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that, in order to enable the Court to adjudicate these issues upon adequate deliberation, this application should be disposed of only after opportunity has been afforded to counsel for both sides to make an adequate study and presentation. In due course, MR. JUSTICE FRANKFURTER will set forth more specifically the grounds for this position."

Painful as it is, I am bound to say that circumstances precluded what to me are indispensable conditions for solid judicial judgment. They precluded me, and now preclude me, from saying that the legal issue that was raised before MR. JUSTICE DOUGLAS was without substance. Let me set forth some of the difficulties that immediately arise upon consideration of that issue.

The basis on which a jury convicts is authoritatively to be taken from what the judge tells the jury. In this case, the jury's attention was especially directed to the fact that the charge was a conspiracy to obtain and transmit classified materials pertaining in part to the atomic bomb:

"Bear in mind-please listen to this, ladies and gentlemen-that the Government contends that the conspiracy was one to obtain not only atomic bomb information, but other secret and classified information; that the information including the report regarding fire-control equipment requested of Elitcher by Sobell or Rosenberg was classified; that the atomic bomb information transmitted by the Rosenbergs was classified as top secret; that based on Rosenberg's alleged statements to Greenglass, other secret information such as mathematical data on atomic energy for airplanes, information relating to a 'sky platform' project and other information was obtained by Julius Rosenberg from scientist contacts in the country." R. 1557.

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And the indictment charged that the conspiracy continued from 1944 to 1950. Such "averments of time in the indictment are expected and intended to be proved as laid." United States v. Kissel, 218 U. S. 601, 609. Indeed, the judge told the jury: "You must first determine from all the evidence in the case, relating to the period of time defined in the indictment, whether or not a conspiracy existed." R. 1552. Only one conspiracy could have been found by the jury to have existed, and that was the conspiracy averred in the indictment, a conspiracy continuous from a date certain in 1944 to a date certain in 1950. The Government could of course have charged a conspiracy beginning in 1944 and ending on July 31, 1946, the day before the Atomic Energy Act came into effect. It did not do so. That fact is of decisive importance. The consequences of a conspiracy that was afoot for six years might have been vastly different from those of a conspiracy that terminated within two years, that is, by the time Congress devised legislation to protect atomic energy secrets.

It is suggested that the overt acts laid in the indictment all occurred before the effective date of the Atomic Energy Act and that hence the indictment did not charge any offense committed after that effective date. But, again, the offense charged in the indictment was a conspiracy, not one or more overt acts. As the judge told the jury, they had to find a conspiracy in order to convict,

2 It is worth noting that under the Atomic Energy Act it is very probably not necessary, since the Act, unlike the Espionage Act, does not make it a requirement, to prove overt acts in furtherance of a conspiracy. Cf. Singer v. United States, 323 U. S. 338. If so, under the Atomic Energy Act it would not have been necessary to allege or prove an overt act involving atomic espionage subsequent to 1946 in order to obtain a conviction on a conspiracy indictment such as the one here. It is not without significance that the relevance of this point was not considered by the Government in its argument or sub

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a conspiracy aimed principally at obtaining atomic secrets and characterized as such by the overt acts alleged, but a conspiracy, I cannot too often repeat, alleged to have been continuous to a date certain in 1950. The Government having tried the Rosenbergs for a conspiracy, continuing from 1944 to 1950, to reveal atomic secrets among other things, it flies in the face of the charge made, the evidence adduced and the basis on which the conviction was secured now to contend that the terminal date of the Rosenberg conspiracy preceded the effective date of the Atomic Energy Act.

It thus appears-although, of course, I would feel more secure in my conviction had I had the opportunity to make a thorough study of the lengthy record in this case that the conspiracy with which the Rosenbergs were charged is one falling in part within the terms of the Atomic Energy Act, passed by Congress in 1946 and specifically dealing with classified information pertaining to the recent developments in atomic energy. There remains the question whether the sentence for such a conspiracy could be imposed under the Espionage Act.

Congress was not content with the penal provisions of the Espionage Act of 1917 to prevent disclosure of atomic energy information. The relevant provisions of the Atomic Energy Act of 1946 differ in several respects from those of the Espionage Act. For one thing the 1946 Act makes possible the death penalty for disclosures in time of peace as well as in war. Some disclosures which fell generally within the Espionage Act now specifically fall under § 10 of the Atomic Energy Act. The decisive thing in this case is that under the Espionage Act the power

mission. This is significant not because it discloses a failure of counsel, but because to require consideration of this and other points within twenty-four hours after a complex of problems was first put forward is to presuppose omniscient lawyers.

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to impose a sentence of death was left exclusively to the discretion of the court, while under the Atomic Energy Act a sentence of death can be imposed only upon recommendation of the jury.

Surely it needs only statement that with such a drastic difference in the authority to take life between the Espionage Act and the Atomic Energy Act, it cannot be left within the discretion of a prosecutor whether the judge may impose the death sentence wholly on his own authority or whether he may do so only upon recommendation of the jury. Nothing can rest on the prosecutor's caprice in placing on the indictment the label of the 1917 Act or of the 1946 Act. To seek demonstration of such an absurdity, in defiance of our whole conception of impersonality in the criminal law, would be an exercise in selfstultification. The indorsement of an indictment, the theory under which the prosecutor is operating, his belief or error as to the statute which supports an indictment or under which sentences may be imposed, are all wholly immaterial. See Williams v. United States, 168 U. S. 382, 389.

These considerations the fact that Congress and not the whim of the prosecutor fixes sentences, that the allegations of an indictment are to be judged by the relevant statute under which punishment may be meted out and not by the design of the prosecutor or the assumption of the trial court-cut across all the talk about repeal

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by implication and other empty generalities on statutory construction. Congress does not have to say in so many words that hereafter a judge cannot without jury recommendation impose a sentence of death on a charge of conspiracy that falls within the Atomic Energy Act. It is enough if in fact Congress has provided that hereafter such a death sentence is to depend on the will of the jury.

This much, at least, lies on the surface of an analysis of the two statutes. The Reports of this Court are replete with instances of marked division of opinion in construing criminal statutes; doubtful and ambiguous statutory language and like ambiguities in the interpretative materials that led to many of those divisions are certainly not more impressive, to say the least, than the ambiguities and difficulties here. See, e. g., United States v. Dotterweich, 320 U. S. 277; United States v. Singer, 323 U. S. 338; United States v. Petrillo, 332 U. S. 1; United States v. C. I. O., 335 U. S. 106; United States v. Williams, 341 U. S. 70; United States v. Hood, 343 U. S. 148.

In all matters of statutory construction one goes, especially these days, to the history of the legislation and other illuminating materials. It is almost mathematically demonstrable that there just was not time within twelve waking hours to dig out, to assess, to assemble, and to formulate the meaning of legislative materials. Suffice it to say that such materials bearing on legislative purpose as a necessarily very limited inquiry has revealed do not justify certitude. See S. Rep. No. 1211, 79th Cong., 2d Sess. 23-24; 92 Cong. Rec. 6082, 6096, 9257, 10194; cf. id., at 9481-9482. And an authoritative commentary on the Atomic Energy Act, written by counsel for the Senate Special Committee on Atomic Energy which drafted the statute, not only recognizes a compelling need for judicial decision in order to reconcile the conflicting penalty provisions of that Act and of the