dissenting.
•I dissent. The Court today reverses the Supreine Court of -Illinois because it- discovers in the record one ■ sentence in the trial, court’s instructions which permitted *7the jury to convict on an unconstitutional basis. The offending sentence had heretofore gone, completely undetected. It apparently was not even noticed, much less excepted to, by the petitioner’s counsel at the trial. No objection was made to it in the two Illinois appellate tribunals which reviewedthe case. Nor was it mentioned in the petition for certiorari or the briefs-in this Court. In short, the offending sentence in the charge to the jury was no part of -the case until this Court’s; independent research ferreted it out of a lengthy and somewhat confuséd record* I think it too plain for argument that a reversal on such a basis does hot accord with any principle governing review of state court decisions heretofore announced by this Court. Certainly, Stromberg v. California, 283 U. S. 359 (1931), as Mr. Justice Frankfurter demonstrates, offers no precedent for. today’s action.
It will not do to say that, because the Illinois appellate, courts affirmed the petitioner’s conviction in the face of a constitutional attack; they necessarily must have approved the interpretation of the Chicago ordinance contained in the unnoticed instruction. The fact is that the Illinois courts construed the ordinance as punishing only the use of “fighting words.” Their opinions plainly show that they affirmed because they thought' that-the petitioner’s speech had been found by the jury to. come within that category.1 Their action was not, and cannot here be taken to be, an approval of the ordinance “as con-, strued” by the instruction because the record clearly shows that the casé was treated on appeal,-both by counsel and by the courts, as if no such instruction existed. This Court can revérse the conviction because of the instruction only if we are to say that every time a state. *8court affirms a conviction it necessarily must approve of every unnoticed and unobjected to error which we may discover in the record. If such is the doctrine of this case, I feel compelled to register my emphatic dissent.
The instruction informed the jury that they could return a verdict of guilty if they found that the petitioner’s speech was one which “stirs the public to anger, invites dispute, brings about a Condition of unrest, or creates a disturbance.” If the petitioner’s counsel, who carefully made other constitutional objections throughout the proceedings below, had brought any issue here as to the constitutional validity'of that instruction I would agree with the Court’s decision. But the record gives me no basis on which to believe that the Illinois courts would not also have so decided if that issue:had been presented to them.
The Court, as I understand it, does not reach the issue which the parties argued here — whether a properly instructed jury could constitutionally have found from the conflicting, evidence in the record that, under the circumstances, the words in the-petitioner’s speech were “fighting words” to those inside the hall who heard them. Certainly, the Court does not decide whether the violent opposition of those outside the hall, who did not hear the speech, could constitutionally warrant the conviction of the petitioner in order to keep the streets from becoming ideological battlegrounds. Since neither of these constitutional issues is decided by the Court, I think that it is not within my province to indicate any opinion concerning them. See Rescue Army v. Municipal Court, 33 U. S. 549, 568 (1947).
The opinions are reported at 332 Ill. App. 17, 74 N. E. 2d 45, and at 400 Ill. 23, 79 N. E. 2d 39. See, particularly, 332 Ill. App. at pp. 23 and 38; 400 Ill. at p. 33.