Goldstein v. United States

258 F. 908 | 9th Cir. | 1919

HUNT, Circuit Judge

(after stating the facts as above). The demurrer and the motion to quash raised the question whether or not either count of the indictment alleged an offense against the United States.

[1] We will first consider the cqunt which charges an attempt to cause insubordination and disloyalty or refusal of duty. The statute, Act of June 15, 1917, is clear and simple in its language. Whoever, when the United States is at war, shall willfully cause, or attempt to cause, insubordination, disloyalty, mutiny, or refusal of duty in the military or naval'forces of the United States, shall be punished as provided. The question of the truth or falseness of the thing done by the person who, when the state of war exists, attempts to cause disloyalty or any of the other conditions enumerated, is not the essence of the inquiiy. Enacted as the statute was while the country was at war, the evident, underlying purpose of its language was to prevent any willful attempt to engender feelings of lack of fidelity to the United States among the military or naval forces or any attempt made with evil mind to cause any disobedience to lawful authority in the military or naval forces; and the statute should always be read in the light of the purpose of its enactment.

It is clear that an attempt to create disloyalty may be by showing a picture to the public, as well as by uttering speech or publishing a writing. The picture might be a truthful representation of an historical fact, and yet the nature of it, the circumstances surrounding the exhibition thereof, the time, the occasions when the public exhibitions are had, may well tend to show whether the picture would naturally, in the light of great events, be calculated to foment disloyalty or insubordination among the naval or military forces. In time of peace, a picture purporting to show incidents of a war fought more than a hundred years before, and exhibiting soldiers of . a foreign country bayoneting helpless American women and children, might arouse but ordinary interest. But, if it has come about that a war is being fought by the United States and in the war the cause of the United States is allied with that of the foreign country whose soldiers are pictured as murdering American women and children, and if, at the time the United States is enforcing draft laws and raising a large army and navy to fight the common enemy of the two allied countries, it seems but reasonable to say that the exhibition of such a picture is calculated to arouse antagonisms and to raise hatred in the minds of some who see it against the ally of the United States, and as a probable effect to put obstruction in the way of the necessary co-operation between the allied countries against the enemy, and to undermine an undivided •sentiment for the United States and to encourage disloyalty and refusal of duty or insubordination among the military and naval forces. Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. 247, 63 L. Ed. 470.

[2] Nor, in an attempt of the character indicated, is it necessary that the picture exhibited should actually be seen by soldiers and sailors already enlisted. Millions of men within the provisions of the conscription act and subject to call were in the military and naval forces throughout the country and were part of the public. The exhibition to the public at a public place, if given with the evil intent described, is sufficient. In Coldwell v. United States, 256 Fed. 805, — C. C. A. —, the Court of Appeals for the First Circuit considered an objection to an indictment wherein it did not appear that the persons whom the defendant was alleged to have addressed Were in the military or naval forces of the United States. The court said:

“The act makes it an offense to willfully ‘attempt to cause insubordination, disloyalty, mutiny or refusal of duty in the military or naval forces of the United States,’ or to ‘willfully obstruct the recruiting- or enlistment service of the United States,’ and its language is broad enough to include statements calculated to produce these results, when made in the presence of persons who aro not in the military or naval forces of the United States, provided they are willfully made and with the intent set out in the act.”

[3] The second count also charges a violation of the Espionage Act, in that it specifically alleges that the defendant, in the aid of the German Government, had control of and was willfully using the film as a means to violate section 3 of title 1 of the Act of June 15, 1917, c. 30, 40 Stat. 219 (Comp. St. 1918, § 10212c), the Espionage Act, in the manner as fully described in the first count of the indictment. The first count is referred to and drawn into the body of the second count by reference to the motion picture play “The Spirit of '76,” and it is charged that it was designed and intended for use and was used as the means of violating section 3 of title 1, Act of June 15, 1917, c. 30, and title 11, § 22 (Comp. St. 1918, §§ 10212c, 102121). When considered with the first count incorporated within It, we think the second count is sufficient.

We believe that the issues under the counts were properly for the jury, and, as the evidence upon which the verdict was predicated is not in the record, we must accept the verdict as sustained by the evidence.

The judgment is affirmed.