This section contains the nature of the case and procedural background.

D was sentenced to a term of imprisonment upon conviction by a jury of an attempt to incite insurrection by endeavoring to induce others to join in combined resistance to the authority of the state to be accomplished by acts of violence, in violation of § 56 of the Penal Code of Georgia. A federal question was never properly presented to the state supreme court unless upon motion for rehearing; and that court then refused to consider it. The trial court instructed the jury that the evidence would not be sufficient to convict D if it did not indicate that his advocacy would be acted upon immediately; and that -- 'In order to convict the defendant, . . . it must appear clearly by the evidence that immediate serious violence against the State of Georgia was to be expected or was advocated.' The question presented to the state supreme court was whether the evidence made out a violation of the statute as thus construed by the trial court, while the supreme court construed the statute as not requiring that an insurrection should follow instantly or at any given time, but that 'it would be sufficient that D intended it to happen at any time, as a result of his influence, by those whom he sought to incite.' The verdict of the jury was returned and on July 5, 1933, the trial court overruled a motion for a new trial. The original opinion was handed down and the judgment of the state supreme court was entered on May 24, 1934, the case having been in that court since the preceding July. On March 18, 1933, several months prior to the action of the trial court on the motion for a new trial, the state supreme court had decided Carr v. State, where § 56 of the Penal Code, under which it arose, was challenged as contravening the Fourteenth Amendment. The court construed the statute as it did in the present case. It held that If the State were compelled to wait until the apprehended danger became certain, then its right to protect itself would come into being simultaneous with the overthrow of the government when there would be neither prosecuting officers nor courts for the enforcement of the law.'' D appealed to the Supreme Court.

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