274 F. 75 | 6th Cir. | 1921
Plaintiff in error was convicted upon the second and third counts of an indictment under section 3 of the Espionage Act of June IS, 1917 (40 Stat. c. 30, p. 217), as amended by the Act of M'ay 16, 1918 (40 Stat. c. 75, p. 553 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c]). Each of these counts charged defendant with uttering, while the United States was at war with Germany and Austria, certain language, which in the second count is characterized as “disloyal * * * scurrilous, and abusive,” and “about the military forces of the United States,” and in the third count as “intended to bring the military and naval forces of the United States into contempt, scorn, contumely, and disrepute.” The alleged errors presented relate to the sufficiency of the indictment, the sufficiency of the proof, the admission of testimony, and the charge of the •court.
1. The alleged insufficiency of the indictment was presented by demurrer, which was overruled, and, after verdict, by motions for new
“The poor slob — I feel sorry for him. I would rather serve a term in the penitentiary than wear a uniform in Wilson’s Wall Street war. Mohr would look like hell toting a gun in Wilson’s Wall Street war.”
The sufficiency of the indictment is challenged (a) as failing to state the person or persons to whom the words set out in the indictment were spoken; (b) in that the words so set out are not violative of the statute, because incapable of being construed as either disloyal or profane, scurrilous, or abusive, when spoken about the military forces of the United States, or so construable as Lo bring the military and naval forces of the United States into contempt, scorn, contumely, and disrepute; (c) that the words in question are protected by the First Amendment to the Constitution of the United States; and (d) that each count fails to charge a criminal intent
“An indictment which distinctly and clearly charges each and every element of the offense intended to be charged, and distinctly advises the defendant of What he is to meet at the trial is sufficient.” Armour v. United States, 209 U. S. 56, 83, 84, 28 Sup. Ct. 428, 52 L. Ed. 681.
And generally:
“Upon an indictment for a statutory offense the offense may be described Jn the words of the statute, and it is for the defendant to show that greater particularity is required by reason of the omission from the statute of some element of the offense.” Ledbetter v. United States, 170 U. S. 606, 612, 18 Sup. Ct. 774, 12 L. Ed. 1162; Armour v. United States, supra, 209 U. S. at page 84, 28 Sup. Ct. 428, 52 L. Ed. 681.
'•We therefore think that the objection that the indie!ment does not show from whom the accused received the stamps, nor state that the name of such person was unknown to the grand jurors, is not well taken. If the stamps were in fact stolen from the United States, and if they were received by the accused, no matter from whom, with the intent to convert them to bis own use or gain, and knowing that they had been stolen from the United Hiatos, he could be found guilty of the crime charged, even if it were not; shown by the evidence from whom he received the stamps.”
As applied to the instant case, it is not, as matter of law, material in whose presence the alleged offending words were spoken. It is only necessary that they be spoken in the presence and hearing of some person or persons. As said by Mr. Justice Harlan, following what has just been quoted:
“This rule cannot work injustice nor deprive the accused o£ any substantial right. .If it appears at the trial to be essential in the preparation of his defense that he should know the name of the person from whom the government expected to prove that he received the stolen property, it would be in the power of the court to require the prosecution to give a bill of particulars.”
That there is in the courts of the United States a well-settled practice of requiring and giving bills of particulars in criminal cases, for the purpose of informing a defendant with respect to time, place, and other details, and thus to enable him to meet the charge, appears by these further citations: Rosen v. United States, 161 U. S. 29, 34, 16 Sup. Ct. 434, 480, 40 L. Ed. 606; Durland v. United States, 161 U. S. 306, 314, 315, 16 Sup. Ct. 508, 40 L. Ed. 709; Dunlop v. United States, 165 U. S. 486, 491, 17 Sup. Ct. 375, 41 L. Ed. 799; Bartell v. United States, 227 U. S. 427, 432, 33 Sup. Ct. 383, 57 L. Ed. 583; Elgin, etc., Co. v. United States (C. C. A. 7) 253 Fed. at page 910, 166 C. C. A. 7; May v. United States (C. C. A. 8) 199 Fed. 53, 61, 117 C. C. A. 431. And a bill of particulars, once made and served, “concludes the rights of all parties who are to be affected by it; and he, who has furnished a bill of particulars under it, must be confined to the particulars he lias specified, as closely and effectually as if they constituted essential allegations in a special declaration.” Commonwealth v. Giles, 1 Gray (Mass.) 466, cited in Dunlop v. United States, supra, 165 U. S. at page 491, 17 Sup. Ct. 375, 41 L. Ed. 799. Of course, a bill of particulars will not cure a fatal defect in an indictment.
