262 F. 283 | 8th Cir. | 1919
Lead Opinion
The defendant below was convicted of three violations of section 3 of the Espionage Act of June 15, 1917 (40 Slat. p. 217, c. 30 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c]), and sentenced to three years in the penitentiary under an indictment containing three counts which charged that by saying the same words on or about December 19, 1917, he
(1) Willfully made and conveyed false reports with the intent to interfere with the operation and success of the military and naval forces of the United States and to promote the success of its enemies, to tile injury of the United States;
(2) Willfully caused and attempted to cause insubordination, disloyalty, and refusal of duty in the military and naval forces of the United States, to its injury; and
(3) Willfully obstructed the recruiting and enlistment service of the United States, to the injury thereof.
The defendant demurred to the indictment, and the demurrer was overruled. At. the close of the evidence he moved for a directed verdict, on the ground that there was no substantial evidence to sustain a verdict against him, and this motion was denied, and he made a motion in arrest of judgment, and that motion was denied. These rulings are assigned as error.
Counsel for the defendant insist that the indictment was insufficient, because it did not set forth the facts which the pleader claimed constituted the violations charged so distinctly as to advise him of the charges he had to meet and to give him a fair opportunity to prepare his defense, nor so particularly as to. enable him to avail himself of a conviction or acquittal in defense of another prosecution for the same offense.
The indictment charged that the three offenses were committed on or about December 19, 1917, at New Salem, a town in North Dakota, during the war between the United States and the Imperial German government, with the respective intents denounced by the statute, by falsely stating:
(1) That President Wilson was a man who, after securing his election on the slogan “kept us out of war,” turned squarely around and by the use of 1ns high office of President whipped the members of Congress into line by threats of exposure of this one and that one, and in this way secured the authority to enter tire war with Germany;
(2) That he felt proud of the noble fight the Germans were making in the war;
(3) That the sinking of the Lusitania was justified, and that there was no reason whatever for the United States taking up arms against Germany;
(4) That he frequently prayed for the success of the armies of Germany over the armies of the United States;
(5) And stated to his congregation and to divers persons, whose true names are to the grand jurors unknown, false and injudicious statements as aforesaid;
(6) That he did not want to subscribe for Liberty Loan Bonds, because it would tend to encourage the administration;
(8) That the purchase of Liberty Loan Bonds would give the country more money to fight Germany and thus prolong the war;
(9) That he desired the success of the enemies of the United States.
Nor were the charges in this indictment so certain and specific that upon conviction or acquittal thereon it or the judgment upon it constitute a complete offense to a -second prosecution of the defendant for the same offense. In, determining this question the evidence on the trial may not be, and the indictment and the judgment alone can be, considered, because the evidence does not become a part of the judgment, and as the indictment states no facts from which the time, places, or occasions on which the respective statements therein were alleged to have been made can be identified, the indictment and judgment failed to identify the charges so that another prosecution therefor would be barred thereby. Florence v. United States, 186 Fed. 961, 962, 964, 108 C. C. A. 577, 578, 580, and cases there cited; Winters v. United States, 201 Fed. 845, 848, 120 C. C. A. 175, 178.
The statements set forth in this indictment are such that, if uttered under some circumstances, as, for example, in a public address advocating in the presence of the members of the military or naval forces of the United States, or of those eligible to become such members, or if written and circulated among such men, they might be calculated to produce the results alleged. But there is none of these statements that, if uttered in private conversations or discussion with or in the presence of loyal men of ordinary intelligence, in the absence of other circumstances to indicate evil intents, susceptible to any such inference. Illustrations of the case of the former class are Doe v. United States, 253 Fed. 903, 166 C. C. A. 3; O’Hare v. United States, 253 Fed. 538, 165 C. C. A. 208. Illustrations of the latter class are Von Bank v. United States, 253 Fed. 641, 165 C. C. A. 267; Wolf v. United States, 259 Fed. 388,- C. C. A.-. As was said by Judge Carland in the Von Bank Case:
“The jury * * * had no right to find a criminal intent, unless such intent was the necessary and legitimate consequence of the words spoken.”
Whether or not the statements in the indictment were reasonably calculated to indicate the intents stated, or to “create a clear and present danger” of the results alleged, was cpnditioned by the time and circumstances in which they were said. It is an elementary rule of criminal law that when language does not constitute a crime if uttered under some circumstances, and does constitute a crime if uttered under other circumstances, it is not enough to charge that it was used with intent to violate the law. That would be a mere conclusion. The facts must be set forth, so that the court can determine, and not the pleader, whether or not they constitute the crime. United Staes v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516; United States v. Cruikshank et al., 92 U. S. 542, 23 L. Ed. 588; United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135; Shilter v. United States, 257 Fed. 724, 725,-C. C. A. -.
Take, for example, the first charge in the indictment, that the President secured his election on the slogan “kept us out of war,” and by using his high office whipped the members of Congress into line to secure the authority to enter the war. If that statement was made in a private conversation with a loyal citizen, in the presence of no other person, his utterance of it was not susceptible to the inference that he made it with any of the evil intents charged, or to the inference that it was reasonably calculated to produce the results alleged. Perhaps, however, if it had been made in a public address, in the presence of. men who were members of the military or naval forces of the United States, such, an utterance might, in view of other things said in the same address, have been susceptible to a different inference. Take the fifth statement) that he “stated to his congregation and to divers persons, whose true names are to the grand jurors unknown, false and in
“We are now at war with, the old Fatherland. This Is our country. We adopted this country when, we became citizens of the United States, and we promised and swore to the Constitution that we would stand by this country. Now is the time to prove and show it that we are willing to do our duty, and I ask you to do your duty as a citizen of the United States, and to give up everything, if it has to be, to the last man.”
