261 F. 172 | 8th Cir. | 1919
Error from conviction on two counts for violation of the Espionage Act of June 15, 1917 (40 Stat. 217, c. 30). The sentences were concurrent, except as to a fine assessed under the first count.
As to count 1, plaintiff in error contends, first, that the evidence was insufficient Upon the element of intent; and, second, that an exhibit (A) showing expenditures of the Red Cross was improperly admitted, because it was hearsay, and not the best evidence, not being a governmental publication.
As to count 2; the claims are, first, that there was no sufficient evidence of “obstruction” of the recruiting or enlistment service of the United States; and, second, that the evidence of those hearing the statement as to its effect upon them was improperly excluded.
There was sufficient evidence of intent to authorize submission on that point under count one. While the Red Cross is not itself within the term “military and naval forces,” as used in the statute, yet to cripple the Red Cross as operated in this war is to interfere with such forces. One effectual way of crippling the Red Cross is to destroy confidence in its administration, and thus reduce its income through the usual source of voluntary contributions. These statements of defendant were calculated to have that effect, would certainly do so if believed by those who heard them, and it was proper for the jury to say with what intent they were made.
As to count 2 the court erred in striking out the testimony of the witnesses who heard the remarks covered by this count. The statute does not make it a crime to intend to obstruct, or to attempt to obstruct, but to intentionally obstruct. Where the utterance is calculated to result in obstruction, and is uttered under conditions which would naturally so result, there is a presumption that such a result followed, but that presumption is rebuttable.
Without considering the other assignments, the judgment should be and is reversed.