In the instant case, the district judge, in his opinion overruling the demurrer, said:
“No doubt defendant is entitled to a bill of particulars setting forth the naines oi the persons to whom the language was addressed, if he wishes such information. The assistant district attorney, in open court, offers such information.”
“The government, without motion being made by counsel, voluntarily offered to present to defendant forthwith a bill of particulars or specifications, setting forth in detail the exact street or building in Cincinnati where the statements were made, the exact time of the day they were uttered, together with the name or names of the persons to whom they were addressed, and any other information that defendant desired or felt himself entitled to, in order that he might better make his defense to the charges contained in the indictment. Counsel for Dierkes failed to avail themselves of this offer, and as a matter of fact stated that they did not care to accept it.”
Under such circumstances, the lack of advice to defendant of the name of the person or persons to whom or in whose presence the offending words were spoken is not the fault of the law, or of the court below, or of the government. Defendant was therefore plainly not prejudiced by the lack of disclosure in question, and the practice prevailing in the courts of the United States forbids the reversal of a judgment for error which does not prejudice. Armour v. United States, supra, 209 U. S. at page 84, 28 Sup. Ct. 428, 52 L. Ed. 681; N. Y. C. R. R. Co. v United States, 212 U. S. 481, 29 Sup. Ct. 304, 53 L. Ed. 613; Elgin, etc., Ry. Co. v. United States (C. C. A. 7) 253 Fed. at page 910, 166 C. C. A. 7; U. S. Comp. Stat. § 1691; section 269 of the Judicial Code, Act March 3, 1911, c. 231 (36 Stat. 1163), as amended February 26, 1919 (40 Stat. 1181, c. 48 [Comp. St. Ann. Supp. 1919, § 1246]); West v. United States (C. C. A. 6) 258 Fed. 413, 415, 169 C. C. A. 429; Bain v. United States (C. C. A. 6) 262 Fed. 664, 669.
We see no merit in defendant’s contention that the record is not such as to protect him against further prosecution for the same offense, for if in another prosecution the court should hold (contrary to what we understand to be the law) that the charge as contained in the indictment before us is too indefinite to permit the pleading of the conviction thereunder in bar of such further prosecution, defendant could readily protect himself by parol proof of the actual identity of the charge. Dunbar v. United States, 156 U. S. 185, 191, 15 Sup. Ct. 325, 39 L. Ed. 390, where in a prosecution for smuggling opium it was said that—
“Some parol testimony might be required to show the absolute identity of the smuggled goods, but such proof is often requisite to sustain a plea of once in jeopardy. It is no valid objection to an indictment that the description of the property in respect to which the offense is charged to have been committed is broad enough to include more than one specific article.”
The same proposition is declared in Durland v. United States, supra, at pages 314, 315, against an objection that full information was not given of the contents or import of certain letcers asserted to have been mailed in pursuance of a scheme to defraud; the court there saying:
“If defendant had desired further specification and declaration, he could have secured it by demanding a bill of particulars.”
In Bartell v. United States, supra, 227 U. S. at page 433, 33 Sup. Ct. at page 384, 57 L. Ed. 583, the court said:
And these considerations effectually repel any danger o£ prejudice from the fact that deiehdant was shown (by testimony later stricken out) to have made to another person the same statements, and at about the same time, as those alleged to have been made to the witness Mohr, and which are made the basis of the charge here. It should go without saying that a bill of particulars, while not a part of the record (Dunlop v. United States, supra, at page 491, 17 Sup. Ct. 375, 41 L. Ed. 799), would itself furnish clear and indisputable evidence of the identity of the charge on which the conviction was had. In our opinion there is no escape from the conclusion that the judgment of conviction is not subject to reversal for insufficiency of the indictment.
