failed to prove. If the Court's theory merely had any one of the above flaws, its chain of reasoning would break. With all four, it collapses. The judgment of the Court of Appeals should be affirmed. MR. JUSTICE FRANKFURTER, dissenting. Anyone who "willfully makes default" in obeying a valid subpoena to produce records before a committee of Congress has, ever since 1857, been guilty of a federal 15 See note 9 of the Court's opinion. Under the Tot rule, the minimum justification for such a presumption would be general experience that the most insignificant member of a board has power, if she "does all she can," to secure board production of documents held by its custodian. Experience not only fails to support this premise; as anyone familiar with the loose-jointed structure of nonprofit associations should know, most members or most boards are wholly subordinate to the executive secretary and the chairman. This is one of the "many significant respects" in which such associations obviously differ from business corporations. See United States v. White, 322 U. S. 694, 697. Not a single line in Rossi v. United States, 289 U. S. 89, or Morrison v. California, 291 U. S. 82, supports the "presumption" retroactively created here. As a basis of "power to produce," mere board membership is no substitute for possession, custody or control. FRANKFURTER, J., dissenting. 339 U.S. offense. Act of January 24, 1857, 11 Stat. 155, R. S. § 102, as amended by Joint Resolution of June 22, 1938, 52 Stat. 942, now 2 U. S. C. § 192. This was the offense for which respondent was prosecuted. The trial court thus put to the jury the theory of the prosecution: "If you find that the members of the executive board, directly or indirectly, had custody or dominion and control over the records subpoenaed and could have produced the records called for, but wilfully failed and refused to do so, and that the defendant Fleischman acted in concert with other members of the executive board, either throughout or at any point, to prevent the committee from getting the subpoenaed records, then you may find the defendant Fleischman guilty, if you find that the other elements hereinafter set out have been proved by the United States beyond a reasonable doubt." The only "other element" that bears on the issue of the sufficiency of the evidence was the court's explanation that the requirement that the default be made "willfully" means that the default must be "deliberate and intentional." The indictment against respondent also had a count charging her and others with conspiring to make willful default of congressional subpoenas. It is inappropriate to consider whether the evidence would have been sufficient to bring respondent within the expansive range of a conspiracy charge or whether evidence that could have been admitted under such a charge but was not admissible in this trial would have sufficed to prove guilt. For its own good reasons the Government dismissed the conspiracy charge against Fleischman. A careful study of the record compels the conclusion that Edgerton, J. conveyed fairly and in balance all that the Government 349 FRANKFURTER, J., dissenting. proved against respondent on the charge on which she was tried: "Appellant testified without contradiction that she could not produce the records because they were not in her possession or control. She refused to express either willingness or unwillingness that they be produced. Even this refusal did not occur until she was questioned by members of the Congressional Committee on April 4. The records were in possession of one Bryan, subject to control by an Executive Board of about 18 members of whom appellant was one. Long before April 4 Bryan, directed by other members of the Board but not by the appellant, had determined not to produce the records. There is no evidence that appellant ratified or approved the action of the other members of the Board. The government says 'In taking part in a combined action to withhold records from a Congressional Committee the appellant acted at her own peril.' But I have not been able to find any evidence, and no evidence has been pointed out, that the appel "8"The Chairman: Mrs. Fleischman; I am going to ask you now for your personal permission. I am requesting you personally to permit this committee of Congress to have access to those books. Will you give it to us or not? So far as you are able to do, will you give it to us? "'Mrs. Fleischman: That is expressing my opinion, Mr. Chairman. I cannot say what the board will do. "The Chairman: I am not asking what the board will do. I am asking what you will do. "'Mrs. Fleischman: I do not know, because the thing comes to the board to discuss, and I don't think it is pertinent to say what I should do a week from now. It is a special meeting.' "I know of nothing else in the record that comes nearer than this to supporting an inference that appellant refused to produce the records or expressed unwillingness to produce them." FRANKFURTER, J., dissenting. 339 U.S. lant took part in a combined action to withhold records. It has been suggested that she might have asked the Board, or Bryan, to produce the records. But there is no evidence that if she had asked them they would have complied. There is no evidence that the nonproduction of the records in the committeeroom resulted either from anything the appellant did or from anything she omitted to do." 84 U. S. App. D. C. 388, 390, 174 F. 2d 519, 521. The respondent was summoned to produce papers before a congressional committee and did not produce them. For this non-action she was prosecuted as a person who "willfully makes default" in not producing the papers. I believe in giving penal statutes a scope their words would receive "in everyday speech." McBoyle v. United States, 283 U. S. 25, 26, and see Roschen v. Ward, 279 U. S. 337, 339. If language in a criminal statute is to be read with the normal meaning of English speech, "willfully makes default" surely conveys the thought of a substantial tie between the non-production of papers and the non-action to which it is attributed. This record is barren of the proof which under our system of punitive justice would have warranted a jury to find that respondent was actively or passively responsible for the nonproduction of the papers she was asked to produce. This conclusion does not imply the slightest relaxation of the duty of obedience to the lawful commands of congressional committees in exercising their power of testimonial compulsion. McGrain v. Daugherty, 273 U. S. 135. But regard for that power does not call for the slightest relaxation of the requirements of our criminal process. A penal statute must not be applied beyond its terms, and the crime defined by it and charged in an indictment must be established by proof beyond a reasonable doubt. |