Every Sunday during the war he prayed in his pulpit, in the presence of his congregation for God to bless our country, our people, our President, our congregation, and to help that they may serve to promote the sanctification of Plis name and welfare of His people; that He would stop the war through his mercy; that He would prevent bloodshed and devastation and give us an honorable peace. A witness for the government testified that on one occasion between April 8 and May 29, 1917, he prayed for our okl Fatherland, that God would give him victory over his foes and destroy and shatter all who wants his evil. But this was before the Espionage Act was passed, and many witnesses came to testify that he made no such prayer after war was declared. Another witness testified that during a few Sundays just after April 6, 1917, he prayed for His blessing for the old Fatherland and for the new Fatherland, that peace between them might not be broken,
“Germany, In tier fight against a great number of enemies, has a weapon which enabled her to hold out until now; but God has given every Christian a weapon with which he can defeat all temptation at all times, namely, prayer. Watch and pray that ye enter not into temptation. The Spirit indeed is willing, but the flesh is weak.”
The substance of all the evidence there is in this case relative to any public statements, writings, or prayers made by the defendant has now been recited. In it all—
(1) There is.no evidence whatever that he ever made any of the nine statements set forth in the indictment to his congregation 'or to any one on any public occasion, and there is no such evidence in this case.
(2) All of the evidence recited, except that with reference to the sermon in August, relates to expressions used prior to June 15, 1917, for the use of which he could not be convicted if they had been charged.
(3) Even if the expressions in the sermon on “Temptation to Sin,” to which the government’s witnesses testified,, were used, they were not reasonably calculated, in view of the fact that they were but a sentence or two, in a sermon occupying some 20 or 30 minutes on “Temptation to Sin,” and were used merely for the illustration of the argument the defendant was making, to indicate any criminal intent or purpose, much less to sustain a finding that such intent inspired and caused them. So it is that there was no evidence in this case of any public advocacy or suggestion or insinuation by the defendant of any of the evils the United States was endeavoring to prevent by the act of June 15, 1917, or of any views tending to prove any of the evil intents denounced by the law.
There was conflicting evidence on the issues whether or not the defendant made to certain private persons in his own house and in other private places some of the statements written in the indictment. This was the setting of the first statement therein with reference to the President’s election and his use of his power to secure authority to conduct the war. The cashier of a bank in New Salem went to the defendant’s
The defendant testified that all he said about getting into the war was that he believed the country was ready for peace, because he believed that the President was elected on account of the slogan, “Pie kept us out of war,” and that it seemed to him that after he was elected he was in favor of the war; that he never talked with the banker about the Lusitania; that he never said to him that he was proud of the fight the Germans were making; that he never told him he would not subscribe for Liberty Bonds because it would encourage the administration, but that he did tell him that he would not buy any bonds of him anyhow, because, if he had the money, he would buy the bonds of the bank where he did his banking business. He testified furthei, and this testimony was not contradicted, that what he said after he had declined at the commencement of the conversation to buy the bonds was in answer to questions of the banker; that the banker asked if he did not think the bonds were a good investment, and he answered that he thought they were; that he wished he had a lot of money, he would invest it in Liberty Bonds; that the banker asked what he thought of the draft law, and he replied that he thought it a good law, and that we ought to have had it a couple of years before the war.
The record in this case has been searched in vaiti for evidence that the defendant, before the indictment was filed, ever made in public oi in private to any one the fourth, fifth, seventh, eighth, or ninth statements alleged therein, and the conclusion is that there never was any testimony in support thereof. The only evidence that the defendant made the first, second, third, and sixth statements, or any part of them, is the testimony of the banker which has been recited, and upon this testimony the verdict rests. There are a great many pages of the record which recite evidence permitted to be presented to the jury upon the question of the defendant’s intent, which relate to collateral
All this evidence upon the collateral issues has received perusal and meditation; but, conceding that the defendant made the statements to which the banker testified in the privacy of his home, and conceding the truth of the testimony of the witnesses for the government upon the various collateral issues, the conclusion is nevertheless irresistibly forced upon our minds that, in view of the established fact that the defendant never by public act or speech engaged in any opposition to any of the endeavors of the government to prosecute the war, but, promptly upon its declaration, from his pulpit instructed his parishioners to discharge their full duty to the nation therein, that by his constant public prayers he continued this influence, that he testified that he had never had any of the evil intents or purposes denounced by the statute, and in view of the fact that the statements in the conversations with the banker in his home were not appropriate to accomplish any such purposes, it is impossible to conclude that there was in this case any substantial evidence to sustain the finding of the jury that he willfully made those statements to interfere with the operation or success of the' military or naval forces of the United States, or to cause or attempt to cause insubordination, disloyalty, or refusal of duty therein, or to obstruct, or that he did thereby obstruct, the recruiting or enlistment service of the United States. Those statements were not made where they would or could naturally and reasonably have had any such effect, nor were they indicative of any such intent, nor was any such result the necessary or legitimate consequence thereof.
Uet the judgment be reversed, and let the case be remanded to the court below, with directions to discharge the defendant.
Concurrence Opinion
concurs in the result, upon the ground that the trial court erred in overruling the demurrer to tbe indictment, but expresses no opinion upon tire sufficiency of the evidence.