“U ig a great mistake to carry on this war; those s. o. b.’s at Washington will be sorry they have got into this war;” that the war was a “moneyed war.” The statement, “I voted the Socialist ticket because I wanted Germany to win the war.” Again, “Well, don’t buy any Liberty bonds; what do yon want them for; you might as well throw that money away; buy anything else,” coupled with the statement that it was a Wilson war. Another statement, made by way of question to a young man about to enter the army, ^Whci. did Germany do to you, that you have got to wear Uncle Barn’s uniformÍ” In another case, “The Allies had no chance whatever to win the war against Germany,” and a statement that the President was allied with and favored the English. At another time, “This is a hell of a government, or we would not he drafting men into the army; we are no longer a free eonnrry; we are vassals of the British.” In another case, that. “President Wilson had been brought, into the war through British influence,” and that “we had no more right to declare war against Germany than we had against England-” In another case, the statement that it was a big financial war profit for Wilson and a bunch of Eastern grafters, and that he had paid two young men’s way to Honduras to escape the draft. Xn another case, saying to a young man wearing the uniform of a national rifle association, and who as he said was “trying to serve my country, trying to help the boys to learn to shoot, training them for future service”: “Well, you will regret this some day anyway, when you see Wilson and that crowd at Washington with their heads lopped off at Jackson Park.” In another instance, when asked whether he had bought any Liberty bonds, replying, “Liberty bonds — hell, to fight my own people with?”
A majority of these statements were alleged to have been made before the passage of the 1918 amendment to the Espionage Act, and all, with one exception, after the original passage of the act; but even this exceptional case is said to have occurred after the United States had entered the war. This testimony was all taken against defendant’s objection, on the grounds, so far as seem important, that the
In our opinion the evidence was properly admitted. It tended to show an attitude of hostility toward the war and the participation of the United States therein, and a spirit of disloyalty toward the United States and a desire to bring its armies into disrepute. It thus bore directly upon the likelihood of defendant’s using the language which forms the subject-matter of the two counts of the indictment with which we are concerned. That the court admitted the testimony for the purpose of showing intent, so far as that may be thought distinguishable from attitude of mind, could not'work legal prejudice.
There are several reasons which lead us to conclude that the judgment should not be reversed on this account. Admittedly the court was
Moreover, even should the sentence we are considering be entirely eliminated, there stil! remained the statement, “I would rather serve a term in the penitentiary than wear a uniform in Wilson’s Wall Street war,” which is slightly, if at all, less significant than the later statement about Mohr’s appearance in toting a gun. Under these circumstances we would not be justified in exercising the extraordinary authority to reverse the judgment, in the absence of exception directing the attention of the court to the misapprehension shared by both court and counsel, even if reversal would be called for had such exception been made. The force of defendant’s practical admission that he made to Mohr the statement in question is not necessarily overcome either by the fact that he did not positively admit the language used (for it was open to the jury to conclude from his examination that he did make that statement in substance, especially as it was made when testifying as a witness in his own behalf and under examination by his own counsel), or by the fact that defendant insisted that his conversation with Mohr was in December, 1917, and not in June, 1918, and thus previous to the adoption of the amendment to the Espionage Act. Nor did the failure of the court to expressly instruct the jury not to consider Keefe’s testimony (which had been stricken out as stated above) constitute reversible error, in the absence of request for such instruction.
