determination as to what activities are comprised within these two terms.
It is argued, however, that a person who is directed to appear or produce documents before the Committee may be at sea in endeavoring to determine whether the Committee is acting within its jurisdiction. It must be borne in mind, however, that the statute (U.S.C.A. Title 2, § 192) which punishes failure to comply with a subpoena or to answer questions, is definite and makes a willful default a misdemeanor. A person who declines to comply with a direction of the Committee on the basis of a claim that the Resolution creating it is invalid, or that the Committee is exceeding its jurisdiction, acts at his peril. The provisions of an investigating Resolution are not drawn primarily for the benefit of a witness, but are framed for the guidance of the Committee. There are many situations in which a person assumes a risk in determining whether what he intends to do constitutes a crime. This is true, for example, in respect to violations of the anti-trust laws, because what constitutes an illegal restraint of trade is frequently a debatable matter.
In Nash v. United States, 229 U.S. 373, 377, 33 S. Ct. 780, 781, 57 L. Ed. 1232, Mr. Justice Holmes aptly remarked: ' * * * the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death.'
In the light of the foregoing considerations, it is the conclusion of this Court that the House Resolution creating the Committee on Un-American Activities is valid.
It is further urged that the subpoenas as set forth in the indictments, are too broad and are, therefore, violative of the Fourth Amendment. Whether a subpoena is too broad cannot always be determined from the terms of the document, but is a mixed question of law and fact. Consequently, the question should not be determined on a motion to dismiss the indictment for insufficiency. It may be observed that each of the subpoenas is limited to documents relating to a specific topic, or is restricted to specified periods, or both. Somewhat similar subpoenas were held valid in Brown v. United States, 276 U.S. 134, 138, 48 S. Ct. 288, 72 L. Ed. 500; and Wheeler v. United States, 226 U.S. 478, 483, 33 S. Ct. 158, 57 L. Ed. 309. Moreover, there may conceivably be a question as to whether under the circumstances of this case, the defendants are entitled to assert the privilege guaranteed by the Fourth Amendment, United States v. White, 322 U.S. 694, 704, 64 S. Ct. 1248, 88 L. Ed. 1542, 152 A.L.R. 1202. These matters can be determined only at the trial on the facts.
Finally, in the case of United States v. Edward K. Barsky et al. it is urged that the first, or conspiracy count, of the indictment is insufficient in that it charges the defendants with a conspiracy to defraud the Government without, however, averring that the conspiracy was to be effectuated by deceit, craft, or trickery, or by means that are dishonest. Reliance is placed on Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S. Ct. 511, 68 L. Ed. 968, in support of this objection. The first count of the indictment further charges, however, that the defendants conspired to commit an offense against the United States by violating U.S.C.A. Title 2, § 192. Since the allegation last mentioned sets forth a conspiracy that is subject to criminal prosecution, the first count of the indictment is sufficient. Consequently, it is not necessary to determine whether the additional allegations, that are assailed by the defendants, are sufficient if they stood alone.
Motions to dismiss indictments denied. Alternative motions for bills of particulars are also denied.