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EPTON v. NEW YORK

decided*fn*: January 22, 1968.

EPTON
v.
NEW YORK



ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.

Warren, Black, Douglas, Harlan, Brennan, Stewart, White, Fortas, Marshall

Author: Per Curiam

[ 390 U.S. Page 29]

 The petition for a writ of certiorari is denied in No. 502, Misc. The motion to dismiss is granted in No. 771, Misc., and the appeal is dismissed for want of a substantial federal question.

Disposition

19 N. Y. 2d 496, 227 N. E. 2d 829, certiorari denied in No. 502, Misc.; and appeal dismissed in No. 771, Misc.

MR. JUSTICE STEWART, concurring in the denial of certiorari and the dismissal of the appeal.

I join the denial of certiorari in No. 502, Misc., and the dismissal of the related appeal in No. 771, Misc., but only because Epton has been sentenced to serve three concurrent one-year terms: one for conspiring to riot, New York Penal Law (1944 and 1966 Cum. Supp.), §§ 580, 2090; one for advocating criminal anarchy, §§ 160, 161; and one for conspiring to engage in such advocacy, §§ 580, 160, 161. I think the riot conviction presents no substantial federal question, and since the three sentences

[ 390 U.S. Page 30]

     were ordered to run concurrently, I conclude that these cases do not require the Court to consider either the criminal anarchy conviction or the associated conspiracy conviction. See Hirabayashi v. United States, 320 U.S. 81, 85; Lanza v. New York, 370 U.S. 139. If the constitutionality of New York's criminal anarchy laws were properly presented, however, I would vote to grant the petition for certiorari and note probable jurisdiction of the appeal, to reconsider the Court's decision in Gitlow v. New York, 268 U.S. 652, and to decide whether the New York anarchy statutes, either on their face or as applied in these cases, violate the First and Fourteenth Amendments.

MR. JUSTICE DOUGLAS, dissenting.

I would hear argument in these cases, since I am of the opinion that all questions presented, including those under the first count of the indictment for conspiring to riot, present substantial federal questions.

In the first count, the State alleged the commission of 15 overt acts by Epton in furtherance of the alleged conspiracy to riot. The alleged acts consisted in part of speeches made by Epton and his participation in the preparation and distribution of certain leaflets. Such activities, of course, are ...


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