Moreover, on his further direct examination he expressly denied making to the Government’s witness Elzemann the statement testified to by that witness that the war was “nothing but a Wall Street war,” which testimony had likewise been stricken out by the court on defendant’s motion. On cross-examination, after saying generally that he had not stated “that this was Wilson’s war,” he qualified it by saying that he “did not habitually make that statement; I am telling you that that was current; I think a man gets into the habit of saying things.” On further cross-examination he was asked whether he wished his general statement on cross-examination, that he had never said to any one, in terms, in speaking of the war, that it was “Wilson’s Wall Street war,” to cover also his conversation with Rogers. After replying that he wished it clear that any reference thereto “was a current reference, in current form, which was used before we were in the war, before we went into the war, the beginning of the war,” he was asked whether he had ever made the statement, “leaving out repetitions or repeated statements or-reports, or anything,” to which he replied, “I won’t answer, except with the reservation that it was not made with any intention to injure the war or to hurt any one.” He was later asked whether he wished his general denial that he ever made such a statement to any one (referring to the term “Wilson’s Wall Street war”) to cover also the conversation with Miss Hellwig, to which he replied in the affirmative.
All the cross-examination in question, including the reference to the testimony of the witnesses Rogers and Hellwig, was given without objection on the part of defendant or his counsel, and presumably because counsel thought either that the cross-examination was justified or that defendant was not injured thereby. Defendant was represented by intelligent and able counsel. Plainly the trial court committed no error in not intervening on its own motion to prevent a cross-examination to which defendant apparently did not object. It is equally clear that the trial court did not commit reversible error in not instructing the jury, in connection with striking out the testimony of the several witnesses referred to, that they should not consider it.. As defendant’s
The occasion for speaking the language charged in the indictment, according to Mohr’s testimony, was this: On his telling defendant, in the latter part of May or early art of June, 1918, that he (Mohr) was likely to be called into service soon because he was in the draft, defendant talked about “Wilson’s Wall Street war, and about [how?] he would hate to be in it,” and upon being told by Mohr that he did not “relish hearing any abuse of the President, because I had a brother that was a member of the 148th infantry, and I expected him to be sailing for France in a few days,” defendant said:
“The poor slob (¡Inferably meaning Mohr’s brother]. I would rather serve a term in the penitentiary than wear a uniform in Wilson’s Wall Street war.”
There was substantial evidence (we have not attempted to set it all out, even in substance) tending to support a conclusion that at the time the words in question were spoken defendant, who was of German parentage, entertained strong pro-German sympathies, not merely as between Germany and Great Britain, but as between the United States and Germany; that he was hostile to the entry of the United States into the war, and that he still hoped and expected that Germany would win. The weight and sufficiency of this evidence (including the extent to which it might be thought to he explained or otherwise by defendant’s testimony) is not within our province to consider. That subject was addressed to the jury alone. Matthews v. United States (C. C. A. 8) 192 Fed. 490, 113 C. C. A. 96; Kelly v. United States (C. C. A. 6) 238 Fed. 392, 406, 169 C. C. A. 408, and citations in note. If the jury believed that defendant entertained the sentiments which, as we have said, there was competent and substantial evidence tending to show, it was reasonably open to it to conclude that the language in question was uttered in a spirit of disloyalty as respects the fighting forces of the United States, and with the intent to bring those forces into disrepute.
Finding no reversible error in the record, the judgment of the District Court is affirmed.
On the trial the jury was instructed that the language in question was not profane.
In a common-law declaration for slander, it was neither necessary nor customary to set out the name of the person or persons to whom or in whose presence the alleged slanderous words were spoken. 17 R. C. L. title “Libel and Slander,” § 141. The stock formula was “in the presence and hearing of divers persons.” Puterbaugh’s Pleading and Practice (3d Ed.) p. 478.
The actual instruction was this: “Such other statements are not evidence of the fact that he made the statements charged. They are permitted, if you find they were made, to go to you as tending to reflect upon his state of mind when he used the words he is charged with having used; that is to say, as reflecting upon his intention when he used them, if he used them, and they are only to be considered by you in that connection, as reflecting upon his intention, purpose, and state of mind.”
<§=^For other cases see same topic & KEY-NTJMBER in all Key-Numbered Digests & Indexes
^s»Fop other cases see same topic & KB^-NUMBBR in all Key-Numbered Digests & Indexes
